Joe O'Toole (Independent)

Certainly on this issue, the Bill does not flow easily. I can see the sense behind what the Minister is trying to achieve, except for the phrase, "A difference of treatment which is based on a characteristic related to the gender ground," which the Minister might explain. In my understanding of equality legislation, no one could argue if an employer took a decision on the basis of:

(a) the characteristic constitutes a genuine and determining occupational requirement for the post, and

(b) the objective is legitimate and the requirement proportionate.

If that happens to exclude a woman, no one could argue that was discrimination on gender grounds. Like Senator Tuffy, I do not understand why it has to be written in this form as a gender issue. If someone took a case and said that because of a particular gender he or she believed he or she had been discriminated against and if the employer's response was on the basis of paragraphs (a) and (b) I think the case would not stand, and rightly so. Like Senator Tuffy I am not sure exactly what is being got at here.

If there was a strong lifting or reaching requirement and somebody did not physically measure up, whether a man or a woman, that could not be seen as constituting gender discrimination. If I am missing something I suspect it is around "A difference of treatment which is based on a characteristic related to the gender ground". The part I cannot understand is, "related to the gender ground". If we were to say something physical that referred to strength, would that automatically mean gender because men tend to be stronger than women? In all fairness, I do not have an objection to the issue. It is just that writing it down in this way seems be a backward move. It is not what the Minister is trying to achieve. It opens up an issue which it was unnecessary to touch. It does not add anything to the section.