Willie O'Dea (Limerick East, Fianna Fail)

This section replaces section 25 of the 1998 Act. Section 25(1) refers to discrimination against A in respect of employment in a particular post if the discrimination results from preferring B on the ground, that by reference to one or more of subsections (2) to (4) the sex of B amounts to an occupational qualification for the post in question. Subsection (2) states:

For the purposes of this section, the sex of B shall be taken to be an occupational qualification for a post where, on grounds of physiology (excluding physical strength or stamina) or on grounds of authenticity for the purpose of entertainment, the nature of the post requires

(a) a person of the same sex as B, and

(b) would be materially different if filled by a person of the same sex as A.

As I understand it, the new section is trying to narrow that exclusion and allow the matter to be determined on a case by case basis. The legislation is not saying a person can discriminate against taking on a person on the grounds that they are of a particular sex but if an employer says to a person who applies for a job what they want done and that it does not particularly suit a person of his or her sex, the person can take a case against the employer. The employer will be able to plead these grounds by way of defence. Whether the defence will stand up depends on the facts of each individual case.

Section 16 of the Bill replaces in its entirety section 25 of the Employment Equality Act. In accordance with article 2.6 of the Gender Equal Treatment in Employment Directive, member states may provide that in relation to access to employment or to training leading to employment, a difference in treatment based on a characteristic related to sex shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned, or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement provided that the objective is legitimate and the requirement is proportionate. There are many hurdles to overcome there.

The gender provisions of the Employment Equality Act do not contain an exclusion of this nature restricted to legitimate occupational activities, necessitating the employment of a person of a particular sex. Section 16 of the Bill remedies this by replicating article 26 of the directive. The blanket type exemptions provided in section 25 of the 1998 Act are not permitted by the directive. The wording of the new section 25 which is being inserted here follows exactly the wording of the directive. As suggested by Senator O'Toole, we will have another look at the wording to see whether it can be done more elegantly to avoid any possible misinterpretation that suggests we are going backwards. We are certainly moving forward. We are severely narrowing that exclusion in the 1998 Act by following exactly the words of the EU directive which obliges us to do so. If we can meet the requirements of the EU directive by using more acceptable language I am prepared to have a look at it.