Willie O'Dea (Limerick East, Fianna Fail)

I still argue that we are narrowing it. The original legislation was section 25 of the Employment Equality Act 1998. This was an excluding section. It excluded certain activity from the scope of the legislation. What we are doing here is replacing section 25 in its entirety with a section which excludes certain activity, in effect, the same activity, from the operation of the legislation. It is our intention, and I hope we have carried it into reality in the wording, to exclude it in a much narrower way. Section 16 of the Bill replaces in its entirety section 25 of the Employment Equality Act, permitting discrimination on the gender ground where a person's gender is an occupational qualification. Article 2.6 of the gender equal treatment in employment directive provides:

Member States may provide, as regards access to employment including the training leading thereto, that a difference of treatment which is 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.

Member states, then, 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 provided also that the requirement is proportionate. 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. In other words, to overcome the hurdle of getting within the exclusion there are new tests to be met.

Section 16 of the Bill remedies this by replicating Article 2.6 of the directive. The directive does not permit national legislation providing for the exclusion of posts of a certain nature in the manner provided for in section 25 of the 1998 Act. Instead, the directive permits only an exclusion restricted to selection for employment by reference to gender in certain circumstances, i.e. the nature of the particular post or the context in which it is carried out, and in certain conditions, i.e. that the requirement for a person of a particular gender is genuine and that the objective is legitimate and the requirement is proportionate.

The Bill will provide a higher level of protection from discrimination on the gender ground than heretofore by imposing strict tests on employers in each case where it is proposed to restrict recruitment to one or other gender.