Ivana Bacik (Independent) | Oireachtas source

It gives me great pleasure to introduce the Employment Equality (Amendment)(No. 2) Bill 2013. I welcome the Minister of State at the Department of Justice and Equality, Deputy Kathleen Lynch, and thank her for taking the Bill on behalf of the Government.

I also welcome to the Visitors Gallery representatives of many groups who have an interest in the Bill. They have campaigned for it for many years and are here to listen to the debate. Among them is the Gay and Lesbian Equality Network, GLEN, ICTU, the INTO and the Labour Party's lesbian, gay, bisexual and transgender group. Plenty of other groups will arrive shortly such as the Equality & Rights Alliance, the Equality Authority, LGBT Noise, BeLonG To, USI and OPEN. The ICCL is also represented here. There is a broad range of groups present. I welcome Deputy Aodhán Ó Ríordáin. It is always good to see Members of the other House attend. He has also campaigned for the Bill for a long time.

I am proud and delighted to introduce the Bill on behalf of the Seanad Labour Party group. My colleague, Senator Mary Moran, feels the same way and she will second the Bill. She is the Labour Party's education spokesperson in the Seanad. The Bill came from an initiative that I took along with Deputies Aodhán Ó Ríordáin, Ciara Conway, Dominic Hannigan and John Lyons. We believe that it is important and in line with long-standing Labour Party policy to bring forward legislation to change the current position as set out in section 37 of the Employment Equality Act 1998.

Most of the people present are well aware of section 37 and its provisions. It was amended by section 25 of the Equality Act 2004. Subsections (2) to (6) of the 1998 Act allow for certain exclusions of discrimination on particular grounds in certain employments, to allow differential treatment based on a characteristic related to a discriminatory ground where it constitutes a "genuine and determining occupational requirement" and where the objective of the differential treatment is legitimate and the requirement proportionate. However, section 37(1) of the 1998 Act is the contentious provision that today's Bill seeks to address. Section 37(1) currently provides that a specific exclusion of discrimination exists for religious, educational or medical institutions that are under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values.

It currently provides that a specific exclusion of discrimination exists for religious, educational or medical institutions which are under the direction or control of a body established for religious purposes, or whose objectives include provision of services in an environment which promotes certain religious values. That deals specifically with religious-run institutions, both educational and medical, and a third type which is religious.

The exclusion means that such institutions are not seen as discriminating if they give more favourable treatment on the religion ground to an employee or a prospective employee where reasonable to do so in order to maintain the religious ethos of that institution, or where they take action reasonably necessary to prevent an employee or prospective employee from undermining the religious ethos of the institution.

To put it bluntly, therefore, a Catholic Church-run school or hospital can currently discriminate against, refuse to hire or even dismiss a person from the lesbian, gay, bisexual and transgender, LGBT, community, for example, because their sexuality may be seen to offend against the religious ethos of a church that is intolerant and prejudiced against homosexuality. Similarly, a school or hospital run by a religious body or the Catholic Church can discriminate against a lone parent employee or prospective employee because of religious doctrine against non-marital relationships. This provision in section 37(1) has been subject to criticism from many individuals, including the groups represented in the Visitors Gallery and many others. They include the Human Rights Commission, ICTU and teaching unions. For years, unions and civil liberty groups have been calling for the repeal or amendment of the existing law. These calls have been supported by numerous groups, including the National Women's Council. It has been Labour Party policy for many years to address this matter.

Section 37 has been particularly criticised because it confirms a controversial decision of the High Court from the 1980s - the decision of Flynn v. Power from 1985 Irish Reports, usually referred to as the Eileen Flynn case. As the Minister of State is well aware, Eileen Flynn was fired from her job in August 1982. She had been a teacher in the Holy Faith Convent in New Ross, County Wexford. The reason for the dismissal was that she was pregnant but not married. On a very dark day for the courts, the dismissal was upheld by the High Court on the grounds that the Holy Faith order was entitled to take action, including this most severe action of dismissal, to prevent its ethos being undermined.

The continued existence of a provision allowing an opt-out from discrimination - effectively allowing and enshrining the principle in the Eileen Flynn case in statute - has created a chilling effect for LGBT employees, single parents or any others who work or would like to work within religious-run schools or hospitals, and who may be at risk of being seen to offend in some way the ethos of the religion concerned.

Given how much Irish society has changed in the last few decades, it is truly remarkable that people working in schools and hospitals, the vast majority of which still have a religious ethos, are in fear of such action being taken against them for having children outside marriage, being gay or even divorced. There is a range of reasons involved. We believe that the chilling effect must be challenged and the climate of fear must now be consigned to the dustbin of history.

Deputy Ó Ríordáin put it very well saying that, as a teacher, he knows only too well about the chilling effect section 37 can have on staff. People are afraid to be open about their private life among their peers. However, it has also denied many young LGBT people role models in their classrooms as it prevents teachers from being open about their sexual orientation. I know that Senator Moran will speak more about that practical impact.

Last week, we got the unanimous support of the Labour Parliamentary Party for the Bill. On Thursday, we published the Employment Equality (Amendment) (No. 2) Bill, which amends section 37(1). It significantly raises the bar which employers must reach if they wish to discriminate on the grounds of religious ethos. We hope the Bill will receive the support of all parties and I believe it will. The need to challenge homophobia is accepted across the political spectrum, including parties and Independents. I have been glad to receive support in principle from Senators Norris and Zappone in particular for this initiative.

Two years ago, the programme for Government stated that LGBT people should not be deterred from training or taking up employment as teachers in the State. Therefore, we believe that passing this legislation would represent a key programme for Government commitment. This is not just something that the Government parties believe. There have also been previous attempts by other parties to deal with this matter. I wish to pay tribute especially to Senator Averil Power on the Fianna Fáil benches who published a draft Bill last year seeking to amend section 37. Sinn Féin also published a similar Bill in recent weeks. I commend Senator Power because when she put the Bill forward it was important that the issue be kept alive on the political agenda. Had the Bill not been put to a vote, it would very likely have been developed further as Government legislation and I hope we will see that outcome from this debate.

While we should support all these efforts to amend the law and keep the issue alive, it is important that whatever legislation is introduced should cover all nine grounds of discrimination in the original Employment Equality Act. In addition to the grounds of sexuality or marital status, these include family status, disability and all the other grounds that are provided for. Our Bill will cover all the groupings and grounds of discrimination in the existing equality legislation.

I will now briefly address the Bill's content and what it seeks to do. Its key purpose is to protect individuals against discrimination in an appropriate and balanced way, while respecting religious freedoms. The proposed amendment of section 37(1) would offer protections to staff of religious-run medical and educational institutions to a far higher degree than at present, but it still allows the institutions to maintain their religious ethos. However, the Bill provides additional protections for employees or prospective employees where health or educational institutions are in receipt of State funding. That is a critical distinction to be made.

Both the Constitution - Bunreacht na hÉireann - and relevant EU law make it clear that a balance must be struck between individual rights and religious freedoms. The Bill seeks to recognise that balance, but also seeks to ensure that the private lives of teachers and health workers should never be used against them again.

The Bill is short, containing just three sections. Sections 1 and 3 are technical sections. Section 2 is the substance of the Bill providing for the amendment of section 37(1) of the 1998 Act and inserting a new section 37(1). The new section 37(1) would preserve the right of religious, educational or medical institutions to discriminate by giving more favourable treatment on the ground of religion to employees or by taking action described earlier to prevent employees from undermining the religious ethos of the institution. However, a new part of section 37(1) provides that where an educational or medical institution is State-funded, that institution cannot give more favourable treatment on religious grounds unless such treatment does not constitute discrimination under any of the other grounds; and the religion of the employee must be a genuine, legitimate and justified occupational requirement. It, therefore, sets the bar much higher in respect of favourable treatment on religious grounds.

Similarly, the Bill provides that a State-funded institution cannot take action to prevent the undermining of its ethos unless by reason of the employment itself or the context, the action taken is objectively justified by a legitimate aim and the means used are appropriate and necessary. A final provision in the new section 37(1) provides for a presumption of discrimination - in other words, an additional hurdle for a State-funded institution to get over if it seeks to justify any discrimination.

The drafting may appear somewhat complex or cumbersome and, indeed, the equality legislation is rather complex in its entirety. Frankly, however, the legislation is somewhat conservatively drafted. I would like to have gone further in the Bill, particularly in respect of the undermining of ethos provisions. We were advised, however, that EU Directive 78/2000 requires a somewhat more conservative approach. Article 4 of that directive gives protection to the right of churches to require individuals working for them to act with "loyalty to the organisation's ethos". I understand there is some suggestion that it requires a more conservative approach than is taken in the Bill. While it is radical in that it covers all the grounds of discrimination, I would personally favour a more robust approach to protect equality in the second aspect of the new section 37(1) which deals with the undermining of ethos. It is something that we could tease out on Committee Stage. I would welcome the input and comments from colleagues on both sides of the House on that particular issue. Once the Bill goes through Second Stage, it will have to be referred to the Attorney General and Parliamentary Counsel, so I hope we can see a more robust approach then.

I note that the Irish Council for Civil Liberties has described the Bill as creating a partial thaw in the chilling effect, but I hope it goes further than that. I think it creates significant additional hurdles for any religious-run school or hospital which seeks to justify discriminatory treatment. It would undoubtedly secure much greater protections for employees or prospective employees of such institutions. I am glad that members of the LGBT community, particularly in the teaching profession, have welcomed this measure. In addition, it has been welcomed in principle by the National Women's Council and trade unions.

I wish to pay tribute to the Minister for Education and Skills, Deputy Ruairí Quinn, who has already produced an action plan to tackle homophobic bullying, and Mr. Neil Ward in the Minister's office who has been very helpful on this issue. In addition, the Minister for Justice and Equality, Deputy Alan Shatter, and the Minister for Health, Deputy James Reilly, have made it clear that they are determined to see the commitment in the programme for Government fulfilled.

Sadly, Eileen Flynn passed away in 2008, without seeing an end to the legal discrimination she suffered. This Bill, however, will ensure that no teacher or health worker will suffer the same fate. I commend the Bill to the House.