Katherine Zappone (Independent) | Oireachtas source

I welcome the Minister of State, who is a great advocate for equality, to the House. I also welcome other colleagues and friends in the Visitors Gallery, including several Deputies from the Labour Party. I thank Senator Bacik and her party colleagues for their work on this Bill. Their collective effort, along with the support of other Senators, especially Senator Averil Power, who has shown leadership, empathy and perseverance, sends out a strong message that we cannot rest easy until section 37(1) of the Employment Equality Act is amended so that our teachers and health personnel do not live in fear for being who they are and because of the lack of adequate legal protection with regard to their private lives.

I welcome this legislation in that context but the question we must ask, as we analyse this Bill, is whether it offers them adequate protection. Are we absolutely convinced that, with this proposed legislation, the shadows hanging over lesbian, gay, bisexual and transgender employees, divorcees or single parents will dissipate? Can the Bill melt the chill factor for Irish employees within religious-run institutions that their private lives and the expression of those lives both within and outside the workplace will no longer put their job, career path or financial security at risk? Can the Minister of State and her Government colleagues assure such people of this? As it stands, I do not think they can. I have read and reread the Bill and note the drafter's attempts to put new restrictions upon the religious institutions' right to protect their ethos. I have also sought legal opinion but my conclusion is that these new restrictions are still not enough.

In order to offer an absolute assurance to Irish employees working within religious institutions that deliver public services, I proposed that it would be more effective to delete the existing subsection 37(1)(b). Why is this the case? The institutions' right to protect its religious ethos is adequately protected already in Irish law. Religious ethos is protected by sections 16, 25, 37(1) and 37(2) of the Employment Equality Act and by a number of other laws. Section 37(1)(a) allows an institution, under certain conditions, to give preference to members of its own faith for a job, promotion or particular duties. Sections 37(2) and 25 permit all employers to treat people differently where there is a genuine and necessary occupational requirement. These sections, coupled with the duties arising from the person's individual employment contract, are an adequate safeguard to the religious ethos of the institution. Why then would the State continue to insist that we need one more safeguard in the existing section 37(1)(b)? Is it genuinely required to protect the constitutional provisions on freedom of religion? Furthermore, if we asked the religious institutions today if they need this additional section to protect their ethos, would they insist that they do or might they be willing to allow it to slip quietly into the sunset because things have changed so much since the 1990s? Has the State asked the religious institutions this question?

I also believe that the offensive subsection should be deleted because although the Supreme Court found it to be compatible with the Constitution, it is by no means clear that the Constitution, as interpreted by the courts, requires an exception of this nature.

Does our Constitution require the additional protections of religious ethos found in section 37(1)(b)? The Constitution, as interpreted in 1996, might have allowed for an exception like this but by no means would the Constitution require it, and the court did not say that it was required.

With regard to the Bill, the drafters offer changes in how a religious institution protects its religious ethos, by providing additional protections to those who might be discriminated against in light of their identity. In section 37(1)(b) religious institutions can give preferential treatment to a prospective or actual employee on the religion groundwhere it is reasonable to do so in order to maintain the religious ethos of the institution. Subsection (i) says that in the use of preferential treatment, the institution cannot discriminate against an employee on "any of the other discriminatory grounds", such as sexual orientation, family status and so forth. It says that the religion or belief of the employee must be a genuine occupational requirement. This amendment seeks to clarify that preferential treatment cannot be used to smuggle in discrimination on another ground. This change in the law is a good one.

It is subsection (ii) that is problematic. Senator Power referred to this as well. This states that religious bodies are allowed to "take action" which is reasonably necessary to prevent an employee or prospective employee from undermining the organisation's ethos. This is too broad, and employees would still have something to fear. While the action taken by the religious body against the employee must be proportionate, this amendment means that a lesbian pregnant through assisted reproductive technology or an unmarried mother living with her children could still be discriminated against. While it may now be harder to invoke a sanction against an employee on the basis of her or his identity, it is still possible. My real concern is that the protection of religious ethos can extend beyond the ground of religion into an employee's private life and is not confined to what she or he says or does in the workplace. If I were teaching in a Catholic school, for example, and I always wore my wedding ring, and if one day one of my students asked me what the ring was for and I answered that it is my wedding ring to another woman, does this proposed amendment protect me from being discriminated against? Could the school authorities still legitimately take action against me? Married lesbians go against the Catholic religious ethos. Does my presence inside or outside the school as a married lesbian undermine the ethos? Does the test of proportionality protect me sufficiently, or is it still a little like the policy of "don't ask; don't tell"?

The addition of the proportionality test does not offer enough protection in practice. Somebody's private life is still relevant to whether he or she is a good employee or not but, as others have indicated, perhaps these are matters we can discuss at another point.