Education & Religion

Different types of discrimination are prohibited under the Equal Status Acts, these include:

Direct discrimination

This is defined as the treatment of a person in a less favourable way than another person who is in a comparable situation, because they differ on any of the nine grounds described above. This is a difference which:

• exists;
• existed but no longer exists;
• may exist in the future; or
• is imputed to the person concerned (this occurs where a person is labelled as differing under the specified grounds even though this is not the case).

Discrimination by association

This occurs when a person who associates with another person is treated less favourably because that other person differs under any of the specified grounds.

Indirect discrimination

This happens where an apparently neutral provision, criterion or practice which appears unproblematic at first sight, puts a person who differs under any of the specified grounds at a particular disadvantage, compared with another person. This provision, criterion or practice will not amount to discrimination where it is demonstrated that:

1. the provision, criterion or practice is objectively justified by a legitimate aim; and
2. the means of achieving that aim are appropriate; and
3. the means of achieving that aim are necessary.

Procuring discrimination

It is an offence under the Equal Status Acts to procure or attempt to procure another person to engage in discrimination, harassment or sexual harassment.

Positive action

The Equal Status Acts allow for taking of positive measures (or preferential treatment) which are legitimately intended to:

• promote equality of opportunity for disadvantaged persons;
• cater for the special needs of persons, or a category of persons who because of their circumstances, may require facilities, arrangements, services or assistance.

In addition, the Equal Status Acts allow for the imposition of a reasonable preferential fee, charge or rate in respect of anything offered or provided in respect of families, married couples, older or younger persons, or persons with a disability.

Vicarious liability

Employers are liable for discriminatory acts of an employee in the course of his or her employment.

It is not a defence if the act was done without the employer’s knowledge or approval unless they can prove that they took reasonably practicable steps to prevent the conduct.

It is a defence if an employer can show that reasonable practicable steps were taken to prevent the employee from doing the act, or acts of that description.

Anything done by a person as agent for another person, with the authority (whether express or implied) of that other person shall be treated as if it was done by that other person.

Harassment and sexual harassment

Sexual harassment and harassment in the provision of goods and services is prohibited. A person (‘the harasser’) shall not harass or sexually harass another person (‘the victim’) who seeks to use goods or services provided by the harasser.

What is harassment and sexual harassment?

Harassment is any form of unwanted conduct related to any of the specified grounds. Sexual harassment is any form of unwanted verbal, nonverbal or physical conduct of a sexual nature.

In both cases, it is conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

In both cases, the unwanted conduct may include acts, requests, spoken words, gestures or the production, display or circulation of written words, emails and social media, text messages, pictures, or other material.

A person’s rejection of, or submission to, sexual or other harassment may not be used by any other person as a basis for a decision affecting that person.

Who is a responsible person?

A person who is responsible for the operation of any place where goods, facilities or services are offered to the public is defined as a ‘responsible person’.

The ‘responsible person’ must ensure that any person who has a right to be there, is not sexually harassed or harassed. It shall be a defence for the responsible person to prove that he or she took steps as are ‘reasonably practicable’ to prevent the sexual harassment or harassment for occurring.

Victimisation

It is victimisation if a person is threatened or treated badly because they make a complaint about discrimination in relation to the provision of goods and services. Victimisation is against the law.

For example, it is victimisation if you are threatened or treated badly because:

• you make a complaint of discrimination against a service provider;
• you have been involved in a discrimination case at the Workplace Relations Commission;
• you helped someone else to make a claim;
• you were involved as a witness in a discrimination case at the Workplace Relations Commission;
• you have taken a discrimination claim to court;
• you have told a service provider that you intend to do any of the things mentioned in this list.

Private schools that received no state support or funding

Primary and post-primary schools that receive no funding or support from the state and which have the objective to provide education in an environment which promotes certain values, can admit persons of a particular religious denomination in preference to another.

Minority religions

A minority religion is a religion that comprises of less than 10% of the total population.

Primary schools that receive any form of state support or funding cannot admit persons of a particular religious

denomination in preference to another. However, if oversubscription arises, primary schools may following an application by a student from a minority religion give priority to that student where the school is satisfied that

the student is a member of the minority religion and the school provides a programme of religious instruction/education which is the same, or similar to the minority religion concerned.

Primary or post-primary refusal based on religious ethos

Primary and post-primary schools which have the objective to provide education in an environment which promotes certain religious values can only refuse a student who is not of a particular religious denomination if the school can prove that the refusal is essential to maintain the ethos of the school.

Exemption on religion grounds

Institutions providing religious training to ministers of a particular religion may admit students of only one religious belief.

Scholarships and other assistance

The Equal Status Acts allow for universities, or higher level institutions to offer assistance to particular categories of persons, by way of sponsorships, scholarships, bursaries or other awards which are justifiable, having regard to traditional and historical considerations.

Foreign exchange

In relation to the allocation of places, universities or other higher-level institutions can select particular students to take part in exchanges with universities outside the jurisdiction.

Action required by or under law

A general exemption provides that nothing in the Equal Status Acts shall prohibit the taking of any action that is required under:

(a) statutory provision or court order;

(b) any act done or measure adopted by the EU; or

(c) any international treaty which imposes an obligation on the State.

Only actions that are mandatory are covered. Where the measure leaves some discretion the anti-discriminationn provisions do apply.

Certain nationals of other countries

Public authorities can treat certain nationals of other countries differently, on the basis of their nationality, who are outside the State or unlawfully present in it (for the purposes of the Immigration Act 2004) or in accordance with any provision or condition made by or under any enactment, and arising from his or her entry to or residence in the State.

Risk of criminal or disorderly conduct

A provider of goods or services, or a person providing accommodation or related services, can refuse a service or accommodation to a person if a reasonable individual, having the knowledge and experience of the provider, would form the belief that the provision of service or accommodation to

the customer would produce a substantial risk of criminal or disorderly conduct or behaviour, or damage to property in or around the area where the service or accommodation is provided.

Clinical judgment

Treating a person differently does not constitute discrimination where a person is treated differently solely in the exercise of a clinical judgement in connection with a diagnosis of illness or her/his medical treatment.

Capacity to enter into a contract

Treating a person differently does not constitute discrimination if a person is incapable of entering into an enforceable contract or, is incapable of giving informed consent and for that reason the treatment is reasonable.

Exemption on gender and religion grounds
Institutions providing religious training to ministers of a particular religion may admit students of only one gender or religious belief.

Private schools that received no state support or funding

Primary and post-primary schools that receive no funding or support from the state and which have the objective to provide education in an environment which promotes certain values, can admit persons of a particular religious denomination in preference to another.

Minority religions

A minority religion is a religion that comprises of less than 10% of the total population.

Primary schools that receive any form of state support or funding cannot admit persons of a particular religious

denomination in preference to another. However, if oversubscription arises, primary schools may following an application by a student from a minority religion give priority to that student where the school is satisfied that

the student is a member of the minority religion and the school provides a programme of religious instruction/education which is the same, or similar to the minority religion concerned.

Primary or post-primary refusal based on religious ethos

Primary and post-primary schools which have the objective to provide education in an environment which promotes certain religious values can only refuse a student who is not of a particular religious denomination if the school can prove that the refusal is essential to maintain the ethos of the school.

Exemption on religion grounds

Institutions providing religious training to ministers of a particular religion may admit students of only one religious belief.

Scholarships and other assistance

The Equal Status Acts allow for universities, or higher level institutions to offer assistance to particular categories of persons, by way of sponsorships, scholarships, bursaries or other awards which are justifiable, having regard to traditional and historical considerations.

Foreign exchange

In relation to the allocation of places, universities or other higher-level institutions can select particular students to take part in exchanges with universities outside the jurisdiction.

Action required by or under law

A general exemption provides that nothing in the Acts shall prohibit the taking of any action that is required under:

(a) statutory provision or court order;

(b) any act done or measure adopted by the EU; or

(c) any international treaty which imposes an obligation on the State.

Only actions that are mandatory are covered. Where the measure leaves some discretion the anti-discriminationn provisions do apply.

Certain nationals of other countries

Public authorities can treat certain nationals of other countries differently, on the basis of their nationality, who are outside the State or unlawfully present in it (for the purposes of the Immigration Act 2004) or in accordance with any provision or condition made by or under any enactment, and arising from his or her entry to or residence in the State.

Risk of criminal or disorderly conduct

A provider of goods or services, or a person providing accommodation or related services, can refuse a service or accommodation to a person if a reasonable individual, having the knowledge and experience of the provider, would form the belief that the provision of service or accommodation to

the customer would produce a substantial risk of criminal or disorderly conduct or behaviour, or damage to property in or around the area where the service or accommodation is provided.

Clinical judgment

Treating a person differently does not constitute discrimination where a person is treated differently solely in the exercise of a clinical judgement in connection with a diagnosis of illness or her/his medical treatment.

Capacity to enter into a contract

Treating a person differently does not constitute discrimination if a person is incapable of entering into an enforceable contract or, is incapable of giving informed consent and for that reason the treatment is reasonable.