Discrimination in the workplace is unlawful under the Employment Equality Acts (“EEA”). This includes discrimination against prospective employees i.e. those applying for a job, as well as against existing employees who are applying for a promotion.
What is discrimination?
The EEA defines discrimination as treating someone less favourably than another person in a similar situation on the basis of one of the nine protected grounds.
The nine grounds are:
- Gender (male, female, transgender, pregnancy, or maternity leave)
- Civil status (single, married, separated, divorced, widowed or in a civil partnership)
- Family status (e.g. pregnant, parent or carer)
- Sexual orientation (heterosexual, homosexual or bisexual orientation)
- Age (generally for people aged 18 or over)
- Religious belief (including religious background and those who have no belief)
- Membership of the Traveller community
- Race (colour, nationality, ethnic or national origin)
- Disability (intellectual, mental or physical)
Less favourable treatment on the basis of any of these grounds is generally prohibited in relation to selection for a job, conditions of employment, training, promotion or re-grading, or classification of posts. (Classification means rating a job according to the tasks and level of responsibility it involves, such as managerial, supervisory or skilled operative level.)
For example, it may be unlawful for an employer to:
- Reject you for a job because of your race or sexual orientation
- Refuse you a promotion because of your gender or age
- Classify your job as unskilled because you have a learning disability
Defences an Employer may raise
In certain circumstances, an employer can raise a defence to a claim of discrimination when refusing to hire or promote you. This is when you:
- Will not perform the essential tasks of the job they need you to do, or
- Will not accept the conditions of work, or
- Are not fully competent and capable of doing the job, or
- Are not available to carry out all your duties because of the conditions you have to work in
Outside of these exceptions, an employer can be found to have discriminated against an employee or prospective employee if that person is treated less favourably by their employer on the basis of one of the protected characteristics noted above.
For instance, if a female employee is treated less favourably than her male colleague in relation to a promotion, this may be discrimination and is unlawful under the EEA. However, if that female employee in fact refuses to follow the requirements of her job, less favourable treatment of the employee on the basis of her performance will not, of itself, equal discrimination.
If you believe that you have been subjected to discrimination at the recruitment stage by a prospective employer, see our separate guide on the next steps to take “How to take a case to the WRC”.
If I have a disability, must an employer try to meet my needs?
Your employer must make ‘reasonable accommodation’ to enable you to carry out your job. This means taking practical steps (called ‘appropriate measures’) to adapt the workplace or working practices to your individual needs.
You have the right to ask for reasonable accommodation both at the recruitment stage and at work. The employer cannot refuse to consider you for a job, or refuse to keep you in it, if there are reasonable measures they could take to accommodate you. This requirement for reasonable accommodation helps to ensure that people with a disability can get a job, promotion and training.
What are examples of reasonable accommodation at the recruitment stage?
The specific types of measures taken to provide reasonable accommodation to an employee vary on a case- by- case basis – they have to respond to the individual’s needs.
In a recruitment context, appropriate measures might include:
Wheelchair access
You apply for a job that suits your qualifications in a large office. The employer does not offer you an interview because you use a wheelchair and there is no level access to the building. It is reasonable to ask the employer to fit a ramp. If they refuse, it may be discrimination on the ground of disability – unless the employer could show that fitting a ramp would be a “disproportionate burden”, see below.
Interview arrangements
If you worry that your hearing impairment may be a problem at a job interview, you can ask the employer in advance to arrange for an Irish Sign Language interpreter to accompany you. This would be an appropriate measure to ensure fair treatment at the interview.
Desk work
At your job interview, you tell the interviewer you have a spinal problem which means you cannot sit at a desk for long periods. Instead of rejecting you as unsuited to office work, the employer realises you could be just as productive if allowed to move from one work station to another or to stand at a raised desk. These simple measures could enable you to join the office team.
Can my employer refuse my request for reasonable accommodation?
The employer must at least consider your request. They must look at all possible options to accommodate you before deciding whether any are feasible. They can refuse only if the accommodations would be too burdensome, costly or impracticable.
What is a ‘disproportionate burden’?
Employers do not have to take measures to accommodate you if that would place a ‘disproportionate burden’ on them.
This means measures that would be impractical or too expensive. ‘Disproportion’ will vary from case to case, depending on factors such as:
- The cost of the measures (for example, adaptations or extra training)
- The size and financial resources of the employer
- Whether public funding might be available to help with the cost
For instance, the cost of fitting a wheelchair ramp or sound loop might be an enormous burden for a small convenience store but quite reasonable for a large department store.
For further information on reasonable accommodation, see our separate guide “EEA – Disability and Reasonable Accommodation”.