Equal Access to Fish and Chips: Irish Redress of Discrimination Under the Equal Status Act
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Equal Access to Fish and Chips:
Irish Redress of Discrimination Under
the Equal Status Act
Amma Nyarko Appiah*
I. INTRODUCTION
The Equal Status Act is a law that has been passed by the
Republic of Ireland in compliance with a European Union
(EU) directive to address discrimination and equal
employment within member states.1 The Equality Authority
is the administrative agency created to enforce this and other
employment laws.2 It is analogous to the Equal Employment
Opportunity Commission (EEOC) and the Civil Rights Act
of 1964 in the United States.3 A detailed comparison of the
two systems and the protections they afford citizens in civil
actions in Ireland and America provides insight into the
European Union and its member states. This is helpful,
particularly in light of the impact that membership is having
on member states’ sovereignty and domestic legislation.
This Note commences with a short description of the EU’s
creation, a discussion of EU directives, and the conflict
*
JD expected from New England School of Law, May, 2003.
The author is a 2000 graduate of the University of Richmond, with a
B.A. in Leadership Studies.
1
See Equal Status Act, 2000 (enacted April 26, 2000);
Presentation by Brian O’Byrne, Equality Officer, in Galway, Ireland
(July 6, 2001) [hereinafter Presentation by Brian O’Byrne] [on file
with the author].
2
Id.
3
See generally, Equal Employment Opportunity Commission
[hereinafter EEOC] website, available at
http://www.eeoc.gov/facts/qanda.html (last visited May 18, 2003).
549550 NEW ENG. J. INT’L & COMP. L. [Vol. 9:2
between Member States and EU sovereignty in Part I.4 The
collateral impacts that Ireland’s membership in the EU has
had aside from the influence on Irish law comprises Part II.5
A thorough discussion of the Equal Status Act and the
Equality Authority is also in this section. After this
examination of Irish law, a discussion of analogous
American law and enforcement agencies follows in Part III.6
American and Irish law and the ways in which they are
enforced and effect the rights given to citizens are discussed
in Part IV.7 Finally, Part V will be the author’s conclusion,
which is that although American law creates a greater
amount of civil rights, Irish law has legislation that is greater
in scope and enables the enforcement agencies greater
authority to enforce the rights which are available.8
II. EUROPEAN UNION
Complete understanding and appreciation of the
extraordinary breadth and potency of the Equal Status Act
and the Equality Authority as compared to the Civil Rights
Act of 1964 and the EEOC, respectively, warrant a concise
history of the European Union’s formation and structure
and the impact this has on the national sovereignty of
member states such as Ireland.
A. A Brief History of European Union Creation and
Organization
After World War II, the nations of Europe, feeling
insecure and vulnerable, decided to set up a means of
4
See infra, Part I, notes 9 to 44 and accompanying text.
5
See infra, Part II, notes 45 to 120 and accompanying text.
6
See infra, Part III, notes 121 to 169 and accompanying text.
7
See infra, Part IV, notes 170 to 285 and accompanying text.
8
See infra, Part V.2003] EQUAL ACCESS TO FISH AND CHIPS 551
unifying the continent.9 This could only be achieved
through some means that would minimize the differences
among the countries and force them to rely on their
collective strength. It was decided that the best way to
achieve this was through an economic coalition. The first
steps in this process were the creation of the Benelux
Union and the European Coal and Steel Community.10
The Treaty Establishing the European Economic
Community (EEC) was created. It originally united the six
countries of the continent; that number has since grown to
fifteen.11 The purpose of the European Community, now
the European Union, was economic benefit.12 Over the
course of forty years, the power and scope of the union has
transcended the original intent.13
What was once an economic and financial integration
of countries has now become a political and social one
comparable to the federal system of the United States.14
“The EU, similar to the U.S. federal government, is a
government of limited enumerated powers, able to take
only those actions over which the sovereign constituents
have agreed to limit the exercise of their individual rights
for the good of the whole.”15 The EU has a governing
body of four separate branches: the European
Commission; the Council of Ministers; the European
Parliament; and the European Court of Justice.16 The
9
Patrick Fitzmaurice, Note and Comment, Attorney General
v. X: A Lost Opportunity to Examine the Limits of European
Integration, 26 BROOK. J. INT’L. L. 1723, 1726 (2001).
10
See id. at 1726-27.
11
See id.
12
See id.
13
See id.
14
Fitzmaurice, supra note 9, at 1726-27.
15
See Fitzmaurice, supra note 9, at 1726-27.
16
Mary Jane Dundas, Barbara Crutchfield George & Jane
Elizabeth Hallas, The Transposal Processes of the EC Directives and552 NEW ENG. J. INT’L & COMP. L. [Vol. 9:2
Commission has the responsibility of enforcing the terms
and obligations of the Treaty of Rome.17 It also “generally
has the responsibility for initiation of regulations and
directives.”18 Members of this body must be neutral EU
citizens who do not answer to any national government or
interest.19 The Council is comprised of “ministers
representing the governments of the Member States” and
is a policy making body.20 In conjunction with the
Commission, the Council implements the rules it creates.21
The European Parliament also plays:
a substantial participatory role in the legislative process.
Specifically, in terms of foreign and security policy, the
Presidency of the Council is now obligated to ‘consult’ the
European Parliament and to ensure the views of the
European Parliament are ‘duly taken into consideration.’
Members of the European Parliament are elected by a direct
vote of the people.22
The Court of Justice is the judicial branch of the EU
and is “charged with ensuring that the law is observed in
the interpretation and application of the Treaty of
Rome.”23 Through treaties signed by member states, the
EU has the ability to regulate areas, or competencies, that
affect its member states.24 However, the member states
the U.S. Uniform Codes: A Comparative Analysis, 21 B.C. INT’L
COMP. L.REV. 43, 51-52 (1998).
17
Barbara Crutchfield George, Paul L. Frantz, & Jutta
Birmele, Article, The Dilemma of The European Union: Balancing
the Power of the Supranational EU Entity Against the Sovereignty of
Its Independent Member Nations, 9 PACE INT’L L. REV. 111, 119-20
(1997).
18
See id.
19
Id. at 119.
20
See George, Frantz, & Birmele, supra note 17, at 120.
21
Id.
22
Id. at 120- 21.
23
Id. at 121.
24
See Fitzmaurice, supra note 9.2003] EQUAL ACCESS TO FISH AND CHIPS 553
create communal law through primary and secondary
mechanisms of treaties and directives, respectively.25
Treaties govern the behavior of all the member states with
respect to their membership in the union, the union’s
structure, and its hierarchy.26 Directives, on the other
hand, govern the behavior of each member state with
respect to its own citizens and their rights as EU citizens.27
This ensures that each nation can tailor the implementation
of directives into national legislation for the benefit of its
citizenry.28
B. European Union Directives
Directives are implemented through guidelines set by
the EU.29 The EU sets time limits for the completion of
implementation.30 Certain directives are very specific
about the type of action sought or the wording of the
legislation.31 In these instances, the member state is
restricted in its implementation based on the limits set by
the EU.32 Several reasons can be given for a member
states’ failure to implement a directive. For example,
“missing the implementation period laid down by the
Community, inadequate implementation of the scope of
the directive, and an outright failure to implement the
25
See Dundas, George & Hallas, supra note 16, at 48.
26
Id. at 45.
27
Id. “While regulations are binding in their entirety and
directly applicable in all Members states, directives are binding only
as to the result to be achieved, upon each Member state to which it is
addressed, but leave to the national authorities the choice of form and
methods.” See id.
28
See Dundas, George & Hallas, supra note 16.
29
See id.
30
See id.
31
See id.
32
See id.554 NEW ENG. J. INT’L & COMP. L. [Vol. 9:2
directive at all.”33 The consequence of such a failure is a
breach of the member state’s membership treaty
obligations.34 Directives which have not been
implemented according to time constraints, or which have
not met requirements set by the EU, have force of law
against Member States in legal actions commenced by
citizens of those states once the directives’ time period for
implementation has expired.35
C. National Sovereignty of European Union Member
States
In forming the European Union, the fifteen member
nations were aware that they would have to subjugate their
national sovereignty to the empowerment of the nascent
entity they were creating.36 Like its member states, the EU
is sovereign.37 However, its authority to legislate as
derived from its founding treaties is limited to “areas of
strong community competence such as external trade,
33
Dundas, George & Hallas, supra note 16.
34
Id. at 54.
35
See id. at 56. “Furthermore, once the time limit for
implementation of the directive has passed, the directive will no
longer be conditional on the Member State implementing it into
domestic legislation. It appears, therefore, that an individual wishing
to pursue his or her rights under a directive will not be able to do so
until the implementation period has expired.” Id.
36
See Fitzmaurice, supra note 9.
37
Id. at 1729. “The EU must be classified as a sovereign
entity. In its areas of competence it has complete authority to
legislate, and its acts are binding on the Member States.
Additionally, Member State citizens are able to assert claims based on
EU law against national governments. Finally, the EU represents
itself, and therefore the Member States at various international
conferences.” Id.2003] EQUAL ACCESS TO FISH AND CHIPS 555
agriculture and competition policy.”38 In the early stages
of its existence, the EU could create legislation only
“strictly concerned with the formation or strengthening of
the economic community.”39
For several reasons, the scope of legislative action has
expanded beyond that which is solely economic in
nature.40 The EU’s legislative arm encompasses organs
such as the European Court of Justice, which has the sole
power to “review directives and regulations in order to
determine their constitutionality under principles of
national law.”41 The court has used its powers to expand
the breadth and reach of EU legislation.42 The court has
precedence over the decisions of national courts, but only
over claims and legal actions that are legislated by EU
38
Youri Devuyst, The European Union’s Constitutional
Order? Between Community Method and Ad Hoc Compromise, 18
BERKELEY. J. INT’L LAW 1, 41 (2000).
39
See Fitzmaurice, supra note 9, at 1730.
40
Id. at 1730-32. The Treaty on European Union (TEU)
enabled this change. “Additionally, the TEU continued the trend of
granting new competencies to the Union, by including an explicit
authorization to act in areas of education, public health, and
vocational training. Finally, the TEU seeks to give the Union the
opportunity to ‘contribute to the flowering of the cultures of the
Member States.’” Id. at 1734.
41
See Fitzmaurice, supra note 9, at 1738.
42
Id. at 1732. “The Court of Justice, therefore, can be said to
have accelerated the process of European integration through its
expansive reading of the founding treaties and the [EU’s] ability to
legislate under them. For instance, the Court has declared that Union
law is supreme to national law, even though the treaties themselves
do not contain a supremacy clause. The Court has also read the
treaties so that they contain a doctrine of implied powers similar to
that found in the United States Constitution by Chief Justice John
Marshall in McCulloch v. Maryland. [17 U.S. (4 Wheat.) 316
(1819).] The doctrine of implied powers along with the attempt to
link Community action with economic integration, were the two key
avenues for the consolidation of power during the early years of the
Community.” See id. at 1732-33.556 NEW ENG. J. INT’L & COMP. L. [Vol. 9:2
treaty or directives.43 Another means of legislative control
is the use of treaties such as the Treaty of Rome, which
“created, for the first time, a supra-national organization in
which member states agreed to cede large degrees of
national sovereignty to an international organization.”44
III. EQUAL STATUS ACT AND THE EQUALITY AUTHORITY
A. Irish Membership in the EU
Ireland’s membership in the European Union has been
a bane as well as a boon.45 In the last five years the Irish
economy has grown tremendously and it is expected to
continue at that rate for the next ten years.46 Ireland, as
one of the smallest and poorest members, has greatly
benefited from the economic strength of the collective
body of member states.47 “Sparked by high-technology
industries, Ireland has experienced an eight to nine percent
annual increase in its gross domestic product, compared
to less than two and a half percent increase experienced by
a majority of the world’s major economies.”48 However,
43
See Fitzmaurice, supra note 9, at 1732.
44
Teresa Nicholson, Student Comment, European Abortion
Law: An Analysis and Comparison of Abortion Law in the European
Union and the United States, 24 CUMB. L. REV. 573, 576 (1993).
45
See David O’Connor, Note, Limiting “Public Morality”
Exceptions To Free Movement In Europe: Ireland’s Role In A
Changing European Union, 22 BROOK. J. INT’L. L. 695, 695 (1997).
“Ireland’s membership in the European Union (EU) has been a boon
to the nation, yet membership has its concessions. In Ireland, and
indeed in all Member States, the tensions between domestic law and
EU-wide law have been hotly debated….” Id.
46
See Mark C. Rogers, Note: The Asylum Process in Ireland:
A Reflection of Racist and Xenophobic Sentiments?, 23 SUFFOLK
TRANSNAT’L L. REV. 539, 549 (2000).
47
See O’Connor, supra note 45.
48
See Rogers, supra note 46.2003] EQUAL ACCESS TO FISH AND CHIPS 557
“[i]ncreasingly, this economic and political union has
asserted its influence over social policies in the Member
States, and this sway is disproportionately felt in the
smaller, poorer Member States of the EU.”49 This has
taken the form of directives aimed at harmonizing the
social policies of the member states in tangentially
economic capacities, such as employment.50
B. Membership Has Its Privileges
Ireland joined the EU in 1973.51 The legal, social,
religious, and economic impact of this decision has been
rapid and extensive.52 The Irish economy has improved
dramatically because the EU buttressed its economy with
its collective strength.53 As a member of the European
Union, Ireland has to meet the requirements of the treaties
which govern membership, and must implement directives
into national law.54 As a result of the Treaty of Rome,
Member States were required to create national legislation
49
See O’Connor, supra note 45, at 696.
50
Id. at 715. Under Article 2 of the TEU, Member States are
committed to “establishing a common market and an economic and
monetary union . . . to promote throughout the Community a
harmonious and balanced development of economic activities,
sustainable and non-inflationary growth respecting the environment, a
high degree of convergence of economic performance, a high level of
employment and of social protection, the raising of the standard of
living and quality of life, and economic and social cohesion and
solidarity among Member States.” See id. at 714-15.
51
See O’Connor, supra note 45, at 699.
52
Id. at 698. “While [Ireland] appreciates and could hardly
subsist without the economic benefits bestowed upon it by virtue of
its membership in the EU, the concomitant social tide of change
brought from increased contact with the continent has fundamentally
and permanently changed the historical conservatism and Catholicism
of Ireland.” Id.
53
See O’Connor, supra note 45, at 696.
54
See Fitzmaurice, supra note 9, at 1730.558 NEW ENG. J. INT’L & COMP. L. [Vol. 9:2
to address discrimination in employment and public
access.55
The 1957 treaty required all Member States to ensure
that there was equal pay for equal work.56 Since the
government of Ireland failed to implement the treaty
requirement and a later directive to the same effect in a
timely manner, they requested an extension for the
implementation of the directive.57 The original directive
required that the national legislation cover four categories
of discrimination, but the legislation enacted by the Irish
government covers nine categories, more than any other
national legislation or the original directive.58 The
consequent legislation, the Equal Status Act,59 is
implemented through the Equality Authority.60
C. The Equal Status Act
The Equal Status Act, enacted by the Irish legislature
in its 2000 session, provides redress for discrimination in
“employment, vocational training, advertising, collective
agreements, the provision of goods and services and other
opportunities to which the public generally have access on
nine distinct grounds.”61 The preamble of the Equal Status
Act states its purpose as:
an act to promote equality and prohibit types of
discrimination, harassment and related behaviour in
55
Presentation by Bryan O’Byrne, supra note 1.
56
See id.
57
See id.
58
See id.
59
See Part III, infra notes 121 to 169 and accompanying text.
60
Lisa Waddington, Reassessing the Employment of People
with Disabilities in Europe: From Quotas to Anti-Discrimination
Laws, 18 COMP. LAB. L.J. 62, 92-93 (1996).
61
Equality Authority website, available at
www.oasis.gov.ie/appeals/equality_authority.html.en (last visited
May 18, 2003).2003] EQUAL ACCESS TO FISH AND CHIPS 559
connection with the provision of services, property and
other opportunities to which the public generally or a
section of the public has access, to provide for investigating
and remedying certain discrimination and other unlawful
activities, to provide for the administration by the Equality
Authority of various matters pertaining to this Act, to
amend the Employment Equality Act, 1998, in relation
thereto and in certain other respects and to provide for
related matters.62
The act prohibits discrimination with respect to disability,
family status, marital status, religion, sexual orientation,
membership in the Traveller community, age, race,
gender, and victimisation.63
Discrimination is defined as when: (i) “a person is
treated less favourably than another person is, has been or
would be treated” based on any of the nine grounds
aforementioned; (ii) “a person who is associated with
another person is treated, by virtue of that association, less
favourably than a person who is not so associated is, has
been or would be treated”; (iii) when a service provider
requires someone to comply with a requirement that a
person is unable to comply with, but with which people
outside the category are able to; and (iv) “the obligation to
comply with the condition cannot be justified as being
reasonable in all the circumstances of the case.”64
Each ground of discrimination is defined by the Equal
Status Act, including membership in the Traveller
community which is defined as “the community of people
who are commonly called Travellers and who are
identified (both by themselves and others) as people with a
shared history, culture and traditions including,
historically, a nomadic way of life on the island of
62
Equal Status Act, supra, note 1.
63
See id. at PT.I.S.3.
64
Id. at PT.I.S.2-3.560 NEW ENG. J. INT’L & COMP. L. [Vol. 9:2
Ireland.”65
All institutions subject to this Act must endeavor to
accommodate the disabled. Accommodation for the
disabled is required to the extent that it does not require
more than a “nominal cost.”66
The Act protects those who file complaints from
retaliatory acts. The victimization category applies to
anyone who has instituted a discrimination complaint in a
proceeding or hearing, has been a witness in such a
setting, an opponent of discrimination in practice, or a
potential complainant of ongoing or past discrimination
who has suffered retaliatory action as a consequence.67
The Equal Status Act gives three conditions under
which certain types of conduct will not be considered
discriminatory.68 The first is with regard to age. “Treating
a person who has not attained the age of 18 years less
favourably [sic] or more favourably [sic] than another,
whatever that other person’s age, shall not be regarded as
discrimination on the age ground.”69 The second is on the
basis of accommodation for the disabled. The Act requires
that employers accommodate the disabled, unless it would
require more than a nominal cost. This requirement would
also be excused if the “refusal or failure to provide the
special treatment or facilities” is due to another provision
in the Act.70 The third, also in regard to disability status,
provides in relevant part that “[w]here a person has a
disability that, in the circumstances, could cause harm to
the person or to others, treating the person differently to
the extent reasonably necessary to prevent such harm does
65
Id. at PT.I.S.3.
66
Id. at PT.I.S.3; see O’Connor, supra note 45.
66
See Waddington, supra note 60.
67
See Equal Status Act, supra note 1, at PT.I.S.3.
68
Id.
69
See id.
70
See id.2003] EQUAL ACCESS TO FISH AND CHIPS 561
not constitute discrimination.”71 The Act also makes
provisions for situations in which equal treatment is
impractical, unreasonable, or would require disrespect of
tradition or legal requirements set in other statutes.72
The scope of the Act encompasses an extraordinarily
wide range of activities, institutions, and situations both
public and private, without much distinction. The Equal
Status Act redresses discrimination in the execution of
wills, educational establishments admission standards,
clubs, advertising, housing, real estate transactions,
vehicle equipment, and other categories previously
discussed.73 The enforcement of the provisions of the Act
is delegated to the Equality Authority and the Director of
Equality Investigations.74
D. The Equality Authority
The powers of enforcement granted to the Equality
Authority and the Director of Equality Investigations are
awesome in scope and breadth of discretion. Formerly the
Employment Equality Authority, which could only redress
discrimination based on sex and marital status, the
Equality Authority handles cases that arise under the nine
classes covered by the Equal Status Act of 2000, and the
Employment Equality Act of 1998.75 In order to
commence an action against an employer or service
provider, the complainant must first “notify the respondent
[discriminating party] within two months of the alleged act
of discrimination, and inform them that they intend
71
See id.
72
See supra note 59.
73
Equal Status Act, supra, note 1 at PT.I.S.4.
74
See id.
75
Carol Coulter, Authority Plans to Promote Equality
Policies, THE IRISH TIMES, March 2, 2000, at 9.562 NEW ENG. J. INT’L & COMP. L. [Vol. 9:2
referring a complaint to the Director of Equality
investigations.”76 If it is not feasible to comply with this
time constraint, the complainant can request an extension
of up to four months in order to fulfill the notice
requirement.77 In the notification, the complainant must
stipulate to “the nature of the allegation,” the intent “if not
satisfied with the respondent’s response to the allegation,
to seek redress by referring the case to the Director.”78
Additionally, the complainant may, “in that notification,
with a view to assisting the complainant in deciding
whether to refer the case to the Director, question the
respondent in writing so as to obtain material information
and the respondent may, if the respondent wishes, reply to
any such questions.”79 These written questions, by
provision of the Act, are in reference to the respondent’s
reasons for acting or not acting in a certain way, the
respondent’s treatment of people similarly situated to the
complainant, or anything else reasonable to ask.80 Once
this has been done, the complainant may file a complaint
with the Director within six months “of the occurrence of
the act of discrimination,” or of the last occurrence if there
is more than one instance.81 The Director has the
discretion to extend this to twelve months if it is
requested.82 An investigation of the case will only
commence after the notification requirement has been
satisfied and the respondent has had a month to answer the
notification.83 If it is determined that the case may best be
76
See Office of the Director of Equality Investigations,
available at www.odei.ie/Overview.htm (last visited on May 18,
2003) [hereinafter ODEI website].
77
See Equal Status Act, supra note 1 at PT.III.S.21.
78
Id. at PT.III.S.21(b).
79
Id.
80
See id.
81
See Equal Status Act, supra note 1 at PT.III.S.21(6).
82
Id.
83
See id.2003] EQUAL ACCESS TO FISH AND CHIPS 563
resolved through mediation, then “the Director shall refer
the case for mediation to an equality mediation officer.”84
If mediation is used to resolve a case, the following
mediation conditions are set forth by the Act;85 (i) the
mediation must be private;86 (ii) there must be a “written
record of the terms of the settlement” which must be
signed by both parties; (iii) “a copy of the written record”
signed by both parties must be sent to both parties; and
(iv) a copy of the written record must be “retained by the
Director.”87 If the complainant does not agree to
mediation or the equality mediation officer determines that
mediation cannot be used to solve the case, then the
officer must “issue a notice to that effect to the
complainant and the respondent.”88 “Within 28 days from
the issue of that notice the complainant makes an
application to the Director for the resumption of the
hearing of the case.”89 The Director must then commence
a private investigation into the circumstances of the case,
interviewing relevant witnesses and persons, and
examining the veracity of each allegation in the claim,
response of the respondent, and the fulfillment of all other
requirements for a case including timely notification,
response by respondent and filing by the complainant.90
The Director, upon the completion of the investigation,
“may draw such inferences, if any, as seem appropriate”
from his or her findings.91 Based on the results of the
investigation, the Director may require that the aggrieved
party be financially compensated (the highest possible
84
See id. at PT.III.S.24(1).
85
Id.
86
Id.
87
Id.
88
Id.
89
Id.
90
See Equal Status Act, supra note 1 at PT.III.S.25.
91
Id.564 NEW ENG. J. INT’L & COMP. L. [Vol. 9:2
amount being whatever the district court could award
under civil contract cases), or require a specific act of
redress.92 The pronouncement may “include a statement of
the reasons” for the decision, but must be in writing, with
copies provided to both parties, and a duplicate retained
by the office of the Director, and published.93 Either of the
parties may appeal to the circuit court within forty-two
days of the Director’s decision.94 The decision of the
circuit court may be appealed to the high court only if
there is an issue as to the circuit court’s application or
interpretation of the law.95 If it is determined that the
complaint would best be resolved through mediation, then
the case will be assigned to an equality mediation officer
who must examine the results of the investigation, and
work with both parties to reach a satisfactory settlement.96
The officer will make a recommendation for settlement or
litigation which the parties can accept or reject.97 The
case can then be taken to the labor or circuit court.98 The
costs of legal representation and court costs are borne by
the Equality Authority, but if independent legal counsel is
utilized, the parties have to pay for it themselves, because
neither the Equality Authority nor the Equal Status Act
can award costs.99
This procedure differs somewhat with respect to
gender cases and cases of sexual harassment, where the
Director and the court are enabled by statute to grant
higher monetary awards.100 Cases involving gender
discrimination and unequal treatment due to gender go
92
See Equal Status Act supra note 1, at PT.III.S.27.
93
See id.
94
Id.
95
Id.
96
See O’Connor, supra note 45.
97
See id.
98
See id.
99
See id.
100
See id.2003] EQUAL ACCESS TO FISH AND CHIPS 565
directly to the circuit court, but the court can only award
up to three years of back pay for discrimination in
employment and two years for unequal treatment.101 The
maximum amount of damages that can be awarded in these
two types of cases cannot exceed £30, 000 (Irish).102 The
basis of the determination of damages is the salary earned
by the person discriminated against.103 The judgment is
publicized within ten working days.104 For settlements in
these types of cases, there are no limits, but there is also
no publicity, no costs awarded, and no testimony by the
employees.105 This differs from other types of cases under
the Act, as other cases can be taken to court, but only as
tort actions, and not under the Act.106
In advertising cases, the advertising company and the
person or group responsible for the advertisement are
liable.107 Similarly, employers can bear vicarious liability
for the conduct of employees and customers if they fail to
stop discriminatory conduct or practices they observe, or
which are brought to their attention.108 In all cases, once
an allegation of discrimination has been proven, the
burden of proof shifts to the employer to prove that
discrimination did not occur.109 The circuit court can
compel compliance of decisions by the court or the
Director.110
The powers granted to the Equality Authority and the
Director of Equality Investigations extend beyond
101
See O’Connor, supra note 45.
102
See id. at 699.
103
See id.
104
See id.
105
See id.
106
See O’Connor, supra note 45.
107
Id.
108
See id.
109
See id.
110
See Equal Status Act, supra note 1, at PT.III.S.31.566 NEW ENG. J. INT’L & COMP. L. [Vol. 9:2
investigating and mediating discrimination cases. If the
Equality Authority perceives that discrimination is
occurring against a person who has not filed a claim, the
Authority can refer the case to the Director for
investigation.111 The Authority can also investigate
discrimination sua sponte in clubs and other
establishments without a complaint being filed first.112
The Equality Authority can review organizational policy
for conformity with the Equal Status Act and “carry out
research on existing inequalities and develop codes of
practice on sexual and other forms of harassment and on
recruitment.”113 These “[e]quality reviews would audit the
situation in relation to equality within an organization and
identify strategies to improve them.”114 Additionally, the
Authority’s “roles of enforcement and development” will
require the “provision of information and advice on the
legislation.”115 The Authority also endeavors to undertake
positive action as provided for in the Equal Status Act.116
Positive action entails redress of discriminatory
behavior or practices through a policy that may institute
further or new officially sanctioned discriminatory
conduct.117 As stated in the Act, such conduct can only be
in an effort to eliminate current discriminatory practice
such as a policy of hiring more females than males in an
organization in which there is a predominance of males.118
Although the Equal Status Act prohibits quotas, it allows
discrimination for the purpose of creating positive
111
Id. at PT.III.S.23. It will go through the same process as
above for a claim by a complainant. Id.
112
See Equal Status Act supra note 1, at PT.III.S.23.
113
See Coulter, supra note 75, at 9.
114
Id.
115
See id.
116
See id.
117
See ODEI website, supra note 76; see also Equal Status
Act, supra note 1, at PT.II.S.15.
118
Id.2003] EQUAL ACCESS TO FISH AND CHIPS 567
action,119 in the following areas: cosmetic services;
insurance; religious goods and services; sporting events;
for reasons of privacy or embarrassment; in the promotion
of special groups or events; in drama and entertainment; in
adoption and fostering situations; and in wills, gifts and
trusts.120 Positive action is analogous to affirmative action
in the United States.121
A discussion of American law will foster a
comparative analysis with the law of Irish rights. Although
the extent of American legislation which encompasses
civil rights law is vast, the one most similar to the Irish
legislation discussed in this Note is Title VII of the Civil
Rights Act of 1964.
IV. THE CIVIL RIGHTS ACT OF 1964, TITLE VII
AND THE EEOC
A. Civil Rights Act of 1964
In the United States, the process of addressing
discrimination in employment and other aspects of society
were undertaken by Congress through a plethora of
statutory schemes: the Civil Rights Act of 1964, the Equal
Pay Act of 1963, the Age Discrimination in Employment
Act of 1967, the Americans with Disabilities Act of 1990,
and the Civil Rights Act of 1990, among others.122
Discrimination in “hiring and firing; compensation,
assignment, or classification of employees; transfer,
119
Id.
120
See id.
121
A comparative analysis of positive action in Ireland and
affirmative action (or positive discrimination as the Irish call it) in the
United States will be undertaken in Part IV, infra, notes 170 to 285
and accompanying text.
122
See EEOC website, supra note 3.568 NEW ENG. J. INT’L & COMP. L. [Vol. 9:2
promotion, layoff, or recall; job advertisements;
recruitment; testing; use of company facilities; training
and apprenticeship programs; fringe benefits; pay,
retirement plans, and disability leave; or other terms and
conditions of employment” are prohibited by these federal
statutes.123 Other forms of discrimination included under
these statutes are: harassment; retaliatory measures for
reporting, abetting the investigation of, or opposing
discriminatory conduct; decision-making based on
stereotypes or assumptions based on the prohibited
grounds; denial of employment as a consequence of
marital status or association with a member of the
protected class; and denial of employment as a
consequence of participation in or attendance of a specific
religious or educational events or such groups associations
with the protected class.124 The most comprehensive of all
of these is the Civil Rights Act of 1964.125 Of greatest
import to this Note is Title VII of the Civil Rights Act of
1964, which is a complicated piece of legislation that
reaches discrimination based on national origin, color, sex,
race and religion.126 Title VII prohibits “not only
intentional discrimination, but also practices that have the
effect of discrimination against individuals” because of
their protected status.127
National origin discrimination under Title VII is
comprised of discrimination based on “birthplace,
ancestry, culture, or linguistic characteristics common to a
specific ethnic group.”128 Requiring employees to only
speak English in the workplace falls under this type of
123
Id.
124
Id.
125
MARK A. ROTHSTEIN & LANCE LIEBMAN, EMPLOYMENT
LAW: CASES AND MATERIALS 63-69, 223-228 (1998).
126
JOHN C. JEFFRIES, JR. & PAMELA S. KARLAN, ET AL., CIVIL
RIGHTS ACTIONS: ENFORCING THE CONSTITUTION 569 (2000).
127
See EEOC website, supra note 3.
128
Id.2003] EQUAL ACCESS TO FISH AND CHIPS 569
discrimination unless such a requirement is necessary for
the job, and even then, the employer is required to explain
to the employees “when English is required and the
consequences for violating the rule.”129
Religious discrimination is addressed in terms of an
accommodation standard. The employer must make an
effort to “reasonably accommodate the religious belief of
an employee or prospective employee, unless doing so
would impose an undue hardship.”130 This category is
afforded greater protection in other legislation and through
constitutional guarantees. With respect to the employment
setting, however, the level of protection is minimal.131
Title VII provides a broad definition of sex
discrimination. The conduct covered under this category
include express demands for sexual favors, and workplace
conditions which result in an environment hostile to
employees of “either gender, including same sex
harassment.”132 This category also includes any
discrimination based on pregnancy, childbirth, and related
medical conditions, and stipulates that pregnancy and like
medical conditions must be treated the same as all other
“temporary illnesses or conditions.”133
Title VII reaches “all private employers, state and local
governments, and education institutions that employ 15 or
more individuals” as well as “private employment
agencies, labor organizations, and joint labor management
committees controlling apprenticeship and training.”134
129
See id.
130
Id.
131
See generally Tucker v. California Dept. of Education, 97
F.3d 1204 (9th Cir. 1996).
132
Id. The ‘hostile environment’ standard also applies to
harassment on the bases of race, color, national origin, religion, age,
and disability. Id.
133
See EEOC website, supra, note 3.
134
See id.570 NEW ENG. J. INT’L & COMP. L. [Vol. 9:2
There are “various exceptions and special provisions for
employment practices such as seniority systems, tests, and
affirmative action plans.”135 In order to pursue a civil
action in the courts, all administrative remedies must be
exhausted.136 “Compensatory damages are not available
and the parties are not entitled to a jury trial in a pure Title
VII case.”137 Available remedies under this statute consist
of injunctions, and the awarding of back pay.138 The Civil
Rights Act of 1991 has changed some of the provisions
and remedial schemes of Title VII.139
B. The Equal Employment Opportunity Commission
The Equal Employment Opportunity Commission
(EEOC) was created by Congress as an enforcement and
regulatory body of the Civil Rights Act of 1964.140 Title
VII of the Civil Rights Act of 1964 specifically created
this agency for the purpose of ensuring compliance with
the provisions of the Civil Rights Act of 1964 and for the
promulgation of regulations that would give guidance to
persons and agencies required to adhere to the provisions
of the Civil Rights Act of 1964.141 The agency has six
135
See JEFFRIES & KARLAN, supra note 126.
136
See id.
137
Id.
138
Id.
139
See Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat.
1074 (codified at 42 U.S.C. § 200e-2 (1994)).
140
Knowledge, Understanding Key to Combating Racism,
THE IRISH TIMES, Nov. 18, 2000, at 10.
141
See Brenda D. DiLuigi, Note, The Notari Alternative: a
Better Approach to the Square-Peg-Round-Hole Problem Found in
Reverse Discrimination Cases, 64 BROOKLYN L. REV. 353, 357
(1998). The new federal agency was charged with the task of
ensuring “that all individuals are given an evenhanded opportunity for
employment and promotion on the basis of ability and qualification,
without regard to race, color, sex, religion or national origin.” Id.2003] EQUAL ACCESS TO FISH AND CHIPS 571
members, five commissioners, and a general counsel, who
are chosen by the president of the United States and
confirmed by the Senate.142 A Chair and Vice-Chair are
chosen by the President, with the Chair as the chief
executive officer of the agency.143 The EEOC has the
“authority to establish equal employment policy and to
approve litigation.”144
The procedure for filing and processing a charge under
Title VII is administered by the EEOC. A charge of
discrimination can be filed by anyone whose rights have
been violated under the federal laws administered by the
agency.145 Not only the person discriminated against, but
also an “individual, organization, or agency may file a
charge on behalf of another person in order to protect the
aggrieved person’s identity.”146 This can be done either in
person at an EEOC office or by mail by providing the
complainant’s name, address, and telephone number; the
respondent employer’s name, address and telephone
number, and number of employees; a synopsis of the
violation and the date(s) of the event(s) in question.147 For
Title VII purposes, the complainant must file with the
EEOC before filing a private cause of action in the
courts.148 The complainant may “request a notice of ‘right
to sue’ from the EEOC 180 days after the charge was first
filed with the Commission, and may then bring suit within
90 days after receiving this notice.”149 The alleged
The legislative history expressed a clear intent to provide minorities
with increased employment. Id.
142
See EEOC website, supra, note 3.
143
Id.
144
See id.
145
See id.
146
See id.
147
See EEOC website, supra note 3.
148
See id.
149
Id.572 NEW ENG. J. INT’L & COMP. L. [Vol. 9:2
violation must be filed within 180 days after its
occurrence, but this time limit can be extended to 300 days
if the violation also falls under a state or local anti-
discrimination statute.150 Once the charge has been filed,
the respondent organization, union, agency, or employer is
given notice.151 If it is determined by the EEOC that the
charge is a legitimate complaint of a violation, then the
case is “assigned for priority investigation.”152 If the facts
of the case do not appear to give credence to the
legitimacy of a violation having been committed, then the
case is “assigned for follow up investigation to determine
whether it is likely that a violation has occurred.”153 The
EEOC will commence an investigation and in so doing
will request information from both parties, interview
people and review documents, visit the site of the alleged
violation, and upon completion discuss findings with one
or both parties as is deemed necessary.154 At any time, if
the parties agree, EEOC can help them to settle the case.155
If the EEOC determines that the case is an appropriate one
for mediation, then upon consent of both parties, the case
will be mediated in privacy.156 Such a course of action will
obviate the need for an investigation, but if unsuccessful,
an investigation will ensue.157
Charges can be dismissed if the EEOC determines at
the initial filing that the charges have no merit or if such a
determination is reached after the investigation and the
evidence is insufficient to sustain the charges.158 If the
150
Id. Federal claims of discrimination have a different
procedure, which is irrelevant for the purposes of this Note.
151
See EEOC website, supra note 3.
152
See id.
153
Id.
154
See EEOC website, supra note 3.
155
Id.
156
See id.
157
See id.
158
See id.2003] EQUAL ACCESS TO FISH AND CHIPS 573
charges are dismissed, the complainant must be issued a
notice stating thus and the dismissal of charges will be
explained to the filing party.159 The notice will take the
case out of the administrative process, and grant the
complainant 90 days in which to pursue a private cause of
action for discrimination in the courts.160
If after an investigation the EEOC finds that the
evidence does support a charge of discrimination, it can
conciliate or sue on behalf of the charging party.161 Once
there is a finding that the charges have merit, the parties
are informed through a letter of determination, which
explains the finding.162 Conciliation is done with the
employer in an attempt to find a solution for the
discrimination.163 Neither the charging party nor the
EEOC can go to court unless the case is unsuccessfully
mediated, settled, or conciliated, or if the latter procedure
leads to a remedy which is not honored.164
If conciliation fails, the EEOC decides whether to file
suit on the complainant’s behalf, and if it decides not to
sue, then the complainant gets a “notice closing the case
and giving the charging party 90 days in which to file a
lawsuit on his or her behalf.”165 If the charges are against
a state or local government or public agency, the United
States Department of Justice pursues the charges in federal
court.166
Remedial measures vary depending on the provisions of
the federal statute under which a cause of action is pursued.
For discrimination, this includes, but is not limited to, “back
159
See EEOC website, supra note 3.
160
Id.
161
See id.
162
See id.
163
See id.
164
See EEOC website, supra note 3.
165
Id.
166
See id.574 NEW ENG. J. INT’L & COMP. L. [Vol. 9:2
pay, hiring, promotion, reinstatement, front pay, reasonable
accommodation, or other actions that will make the
individual ‘whole.’”167 For certain types of discrimination,
such as race, it is also possible to receive “attorney’s fees,
expert witness fees, and court costs.” Compensatory and
punitive damages will also be awarded where it is shown that
the discrimination was intentional, or that the respondent
party acted with “malice or reckless indifference.”168
Punitive damages are never awarded in cases where the
respondent party is the federal, state, or local government.169
Other remedies may require the offending party to give
notice to employees of the “violation of a specific charge,”
and to advise them of their rights, and the protections
afforded them against retaliatory measures; or the employer
may be required to take “corrective or preventative
measures” to curtail the conduct in violation of federal ant-
discriminatory law, and minimize future recurrences of
violations.170
167
Id.
168
Id.
169
Id. Historically, it has been held by American courts that
to allow punitive damage awards against the government at any level
would be violative of public policy. The theory behind this reasoning
is that the government is funded by the people, but that each
government official acts on behalf of the people who elected him or
her. Therefore, unless the behavior in question is particularly
egregious or misrepresentative of the intent of the people, that
official’s conduct should be viewed as favorably as possible as
comporting with the demands of that position and as meeting the
demands of public office. Allowing punitive damages undermines the
discretion and general authority granted to public officials and forces
the people to pay for the conduct of their public officials.
Additionally, such conduct could bankrupt the coiffures of
governmental treasuries, leaving no funds with which to meet the
needs of the American people. See generally ROTHSTEIN & LIEBMAN,
supra note 125.
170
Id.2003] EQUAL ACCESS TO FISH AND CHIPS 575
V. COMPARATIVE ANALYSIS OF THE EQUAL STATUS ACT,
AS ENFORCED BY THE EQUALITY AUTHORITY;
AND TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS
ENFORCED BY THE EEOC
The Equal Status Act resembles Title VII of the
Civil Rights Act of 1964 in scope, subject matter, and
enforcement. The purpose of the two pieces of legislation
is to eliminate discrimination, but the history that
prompted them, and the means used to accomplish that
purpose are vastly divergent.
A. Title VII & Equal Status Act: Similar Legislative
Purpose, But No Similarity in Historical Origins of
Discrimination Redressed
President Johnson passed the Civil Rights Act of
1964.171 This legislation faced an uphill battle in Congress,
but through the concerted efforts of the President and
several dedicated Congressmen, it got through the House
of Representatives, and barely through the Senate, where it
nearly failed after a Virginia Senator insisted on adding
sex as a new category to be protected under the act.172
171
See DiLuigi, supra note 141, at 356; See also ROTHSTEIN
& LIEBMAN, supra note 125.
172
See CHARLES & BARBARA WHALEN, THE LONGEST
DEBATE: A LEGISLATIVE HISTORY OF THE 1964 CIVIL RIGHTS ACT
229 (1985). In signing the Bill into law, President Johnson stated that
we believe that all men are created equal, yet many are
denied equal treatment. We believe that all men have certain
inalienable rights yet many Americans do not enjoy those
rights. We believe that all men are entitled to the blessings
of liberty, yet millions are being deprived of those blessings,
not because of their own failures but because of the color of
their skin…. But it cannot continue. Our Constitution, the576 NEW ENG. J. INT’L & COMP. L. [Vol. 9:2
All legislation reflects, in some respect, the time
period in which it was passed and this one is no different.
The Civil Rights Act of 1964 was drafted and passed at
the height of the Civil Rights movement,173 which must
have had a considerably impact on the drafting, passing,
and ultimate outcome of the legislation.174 Prior to the late
1960s, not every American citizen had the privilege of
using the courts for the resolution of disputes or for
redressing wrongs.175 The greatest challenge faced by
foundation of our Republic, forbids it. The principles of our
freedom forbid it. Morality forbids it. And the law I will
sign tonight forbids it.
Id. at 227.
173
Barclay D. Beery, From Aspiration to Arrogance and
Back: The Once and Future Role of “Equal Employment
Opportunity” Under Title VII, 34 VAL. U. L. REV. 435, 441 n.20
(2000). The genesis of the Civil Rights movement has been depicted
as originating with the 1954 decision of the United States Supreme
Court in Brown v. Board of Education. Id. See Carl E. Brody, Jr., A
Historical Review of Affirmative Action and the Interpretation of its
Legislative Intent by the Supreme Court, 29 AKRON L. REV. 291, 301
(1996). From 1954 to 1978, the federal government not only examined
the “overall effect [of] centuries of discrimination” on African American
employment and employment opportunity, but it also looked at “existent
discrimination” in an effort to redress racial discrimination. This
examination would lead the government to the conclusion that new
legislation as well as remedial programs were necessary to alleviate the
barriers African Americans faced in employment. Id.
174
See Beery, supra note 173, at 449. Out of response to the
pressure exerted by the leaders of the Civil Rights movement, “political
leaders attempted to persuade the broader public of the need for change”.
Id. President Truman studied civil rights abuses and “attempted to
initiate a civil rights program which included comprehensive
antidiscrimination legislation.” Id. After the civil rights march on
Birmingham, Alabama, President Kennedy spoke publicly about the “the
national ideal of equality and the oppression experienced by so many
because of their color.” Id.
175
See Tessa Gorman, Comment, Back on the Chain Gang:
Why the Eighth Amendment and the History of Slavery Proscribe the2003] EQUAL ACCESS TO FISH AND CHIPS 577
African Americans was not even the exclusion from the
judicial system, but the use of that very system as a tool of
oppression.176 After the Civil War, when African
Americans were supposedly no longer slaves, the
conditions under which they existed were no better, and at
times far worse than slavery.177 Those who were
Resurgence of Chain Gangs, 85 CALIF. L. REV. 441, 447-48 (1997).
For most African Americans who lived in the United States after the
Civil War,
the transition from bondage to freedom was more theoretical
than real, and life for African-Americans ‘was punctuated
with reminders that ‘freedom’ was essentially a change in
form rather than in substance.’ Although slavery ended in
1865, the various mechanisms for race control, including
statutes and court decisions, as well as the underlying
rationales for the law of slavery, continued to influence
Southern law: ‘the slave codes of the ante-bellum period
were the basis of the black codes of 1865-66 and later were
resurrected as the segregation statutes of the period after
1877.
Id.
176
Id. at 450. “Colored men are convicted in magistrates’ courts
of trivial offenses, such as alleged violation of contract or something of
the kind, and are given purposely heavy sentences with alternate fines.
Plantation owners and others in search of labour, who have already given
their orders to the officers of the law, are promptly notified that some
available labourers are theirs to command and immediately appear to pay
the fine and release the convict from [jail] only to make him a slave.” Id.
177
See Benno C. Schmidt, Jr., Principle and Prejudice: The
Supreme Court and Race in the Progressive Era (pt. 2: The Peonage
Cases), 82 COLUM. L. REV. 646, 653 (1982). Frederick Douglass
compared conditions for African Americans before slavery and after
they had been given their freedom; he saw no difference: “The
workshop denies him work, and the inn denies him shelter; the ballot-
box a fair vote, and the jury-box a fair trial. He has ceased to be a
slave of an individual, but has in some sense become the slave of
society. He may not now be bought and sold like a beast in the578 NEW ENG. J. INT’L & COMP. L. [Vol. 9:2
courageous enough to attempt redress through the courts
were not assured that the court would admit the case,
provide an opportunity to present a case, or even fairly
adjudicate the case on the merits without regard to the race
or color of the petitioners.178 When it was possible to bring
a case to the courts, the availability of counsel, financial
resources, and the requisite knowledge and wherewithal to
even present a credible case was often a significant
difficulty, despite Constitutional protections and
guarantees to the contrary.179 Even after petitioners were
able to surmount these obstacles, an even greater one
precluded access to justice: the judiciary itself.180 All
market, but he is the trammeled victim of a prejudice.” Beery, supra
note 173, at 441.
178
See Gorman, supra note 175, at 450. It was simply
impossible to get justice or even access to the courts in “an unequal
justice system in which a black person could never successfully
challenge a white person’s word.” Id. There were no African
American lawyers, judges, jurors, in the legal system or anywhere
else, who could ensure justice for African Americans; nor was there
representation in the political system that could lobby or speak for the
interests of African Americans. Stephen B. Bright, Symposium,
Judicial Review and Judicial Independence: Can Judicial
Independence be Attained in the South? Overcoming History,
Elections and Misperceptions About the Role of the Judiciary, 14 GA.
ST. U.L. REV. 817, 822, 829, 843 (1998).
179
The Federal Constitution gives every American citizen the
right to utilize the courts for the settling of disputes and redress of
wrongs. It also provides each citizen the right to counsel and
whatever meager means the government can provide to ensure equal
access to the courts, irrespective of wealth, education, race, sex, etc.
See U. S. CONST. amend. XIV (effective 1868); U.S. CONST. amend.
V (effective 1868); U.S. CONST. amend. XVI (effective 1868); See
also Gideon v. Wainwright, 372 U.S. 335 (1963) and Powell v. State
of Alabama, 287 U.S. 45 (1932) and their progeny.
180
See Bright, supra note 178, at 833. “On the great legal and
moral issue of racial equality, the state courts stood in the way of justice
instead of ordering it. See also Robert Jerome Glennon, The
Jurisdictional Legacy of the Civil Rights Movement, 61 TENN. L. REV.2003] EQUAL ACCESS TO FISH AND CHIPS 579
white judges and juries carried out justice based on the
race of the victims, irrespective of the dictates of the
actual law or case precedent.181 After all, at the time these
constitutional guarantees were drafted, there was no intent
to include African Americans or women in the inclusive
breadth of the language contained in the Constitution; it
was only later that congressional action extended these
protections to traditionally excluded groups.182 These
governmentally legitimized practices183 resulted in two
sets of American citizens: those who could avail
themselves of all the rights and protections of citizenship
in their entirety, and those who could not. African
Americans were thus relegated to second class
citizenship.184
Indeed, African Americans lived under a different set
of laws than white Americans.185 Jim Crow laws ensured
that African Americans were restricted not only with
respect to their access to the courts but also in every other
aspect of life that white Americans took for granted:
869, 970 (1994). “Southern state judges were unmistakably hostile to
constitutional claims of African-American litigants.” Id.
181
Bright, supra note 178, at 817.
182
One of the mechanisms utilized to achieve this was the
Civil Rights Act of 1964.
183
Beery, supra note 173, at 451 n.48. President Truman stated
to Congress in 1948 that not “all groups enjoy the full privileges of
citizenship and participation in the Government under which they live,”
and stressed that they had to act to ensure that everyone had “equal
opportunities for jobs, for homes, for education, for health, and for
political expression, and until all our people have equal protection under
the law.” Id.
184
See Beery, supra note 173 at 449 n.44.
185
While African Americans could not avail themselves of
the courts for redress of grievances, they were often the victims of a
legal system used for political and personal purposes. State courts
provided them no protections, and that same “legal system usually
failed to punish whites who engaged in violence against African-
Americans.” Bright, supra note 178, at 818-19.You can also read
