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CoSO response to the Single Equality Bill Consultation Document

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					          CoSO Response
  to the Single Equality Bill (SEB)
      Consultation Document,
Equality Unit, Office of First Minister
      and Deputy First Minister



                          August 2001




CoSO response to SEB CD                 1
CoSO response to the Single Equality Bill (SEB)
Consultation Document
A: Introduction
CoSO welcomes this opportunity to respond to the Consultative Document and looks
forward to further opportunities to engage in dialogue with OFMDFM and the
Equality Commission on the sexual orientation (SO) and wider aspects of the SEB.

There has been a remarkable change in attitudes and in public policy towards
equality irrespective of sexual orientation over the past 3 years. In that time, the
Northern Ireland Act has acknowledged sexual orientation as one of the section 75
categories, partly in consequence of an equivalent acknowledgement in the Belfast
Agreement. At the level of the EU, Article 13 of the Treaty of Rome amended at
Amsterdam provides power to legislate against discrimination on grounds of sexual
orientation, leading to the Framework Employment Equality Directive 2000 (FEED),
some 6 months after the enactment of the Race and Ethnic Origin Directive 2000
(REOD). While both directives are to be largely implemented by 2003, CoSO would
wish to see the SEB move well beyond the bare minimum requirements of the
directives, bringing together aspects of regional, national, EU and international
experience. So also, the EU Charter of Fundamental Rights includes sexual
orientation in its non-discrimination clause, giving non-discrimination on grounds of
sexual orientation an all-pervading significance across EU law.

It is also significant in this regard that the last 3 years have also seen the European
Court of Human Rights acknowledge the rights of lesbians, gays and bisexuals
(LGBs) both in relation to Article 8 of the European Convention of Human Rights
(ECHR) on the right to privacy1 and also as „other status‟ in the non-discrimination
clause in Article 14 ECHR,2 a conclusion of significance also in relation to the
interpretation of Protocol 12 ECHR and Article E of the Revised European Social
Charter.3      More locally, whatever political significance might be given to
developments in the Republic of Ireland, it is indisputable that that jurisdiction has
brought into operation two comprehensive equality acts, the Employment Equality
Act and the Equal Status Act, the former extending employment equality, and the
latter equality in provision of goods, facilities and services, to cover sexual
orientation. CoSO has not had the opportunity during this consultative process to
examine in sufficient detail the precise provisions of the EEA or ESA or to consult
with LGB groups in the Republic of Ireland. However, it is anxious that the Irish
experience of a comprehensive equality regime, including sexual orientation, is fully
considered in the drafting of the SEB and calls upon the OFMDFM and Equality
Commission to liase closely with the Equality Authority on these issues, particularly in
relation to SO matters.

Finally, it appears non-contentious, at least according to the Equality Working Group
of the Human Rights Commission and hopefully the Commission itself, that

1
 Smith and Grady v UK [12999] IRLR 734.
2
  Salgueiro da Silva Mouta v Portugal, 33290/96, 21 December 1999 (2000) 94 Equal
Opportunties Review 41.
3
  Neither of these international instruments has been ratified by the UK. The Republic of
Ireland has ratified in RESC.


CoSO response to SEB CD                                                                2
protection against discrimination on grounds of sexual orientation should be included
in a Bill of Rights for Northern Ireland. Indeed, the Commission has adopted a wide
ranging set of recommendations based on a report prepared by the Human Rights
and Equality Centre of the University of Ulster, including provision for protection
against discrimination on grounds of sexual orientation.4

It is in this climate that CoSO responds confidently to the Consultative Document.
We have sight of an earlier draft of the response of the Committee on the
Administration of Justice (CAJ).       We would wish to support and adopt the
submissions of the CAJ, to which frequent reference is made, in solidarity with other
members of the Equality Coalition. Although CoSO is self-evidently concerned with
issues of sexual orientation, it endorses the need for a strong equality act governing
a wide range of equality issues, first, as recognition of the diversity of multi-identity
but, secondly, as a force for social inclusion on the basis of mutual respect and
human dignity. In this regard, CoSO commences its response by setting out a range
of underlying principles of particular concern to LGBs but of universal significance to
all citizens of Northern Ireland, particularly those in any categories which suffer
disadvantage and discrimination.

B: Underlying principles
Equality must be articulated within the SEB as a positive, proactive concept. It
should embody a commitment to the prevention of discrimination and the promotion
of those who have suffered disadvantage as a result of existing institutional bias in
our society.

There must be no hierarchy of inequality. The SEB must treat each of the listed
categories of people of differing age, from different races, of different sexual
orientation etc. as equal. The core principles of scope, coverage and enforcement,
both in terms of structure and content, must ensure that there is “equality of the
inequalities‟.

The SEB will harmonise existing anti-discrimination legislation in Northern Ireland
and incorporate the REOD and the FEED into domestic legislation. At every point
along the drafting process there must be “harmonisation upwards”, that is the
application of „best practice‟ (particularly the FEETO model) across the SEB. CoSO
notes that both Directives lay down minimum requirements, thus giving Member
States the options of introducing or maintaining more favourable positions.
Furthermore, CoSO concurs with the statement within both Directives that
implementation, „shall, under no circumstances constitute grounds for a reduction in
the level of protection against discrimination already afforded by Member States‟.

Any discussions therefore about reductions in the levels of protection existing
currently within Northern Ireland are, under the terms of the Directives irrelevant, in
that such moves would be unlawful.5 The fair employment regime is generally the
most advanced equality regime in the UK, although aspects of gender equality have
4
 See generally Feenan D et al, Enhancing the Rights of Lesbian, Gay and Bisexual people in
Northern Ireland, Northern Ireland Human Rights Commission, 2001.
5
  For further discussion on this point see CAJ, “Response by the Committee on the Administration of
Justice to the Initial Consultation by the Office of the First Minister and Deputy First Minister on A Single
Equality Bill for Northern Ireland.”




CoSO response to SEB CD                                                                                   3
been enhanced by vigorous interpretation of EU gender equality law by the European
Court of Justice. Particularly in relation to institutional and enforcement matters,
where the fair employment regime is at its strongest, CoSO wants to see the
extension of that regime to all categories of inequality.

The SEB will be drafted within the developing equality discourse. The statutory
equality duty and proposed Bill of Rights will act as crucial points of reference. CoSO
notes that sexual orientation is included as a category of people deserving protection
from unfair treatment under the statutory equality duty and also that sexual
orientation will be a category of people protected under the anti-discrimination
clause of the proposed Bill of Rights. CoSO also notes that both David Trimble, in his
capacity as First Minister, and Denis Haughey, in his capacity as Junior Equality
Minister, have made public commitments that sexual orientation will be included as a
category for protection under the new SEB.

CoSO believes that the SEB should embrace a definition of equality which recognises
difference and resists a definition which implies that people should be treated the
same in every situation. The SEB must also recognise the complex reality of people‟s
identity, encompassing as it does many facets of their lives and experiences.
Layered discrimination suffered as a result multi-identity must be a disadvantage
which the Act can recognise and remedy.

CoSO believes that the SEB must make manifest a diagnostic approach to
recognising/acknowledging direct/indirect discrimination and providing for
„reasonable accommodation‟. There is no single template for discovering and
resolving direct/indirect discrimination. Formulating practical, tangible strategies for
achieving equality will require a close assessment of the particular disadvantage
affecting each of the covered groups. This diagnostic approach would include a
combination of monitoring, assessment and consultation with all relevant parties,
and should be accompanied by statutory duty provisions which embrace positive
action. A diagnostic approach is the most effective means of revealing where
inequality is an issue and where positive action is appropriate.

The SEB must embrace a sophisticated anti-discrimination regime which allows for
imaginative facilitation of those who employers/organisations which want to pursue a
positive inclusive approach. There must also be maximum pressure on other
employers/organisations to do so. In particular, a crucial underlying principle must
be that an equality regime is directed towards protecting the most vulnerable
members of society whether at work or in the wider society. Therefore not only
must there be meaningful concepts, there must also be an institutional and
enforcement structure which appreciates that individuals are unlikely to be able to
enforce their „rights‟ without innovative processes to assist them. In particular, it is
most unlikely that many LGBS will be in a position to enforce their rights on an
individual basis at all.

The past three decades of anti-discrimination law have focused on equality as
equality of opportunity. This focus has not resulted in substantial or lasting change
for those targeted by this legislation, because it fails to recognise the underlying
structures which maintain inequality and which create barriers to access
opportunities. In contrast, an understanding of equality as equality of outcome
recognises that equality measures are only as real as the substantial, tangible
change they produce and support. The anti-discrimination legislation process is only


CoSO response to SEB CD                                                               4
a means to an end, not the end in itself. The goals must be equality of outcome,
which has the potential for affecting real change as it pays attention to the wider
processes of social exclusion and legacies of discrimination. CoSO believes that
there must be facilitation of positive measures to promote and achieve equality of
outcome.

C: Coverage
The Single Equality Bill must extend its coverage to all of the nine Section 75
categories. Although extension of equality provisions on the grounds of marital and
dependant status is not explicitly called for by either EU directives, the inclusion of all
Section 75 grounds in the Single Equality Bill is necessary if Northern Ireland is to
put forward coherent and consistent equality legislation. Furthermore, CoSO
recommends that the provision on marital status be expanded to include protection
for single people. Although discrimination against single people will frequently be
indirect discrimination on grounds of sexual orientation, CoSO believes that the
intricacies of proving ID in such circumstances would be avoided if single status was
included within marital status.

An important reason for this extension of coverage to include SO and other
categories can be seen in the latent and multiple ways inequality operates. This
manifests itself in two ways. First, there is the experience of layered discrimination
as a result of multi-identity. For example a person may experience discrimination as
a result of being a woman and being a lesbian. Secondly, indirect discrimination
shows us how active discrimination on one ground can act as a cover for
discriminating on another ground, such as the example above concerning
discrimination against single people. Thus forms of discrimination are often linked
and function together to exclude sectors of our society from full participation.

If an equal value is placed on ensuring an equivalent level of protection for everyone
in Northern Ireland, the SEB must take an integrated, harmonised approach to
discrimination. An important part of this harmonised approach will be the inclusion of
legal provisions specifically aimed at multiple-discrimination and multiple
disadvantage.

CoSO recognises the need for a full and reflective definition of the categories of
people to be protected under the sexual orientation category within the SEB. Such a
definition must be clear and inclusive and predicated on the concept of consent.
CoSO would wish to enter into further discussions with the OFMDFM and the Equality
Commission on an appropriate definition of „sexual orientation‟ and does not propose
to suggest a definitive definition at this stage.

Two further points on coverage must be made at this stage. The term „sexual
orientation‟ is initially intended to cover LGBs. In this regard, CoSO does not purport
to respond specifically on behalf of trans people, except to the extent that they are
themselves LGB. Although the term „sex‟ in the SDO now incorporates „gender
reassignment‟, there is a range of issues for trans people which relate to „gender
identity‟ encompassing gender reassignment but also many other issues. For
example, many transvestites are straight and have no intention of entering into
gender reassignment. Nonetheless, the discrimination which they encounter is
clearly related to their gender identity. In these circumstances, CoSO proposes that
the definition of „sex‟ within the SEB should include reference to „gender identity‟.


CoSO response to SEB CD                                                                  5
The second point concerns diversity with the LGB communities. Possibly in some DD
situations but more frequently in relation to ID and any possible „reasonable
accommodation‟ cases, there may be distinctions between the impact of a practice or
policy on different categories of LGBs, for example a policy in relation to family rights
may be more likely to discriminate indirectly against lesbians than gay men. A policy
on certain types of offences may have disproportionate impact on gay men but not
lesbians. As with the definition of „racial groups‟ in the RRO, it is necessary to have
further discussions with CoSO about the possibility of defining „sexual orientation‟ to
include certain groups with a similar orientation, such as lesbians, gay men and
bisexuals, in order that certain examples of ID can be effectively contested.

CoSO supports the inclusion of „other status‟ to catch unforeseen situations, thus
allowing expansion and adaptation of the legislation. This would bring the SEB in line
with Article 14 and Protocol 12 of the European Convention on Human Rights and
the Human Rights Act of 1998. Given that LGBs have recently gained the benefit of
a progressive interpretation of Article 14 ECHR, CoSO supports an "other status"
provision which permits individuals from groups not listed to make their case to
appropriate authorities in the future. CoSO notes that an „other‟ status provision is
particularly important because of its ability to extend provisions to other identifiable,
marginalised groups who are not specifically mentioned in the coverage provisions.

Furthermore “other status” allows the courts to develop discrimination law in
response to social mores. What is meant by “other status” should be enumerated
further in the Codes of Practice of the SEB, allowing more time to consider the
intricacies of the extension of coverage to other areas of particular concern to
Northern Ireland, including nomadism, ex-prisoners, and socio-economic status.

D: Scope
CoSO welcomes the implementation of FEED within the SEB. However it notes that
the Directive extends only to employment, unlike the REOD, which extends
protection with regard to education and “access to the supply of goods and services
which are available to the public, including housing”, but also “social protection,
including social security and healthcare and social advantages”. At present the Fair
Employment and Equal Treatment Order (FEETO), Sex Discrimination (NI) Order
(SDO), Race Relations (NI) Order (RRO), Disability Discrimination Act (DDA) extend
to coverage of goods, facilities and services and education.

CoSO is adamant that, in order to maintain „equality of the inequalities‟, the SEB
must include universal protection from discrimination with regard to employment and
with regard to the provision of goods, facilities, services (including public services),
education and also the social welfare system. There are workable definitions of
these situations in the relevant legislation and in EU law and CoSO is generally happy
to see these applied to all equality categories.


E: Exemptions
CoSO believes that any exemptions to the provisions in the SEB must be kept to a
minimum. CoSO believes that all current exemptions be re-examined for the
purpose of the SEB. Furthermore CoSO notes that the two EU Directives set down


CoSO response to SEB CD                                                                6
the maximum scope of exemptions, but do not require that all available exemptions
be incorporated into national legislation.

Positive Action Exemptions

CoSO is of the opinion that a clear distinction should be made between the
exemptions allowing discrimination and measures fostering positive action. Action
aimed at remedying disadvantage should be framed as equality measures rather
than permitted forms of discrimination or positive discrimination. It does not
advance the aim of equality to refer to positive measures in the negative language of
exemptions. CoSO believes that the SEB must include provisions specifically
legalising measures designed to remedy disadvantage and promote equality of
outcome.6

Genuine Organisational Qualifications (GOQs)

CoSO recognises that there may be occasions when Genuine Organisational
Qualifications (GOQ) may be necessarily used by various organisations. Although
GOQ is used henceforth in this response, CoSO is clearly encompassing within its
approach any genuine requirements of providers of services etc as well as
employers.7 The use of GOQs must not be interpreted loosely (as has been mooted
by misguided interpretations of the Framework Directive) and the Directive itself has
a strong declaration that use of a GOQ cannot legitimise discrimination on any other
ground. At this stage, CoSO has an open mind about the correct approach towards
GOQs, ie whether to adopt a „general definition‟ approach as in the FEED or to keep
to the UK tradition of a list of clearly defined situations which are the only ones in
which a GOQ can be invoked.

One approach to a litany of exemptions would take the form of a general defence for
discrimination, clarified in the Codes of Practice in order to provide guidance in
determining where a difference in treatment is justifiable. For these purposes, the EU
Framework Directive‟s general employment exemption (Act. 4(1)) should be looked
to as a starting point and extended to all sectors covered by the SEB and would read
as follows:

Organisational Exemption Clause: a given characteristic constitutes a genuine
and determining organisational requirement, provided that the objective is necessary
and legitimate, and the requirement is proportionate.

CoSO would point out that it is deliberately tightening up the FEED definition of GOQ.
CoSO does not accept that it is permissible in the NI and GB context to allow GOQs
merely where the objective is „legitimate‟. In NI equality law, it has always been
necessary to establish clearly defined circumstances in which a GOQ can be invoked
This definition ensures each particular instance of discrimination must be justified.
Although it is self-evident that a GOQ cannot be used to discriminate either directly
or indirectly in relation to another prohibited ground (indeed this is articulated in
Article 4 FEED specifically in relation to the purported „religious ethos' GOQ but must



6
 See later comments on positive action at G.
7
 See also the approach of the Equality Working Group in relation to Clause 8 of its draft
Equality chapter.


CoSO response to SEB CD                                                                7
apply more generally), CoSO is very wary of homophobic organisations trying to
argue „legitimate‟ objectives which would not satisfy a test of „necessary‟ objective.

CoSO notes that the Framework Directive (Art 15) exempts the recruitment of
teachers from the Directive's provisions on religion or belief. CoSO believes that
education exemptions should be subject to the same justification as set out above
for occupational exemptions in general - the exemptions should be necessary,
legitimate and proportionate. Broad religious discrimination for all educational hiring
would fall short of meeting these requirements. Despite the specific inclusion of a
„Northern Ireland‟ clause in the FEED, CoSO does not accept that NI equality law
should include this blanket exemption which would only apply while “expressly
authorised by national legislation”. More particularly, CoSO is also concerned at the
inclusion within the FEED of a possible „religious ethos‟ exemption in the SEB. This
possible exemption is heavily circumscribed in relation to pre-existing laws and
practices. However, even if it is considered necessary to include more than a
general GOQ in relation to religious ethos employment, which CoSO would contest,
CoSO makes particular reference to the qualification in Article 4.2 that any difference
of treatment “should not justify discrimination on another ground”. Similarly,
although less explicit, the following sub-paragraph commences “Provided that its
provisions are otherwise complied with, this Directive shall not prejudice the right of
churches ….” Although potentially more draconian even than the earlier sub-
paragraph in the latitude which it might give some organisations to engage in
discriminatory behaviour, neither permits discrimination, either direct or indirect, on
any other ground governed by the Directive. In this sense, there can be no „religious
ethos‟ exemption for sexual orientation. CoSO would wish to see explicit reference
to this pre-condition, in relation to "discrimination on any other ground", articulated
in the SEB.

This first approach sets out CoSO‟s position as being one of guarded recognition of
the need for GOQs, and stating a preference for a general definition, in need of
judicial interpretation, to create possible circumstances where discrimination would
be allowed. However discussion within CoSO has revealed several situations in
which it would be preferable, in keeping with the existing approach in the SDO, RRO
etc, to have a pre-defined list of the only situations where discrimination would be
permissible. For example, there are situations in which LGB organisations would
wish to take advantage of a GOQ on the lines of Article 10 (2)(e) SDO in relation to
“personal services promoting their welfare or education, or similar personal services
...", both in relation to employment and provision of services. Not only would an
LGB group, which was concerned with helping LGBs to come out, want to employ
LGBs, it would also want to provide its services to LGBs without the prospect of its
activities being disrupted by litigious homophobic influences. Indeed, it might be
argued that even a commercial organisation such an LGB bar or club should be
allowed to restrict its clientele to LGBs in order that those who may not be out in
many situations can enjoy the ambience of the bar or club only in the presence of
other LGBs.

A pre-defined list would allow organisations to know from the outset what was
allowed and what was not without having to fight court cases in order to establish
what a general definition permitted. A pre-defined list would also leave the scope of
GOQs in the hands of the legislature, which is dedicated to a progressive equality
act, rather than the courts and tribunals where a suitably sympathetic approach
cannot be guaranteed. However, a defined list approach also enhances the


CoSO response to SEB CD                                                              8
possibilities of other regressive GOQs, for example in relation to religious ethos and
more generally creates political tensions as to which GOQs should be included and
which should not, creating the demoralising prospect of an act which is longer on
exceptions than equality principles.

There may be limited situations in which GOQs are permissible in relation to
exemptions for goods, facilities, services, education and the social welfare system,
although it appears that the REOD does not provide for this eventuality.

CoSO has two concluding remarks on this highly problematic aspect of the SEB.
First, there needs to be extensive discussion between the OFMDFM, the Equality
Commission and the Equality Coalition on which approach to take towards GOQs.
Secondly, it is imperative that any GOQ clause includes an categorical statement that
GOQs cannot not used to discriminate either directly or indirectly on any other
prohibited ground. Otherwise the principle of „equality of the inequalities‟ will be
undermined by the unscrupulous use of GOQs to discriminate against other
vulnerable groups, of which LGBs would be an obvious example.


F: Definitions
The purpose of equality law is to identify discrimination and promote equality, not to
become lost in the minutiae of particular rules which mask the true purpose of the
legislation. In this regard, CoSO is proposing wide ranging definitions of direct
discrimination, indirect discrimination, reasonable accommodation and positive
action. The underlying theme is that concepts should be transparent, workable,
geared towards facilitating those organisations which wish to promote equality and
effective towards those organisations which are not prepared to do so.

Direct Discrimination

CoSO believes that there should be no requirement of a comparator or reference to
comparable situations for most of the terminology defined in this section. CoSO
believes that in order to establish a prima facie case of discrimination, in terms of
disadvantage suffered, the applicant need not locate a comparator. CoSO is
particularly disappointed that the REOD and FEED adopt „less favourable treatment‟
approaches rather than the prohibition on „any discrimination whatsoever‟ as in the
Equal Treatment Directive 1976. A comparator may provide evidence of
discrimination but it is clearly not a pre-requisite for a finding of discrimination. For
example, an employer cannot be allowed to get way with dismissing an LGB by
dismissing others who are not LGB in order to ensure that the LGB is dismissed.
CoSO believes that in line with long-established principles of human rights, equally
poor treatment should not be considered as fulfilling equity principles.

As stated by the CAJ, the requirement for a comparator works at cross-purposes with
principles of equality by setting up the currently privileged group as the norm. The
provisions of the SEB should also include specific measures preventing a diminution
in protection or a “levelling down”, ie achieving equality by taking away benefits from
the more advantaged group rather than giving them to the less advantaged group.

CoSO supports a definition of direct discrimination which introduces the notion of
disadvantage, as was recommended by the Human Rights Commission‟s Bill of Rights
Equality Working Group.      Disadvantage as a gauge for determining direct


CoSO response to SEB CD                                                                9
discrimination is also used in the Equal Treatment Directive and supported by the
European Court of Justice.

Direct Discrimination: direct discrimination shall be taken to occur when a person
has suffered, will or would suffer disadvantage on the basis of their membership of a
designated group.

Indirect discrimination

CoSO notes that a definition of indirect discrimination which is based around a
necessity test for objective justification will provide the best protection. Again CoSO
believes that there should be no comparator for the reasons mentioned above.

The definition would read:

Indirect discrimination: indirect discrimination shall be taken to occur where an
apparently neutral provision, criterion or practice would put persons of a [covered
characteristic] at a particular disadvantage unless that provision, criterion or practice
is justified by a necessary aim and the means of achieving that aim are appropriate.

CoSO notes that defining indirect discrimination in this way has several strengths.
First, it does not contain a statistical requirement as an element of proving indirect
discrimination. The requirement of statistical proof has the effect of neutralising an
indirect discrimination claim, as statistics are rarely available and/or costly to gather.
This is especially relevant in the Northern Ireland context, where there is little
statistical evidence yet available on many forms of discrimination, particularly in
relation to SO.

Second, the definition does not require the discrimination be overt, intentional or
conscious. It sends a clear message that discrimination does not have to be direct or
intentional to be highly damaging to society. Moreover, the provisions on indirect
discrimination should make clear that the term “practice” refers to inaction as well as
action.

CoSO believes that it is imperative that the justification test be defined by a
“necessary aim” rather than a legitimate aim, which weakens the protection. CoSO
notes that the Framework Directive, which includes a “legitimate” justification test, is
a minimum provision and believes that the SEB must return to the original
“necessary” aim test found in the case law of the European Court of Justice in
gender equality law. CoSO is particularly concerned that the rights of LGBs will be
undermined through consideration by tribunals and courts of what is considered
„legitimate‟ rather than what is considered „necessary‟

Reasonable Accommodation

CoSo believes that extensive use of a „reasonable accommodation‟ concept across all
the categories for protection under the SEB enables a diagnostic approach to
equality.    CoSO believes that a three step process, encompassing direct
discrimination, indirect discrimination and reasonable accommodation concepts will
provide the most effective legislative mechanism for delivering equality of
opportunity and equality of outcome.




CoSO response to SEB CD                                                                10
CoSO believes that “reasonable accommodation” should not be restricted to disability
equality law. It is a process which enables diagnosis of discrimination both direct
and indirect and a removal of those discriminatory obstacles.           The process
encourages positive, inclusive action. The actors within society work to bring about
a cultural change which shifts societal perceptions. This process towards a more
inclusive environment, which is proactive rather than punitive, must be sanctioned
and protected by the legislative process. Hence, indirect discrimination and
reasonable accommodation should not be framed as either/or options.

Victimisation

CoSO believes that there must be a broad approach to victimisation as a form of
direct discrimination. CoSO notes that the definitions of victimisation currently in
force in anti-discrimination legislation, such as in the Race Relations (Amendment)
Act 2000, are inadequate because they limit victimisation to those who have brought
forward discrimination cases. They are also flawed in using the comparative
approach.

Victimisation protections should be extended far beyond their current limited scope
and should receive as thorough treatment as other forms of discrimination. The
REOD and FEED definition of victimisation is far preferable to the definitions offered
by the Race Relations Order, or other current Northern Ireland legislation. Under its
victimisation section, the Race Directive calls for Member States to “introduce
measures as are necessary to protect individuals from any adverse treatment or
adverse consequence as a reaction to a complaint or to proceedings aimed at
enforcing compliance with the principle of equal treatment.”

The SEB‟s Codes of Practice should ensure those brought within the ambit of
victimisation protection include:

   former employees;
   third parties adversely affected, including those giving evidence; and
   current employees, including post-complaint/post-proceeding protection.

If necessary, CoSO proposes that “third parties” should expressly include those who
are associated with a person who is protected by the equality legislation. For
example, a straight person could be refused a drink at a bar because s/he is in the
company of LGBs who have complained that they are not being served.

Harassment

CoSO believes that there must be a broad approach to harassment as a form of
direct discrimination. The SEB's harassment provisions should spell out prohibited
behaviour, while allowing for positive measures and prevention. The provisions must
make clear that both public bodies and employers have a positive duty to be
proactive in taking all reasonable and relevant steps to prevent harassment. This is
particularly important within the context of an Equality Bill, because of the severe
exclusion, loss of dignity and intimidation experienced by the subjects of harassment.

With this in mind, CoSO recommends a definition of harassment based on the
Framework Directive‟s definition:




CoSO response to SEB CD                                                            11
Harassment: harassment shall be deemed a form of discrimination when unwanted
conduct related to [any ground covered by the SEB] takes place with the purpose or
effect of violating the physical integrity or dignity of a person, or of creating an
intimidating, hostile, degrading, humiliating or offensive environment.

The Single Equality Bill must, again, ensure there is no requirement of a comparator
in proving harassment. As the Hepple review of current UK anti-discrimination
legislation points out, requiring a comparator ignores that harassment is really about
creating an environment which undermines dignity. Further, the Human‟s Right‟s
Commission‟s Bill of Rights Equality Working Group have stressed the inclusion of
physical integrity concerns in any definition of harassment. Physical integrity should
be further elaborated in the Codes of Practice as including sexual and emotional
abuse and neglect, as well as physical forms of abuse.

Incitement & Instruction to Discriminate

CoSO notes that both EU Directives (Art. 2(4)) require an instruction to discriminate
be considered discrimination. CoSO notes that whilst instruction to discriminate
requires a relationship between instructor and instructee (most often seen in the
employment relationship), a prohibition against incitement to discriminate recognises
the real range of discrimination experienced by LGB people.

CoSO believes this is entirely logical and emphasises the importance of Northern
Ireland introducing legislation which would include an express ban on incitement or
pressure or instruction or promotion to discriminate in relation to all covered groups.
Furthermore such a prohibition must go beyond coverage on employment
relationships, to include goods, facilities, services (including public services),
education and social welfare.

G: Positive Action
CoSO is committed to a rights based approach within the SEB. However the SEB
must confirm the symbiotic relationship between the rights based concepts of direct
and indirect discrimination and reasonable accommodation and the positive action
process.

CoSO notes that terms such as positive action, fair participation and equal access
confirm the centrality of affirmative measures in terms of creating lasting structural
and institutional transformation. The EU Directives are committed to this equality
model. Their positive action clauses (Art. 5 and 7) give Northern Ireland broad
latitude to seek permanent institutional change throughout society by “adopting
specific measures to prevent or compensate for disadvantage linked to any of the
grounds.”

Positive action affords a means of understanding our institutional structures,
examining existing practices, and addressing the power structures that perpetuate
disadvantage within our society. Positive action, framed as a means of achieving
parity for everyone in Northern Ireland, must go beyond head-counting and the
status quo language of under-representation to emphasise mechanisms for attaining




CoSO response to SEB CD                                                             12
and ensuring fair participation and equality of outcome.8 In this regard, the
“reasonable accommodation” concept is a measure designed to protect against
indirect discrimination but also to go beyond it into positive measures to alleviate
disadvantage. CoSO believes the Single Equality Bill should contain express
provisions carving out a general exemption for positive action measures. Building on
the Hepple Report‟s formulation, the clause protecting positive action should allow
for positive measures intended to provide specific advantage for persons from a
designated group in order to prevent or compensate for disadvantage in the covered
areas. The Codes of Practice should provide examples of positive action measures.
This open-ended protection is much preferable to a finite list, because it allows for
the protection of a wide range of positive action strategies.

In the consultation document, OFMDFM raises some concern over how to define a
disadvantaged group for positive action purposes. Disadvantage is best seen as a
relative position, which can be clearly identified and remedied with positive
measures. It may not, however, fit into the prescriptive, fixed definitions usually set
out in anti-discrimination legislation. That is, indicators of disadvantage can be
clearly discerned using a diagnostic approach – this combines monitoring and
evaluation in assessing whether a designated groups enjoys fair participation or fair
access to sector in question, be it employment in a sector, participation in training,
access to housing, etc.

CoSo believes there must be maximum facilitation of employers/organisations which
wish to take positive inclusionary measures. Although the NI equality regime has an
example of a quota system in relation to the policing service, CoSO is not concerned
about quotas for LGBs. What is more important is that those organisations which
wish to take positive inclusionary measures should be facilitated and hence that a
general positive action clause be included. CoSO is not opposed to any such
programmes of positive inclusionary measures being subject to Equality Commission
scrutiny and approval.

Monitoring

CoSO reaffirms its support for monitoring as a key tool in the diagnostic process
within the SEB.

CoSO finds no reason to limit monitoring to employers and employment or to certain
readily “countable” categories. Employers have been monitoring their workforces for
several decades, and their best practices can be surveyed for the purpose of
developing monitoring instruments for use in the monitoring of other sectors, like the
provision of goods, facilities and services.

The OFMDFM has expressed some doubt about the value of requiring monitoring for
categories where there is not likely to be statistically significant participation. CoSO
disagrees with the consultation document‟s suggestion that the relatively small
overall population of some groups makes monitoring data statistically irrelevant. This
assumption overlooks the power such monitoring data may have when aggregated
by an equality body. For example, such aggregated data from employers has the


8
  For further discussion on this point see CAJ, “Response by the Committee on the Administration of
Justice to the Initial Consultation by the Office of the First Minister and Deputy First Minister on A Single
Equality Bill for Northern Ireland.”


CoSO response to SEB CD                                                                                  13
potential to reveal patterns of participation across a sector; there is also diagnostic
value in revealing patterns of participation by members of those categories about
which statistical information has proved elusive.

Fair Employment legislation has been successful in implementing monitoring for
religious belief or political opinion. This monitoring was initially responded to with
reservations quite similar to the doubt currently being expressed towards the
expansion of monitoring for other categories. However, we as a society now have
much more experience with monitoring. Employers in particular are accustomed to
monitoring their workforce in terms of workforce composition, training, recruitment,
promotion, etc.

If Northern Ireland is to develop an equality framework committed to achieving
lasting equality of outcome, then the Single Equality Bill must include a statutory
duty to register and monitor. With regards to traditional monitoring mechanisms
sexual orientation should be included but without any obligation to reply.

CoSO acknowledges that monitoring procedures reveal concerns about confidentiality
and sensitivity in relation to sexual orientation. However CoSO believes that
monitoring is essential to implementing a comprehensive, diagnostic approach
towards equality. Nevertheless, in recognition of practical issues, CoSO feels it is
important that monitoring entities be given the room (and indeed placed under an
obligation) to explore imaginative alternative methods to the traditional monitoring
procedures, as long as those monitoring are held accountable for accurately and
sensitively accessing the information required by a diagnostic approach to equality.
CoSO believes that the Equality Commission (Sexual Orientation Directorate) should
authorise alternative qualitative methods of data collection, eg focus groups,
representative consultations, feedback from representative organisations, responses
to independent equality auditors etc.

CoSO notes that the monitoring process itself can be an agent for creating a more
equal environment.      The public inclusion of sexual orientation acts as a
counterbalance to the present relative invisibility if the LGB community.


H: Structures
The Equality Commission

CoSO believes that in the interim there must be a Sexual Orientation Directorate
within the Equality Commission. This directorate must have extensive powers to
conduct investigations, bring cases in own name and in allied cases. Though the
Equality Commission is currently engaged in a restructuring process it is crucial that
the work on sexual orientation issues be given the resources and support a
directorate would ensure.       At present knowledge and experience on sexual
orientation issues within the Equality Commission is relatively low in relation to
previously legislated categories such as race or gender, and so this knowledge base
must be raised via the establishment of a sexual orientation directorate. In the
longer term, it remains vital that extensive diversity in the realities of the lives of
those suffering differing disadvantage does not become lost in a regime where legal
concepts are common to all categories.



CoSO response to SEB CD                                                             14
Single Equality Tribunal

CoSO believes in the creation of a Single Equality Tribunal for employment and
goods facilities and services cases. The equality tribunal, which may perhaps require
fair employment and goods, facilities and service divisions, would aid in harmonising
procedures across the areas of anti-discrimination law.

A harmonised equality tribunal system is essential for the effective adjudication of
claims by those who face multiple discriminations. A complainant would be able to
have her particular claims adjudicated within the same tribunal using one set of
procedures. This not only simplifies the process for all involved but also discourages
the compartmentalisation of identity that can so often be fostered by discrimination
proceedings.

Finally, in terms of anti-discrimination and equality claims, there is a concern for the
amount of familiarity and expertise possessed by the body adjudicating these cases.
A system of equality tribunals would facilitate the accumulation of experience and
expertise on the part of the adjudicating bodies. Continuing with separate tribunals
or unharmonised procedures runs counter to the spirit of a single equality
framework. Given the inclusion of SO within the equality regime, it might be
anticipated that SO issues would receive a degree of sympathy and understanding
from an Equality Tribunal which might be less likely in the ordinary courts.

Removal of goods, facilities & services cases from the County Court

Discrimination cases related to goods, facilities and services should also be heard by
within the new tribunal structure. Currently, county courts hear discrimination cases
related to the provision of goods, facilities and services. The costs, formality and
complicated nature of county court procedures serve as a barrier to bringing these
types of cases. Claimants must pay their own fees and face costs if they are
unsuccessful, while county court judges have little experience and training in equality
and anti-discrimination issues.

The Hepple Report voiced the important reminder that many types of discrimination
cases raise common themes and share similar sensitivities. In this sense,
employment and non-employment discrimination cases share much more in common
than goods, facilities, and services discrimination cases share with the other cases
within the jurisdiction of the county courts. Moreover, as anti-discrimination
legislation is simplified and made more understandable, there is likely to an increase
in number of cases brought, without the matching increase in the county courts‟
capacities to handle the increased caseload. The new tribunal system will be much
better prepared to meet this increased demand with the requisite sensitivity and
expertise.

Codes of Practice

The Codes of Practice accompanying the Single Equality Bill will be essential to
explaining and detailing the practical applications and nuances of the legislation. To
ensure effective adjudication of proceedings under the legislation, any tribunal or
court hearing anti-discrimination proceedings should have a duty to take into account
the Codes of Practice accompanying the legislation.




CoSO response to SEB CD                                                              15
CoSO believes that the Codes of Practice must be specific reference to each of the
protected categories of people. This is especially important for those categories of
people who have not as yet benefited from anti-discrimination legislation.

Possible role for mediation

CoSO is in favour of a rights based approach to anti-discrimination legislation.
However, CoSO recognises that although litigation is the primary mechanism for
addressing discrimination and disadvantage, many people may be deterred from
seeking redress or proactively addressing equality concerns. In addition to providing
ample protection for those who initiate and participate in proceedings, the Single
Equality Bill should keep in mind that the taxing and stressful nature of litigation
remains a powerful deterrent to the proper functioning of any equality framework.
The Single Equality Bill should create structures which directly address the current
problems with the tribunal system's accessibility. Therefore, the equality tribunal
structure should be supplemented by a preliminary complaint, conciliation and
investigation structure.

CoSO supports the proposed equality investigations body,9 which could function as
the first stop for those with complaints of discrimination. If this structure were to
provide for simple, low cost or free complaint filing, a significant barrier to seeking
redress could be removed. There is also the option of giving this investigation body
the power to encourage mediation, undertake investigation, and issue redress when
discrimination is found. If such a structure is included in the SEB, the right to a court
appeal of any decision must be provided for.

CoSO believes these alternative dispute resolution mechanisms would make the
claims and investigation structure more accessible, facilitate timely investigation and
resolution of complaints, conserve resources, and alleviate the workload of the
equality body. An interesting model to consider for the purposes of the Single
Equality Bill would be the Office of the Director of Equality Investigations set up in
the Republic of Ireland, which is now successfully investigating SO equality cases.

CoSO believes that pursuing a claim using this administrative alternative should in no
way, however, mean relinquishing the right to pursue litigation. The EU Directives
requires Member States to provide the right to a “judicial and/or administrative
remedy.” As discussed in more detail below (Section VI(1)), mechanisms focused on
increasing the efficiency and cost effectiveness of procedures cannot be allowed to
eclipse a person‟s right to fair and impartial adjudication of their claims.

Legal standing for NGOs – public interest litigation - duty to consult NGOs

CoSO notes that the consultation document does not address the role NGOs in the
community/voluntary sector will play in the new equality structures. NGOs act as a
pivotal catalyst in the development of the equality and rights agenda in Northern
Ireland. CoSO has performed a representative function in relation to the statutory
equality duty and the proposed Bill of Rights and welcomes the opportunity to do so


9
  For further discussion on this point see CAJ, “Response by the Committee on the Administration of
Justice to the Initial Consultation by the Office of the First Minister and Deputy First Minister on A Single
Equality Bill for Northern Ireland.”




CoSO response to SEB CD                                                                               16
again in relation to the equality agenda. EU law, including both the Race and
Framework Directive, protect NGOs‟ roles as advocacy organisations in bringing
impact litigation and participating in social dialogue and consultation. In total, there
are four key areas where provisions related to NGOs are imperative.

Legal Standing and Representative Claims – The Race Directive makes clear
that legal standing must extend beyond simply allowing an equality body the right to
bring litigation on behalf of injured parties. The SEB should provide legal standing for
all relevant organisations for the purposes of bringing litigation both on behalf of
complainants and in their own name. More detailed specifications as to which
organisations have a legitimate interest in legal standing can be further clarified
within the Codes of Practice. Such a provision would allow for a more proactive
approach in addressing equality issues through litigation, while recognising the
burdensome toll bringing discrimination litigation often has on individuals.

   1. Legal Persons – Accompanying the above provision on legal standing, the
      SEB should also ensure its provisions apply both to individuals and legal
      persons/organisations. The Race Directive extends coverage to legal entities.
      This provision should be incorporated into the Single Equality Bill. NGOs who
      represent disadvantaged constituencies can often find themselves the objects
      of discriminatory practices, and should enjoy the same protection extended
      by the legislation towards individuals. By expressly providing protection for
      legal persons and allowing NGOs to bring litigation in their own names, the
      SEB will provide for an important mechanism in fighting institutionalised
      discrimination. It will also extend adequate legal recourse to a key sector
      within the equality framework.

   2. Social Dialogue and Consultation – The Race and Framework Directives
      include provisions for promoting social dialogue or consultation with NGOs. If
      the equality framework set up by the SEB is to result in perceivable
      movement towards the consistent promotion of equality, then NGOs should
      play a vital role in the process. This should extend from an expressly defined
      role in the equality body to a clearly articulated role in the formulation of
      monitoring and equality promotion strategies.

   3. Resources for NGO participation in the equality framework – NGOs
      representing those who have been disadvantaged by institutional structures
      often struggle for funding to meet the needs of their constituencies.
      Participating in the equality framework is of utmost importance to many
      organisations, but it acts as a further drain on already over-extended staff
      and resources. A commitment to equality by the government of Northern
      Ireland must include recognising the duty it has to provide adequate
      resources and support for the NGOs who contribute their knowledge and
      expertise in this area. A Single Equality Bill that overtaxes or exploits
      organisations serving disadvantaged groups or NGOs that work for the
      advancement of equality neither addresses disadvantage nor furthers this
      society‟s progress towards greater equality for all.

Assistance with Legal Costs

CoSO believes that accompanying the right to a judicial remedy must be provisions
for assistance with legal costs. There are currently no legal aid provisions for cases


CoSO response to SEB CD                                                              17
brought before the Fair Employment Tribunal or the Industrial Tribunal. Given the
complexity of discrimination law, SACHR had concluded it is completely unrealistic to
expect parties to appear without legal representation.10

Remedies, including proactive programmes under supervision of Equality
Commission

CoSO recommends a complete reassessment of the remedies available under current
anti-discrimination and equality legislation. Both EU Directives allow for a broad set
of remedies, while the European Court has concluded that remedies for anti-
discrimination must have a real deterrent effect. That is, remedies should not only
provide redress for the immediate claim, but also include provisions for effective
deterrence and prevention of discriminatory practices in the future.

The Single Equality Bill should provide for a broad range of practical and flexible
remedies ranging from retrospective remedies, such as financial compensation, to
prospective remedies, such as injunctions and mandatory reviews of equality policies.

In addition, as suggested by the EOC (NI), tribunals decisions should be treated as
binding precedent. This would allow other employers to benefit from tribunal
decisions while facilitating the adjudication of similar anti-discrimination claims. The
expansion of remedy provisions will bring the powers of the tribunals, courts and
equality bodies under the Single Equality Bill in line with European standards.

I: Conclusion
As stated in our Introduction, CoSO welcomes this opportunity to participate in the
consultation process on the SEB. However, this is only a beginning. CoSO looks
forward to further detailed dialogue with the OFMDFM and the Equality Commission
and within the Equality Coalition upon the detail of this SEB so that it may indeed
meet the aspirations of the OFMDFM itself to be a comprehensive and progressive
piece of equality legislation.




10
   For further discussion on this point see CAJ, “Response by the Committee on the Administration of
Justice to the Initial Consultation by the Office of the First Minister and Deputy First Minister on A Single
Equality Bill for Northern Ireland.”


CoSO response to SEB CD                                                                                  18

				
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