General Exemptions

General Exemptions

The Equal Status Act applies to goods and services provided to the public or to a section of the public.  Accordingly, private activities are exempt, in so far as they relate to the provisions of goods and services. The renting of a room in a private home is not subject to the legislation.

It is not unlawful discrimination if it is capable of being justified as reasonable in the circumstances and where it is appropriate and necessary for a legitimate purpose.

Some exemptions allow for the special treatment of persons in a particular category.  Preferential treatment which is bona fide intended to promote equality of opportunity for those disadvantaged or having special needs is permissible.

Differences in the treatment of persons in that category must be reasonably necessary to promote their special interest.  The treatment must be undertaken in good faith.  The provision allows a measure of positive discrimination, but there are strict conditions.   The discrimination must be reasonably necessary.

A number of other exceptions apply to several grounds of discrimination.  There are a number of general exclusions, applicable to all the grounds of discrimination.  Some of them are listed in the following sections. Other exemptions are applicable to the particular grounds are dealt with in the chapter which cover those grounds.

Broad General Exemption

The Equal Status Act does not prohibit  the taking of any action that is required by law. Any matter required under legislation or a court order is not discriminatory.

• on the basis of nationality any action taken by a public authority in relation to a non-national under immigration laws
• preferential treatment or the taking of positive measures which are bona fide intended to  promote equality of opportunity for persons who are, in relation to other persons, disadvantaged or who have been or are likely to be unable to avail themselves of the same opportunities as those other persons, or cater for the special needs of persons, or category of persons, who, because of their circumstances, may require facilities, arrangements, services or assistance not required by persons who do not have those special needs.

Crime and Disorder Exemptions I

• which would lead a reasonable individual having the responsibility, knowledge and experience of the person to the belief, on grounds other than discriminatory grounds, that the disposal of the goods or premises or the provision of the services or accommodation or the services and amenities related to accommodation, as the case may be, to the customer
• would produce a substantial risk of criminal or disorderly conduct or behavior or damage to property at or in the vicinity of the place in which the goods or services are sought, or the premises or accommodation are located.

• action taken in good faith by or on behalf of the holder of a licence or other authorisation which permits the sale of intoxicating liquor, for the sole purpose of ensuring compliance with the intoxicating liquor laws;
• a policy of refusing to supply intoxicating liquor to any person under a specified age which exceeds 18 years, provided that a notice setting out the policy is displayed in a conspicuous place in or on the exterior of the premises, and the policy is implemented in good faith.

Property Exemptions

The prohibition extends to sale and leasing of property.  It does not apply to

• wills and gifts of property;
• the provision of local authority housing
• any disposal of property or the provision of accommodation or of any services or amenities relating to accommodation, which is not available to the public generally or a section of the public;
• the provision of accommodation by a person in a part (other than a separate and self-contained part) of the person’s home, or where the provision of the accommodation affects the person’s private or family life or that of any other person residing in the home, or
• the provision of accommodation to persons of one gender where embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender;
• any premises or accommodation reserved for the use of persons in a particular category of persons for a religious purpose or as a refuge, nursing home, retirement home, home for persons with a disability or hostel for homeless persons or for a similar purpose, a refusal to dispose of the premises or provide the accommodation to a person who is not in that category does not, for that reason alone, constitute discrimination.

Positive Discrimination

Positive discrimination is not required, although it is permitted in some cases. Measures taken in order to ensure equality are not unlawful, where they are preferential treatment or the taking of positive measures which are bona fide intended to

• promote equality of opportunity for persons who are, in relation to other persons, disadvantaged or who have been or are likely to be unable to avail themselves of the same opportunities as those other persons,
• cater for the special needs of persons, or a category of persons, who, because of their circumstances, may require facilities, arrangements, services or assistance not required by persons  who do not have those special needs, or
• the use of gender status or the collection, storage or use of gender-related information by insurance providers that is bona fide intended for any or all of the following purposes: reserving and internal pricing; reinsurance pricing; marketing and advertising; life and health underwriting.

Further General Exemptions

The following general exemptions apply under the Equal Status Act.

• imposing or maintaining a reasonable preferential fee, charge or rate in respect of anything offered or provided to or in respect of persons together with their children, married couples, persons in a specific age group or persons with a disability;
• differences in relation to pensions and insurance due to actuarial matters based on objective and statistical grounds;
• differences in the treatment of persons in a category in respect of services provided for the principal purpose or promoting, for a bona fide purpose and in a bona fide manner, the special interest of persons in that category, where such treatment is necessary to promote that special interest;
• disposal by way of will or gift to any person;
• differences in the treatment of persons in the provision of goods or services reasonably regarded as suitable only to the needs of such persons;

Risk Benefits

There is an exemption in respect of services that involve the appraisal of risks. This applies principally to insurance services and other matters related to the assessment of risk. It also applies to other financial services, including loan agreements, annuities and pensions.

The entity which discriminates must be able to show that the difference in treatment is effected by reference to actuarial or statistical data, which is obtained from a source on which it is reasonable to rely. It must be reasonable having regard to the data or by reference to other relevant underwriting or commercial factors.

There are special provisions in the Health Insurance Acts in respect of community rated health insurance.

There is a prohibition on the use of genetic data under the Disability Act, in relation to underwriting insurance policies and mortgages.

Nationality Exceptions

There are exceptions to the general prohibition in so far as the action or position is based on

• residence;
• citizenship;
• proficiency in the Irish language insofar as they relate to service in the State and
• proficiency in the Irish language insofar as it relates to service in primary and post- primary schools.

Discrimination in a sporting context is permitted in relation to the gender, age, disability, national origin / nationality grounds, provided that it is reasonable and relevant to the facility or event. The prohibition does not apply,to the extent that the differences are reasonably necessary, having regard to the nature of the facility or event, or are relevant to the purpose of the facility or event.

Discrimination on the grounds of authenticity, aesthetics, tradition and custom are permitted in relation to the gender, age, disability and race grounds of discrimination. The prohibition to does not apply to differences in the treatment of persons on those prohibited grounds, which are reasonably required for reasons of authenticity, aesthetics, treatment, tradition or custom in connection with a dramatic performance or other entertainment.

Immigration System

There are a number of exemptions in respect of the nationality and race grounds. The Racial Equality Directive does not cover differences in treatment based on nationality in the context of conditions relating to the entry into and residence in the State, of third country nationals (other than nationals of EU member states) and to any treatment which arises from the legal status of the persons concerned. These provisions are subject to the basic EU rights and protections, which prohibit discrimination against nationals of other EU states.

There are further specific exceptions to equality legislation, in respect of action taken in the course of the administration and operation of the immigration system, including the refugee and asylum process.  The exception is limited to the nationality ground.

Education Exceptions I

It is not discrimination

• to apply differing treatment to EU and non-EU nationals, with respect to admission fees or the allocation of places;
• to offer assistance to particular categories by way of awards which are justifiable, having regard to tradition / historical considerations;
• the allocation of places pursuant to an agreement concerning the exchange of students made between the establishment and a foreign educational institution or authority;
• where a non-third-level institution admits students of one gender only or refuses to admit as a student, a person who is not of that gender;
• where the establishment is, an institution established for the purpose of providing training to ministers of religion and admits students of only one gender or religious belief, it refuses to admit as a student a person who is not of that gender or religious belief;

Education Exceptions II

There is a general exemption in relation to age discrimination, in respect of the treatment of children under 18 years of age.

Where the establishment is a university or other third-level institution, it may provide different treatment in the allocation of places at the establishment to mature students. Educational establishments may reserve places for mature students aged 23 years and upwards, in a manner that would otherwise constitute age-based discrimination

The prohibition on discrimination on the disability ground does not apply in respect of educational establishments, to the extent that compliance in relation to a student with a disability, would make impossible or would have a seriously detrimental effect, on the provision by the establishment of its services to other students.

Denominational Schools

There is an exception allowing denominational schools to discriminate on the basis of the religion of students.  The provisions must comply with the Racial Equality Directive, where religion is identified with ethnicity.

Where the establishment is, a school providing primary or post-primary education to students and the objective of the school is to provide education in an environment which promotes certain religious values, it admits persons of a particular religious denomination in preference to others or it refuses to admit as a student a person who is not of that denomination and, in the case of a refusal, it is proved that the refusal is essential to maintain the ethos of the school.

Permitted Discrimination; Club I

A club is not considered to be a discriminating club by reason only that

• its principal purpose is to cater only for the needs of persons of a particular gender, marital status, family status, sexual orientation, religious belief, age, disability, nationality or ethnic or national origin, persons who are members of the Traveller community, or persons who have no religious belief, it refuses membership to other persons;
• it confines access to a membership benefit or privilege to members within the category of a particular gender or age, where it is not practicable for members outside the category to enjoy the benefit or privilege at the same time as members within the category, and arrangements have been made by the club which offers the same or a reasonably equivalent benefit or privilege both to members within the category and to members outside the category;
• it has different types of membership, access to which is not based on any discriminatory ground;
• for the purpose of reducing or eliminating the effect of any rule or practice of the club, restricting access to particular types of membership to persons of a particular gender, it offers concessionary rates, fees or membership arrangements to persons who were or are disadvantaged by any such rule or practice,

Permitted Discrimination; Club II

A club shall not be considered to be a discriminating club by reason only that it

• it provides different treatment to members in the category of a particular gender, age, disability, nationality or national origin in relation to sporting facilities or events and the different treatment is relevant to the purpose of the facilities or events and is reasonably necessary.

• has, for the principal purpose of promoting equality, a reserved place or places on its board or committee of management for persons who are members of a particular category, or
• takes other measures for the principal purpose of obtaining a more equal involvement in club matters on the part of persons who are members of a particular category.

References and Sources

Irish Books

Equality Law in the Work Place Purdy 2015

Equality Law in Ireland  Reid 2012

Employment Equality Law  Bolger and Bruton 2012

Irish Employment Equality Law McCurtain and O’Higgins 1989

Disability Discrimination Law Smith        2010

Equal Status Acts Discrimination in Goods & Services Walsh 2012

Statutes

Equal Status Act 2002

Equality Act 2004

Civil Law (Miscellaneous Provisions) Act 2008 (14/2008), Part 16

Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), ss. 18 to 26

Equality (Miscellaneous Provisions) Act 2015 (43/2015), ss. 3 to 11