I have learnt of your grievances involving apparent discriminatory behaviour by your employer in connection with your failed endeavours to gain promotion within the company. I am aware of the background to this matter and the complexities associated with the interview panel's decision.
It is my duty to advise you on the extent of protection afforded by the law, the possible options available to you and the procedures that you must adhere to in order to formally process any claim against your employer. Firstly however we must consider the facts. Your initial successful application for the new position supplemented by your progression through the first round of interviews in August suggests that you were in strong contention for the post.
These original accomplishments also imply that there is no company practice of preferring for promotion those employees who have shown geographical mobility in previous jobs or posts (which may be considered a disadvantage to women due to their 'domestic responsibilities- indirect discrimination, see footnote 2) nor is there any underlying "genuine and determining occupational requirement" for a male to be given the role. 1 Therefore, with the company's acceptance of a female right through to the final obstacle in the promotion process, I believe we can discount this as a defence to the employer's actions.
I also consider that the alleged discriminatory behaviour could not be deemed as indirect. 2 Given your four years experience with the company and your superior qualifications, I am of the opinion that you have been the victim of direct discrimination, which is generally unjustifiable when proven (Article 235 of the EEC Treaty, allowing for Member States to have final say in particular case);3 on the grounds of gender (pregnancy is now considered a limb of gender discrimination which I will discuss shortly)4.
Connolly defines direct discrimination as: "In its simplest form, direct discrimination arises when a defendant expressly links the victim's protected characteristic (say, sex, or race) with his less favourable treatment of her. " 5
There is adequate prima facie evidence from your situation to indicate that you have been directly discriminated against in relation to promotion/re-grading on the basis of gender in terms of section 6(2) of the Employment Equality Acts, 1998-2004 contrary to section 8(1)(d) and section 8(7) of those Acts, which transpose the European Council Directive 76/207/EEC (as amended by Council Directive 2002/73/EC)6 and Council Directive 92/85 for the equal treatment of pregnant workers.
7 I will explain the nature of this discrimination, how it applies to your situation and the possibility of you succeeding with a claim by referring to the appropriate legislation and related case law. The courts and tribunals in Ireland and Europe deal with gender discrimination extremely seriously. This is illustrated by the quantity of legislation that has been passed in recent years to eliminate the difficulties faced by women in recruitment and promotion processes. 8
It is the conduct of the interviewers, and particularly their mode of questioning that I find, and a Tribunal is likely to find to be most unacceptable. The employer cannot discriminate against you during the interview process because you are female or because of your pregnancy. If you are the best candidate for the job regardless of whether you are 10 weeks or 10 months pregnant you should be successful. The interviewer(s) also cannot make any remarks or comments (negatively or otherwise) during the interview process about your appearance or your family or marital status.
9 In referring unnecessarily to your 'fella' (an offensive and unfortunate term that only compounds the interviewers' discriminatory behaviour), his occupation and your family status, it is clear that there has been a breach of the Employment Equality Act, 1998. Upon learning of your pregnancy (a matter that you were under absolutely no obligation to disclose),10 the interviewing panel proceeded with an irrelevant and invasive line of questioning on your capacity to cope with the new position.
This element of the interview was in no way correlated with the conditions necessary to satisfy the job description and it is unlikely that all candidates were subject to such immaterial interrogation. It is also evident from these specific questions that the interview procedure was infected by the panel's failure to guard themselves against dangerous traditional stereotypes; presuming that it is the female who will be primarily responsible for caring for the child and that the stereotypical working 'fella's' schedule would take precedence over the wife's working life.
11 They assume that it will be the mother who will leave the workforce to start a family and will therefore be less committed and less likely to remain in the job than a male. All these notions represent attitudinal obstacles to women's entry and advancement in the workplace, and constitute discrimination on the grounds of sex and/or marital status. In Midland International v. Murray12 the contender was asked at an interview about childcare obligations in her failed effort to get a job. The Equality Officer here unambiguously sets out the reasons why such inquiries are regarded as discriminatory:
"It is an accepted fact that the responsibility for coping with children is viewed by many people as falling to the female of the family. In asking questions … as to her children [the employer] obviously did not put [the applicant] at her ease. It is clear that any reasonable interviewee would infer from the questions/statements made by [the employer] that they were being asked to demonstrate that their responsibility to their children would not interfere with their ability to cope with the job for which they were competing.
" 13 Although it is worth cautioning you that Labour Court determinations are not bound by precedent (unlike the European Court of Justice rulings on equality cases or those settled in the Circuit Court or High Court on a point of law)14 and rather take each case on its merits. However the Court has been strict on this issue. Similar discriminatory styles of questioning and hostile interviewing techniques to that which you experienced were suffered by the claimants in Medical Council v. Barrington,15 Trinity College Dublin v.
McGhee,16 and Ballinrobe Community School v. Mary Walsh, Kathleen Jackson and Helen Acton,17 where the gender of the complainant was ruled to have influenced the outcome of the interview and compensation was duly awarded. 18 Direct discrimination on the grounds of gender in an interview process was also established in the analogous claim of the complainant in Lisa Rodmell v. University of Dublin, Trinity College19 where Ms. Rodmell was also deemed to have been unfairly identified by her gender.
In South Eastern Health Board v. Brigid Burke20, the respondent was adjudged to have manipulated the scoring of the interview in a discriminatory manner, another potential explanation as to why a comparably under-qualified applicant was chosen for the promotion in your stead. The complainant in Eircom v. Boland21 was also determined to have been the victim of a gender biased promotion competition. Another case bearing a resemblance to the present circumstances is DCU v.
Horgan22 where the Labour Court found the female complainant had been victim of gender discrimination in a promotion process and had been treated less favourably than her male comparators despite being better qualified than them. Given the distorted nature of the questioning in your interview, I am assuming that there was little effort on the employer's behalf to abide by set criteria of questioning or keep adequate records of the interview. In Daughters of Charity v.
Martha McGinn23 where the complainant did establish a prima facie case of discrimination, despite the Labour Court intimating that much of the case pointed away from any conclusions of discrimination, the lack of interview records did not allow for the discharge of the burden of proof from the respondent and on the "balance of probabilities" the claim for discriminatory treatment was upheld. Similarly in Jones v. Norwich Union International Ltd. 24 a claim for gender discrimination was successful with the equality officer referring to the decision of the Labour Court in the Department of Health & Children v.
John Gillen25 where the Court found: "A failure to keep records of the interview process, which of itself may not be discriminatory, when coupled with other factors, may lead a Court to infer that there has been discrimination. " 26 When faced with a contradiction of evidence between the parties, the equality officer will be inclined to side with the party with the clearer recollection of the context of the interview, which tends to be the party to whom the claim holds greater significance: the individual claimant themselves.
In terms of the ultimate outcome of the interview process, sometimes a situation arises where an employer can prove that the rejection of an applicant was explainable in non-discriminatory terms but the questions asked in the interview were still found to be discriminatory, and thus recovery applies. In Midland International v. Murray28, discriminatory questions relating to childcare were asked but were not adjudged to be the reason behind the applicant's failure to acquire the work. This is unlikely in your case however.
Based on your qualifications and familiarity within the company, the sole rationale behind your failed interview was gender discrimination based on your marital status and pregnancy. "Pregnancy is one of a small group of human characteristics and conditions that are biologically determined by sex and which are, accordingly, peculiar to one of the sexes. "29 It is the European Court of Justice (ECJ) that has committed itself to gender equality as a basic principle of EC law and has led the way on this issue and will take a highly compassionate view of your complaints.
It has adopted a firm and unsympathetic stance on pregnancy discrimination, treating it as a strict liability offence with the establishment of the 'Pregnancy Directive' and rejected any absurd requirement for a 'sick male' comparison. 30. Dekker v. Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus31 was a landmark case in the subject of pregnancy discrimination. Here the ECJ held that action hostile to the employee or potential employee on the basis of pregnancy is to be considered a product of direct sex discrimination32 and cannot be justified on the grounds of economic feasibility.
33 The decision of the ECJ in Webb v. EMO Air Cargo (UK) Ltd34 only served to highlight the Luxembourg Court as the purveyor of change. 35 An employer cannot use the complainant's unavailability for work as a rationale for dismissing her. This decision only serves to underline the weightiness of your claim and emphasizes a fact that that should be well and truly ingrained in the minds of all employers; discrimination on the grounds of pregnancy will not be tolerated.