Casework Activity
2007
A. Cross Cutting Issues
1. Transgender
In 2004 The Equality Authority recommended that it is clear from the developing jurisprudence of the Court of Justice that Ireland is now obliged to introduce legislation to give legal recognition to the position of transsexuals and that it could be useful to clarify explicitly in both the Employment Equality Acts 1998 to 2007 and the Equal Status Acts 2000 to 2004 that discrimination against people with gender identity disorder and/or transsexual people constitutes discrimination on the gender ground. Mr. Justice McKechnie in his judgement in 2007 on the second set of proceedings in Foy v an t-Ard Chlaraitheoir, Ireland and the Attorney General, pointed out that the state had failed or declined to provide evidence of any movement, even at initiating, debating investigative level, on the plight of transsexual people in this country.
In 2007 two settlements related to transgender / gender identity disorder one in employment and one concerned the reissuing of the Leaving Certificate to reflect the presenting gender.
1.1. Employment Equality Acts 1998 – 2007
A Worker v A Respondent
Gender & Disability Ground Dismissal and conditions of employment, reasonable accommodation
A worker, who is male to female transsexual, lodged a complaint with the Equality Tribunal alleging that her employer discriminated against her on grounds of gender and disability contrary to the terms of the Employment Equality Acts when she was dismissed.
The complainant advised her employer that she would be undergoing treatment for her Gender Identity Disorder during a period of annual leave and would be presenting her female identity on her return to work. She was advised that she would not be permitted to return to work presenting as female and was thereafter advised to seek alternative employment. The complainant, who suffered from depression as a result of her Gender Identity Disorder, also lodged a complaint in relation to the failure of her employer to afford her reasonable accommodation for her disability, as the refusal to allow her to present in her female identity brought on her depression and prevented her continuing in employment. The Equality Authority granted the complainant legal representation to bring her complaint and lodged a detailed legal submission with the Equality Tribunal on her behalf. The complaint was settled prior to the hearing date on payment of a sum of money, but without admission of liability.
1.2. Equal Status Acts 2000 – 2004
A Complainant v. State Examinations Commission and the Department of Education
Gender – Provision of Services, Reissue of Leaving Certificate to reflect presenting identity
A woman who was registered at birth as male, but subsequently was diagnosed with Gender Identity Disorder, and is undergoing treatment for same, had changed her name by deed poll to reflect her presenting gender. In order to be able to pursue a new career in her female identity, she wished to have her Group Intermediate Certificate and her Leaving Certificate amended to reflect her new name.
After enquiries were made to the State Examinations Commission, she was advised that it was not possible to have the Certificates reissued in her new name. This had significant consequences for the woman in question as she wished to rely on her achievements in the Leaving Certificate to seek employment, but was concerned that a potential employer might request a copy of her Certificate, thereby drawing attention to her Gender Identity Disorder.
The woman sought the assistance of the Equality Authority to bring a complaint of discrimination on the gender ground under the Equal Status Acts 2000 – 2004 against the Department of Education and Science and the State Examinations Commission in relation to the provision of services. After a complaint was lodged and an exchange of correspondence with the State Examinations Commission, the Commission undertook a review of their practice in relation to the reissuing of Certificates in light of the requirements of the Equal Status Acts 2000 – 2004.
As a result of this review, they indicated they were willing to reissue her Leaving and Group Intermediate Certificates in the legal name of the complainant.
The woman has since received her reissued Certificates and has withdrawn her complaint of discrimination from the Equality Tribunal.
2. Reasonable Accommodation
The provision of special facilities for people with disabilities continues to be a significant feature of the casefiles of the Equality Authority with one landmark decision in relation to accommodation. In 2007 the disability ground constituted 110/328 (33.5%) of the casefiles under the Equal Status Acts 2000 – 2004, 59/360 (16.5%) casefiles under the Employment Equality Acts 1998 – 2007 and 8/49 (16%) casefiles under the Intoxicating Liquor Act 2003. In 2007 there were 13 settlements/recommendations of the Equality Tribunal, Labour Court and Circuit Court (and an appeal to the High Court) concerning the provision of reasonable accommodation.
The casefiles on reasonable accommodation in 2007 included the following successful outcomes:
· A local authority was ordered to pay the maximum compensation and within 12 months – to construct an extension suitable to the needs of a child with autism or to rehouse the family in alternative accommodation suitable to the needs of the child with autism. (A Complainant v A Local Authority, DEC-S2007-049)
· Switching back on of audible signals at pedestrian crossings (where the poles are at least 3 metres apart)
· A child with a disability being allowed access to a crèche
· Installation of a disabled car space near the claimant’s home
· Relocation of a garda station to a fully accessible building
· Parents being allowed to carry out a finger prick test on their child with diabetes on the school premises
· Refurnishing of a prison cell to cater for the needs of a disabled prisoner.
The 2006 Annual Report noted that a striking feature of the settlements and caselaw is how individualised the entitlement to reasonable accommodation is, how it requires consultation and an assessment of need and how employers/service providers need to be in full possession of all the material facts concerning the condition of a person with the disability. These features are evident in the successful outcomes in 2007 as well.
2.1) A Complainant v A Local Authority
Application for an extension to her residence under the Disabled Persons Alteration Scheme [DEC-S2007-049].
Ms C is a tenant of the respondent. She resides in a mid-terrace property with her two sons and adult sister. Her son L. has autism.
In 2001, Ms C. applied for an extension to her residence to provide additional required space for her son on foot of his disability. Her application under the Disabled Person’s Alteration Scheme was refused. After two appeals, her application was approved by the Director of Public Health and Medicine in 2004. However, the application was accorded a low priority level.
The respondent regarded the Scheme as primarily catering for extensions for mobility impaired persons and as L. did not have a physical disability there was no requirement for an extra bedroom for him. The Scheme according to the respondent catered for the needs of those with physical disability or ‘severe mental handicap/illness’ and L. did not qualify in either category.
Ms C. stated that the respondent discriminated against her by comparing L.’s disability less favourably with other disabilities and failing to provide reasonable accommodation to her son in accordance with the terms of the Equal Status Acts. The equality officer found that the respondent had directly discriminated against the claimant by arbitrarily comparing her son’s disability less favourably with physical disabilities under a Scheme which is stated to cater for persons with either a physical or ‘mental’ disability.
The equality officer ordered that the respondent pay to the claimant the sum of €6,350 for the distress and hardship caused to her by the discrimination. This is the maximum amount which can be awarded under the Equal Status Acts. The equality officer stated that if she was not constrained by this, and taking all the evidence in this matter into consideration, she would have awarded a higher amount to the claimant.
The equality officer also ordered the respondent to immediately proceed in full consultation with the claimant and a Senior Occupational Therapist (preferably the Senior Occupational Therapist who had already reported in this matter and supported the claimant’s application) to either (i) construct an extension, suitable to the claimant’s son’s needs and in keeping with her approved application, to her current dwelling or (ii) to re-house the claimant and her family in alternative accommodation, suitable to the needs of L. on foot of his disability, in the locality where they are currently resident. As the complainant’s initial application was made almost six years ago the agreed construction or re-housing is to be completed within twelve months from the 1st May, 2007. The equality officer also ordered the Local Authority to draw up a formal written policy in relation to (i) the precise requirements from the applicants under the Disabled Persons Alterations Scheme, (ii) detailed guidelines on the operation, including any limitations to the terms of the Disabled Persons Alterations Scheme, (iii) details of the appeal mechanism under the Disabled Persons Alterations Scheme and to publish the formal written policy within six months from the date of the decision.
2.2) Des Murphy v Dublin City Council
Department of Transport, Department of Environment, Heritage and Local Government – Reasonable Accommodation
Des Murphy was 78 years of age and was officially blind. He frequently travelled to Dublin city centre and was reliant on audible pedestrian signals, junctions and street crossings to ensure his safe and independent mobility through the city streets. Since 2003 Mr. Murphy became aware of the slow down in the installation of audio signal boxes. In the summer of 2004 Dublin City Council implemented a decision to turn off audible crossing signals at pedestrian crossings in Dublin where audible units were located close to each other. The decision was made without consultation with NCBI (National Council for the Blind of Ireland) and also without publicising its decision to turn off the audible crossing signals. As a result of this decision Mr. Murphy encountered great difficulties in being independently mobile in the city centre. Mr. Murphy had been in correspondence with Dublin City Council for a considerable period of time in relation to the decision to turn off the audible signals but the matter had not been resolved. He subsequently made a complaint and claim against Dublin City Council, the Department of the Environment Heritage and Local Government and the Department of Transport. While Dublin City Council had responsibility on a day to day basis for traffic signals they asserted that they have a responsibility to comply with the Traffic Management Guideline published by the Department of Transport and the Department of the Environment Heritage and Local Government. Both departments asserted that they had no responsibility for traffic signals and that the responsibility lay with the local authorities alone.
Dublin City Council claimed the reason they turned off audible signals at certain junctions was due to the confusion caused for sighted pedestrians who may have mistakenly crossed the road on hearing the signal from an adjoining crossing. However, the Council did not have any written complaints to back up their concerns. The Equality Authority submitted on behalf of Mr. Murphy that best practice in relation to accommodation for vision impaired persons supports the view that where a ‘green man’ crossing signal was provided for pedestrians it should be accompanied by an audible signal for the benefit of blind and vision impaired people. Research on international best practice found that there should be no confusion between audible signals which are more then 3 meters apart. It appears that most of the signals in the Dublin City area are in fact more then 3 meters apart.
Following one day of a two day hearing the matter was resolved with Dublin City Council and the claim subsequently withdrawn against both the Council and the two Departments. The Council agreed to switch back on audible signals at junctions where the poles were at least 3 meters apart. Where the poles are less then 3 meters apart the Council agreed to take one of the following options:
1. Run the pedestrian signals stages together.
2. Move the poles so they are at least 3 meters apart.
3. Where these options are not practical, adopt other options such as tactile only devices having taken into account any submissions of the NCBI.
Dublin City Council also agreed to consult with NCBI in relation to audible traffic signal crossings where there were significant changes or developments affecting vision impaired persons and in particular when making decisions to switch off the audible signal. Dublin City Council agreed to call on NCBI to make submissions and to take into account submissions made before any decision is made and also to meet with the management of NCBI for at least twice yearly meetings.
As part of the settlement Mr. Murphy received the payment of €4,000 in compensation. The settlement was without admission of liability and was between Mr. Murphy and Dublin City Council only. As part of the settlement, Mr. Murphy agreed to withdraw his claims against the Department of Transport and the Department of Environment Heritage and Local Government.