The Equality Tribunal
Employment Equality Acts
- V -
File reference: EE/2007/663
Date of issue: 10 August 2010
Keywords - Employment Equality Acts - Discriminatory Treatment - Gender - Disability - Race - Prima facie case
1.1 This dispute concerns a claim by Ms Isabella Lazar that she was subjected to discriminatory treatment by the respondent on the grounds of gender, disability and race in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 31 December 2007 under the Acts. On 26 January 2010, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 18 May 2010. Additional written information was requested from the respondent which was received on 2 June 2010 and was copied to the complainant. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that she was discriminated against by the respondent when she applied for a job as a Bus Driver. The complainant submitted that she passed the theory test, passed the practical driving test and was called to interview. From the interview, the complainant was referred for a medical examination. At the medical, she was informed that the respondent had a minimum height restriction and that she did not satisfy that height limit. The complainant submitted that a height restriction affects a greater proportion of women than men. Furthermore, the complainant submitted that the respondent employs persons of a similar height to her who are male, white and Irish.
2.2 The complainant, who is Romanian, submitted that she was required to submit her passport and documentation proving that she was entitled to work. The complainant submitted that she was informed by the Department of Justice that she no longer required paperwork to enable her to work in the State. The complainant submitted that the respondent did not accept her assurances and still required her to provide written proof of her right to work in the State.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submitted that one of the grounds cited by the complainant was that of disability but that nothing in her submission supported the allegation.
3.2 The respondent submitted that the complainant was treated in the same manner as any other applicant for the position of Bus Driver. The respondent submitted the complainant's immigration card was out of date and that, at the time, there were no clear instructions from the Department of Justice as to the entitlement of nationals of recently acceeded EU countries to work in Ireland. The respondent submitted that during what was a transition stage for the State, they required proof of the complainant's entitlement to work.
3.3 The respondent submitted that other than her medical assessment, the complainant had passed all other tests and pre-conditions to become a Bus Driver. The complainant was directed to attend a medical assessment where she was deemed unfit for the position of Bus Driver on the basis of her height.
3.4 The respondent submitted that the complainant submitted no evidence to substantiate her allegation that the company employs persons of equal height to her who are male, white and Irish.
3.5 The respondent submitted that the driver's work station in a bus is normally designed in the form of a half open cabin, and that the measurements of the driver's cabin and the adjustments that can be made to the seat and steering wheel must fall within a range that is applicable to all drivers. The respondent also submitted that the minimum recommended height for a professional Bus Driver is 165cm and that the complainant, at 157cm, falls well short of this minimum requirement. The respondent further submitted that this medical recommendation is based on the relationship of the ergonomics of a back injury and the assessment of the driver's cab.
3.6 The respondent submitted that it did not discriminate against the complainant on the grounds of gender and that there is objective medical evidence as to why a driver has to be a certain minimum height regardless of his or her gender before being employed as a professional bus driver.
3.7 The respondent referred to Section 25 of the Acts wherein it referred to "a difference of treatment which is based on a characteristic related to the gender ground in respect of access to employment ... shall not constitute discrimination ... where (a) the characteristic constitutes a genuine and determining occupational requirement for the post and (b) the objective is legitimate and the requirement proportionate." The respondent submitted that a minimum height is the relevant characteristic in this instance.
3.8 The respondent also submitted that Section 22 (1) (a) of the Acts defines indirect discrimination as occurring "where an apparently neutral provision puts persons of a particular gender ... at a particular disadvantage in respect of any matter other than remuneration compared to other employees of their employer ... unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. The respondent submitted that the minimum height requirement is an objectively justified provision with the aim of preventing injury to the Bus Driver.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated against Ms Isabella Lazar in relation to access to employment on grounds of gender, disability and race, in terms of section 6 of the Acts and contrary to section 8 of those Acts.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 In relation to the disability ground, the complainant confirmed that she did not consider that this ground applied to her and made no further submissions on this ground. Accordingly, I find that this element of the complainant fails.
4.4 The complainant stated that she was treated differently in relation to her race in that she had to provide proof of the right to work to the complainant, who did not take her statement that she was entitled to work at face value. The respondent stated that it had to ensure that the complainant's documentation was in order for legal reasons. Having considered the evidence from both sides in relation to this aspect of the complainant, I consider that the respondent was entitled, and obliged, to clarify whether the complainant had the right to work in the State to comply with the legislative framework then in place. I do not find that this amounts to discrimination.
4.5 In relation to the claim that the height restriction amounts to discrimination on the gender ground, the complainant submitted that a minimum height requirement impacts disproportionately on women. The respondent accepted this contention. The respondent submitted that the maximum height requirement impacts in a disproportionate fashion on men also. I note that the Labour Court decision in the case of NBK Designs Ltd. and Marie Inoue (ED/02/34) found that it was not necessary to produce statistical evidence to support its contention and stated, inter alia, that:
"The procedures of this Court are intended to facilitate parties whether they appear represented by Solicitor or Counsel, Industrial Relations Practitioners or unrepresented, alike. It would be alien to the ethos of this Court to oblige parties to undertake the inconvenience and expense involved in producing elaborate statistical evidence to prove matters which are obvious to the members of the Court by drawing on their own knowledge and experience."
4.6 I am also mindful of the provisions of Section 22 (1) (a) of the Acts which defines indirect discrimination as occurring "where an apparently neutral provision puts persons of a particular gender ... at a particular disadvantage in respect of any matter other than remuneration compared to other employees of their employer".
4.7 Having regard to the foregoing, I find the suggestion that a minimum height limit would impact disproportionately on women to be a valid argument . Accordingly, I am satisfied that the complainant has established a prima facie case of indirect discrimination on the gender ground.
4.8 In the circumstances and in order to rebut the presumption of discrimination, I consider that the respondent must show that a particular height (or at least a person falling within a height range) is an occupational requirement for the position of Bus Driver and that any gender disadvantage at the shorter end of the range is objectively justified.
4.9 The respondent called Dr A (an occupational health specialist) and Ms B as witnesses to give evidence regarding the height requirements, their objective justification and the procedures followed in the recruitment process. Dr A outlined how the respondent operated medical examinations and interpreted the height requirements for the job. Dr A indicated that they followed the guidelines of the International Labour Organisation (ILO) in relation to employing Bus Drivers. Dr A claimed that there was a guideline height range from 158 cm to 200 cm which was applicable to the job. She stated that the Chief Medical Officer had guidelines on height but that she was not in possession of those guidelines. The witness was not able to produce a copy of this guideline, to indicate where that guideline was written down, or to indicate whether the guideline was ever considered in the national context. On a number of occasions, Dr A directed the Tribunal's attention to the website of the ILO in order that it might read up on the height guidelines. She stated that the guideline was not fixed because there may be exceptions to the rule and that people below and above the height range are employed by the respondent, depending on their individual circumstances. When the Tribunal enquired how the respondent ensured consistency, Dr A stated that she and her colleagues would discuss the various cases to ensure consistency.
4.10 The respondent confirmed that there may be male exceptions to the height rule but was not in a position to provide a breakdown of the numbers of persons below or above the guideline heights who were employed by it as Bus Drivers. The respondent also stated that those persons outside the guideline heights suffered from greater than normal sick leave levels.
4.11 Dr A outlined the various ergonomic considerations to be taken into account when considering height requirements and, once again, invited the Tribunal to view the ILO website to familiarise itself with those considerations. When asked, the respondent was not in a position to advise the Tribunal as to the costs associated with designing Bus Driver cabs for other heights.
4.12 I note from the respondent's communications with the complainant that they informed her that she didn't satisfy the minimum height standard, without informing her of what that height limit actually was. I further note that the only written note relating to a minimum height limit is a memo dated 13 September 2007 which refers to a minimum height of 165cm (in excess of 5 feet 4 inches). In her evidence, Dr A confirmed that, in her opinion, the average height of a female in the Irish population was 5 feet 4 inches (equating to c162.5cm). Therefore, on the face of it the respondent requires its female Bus Drivers to be above the average height.
4.13 I note that the respondent submitted a report on the which includes in the introduction the following line "this part of ISO 16121 sets out to consider the practical implications for all ranges of driver, but particularly those of heights from 1.58m (small female) to 2.0m (large male)." I find that this does not establish a specified height range to the exclusion of those persons whose height falls outside the relevant range.
4.14 Having considered the arguments put forward by the respondent in defence of this case, I consider that the respondent has established (on the basis of the oral evidence of the occupational specialist) that a height range may be a genuine and determining occupational requirement for the post of Bus Driver. However, in the absence of supporting documentary evidence, I find that the respondent has not established what the range is, or why it should be so, in either the international arena or, more specifically, in the national context.
4.14 In the absence of any clear and defined height range and associated procedures, I find that I cannot consider an apparently arbitrary measure of height (165cm), implemented in a piecemeal fashion, as amounting to objective justification.
4.15 Accordingly, the complainant is entitled to succeed in this complaint.
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment in relation to access to employment on the basis of the disability or race ground has not been established and this element of the complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment in relation to access to employment on the basis of the gender ground has been established and this element of the complaint succeeds.
5.3 In accordance with section 82 of the Acts I award the complainant €6,000 in compensation for the discriminatory treatment suffered. As this does not include any element of remuneration, it is not subject to income tax.
6.1 I recommend that the respondent clearly establish what height range amounts to a genuine and determining occupational requirement for the post of Bus Driver, and that they take steps to inform applicants for the position of that information at the earliest possible opportunity in the recruitment process
10 August 2010