Thursday, February 12, 2015

Gender Equality in Promotions

The case of Dr Micheline Sheehy Skeffington, who successfully claimed gender discrimination concerning the senior lecturer promotions process in NUI Galway, has been widely reported in the media.  This case illustrates a number of key aspects of employment equality law, and I am currently discussing it in my Employment Law classes.  The full decision - DEC-E2014-078 - is available here and I would urge those interested to read the case in full.  By way of background, for those unfamiliar with employment equality law, a quick summary of the Irish legislation is here.  Some key principles to bear in mind are the differences between direct and indirect discrimination and the meaning of objective justification in s.22 of the 1998 Act as amended.  The current version of the legislation is here.

There is no need to prove an intention to discriminate under the Act.  Once an employee produces prima facie evidence of gender discrimination, the burden moves to the employer to prove that it did not discriminate.  The ground relied upon need not be the only or indeed the dominant reason for the impugned decision. It is sufficient if the discriminatory ground is anything other than a trivial influence in that decision.  At the initial stage, the employee is merely seeking to establish a prima facie case. It is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.  It has been noted that "discrimination is usually covert and often rooted in the subconscious of the discriminator. …the court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution."  (Nevins, Murphy, Flood v Portroe Stevedores - EDA051 - [2005] ELR 282). 

The decision includes detailed discussion of the procedure and scoring in the promotions round in question.  For purposes of my classes, I chose to highlight the following selected aspects (to understand all of these fully, you need to read the full case):
Prima facie evidence of direct discrimination in Sheehy Skeffington case (para. 4.3):
  • No training for interviewers
  • No marking schemes
  • One male promoted even though not eligible 
  • Only one woman on interview board of 7 people
  • Registrar on interview board and involved in appeal
  • Three successful males had less than minimum contact hours 
  • Dr Sheehy Skeffington had supervised more PhDs than anyone else
  • Some males received higher marks for contribution to School, etc., in anomalous manner
 Cumulatively, these were prima facie evidence of discrimination.

The employer provided rebuttals to many of these points (see paragraphs 3.1 to 3.12).  The Equality Tribunal responded to these rebuttals by making various points, which included the following:

  • Statistical evidence showed women had a very low success rate in promotions.  From 2001 to 2009, men had a one in two chance being promoted; women had only a one in three chance.  
  • The female candidate with the most glowing references was unsuccessful and came fourth last
  • Dr Sheehy Skeffington had published well and had a fair record of grant funding   
The Tribunal therefore found that there had been direct discrimination on grounds of gender.

As regards indirect discrimination, the application form for promotions asked people to state when they were on maternity leave or other unpaid leave so that it could be discounted.  The Tribunal dealt with this issue as follows (see para. 4.6) :
  • Males left this bank; Four females filled it in 
  • The three females who left it blank ranked highest  
  • The majority of female applicants drawing attention to their caring responsibilities outside the workplace disadvantaged them against the male applicants  
  • The inclusion of the question on the form was a legitimate aim but it was not appropriate or necessary
The Tribunal therefore also found indirect discrimination.

The tribunal ordered that Dr Sheehy Skeffington be promoted to the post and awarded €70,000 compensation.  It also ordered that the employer conduct a review of its policies and procedures in relation to promotion to Senior Lecturer to ensure that they are in compliance with the Acts with particular reference to the gender ground. A report on progress of this review must be made to the Irish Human Rights and Equality Commission within one year.

Declaration of Interest: I am a male university lecturer.  I have attempted to highlight the grounds on which this case succeeded, for the information of readers of this blog. The employer's perspective is summarised fully in the case, but most of the employer's arguments were rejected by the Tribunal. 

Comments:  This case is best understood in the context of the principles established in earlier case-law, some of which are outlined above and in the full decision.  The Tribunal is not stating that if fewer women than men are promoted this automatically shows discrimination.  But since there were so many defects in procedure and anomalies in scoring, the statistics constituted evidence of direct discrimination.  It is also important to note that it was the cumulative impact of the various defects that lead to the prima facie evidence of discrimination. There will be those who will argue (as some students often do) that defects in procedure should not lead to findings of substantive breach.  However, if this does not happen, then the law is effectively providing a licence to breach procedure and sending a message that such procedures are unimportant.
As regards asking people to state if they had been on maternity leave, etc., this is only a minor aspect of the case and it is debatable whether this would always be discriminatory.  

On a related note, I spent a fascinating two days at the recent feminist judgments workshop here in UCC and look forward to reading the book which will result. 

Media stories on the Sheehy Skeffington case are available by doing web searches such as this








3 comments:

bealoideas said...

I suspect part of the problem the criteria the university uses do not match what it lists which is unjust. For instance these days the number of supervised students isn't really meritocratic measurement of achievement. Its measure of experience. I would argue the university needs to be more honest in outlining that talent matters not experience.

Angela Flynn said...

Hi Darius, you probably spotted that Micheline is speaking at UCC on weds 18th NW Council Room 4pm. Registration via Eventbrite. AF

The Pragmatist said...

Check out
www.NUIGgender.com
for current situation in NUI Galway on gender didcrimation