Posted on April 02, 2015
By Rachel Mullen is the Coordinator of the Equality and Rights Alliance www.eracampaign.org
Any discussion of the protection and fulfilment of economic, social and cultural rights must consider the backdrop of significant levels of discrimination, together with significant levels of under-reporting of discrimination in an Irish context.
Access to key public services and employment are central to the fulfilment of social and economic rights. Our equality legislation prohibits discrimination in access to employment, goods and services for those groups protected under equality law. There is, however, a significant gap between the lived experience of people who are regularly discriminated against in accessing services and employment, and the ability to vindicate their rights in this regard.
The incidence of discrimination was examined by the Central Statistics Office (CSO) in 2004 and again in 2010. On both occasions the CSO found that 12% of the Irish population over the age of eighteen had experienced discrimination in accessing employment, goods and services. This equates to over three hundred and fifty thousand people. The CSO data do not provide information on the experiences of Travellers and LGBT people, however, other national data samples provide information on the experiences of these groups. The Traveller All Ireland Health Survey, published in 2010, of over five thousand Travellers in the Republic found that 42% reported that they ‘often’ or ‘very often’ felt discriminated against. The EU Fundamental Rights Agency (FRA) 2013 study on LGBT people’s experience of discrimination in the previous twelve monthsfound that: 47% of Irish LGBT people had experienced harassment or discrimination (18% in seeking employment and 35% in accessing goods or services).
Equally as concerning as the high levels of discrimination, however, is the high levels of under-reporting of discrimination. The CSO data indicates that 90% of people who experienced discrimination took no formal action. The EU FRA LGBT survey found that 90% of the people who experienced discrimination in Ireland in the previous year took no formal action. Similarly, an EU FRA 2009 survey on the experiences of people with an ethnic and minority background found that 84% of Sub-Saharan Africans and 79% of Central and East Europeans living in Ireland took no formal action in regard to their experiences of discrimination in Ireland.
A range of barriers prevent people from reporting and seeking access to justice. The key barriers can broadly be grouped as support-related and those that are more systemic in nature.
Support barriers
Research on discrimination highlights a number of related and overlapping barriers to reporting that collectively point to a sense of disempowerment experienced by the victim. This sense of disempowerment can be most acute among groups that experience higher levels of discrimination. The key issues cited in this regard are: the perception that reporting the incident will do nothing to change the situation; fear of negative consequences of reporting and a lack of trust in statutory bodies. Another key barrier is the lack of awareness and knowledge about rights and systems of redress. One study by the EU FRA found that 51% of Sub-Saharan Africans and 29% of Central and East Europeans living in Ireland were unaware of any law protecting them from discrimination in the three areas of employment, goods and services, or housing. The research also found that 61% of Sub-Saharan Africans and 90% of Central and East Europeans had never heard of the Equality Authority, and 63% of Sub-Saharan Africans and 88% of Central and East Europeans had never heard of the Equality Tribunal.
Resource barriers are also an impediment to seeking justice. While, in theory, legal representation is not required to take a case to the Equality Tribunal, in reality, respondents to a claim of discrimination are likely to have legal representation to defend their case which can put claimants at a disadvantage if they do not equally have the means to be legally represented.
Structural barriers
Equality legislation offers partial protection and to a limited number of groups. The absence of a socio-economic ground leaves a significant gap in protection from discrimination and the lack of justiciable economic, social and cultural rights leaves a significant gap in human rights protection.
The lack of speedy, effective and dissuasive remedies through the Equality Tribunal is also a systemic block. The Equality Tribunal has consistently suffered from a significant backlog of cases, with cases taking up to three years from the time the complaint is lodged to the hearing date. In addition, the ceilings on awards that can be made under equality legislation are not considered to be sufficiently dissuasive or effective.
Institutional capacity to address the scale of the problem has also been a consistent issue.The key institutions charged with addressing discrimination and human rights abuses - the IHRC and the Equality Authority (now the Irish Human Rights and Equality Commission) and the Equality Tribunal - have, since their establishment, suffered from under-resourcing. Resources to run public awareness campaigns to inform peoples of their rights under law have not been available to the bodies, nor have there been adequate levels of staffing or financial resources to assist and hear cases and conduct enquiries.
Under-reporting of discrimination poses a significant threat to any aspiration for the fulfilment of economic, social and cultural rights. It is a key challenge to statutory agencies and to NGOs working to address inequality, discrimination and poverty. Under-reporting will only be addressed where there is an adequately resourced equality and human rights statutory and voluntary infrastructure. This infrastructure must be supported to enable a critical mass of cases to be taken and to contribute to the cultural change required to enable people to report discrimination and human rights abuses.
A more detailed paper by the Equality and Rights Alliance on under-reporting can be accessed here.