Equality before the law

Thirdfox

Genuine legal question - I'm reviewing this for my studies:

In relation to Art. 40.1 and equality, what is the justification/legality of companies having single sex policies in the course of their business?

e.g. Car insurance comp. A says women only (and we give you x% discount) - is the fact that in general women have less accidents than men an objective justification (or is such justification needed?) What if a man has a 100% no claim bonus - can he avail of the "women only" rates? And would the ECHR/ECJ react differently (for the ECJ if it was a State body) to the Irish courts?

Any relevant articles/legislation/case-law backing up opinions would be appreciated.

P.s. - just wanted to add - what is the difference between saying "women only" to..."whites only" or "heterosexuals only" (if hypothetically it can be proven that Caucasian/straight people drive better than people of other races/homosexual preference).

Thirdfox

No-one?

Tom Young

I'd have thought the Equal Status Act might have caused some problems with this.

Art 40.1 does not guarantee absolute equality for all citizens in all circumstances; discrimination based on differences in relevant circumstances is legitimate. De Burca v. Att.General.
In Dillan v. Att-General [1980] I.L.R.M. 167 Henchy J opined that the court will not condemn discrimination if:
“It is not arbitrary, or capricious, or otherwise not reasonably capable, when objectively viewed in the light of the social function involved. Of supporting the selection or classification complained of.”
In O’B v. S. [1984] I.R. 316 Walsh J opined that:
“The distinctions or discrimination which the legislation creates must not be unjust, unreasonable or arbitrary and must, of course, be relevant to the legislation in question.”
Difficulties remain as to what constitutes such phrases as arbitrary, invidious or reasonable. The courts have shown great deference to the will and discretion of parliament. In Murphy v. Att-Gen [1982] I.R. 241 The court stated, “Inequality would not be set aside as repugnant to the constitution . . .. If any state of facts exist which may reasonably justify (it).”

The second sentence in Article 40.1, the so called proviso legitimates discrimination based on differences of capacity, physical and moral, and of social function. The proviso has been successfully relied upon in a number of cases.

In De Burca & Anderson v AG, O’Higgins CJ felt the exemption of women from jury service could be justified by reference to the proviso. There could be no such justification in respect of persons who did not qualify by reason of the minimum property qualification. O'Higgins view was not shared buy his fellow justices. Walsh J opined that:
“it is not open to the state to discriminate in its enactments . . solely on the grounds of sex . . . If reference is to be made to sex . . . then the purpose of the law that makes such discrimination should be to deal with some physical or moral capacity or social function that is related exclusively or very largely to sex."

Thirdfox

So insurance companies can also theoretically have a "whites only" policy if they can point to reports that 70% of RTA are caused by non-white people etc.? - I can't recall what the test for "unjust, unreasonable and arbitrary" is... the law seems a bit confusing here (where some discrimination is allowed in one case and in similar cases it isn't).

Tom Young

I'd defer to statute for the answer.

Maximilian

Thirdfox wrote: »

So insurance companies can also theoretically have a "whites only" policy if they can point to reports that 70% of RTA are caused by non-white people etc.? - I can't recall what the test for "unjust, unreasonable and arbitrary" is... the law seems a bit confusing here (where some discrimination is allowed in one case and in similar cases it isn't).

I think its in the nature of insurance that they have to discriminate. You get charged according to risk, based on all those statistics & actuarial stuff.

So if you are a women, you are less likely to have an accident, and pay less. If you have a family history of cancer, expect to pay more for life insurance. The same if you smoke. I can't believe I'm saying this but it would be unfair on insurers if they couldn't discriminate.

One thing that strikes me is that people have a tendency to assume that all discrimination is bad, which is not the case. Everyone discriminates. The problem only arises when its unfair. So no, you couldn't have a "whites-only" policy, unless it could be objectively justified.

Tom Young

Originally Posted by Tom Young
Interesting judgement on this is O'Higgins J. in Equality Authority v. Portmarnock Golf Club. http://www.bailii.org/ie/cases/IEHC/2005/H235.html

http://www.boards.ie/vbulletin/showthread.php?p=54001926

Thirdfox

Maximilian wrote: »

One thing that strikes me is that people have a tendency to assume that all discrimination is bad, which is not the case. Everyone discriminates. The problem only arises when its unfair. So no, you couldn't have a "whites-only" policy, unless it could be objectively justified.

So has anyone ever do research into the inherent differences between races? Maybe there are differences between ethnicity and driving performance - would people be willing to accept that because they are White/Asian/Black etc. that they have to pay more? What if research finds that a particular race is more intolerant of alcohol - should crimes committed by those races under the influence of alcohol be more or less harshly punished? Where do people draw the line? It just seems that the blurring distinction between "treating equals equally and unequals unequally" and Brown v. Board of Education is very fine at times.

I think the problem question that I looked at in the exam was saying that although it can be said that maybe for a large percentage of people this generalisation holds true but what about the times when it doesn't e.g. a 21 year old male driver with a perfectly clean driving record will be punished for being an under 25 male driver...not because he is a bad driver.

Then again - I suppose free market + choice arguments may apply?

Also the question is not just about lower costs for one sex but that some companies say no to one sex - "we only insure female drivers", that seems to be suspect to statutory law does it not?

Tom: thanks for the link - I'll have a look at the whole judgment when my exams are finished.

haz

Thirdfox wrote: »

So has anyone ever do research into the inherent differences between races?

Do a web search for The Bell Curve or the reactions to DNA pioneer Professor James Watson's comments about genetically-based intelligence. I am sure that the fear of public reaction to either researching inherent differences or to discriminating because of them is far more relevant than statute. Some insurers and all blood banks discriminate on the basis of ethnicity, travel and sexual activity, and they seem generally able to defend their policies on the basis of available statistical risk analysis, but they have a public safety remit.

A car or household insurer would need some very convincing data that a) there are differences in risk between races and b) these are inherent rather than environmental. And a thick brass neck for their PR spokesperson.

NoQuarter

It could also be looked upon as in Somjee v Minister for Justice [1981] ILRM 324, re the citizenship act in which keane J said "This distinction could be understood as conferring a form of privilege on female aliens rather than being discriminatory against male aliens".

Thirdfox

Exactly - I feel that there will be huge public backlash if after all these years of talking about equality the Government suddenly decide that Black/male/homosexual people are more capable in one area and less in another.

I have heard about Prof. Watson's views on God and African intelligence... I suppose this is the justification of free speech - an open debate on topical issues and the good speech driving out the bad.

Blood banks discriminate on previous residency too (I lived in England during the BSE scare and can't give blood now). It just seems strange that while the general rule is one thing, why can't interested parties get individual verification to prove otherwise (a rebuttable presumption as it were...) Or would the cost be too large in actual practise?

Thirdfox

king-stew wrote: »

It could also be looked upon as in Somjee v Minister for Justice [1981] ILRM 324, re the citizenship act in which keane J said "This distinction could be understood as conferring a form of privilege on female aliens rather than being discriminatory against male aliens".

It would seem that in later cases:
McKinley v. Minister for Defence and O'G v. An Bord Uchtala that the courts have been willing to extend/amend legislation to bring it into compliance on equality grounds.

Our law professor was highly critical of the Somjee decision - saying that it was an absurdity. Then again we do have groups who are privileged (especially the married family under the Constitution who is protected against attack and superior to positive law)...

johnnyskeleton

Thirdfox wrote: »

It would seem that in later cases:
McKinley v. Minister for Defence and O'G v. An Bord Uchtala that the courts have been willing to extend/amend legislation to bring it into compliance on equality grounds.

I don't know those cases, but as a general principle the courts cannot extend or amend legislation (CC case). However, where there are two interpretations, one constitutional the other not, the court must adopt the interpretation that is constitutional (East Donegal Co-operative case).

Thirdfox wrote:

Our law professor was highly critical of the Somjee decision - saying that it was an absurdity. Then again we do have groups who are privileged (especially the married family under the Constitution who is protected against attack and superior to positive law)...

Tough cases make bad law.

Thirdfox

johnnyskeleton wrote: »

I don't know those cases, but as a general principle the courts cannot extend or amend legislation (CC case). However, where there are two interpretations, one constitutional the other not, the court must adopt the interpretation that is constitutional (East Donegal Co-operative case).

The O'G case was whereby unmarried males were not allowed to adopt (unless they already had a child). The SC were able to "amend" the legislation by striking out the unconstitutional part of the legislation:
essentially "Males are allowed to adopt children, provided that" Everything past the "provided that" bit was deemed unconstitutional and it can be argued that striking this part out essentially amounted to an amendment/extension of the law.

Tough cases make bad law.

Agreed - the A case or X case are great examples.

Carawaystick

I know of two cases where insurance companies changed their quoting policies when cases went to equality tribunal - one on age grounds - and another on age and gender grounds.