A. Obligations under the Equal Status Acts 2000-2015
Discrimination in the provision of accommodation services is prohibited by the Equal Status Acts 2000 – 2015 (“the ESA”).
Both advertisers and property agents can be liable for discriminatory advertisements, on the instructions of property owners and/or landlords.
In the context of the provision of accommodation, and services and amenities relating to accommodation, there are ten protected grounds, these are:
The Gender ground: You are entitled to equal treatment whether you are a man, a woman or a transgender person.
The Civil Status ground: You are entitled to equal treatment whether you are single, married, separated, divorced, widowed, in a civil partnership or previously in a civil partnership.
The Family Status ground: You are entitled to equal treatment whether you are pregnant, a parent of a child under 18 years, or the resident primary carer or parent of a person with a disability, or a person without family status.
The Sexual Orientation ground: You are entitled to equal treatment whether you are gay, lesbian, bisexual or heterosexual.
The Religion ground: You are entitled to equal treatment no matter what your religious beliefs are or even if you don’t hold any religious beliefs.
The Age ground: You are entitled to equal treatment if you are any age over 18. (The age ground only applies to young people under 18 if they hold a driver’s licence and are buying car insurance.)
The Disability ground: You are entitled to equal treatment if you have a disability, for example, physical, intellectual, learning, cognitive or emotional. Disability could also mean that you suffer from a particular medical condition. Accommodation providers are under an obligation to provide reasonable accommodation to persons with disabilities.
The Race ground: You are entitled to equal treatment no matter what your race, skin colour, nationality or ethnic origin is.
The Traveller Community ground: You are entitled to equal treatment if you are a member of the Traveller community and share the traditions and culture of Travellers in Ireland.
The Housing Assistance ground: You are entitled to equal treatment if you are in receipt of rent supplement, housing assistance payments, or any other social welfare payments.
B. Types of discrimination prohibited under the ESA
Direct and indirect discrimination are prohibited under the ESA. Discrimination by association, and by imputation are also unlawful under the ESA.
Direct discrimination occurs where a person is treated less favourably than another person would be treated in a comparable situation on any of the above stated protected grounds.
Indirect discrimination occurs where an apparently neutral provision puts a person who is protected by any of the above stated protected grounds at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
Discrimination by association occurs where a person is associated with another person (who falls under one of the above protected grounds) and is treated by virtue of that association less favourably than a person who is not so associated is, or would be treated in a comparable situation.
Discrimination by imputation occurs where a person is treated less favourably than another person would be treated in a comparable situation where on one of the above protected grounds are imputed on them.
C. Exceptions under the ESA
Not all forms of different treatment will amount to discriminatory treatment under the ESA:
Difference in treatment in the context of the rent or sale of private property will not be deemed unlawful in the following situations:
- · disposal of any such estate or interest, or any provision of accommodation or of any service or amenity relating to accommodation, which is not available to the public generally or a section of the public.
- · Property disposed of is part (other than a separate, or self-contained part) of the home, i.e. a room or part of a private home.
- · Where the difference in treatment is required by enactment, or law.
- · Refusing accommodation, or services or amenities relating to accommodation which would lead a reasonable individual having responsibility, knowledge and experience of the person to the belief on grounds, other than on discriminatory grounds, that the provision of said accommodation or service would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to the property.
- · Multiple grounds: Premises or, accommodation that is reserved for a particular category of persons for a religious purpose or as a refuge, nursing home, retirement, or similar purpose. Refusal to provide accommodation to persons who fall outside that category will not constitute discrimination.
- · Gender ground: Where embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender;
- · Housing assistance ground: the person providing accommodation is entitled to make it a condition of the provision of that accommodation that rent supplement is paid directly to that person.
· Preferential treatment or, the taking of positive measures which are bona fide intended to:
o Promote equality of opportunity for persons who are, in relation to other persons disadvantaged or who have been or are likely to be unable to avail themselves of the same opportunity, or
o Cater for the special needs of persons, or a category of persons, who because of their circumstances, may require facilities, arrangements, or services or assistance not required by other persons, who do not have those special needs.
· Accommodation provider may impose or maintain a reasonable preferential fee, charge, in respect of persons together with their children, married couples, person in specific age group or person with a disability.
D. Identifying Discriminatory Advertisements
An advertisement will be deemed to be discriminatory for the purposes of the ESA where it indicates an intention, or might reasonably indicate an intention to discriminate for the purposes of the ESA.
When assessing an advertisement, an advertiser, or property agent should be guided by the following three stage-approach:
Step 1: Identify trigger words
Does the advertisement include words or, phrases which might reasonably give rise to an intention to discriminate?
The following is a non-exhaustive list of possible examples:
The Gender ground: man, woman, male, female, gents, ladies, his, hers, unisex, same sex, gender.
The Civil Status ground: married, single.
The Family Status ground: family, children, single, couple, bachelor, married, dependant(s), teenager, child, infant, baby toddler.
The Sexual Orientation ground: his and hers, traditional couple, gay, lesbian, bisexual, straight.
The Religion ground: Christian, Muslim, Jew, faith, orthodox, believer, God fearing, church-going, religion, religious.
The Age ground: young, mature, senior, elderly, golden years, retired, student, pensioner.
The Disability ground: disabled, handicapped, able-bodied.
The Race ground: race, ethnic, native, Irish (or any nationality), non-national.
The Traveller community ground: Traveller, settled, itinerant.
The Housing Assistance ground: professional, rent allowance/supplement, housing assistance, [means] tested, unemployed persons, dole recipients, job seekers/benefits, social welfare recipients, work status, work reference, corporate persons, work history, employed, remunerated, salaried, working.
It is acknowledged that words, including but not limited to, “family”, “mature”, and “professional” may capture adverts that are not necessarily discriminatory in nature. For example – “family bathroom”, “mature garden” or “professional landscaped garden” (These examples are illustrative only and are not exhaustive). Agents may seek to apply such further filter systems as appropriate and necessary in this regard, but must seek to ensure compliance with the ESA.
“Trigger word(s), or phrase(s)” and where
appropriate the ad as a whole, that are clearly discriminatory in nature,
should be removed.
The advertisement should be assessed as a whole.
In certain circumstances, the context of the ad as a whole should be assessed.
The assessor should, for instance, take account of the specific features and location of the property, local amenities, services, features and places of worship, the intended audience (for rent or sale), and if for rent, the duration of the lease.
The assessor should ask whether the advertisement indicates an intention to engage in discrimination (as outlined at Part B) or might reasonably be understood as indicating such an intention. The assessor should ask whether any of the above exceptions (as outlined at Part C) apply.
Step 3: Making a determination
On following step 1 and 2 the agent should be in a position to determine whether the advertisement is in compliance with the ESA or, not.
On making the determination, the phrase or, where appropriate, the entire advertisement should be removed.
If it remains unclear to the assessor, he or she, should seek further information from source (where required) or seek guidance from a supervisor, where appropriate.
This is a guidance document only, and is not a definitive interpretation of the current law. This document is without prejudice to an advertiser, or publisher from seeking legal advice on any individual advertisement.