Is this discrimination now? Clearing the grey areas of the Equality Bill

The proposed Equality Bill has been hailed by civil liberties minister Helena Dalli as a landmark law that will clamp down on discrimination across the board.

However, critics – notably the Malta Employers’ Association and PN MP Clyde Puli – have warned that the proposed law is lacking in clear legal definitions of what constitutes discrimination and as such could open the door to all sorts of frivolous cases. 

Moreover, they have warned that it risks reversing the burden of proof, requiring people charged with discrimination to prove their innocence rather than plaintiffs having to prove their guilt. 

MaltaToday presented Silvan Agius, the policy chief who spearheaded the bill, with a list of abstract cases to get his view on which could be deemed legitimate discrimination by the Equality Commissioner and which could be deemed frivolous. 

A teacher who claims that she was not given employment in a church school as a geography teacher because he is vocally pro-abortion. 

schools are allowed to have their own policies based on their ethos, as long as such policies are not discriminatory

‘Political opinion’ is a protected characteristic under the Equality Bill and therefore cannot be used as a ground for discrimination. Furthermore, it would appear that no particular political opinion is necessary (genuine occupational requirement) for the teaching of geography. Nonetheless, schools are allowed to have their own policies based on their ethos, as long as such policies are not discriminatory, and therefore teachers’ political participation on matters that conflict with the school’s ethos may be reasonably curtailed.   

A lecturer who claims that he was not given employment at University or MCAST because he expressed xenophobic views on Facebook. 

It is not discriminatory for an educational establishment to require its staff members to abide by certain policies, for as long as such policies are not in themselves discriminatory

Once again, ‘political opinion’ is a protected characteristic under the Equality Bill and therefore cannot be used as a ground for discrimination. However, it is not discriminatory for an educational establishment to require its staff members to abide by certain policies, for as long as such policies are not in themselves discriminatory. Specifically, with regard to this case, not being selected for a job because of one’s political opinion would be discriminatory, but being required to follow a certain standard of behaviour in public is not. 

A man who claims that he was not given a job because he wears the Verbum Dei (Society of Christian Doctrine) badge.

A workplace has the right to establish its own policies with regard to the attire of its staff, including the display of religious or political symbols at the place of work. Based on that policy, which policy has to be non-discriminatory, the exclusion of this man from the workplace can be justified for as long as all other employees are equally required to not wear any religious symbol at the place of work. 

A Muslim who claims that s/he was not given a job in a supermarket as s/he refuses to handle products containing alcohol or pork. 

It is reasonable for supermarkets to require their staff who handle food and drink items, to do so with all of the products sold in their establishment. It would thus seem clear that such a requirement on the part of the supermarket constitutes a genuine occupational requirement, and the exclusion of an employee who refuses to handle such products is not discriminatory. 

A foreign person who claims that s/he was not allowed to rent a flat from a specific landlord because s/he is a foreigner.

Discrimination in access to housing on the grounds of ‘race or ethnic origin’ is already illegal under the Equality for Men and Women Act

Discrimination in access to housing on the grounds of ‘race or ethnic origin’ is already illegal under the Equality for Men and Women Act. 

A receptionist, air steward, promoter or TV presenter who claims s/he was rejected for a job because s/he is not physically attractive enough.

Discrimination on features such as height, hair colour or texture, or bone structure, for example, is illegal

‘Genetic features’ is a protected characteristic under this Bill. This means that discrimination on features such as height, hair colour or texture, or bone structure, for example, is illegal (for as long as such characteristic do not constitute a genuine occupational requirement). This said, one should draw a difference between genetic features and personal presentation and/or charisma. 

An office worker who claims he was denied a job because he is not physically attractive enough. 

Once again, ‘genetic features’ is a protected characteristic under this Bill, and the onus of proving that a certain look is necessary for the performance of a particular office job rests on the employer. 

A journalist who claims that s/he was rejected from a job because their personal views contrast sharply with the paper’s editorial stand. 

While ‘political opinion’ is a protected characteristic under this Bill, the world view of any journalist or opinion maker is highly likely to inform the viewpoint employed in the writing of articles. Since it is understandable that a newspaper would have an established editorial stand and would expect its staff to abide by that ethos in their work, if those personal views are likely to impinge on one’s work, then it is not discriminatory to reject such a prospective employee. 

A gay person who is rejected for a job that is instead given to an equally qualified but straight person, but claims that he was turned down because of his sexual orientation. 

Where two job applicants are equally qualified, equally experienced, and both satisfy all the job requirements, it is up to the employer to decide who to employ. 

A person who applies for a job in a pharmacy who claims s/he was turned down as s/he refuses to sell the morning-after pill. 

There is a code of ethics for pharmacists which excludes the implications of the law

There is a code of ethics for pharmacists which excludes the implications of the law as long as this code of ethics is not discriminatory.

A person who sympathises with the Opposition and applies for the role of government policy officer but is rejected in place of someone clearly less qualified than he, and claims that this was a case of political discrimination. 

‘Political opinion’ is a protected characteristic under this Bill, and the Bill applies to both the public administration and the private sector. Therefore, if it turns out that the person chosen is indeed less qualified, and that political opinion was the reason for the rejection, then such a rejection would be discriminatory. Nonetheless, the same would not apply to a person employed in the secretariat of a minister as such position intrinsically requires loyalty to the government’s political vision.

A woman who applies to be a security guard or a bouncer but is turned down and claims gender discrimination.

‘Sex’ is a protected characteristic under this Bill. Being a woman or a man is irrelevant to carrying out the role of security guard or bouncer, and therefore such rejection would be discriminatory. If, however, that woman is turned down on an objective reason, such as lack of adequate strength, then such rejection would not be discriminatory, since such strength may be a genuine occupational requirement

An elderly person who is turned down for an entry-level job and claims ageism. 

‘Age’ is a protected characteristic under this Bill and therefore when it constitutes the main or sole reason for such a rejection, the exclusion would be tantamount to direct discrimination. 

A black person who is fluent in Maltese who applies to be a TV presenter but is turned down for the role and claims racism. 

If it is proven that that person was turned down on the basis of one’s skin colour, such a rejection would constitute direct discrimination under this Bill

If that person satisfies all the criteria to be a TV presenter, such as fluency in the Maltese language, and it is proven that that person was turned down on the basis of one’s skin colour, such a rejection would constitute direct discrimination under this Bill. 

A wheelchair-bound person who is turned down for a job simply because the offices of the workplace in question is only accessible by stairs, and claims that he is being discriminated because of his disability. 

If the workplace cannot be modified to accommodate a ramp or an elevator, or such modification without costing a disproportionate amount of money, then the employer is not discriminating against that person

This claim would depend on a number of elements that determine whether the required accessibility is reasonable or otherwise. If the workplace cannot be modified to accommodate a ramp or an elevator, or such modification without costing a disproportionate amount of money, then the employer is not discriminating against that person. However, if that building can be reasonably modified, or the employee’s office can be relocated to the ground floor, then such modifications are expected to be made, and being turned down for that job would indeed be discriminatory on the ground of ‘disability’.

A black Muslim woman is not allowed to ride a bus by the bus driver and claims discrimination on the basis of her race, religion and sex.

Under this Act, discrimination in the access to goods and services, such as public transport, is illegal. This Bill also addresses multiple ground discrimination for the first time, which discrimination occurs when a person is discriminated on intersecting personal characteristics, such as their race, religion and sex as in this case. There is no justified reason why a black Muslim woman should not be allowed to use public transportation, and thus such refusal would be discriminatory. 

A civil union partner is not allowed to visit his dying partner in hospital because the staff claim he does not have the right to be present. 

‘Civil status’, such as being in a civil union or married, is a protected characteristic under this Bill. In its assessment of this case, the Human Rights and Equality Commission would need to compare the treatment with that of a married person in a similar situation to determine whether discrimination occurred or not. 

A black trans person is denied entry into a club in Paceville for no apparent reason. 

This Bill clearly states that discrimination in the access to entertainment and recreational activities which are publicly available is illegal

This Bill clearly states that discrimination in the access to entertainment and recreational activities which are publicly available is illegal. Being denied entry on the basis of a person’s skin ‘colour’ or ‘gender identity’, despite the fact that that person is of legal age to enter such a club and is not being rowdy, for example, is discriminatory under this Bill. 

A woman is not allowed to compete in a men’s triathlon and claims gender discrimination. 

It is not illegal for a competition to be organised specifically for a particular sex in line with international standards

Although discrimination in the field of sports is illegal under this Act, it is not illegal for a competition to be organised specifically for a particular sex in line with international standards. It is thus perfectly acceptable for the competition organiser to refuse participants who are of a different sex.