Employment Spotlight: Gender Discrimination during Interviews – A Case Study

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Overview

A Women’s right to Maternity leave is enshrined in the Maternity Protection Act, 1994. Therefore, Employers must ensure that women are not subjected to discriminatory treatment on the grounds of their gender or family status when they are on maternity leave, or upon their return to work from maternity leave.

As a HR professional or business owner, it is important to be aware of the legal obligations and risks associated with this type of discrimination. The recent case of Sarah Adam v Dublin and Dun Laoghaire Education and Training Board (ADJ-00028925) provides a useful example of what constitutes gender and family status discrimination in an interview process, the potential pitfalls and consequences for employers. .

Gender / Pregnancy Discrimination

Under the Employment Equality Acts (EEA), Section 6 (2) (a), discrimination between a man and a woman is prohibited. Further, under subsection (2A), notwithstanding subsections (1) or (2), discrimination on the gender ground can also relate to a women’s pregnancy or maternity leave, where, as a result of such, she is treated less favorably than another employee has been or would be treated.

Family Status Discrimination

Pursuant to Section 2 of the EEA, family status is defined as meaning responsibility “as a parent or as person in loco parentis in relation a person who has not attained the age of 18 years old or as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis”. As such, the EEA ensures that such a person is not treated differently to that of another person who does or does not have family status. Otherwise, such acts, where direct or indirect, may constitute discrimination.

Factual Background

The complaint, Sarah Adam, an art teacher, alleged that she was discriminated against by the respondent in this matter in relation to the above grounds.

Ms Adam had been employed by the school from September 2019 until August 2020 on a fixed term contract, but was on maternity leave from December 2019 until June 2020.  Following her return from maternity leave and prior to her contract expiring, she interviewed for the role again in July 2020. Following the conclusion of the competition, Ms. Adam received a rejection letter later that month, with the role going to the individual who covered for her maternity leave.  Ms. Adam appealed the outcome, but the decision was upheld and her employment then terminated at the end of August 2020.

As part of her case, Ms. Adam’s submitted she had been assured by her employer that her role would be kept open for her during her maternity leave, and the interview process was merely a formality.  However, during the course of the interview , various questions were directed at her, which she alleged constituted discrimination on the grounds of gender and family status.

The employer denied the allegations, relying on Section 10 of the Maternity Protection Act, which provides that an employee on maternity leave is entitled to return to work after the leave, on the terms and conditions that would have applied if she had not been absent, unless it is not reasonably practicable. The employer argued that the employee’s employment was not renewed because she was not the best candidate for the job following the interview process, not because of her gender.   The Principal of the school gave evidence that the other candidate performed better in the interview. The school also relied upon the interview notes to support this argument and contested the sworn evidence of the employee.

WRC Decision

At the hearing, the Adjudication Officer noted that the burden of proof was on Ms Adam to establish facts of such significance that raise the inference of discrimination.  Upon examination of the evidence the Adjudicator noted that, “an interview panel is best placed to judge the relative merits of candidates. Perfection is not the standard; not every discrepancy in an interview process raises an inference of discrimination.  While an adjudication officer looking at a process might not agree with the decision of the panel, this is not, itself, evidence of discrimination. A complainant is not required to prove an intention to discriminate, and an act could be discriminatory even though the party doing the act does not intend to discriminate.”

In finding that gender discriminating had occurred, the Adjudicator had regard to the following:

  • The interview panel were aware that the employee was on maternity leave, as the employee’s maternity leave was acknowledged in the handwritten notes of one of the interviewers.
  • Technical difficulties with conducting an online interview (whilst frustrating for the employee), did not draw an inference of discrimination;
  • The “closed nature” of the questioning drew an inference of discrimination. Questions such as “you’ve worked in a lot of schools, haven’t you?” and “do you know what an extracurricular activity is?” were deemed to be “striking” questions. The respondent was criticised for not providing the employee an opening question to ease her into the process. The Adjudicator felt the questions contained negative connotations, which were compounded by the fact that the other candidate was not asked a similar line of questions.
  • The fact the employee was asked about her continual professional development in the last year when the interviewer was aware she was on maternity leave was deemed to draw an inference of discrimination. The Adjudicator in explaining this position, noted the following, “The finding that the complainant did not have ‘enough’ CPD was manifestly irrational. Firstly, despite being on maternity leave, the complainant had more recent CPD than Ms A, having attended the May and June CPDs, which Ms A did not attend. Secondly, the complainant had years of CPD, as set out in her application. It is manifestly irrational to find that the complainant did not have enough CPD.”
  • The continuous references to the “last year” was deemed to draw an inference of discrimination. The Adjudicator noted that the interview took place in July 2020, one month after her return from maternity leave, and that her last year “obviously” encompassed a period of maternity leave. The Adjudicator again noted that it was “striking” that the employee was asked to give examples during that period which encompassed maternity leave which demonstrated CPD, Teacher Leadership and extracurricular activities. The Adjudicator noted, “The framing of questions to ask for examples from the last year would have a discombobulating effect on any candidate for whom this encompasses protected leave such as maternity leave. This is apparent in the complainant’s case as she was said not to have enough CPD within the last year. She gave examples of CPD including those undertaken during the maternity leave, but she would have had more examples to give, had she not been on maternity leave.
  • The interviewer’s personal “comments” about the employee drew an inference of discrimination as such comments went beyond facts and could be construed as “opinion”.
  • Insufficient weight was provided to her qualifications and competency assessment and that was deemed to draw and inference of discrimination.

In light of the above, the Adjudicator awarded the employee €35,000 in compensation.

Spotlight for Employers

The Adjudication Officer’s decision highlights the importance of the protections afforded to employees who have exercised their rights under the Maternity Leave Act, following their return to employment and during an interview process.   Employers should ensure they avoid questions and practices that could be perceived as discriminatory, even if they are not intended to be.

Employers should also ensure that they comply with their obligations under relevant legislation, such as the Maternity Protection Act and the Employment Equality Act. This includes the obligation to provide equal opportunities to employees based on their abilities, qualifications and experience, and to avoid discriminating against them.  When asking questions, the interview panel should be mindful of whether candidate’s answer is prejudiced in any manner because of factual circumstances relating to any one of the nine grounds of discrimination.

This article was co-written by Don McGann (Partner), Siobhan McGowan (Partner) and Robin Hyde (Associate).

 

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