Debating the Use of Statistical Evidence in Allegations of Age Discrimination

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1. INTRODUCTION AND BACKGROUND TO THE CASE

The Irish Employment Equality Act of 1998 prohibits discrimination in relation to employment on nine distinct grounds: gender, marital status, family status, sexual orientation, religious belief, age, disability, race, and membership of the Traveller community. The Traveller community are those who are identified (both by themselves and others) as people with a shared history, culture, and traditions, including historically a nomadic way of life on the island of Ireland.

In Ireland, the Office of the Director of Equality Investigations (ODEI) provides the main focus of redress in the first instance for equality cases arising under employment equality legislation. In the year 2001, for example, there were 260 employment cases referred to the Director of Equality Investigations (ODEI), of which 23 (9%) were on the basis of age. The office is managed by a government-appointed director and is staffed by equality officers and equality mediation officers. Where it appears possible to resolve a case through mediation, the director or an equality officer will, subject to the agreement of the parties to the claim, refer the case for mediation. In all other instances, or where mediation has been unsuccessful, the director will investigate each case submitted and will issue a decision in the matter.

Appeals against decisions of the ODEI may be taken to the Labour Court. The Labour Court provides a service for the resolution of disputes about industrial relations, equality, organization of working time, and national minimum wage matters. The Labour Court is not a court of law. It operates as an industrial relations tribunal, hearing both sides in a case and then issuing a determination setting out its opinion on the dispute and the terms on which it should be settled. Appeals against decisions of the Labour Court are taken in the law courts.

From a statistical viewpoint, an interesting case of alleged age discrimination arose following a promotional competition by the Revenue Commissioners of Ireland in 1999. The employer advertised a promotional competition for its own employees in 1999, and of the 53 applicants, 30 were deemed to be successful in the competition. Their names were consequently placed on a panel (list) of individuals who would be asked to serve in a more senior and lucrative position as vacancies arose in the future. Four of the unsuccessful applicants (all over 50 years of age), however, subsequently claimed they were discriminated against on the basis of age in this competition, and their union referred the case to the director of equality investigations in 2000. Following receipt of submissions from both parties, the equality officer held a joint hearing in August 2001.

Based on information provided by the employer, the union presented in its submission Table 1 of success rates of candidates grouped by age. At the actual hearing of the equality officer, however, the union stated that as the complainants ranged in age from 53 upwards, "it was more revealing if the age band 53 to 60 were examined." Hence subsequent to the hearing they provided the equality officer with Table 2.

The employer, on the other hand, argued in its submission to the equality officer that Table 3 gave a more meaningful analysis of candidates by age. Based on the figures in Table 3, the employer claimed, "the percentages across the different age bands do not show a significant variation."

Each candidate was also evaluated by his/her principal officer, with the resulting written report being considered by the interview board. Candidates received a rating from their principal officer of exceptionally suitable, highly suitable, or lower, with the results given (as summarized by the equality officer) in Tables 4 and 5.

The statistical aspects of these tables were an important issue in the hearing but, of course, other (nonstatistical) issues of the competition were considered, such as interviewing procedures and the rating methods used in evaluating candidates. …