Ms Kathleen Moore Walsh (Represented by the Teachers' Union of Ireland) vs Waterford Institute of Technology (Represented by Arthur Cox Solicitors)
1. DISPUTE
The dispute concerns a complaint that Waterford Institute of Technology (WIT) discriminated against Ms Kathleen Moore Walsh on the grounds of her race contrary to the provisions of the Employment Equality Act, 1998 in the conduct of a competition to appoint a Lecturer at the college.
2. BACKGROUND
2.1 The complainant is an American citizen and is employed as an Assistant Lecturer at WIT. The WIT held a competition in December, 2001 to fill vacancies at Lecturer level. The complainant applied for one of the positions but was unsuccessful. It is her contention that the reason she failed to secure the position was that she is an American citizen.
2.2 The TUI on behalf of the complainant referred a complaint to the Director of Equality Investigations on 9th May, 2002. In accordance with her powers under section 75 of the 1998 Act, the Director delegated the case to Raymund Walsh, an Equality Officer, on 17th May, 2002 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a hearing of the complaint was held on 19th February, 2003.
3. SUMMARY OF THE CLAIMANT'S CASE
3.1 The complainant holds a BA Degree in Government and Economics from the Southern Illinois University and a Degree of Juris Doctorate from St Louis University, Missouri. She has thirteen years legal experience in the USA and continues to work as a Consultant Attorney. She commenced employment with the WIT on a part-time basis in 1997 and in September, 2000 was appointed to the position of permanent whole-time Assistant Law Lecturer. The TUI alleges that the respondent discriminated against the complainant on the race ground contrary to the provisions of the 1998 Act and contrary to its own equal opportunities policy when it failed to appoint her to the position of Lecturer as advertised in December, 2001.
3.2 The TUI alleges that the WIT was in breach of its equal opportunities policy which requires "that all staff are aware of career/promotional opportunities by posting them at obvious points around the college" when it failed to notify the complainant of the vacancies and advertised the vacancies in the national newspapers. The TUI states that the complainant had been previously assured by the Personnel Office that any recruitment would take place at Assistant Lecturer level and therefore that a promotional post would not be advertised externally. The complainant alleges that a colleague informed her before the interviews took place that the Head of the School of Humanities had promised the Lecturer post to an Irish part-time Lecturer who was subsequently appointed. She further alleges that the appointee had regular contact with the Head of the School of Humanities whereas she herself would have had to make an appointment to meet him. She complained at time to the Head of Personnel but no action was taken.
3.3 The TUI alleges that the complainant's interview for the position was conducted in a discriminatory manner. The TUI states that the interview board did not question the complainant about her educational background, degrees or publications and that the member of the interview board who dealt with her CV i.e. the Head of Humanities, when he reached the section outlining her experience in the USA, said "the next part deals with your work experience in the States. I'll skip over that and get to what is relevant to us". Another member of the interview board asked her had she any difficulties "teaching Irish students" and was questioned about differences in the cultures and societies between the USA and Ireland. The TUI states that the last member of the interview panel to question her, when discussing how WIT should deal with fewer students in the future, described lawyers as "methodical, boring conservatives" and law in general as "static and unthinking". When the complainant reacted to what the TUI describes as a negative, stereotypical attack on her profession the interviewer said "You know what I mean, someone said that the law is an ass" and another member of the panel who was laughing loudly said "yeah, and I think an American said that". The TUI states that the exchange humiliated and embarrassed the complainant who was shocked at the manner in which the interview had been conducted and in particular the manner in which her nationality had been dealt with.
3.4 Having been informed in late January, 2002 that she was unsuccessful in the competition, the complainant had a meeting with the Head of the Department of Applied Arts who was also a member of the interview board. She brought with her a copy of a book which she had published and which she felt had not received due recognition at the interview. A member of the interview board described it as a 'nutshell'. The TUI states that the Head of Applied Arts described the book as a substantial work and stated that she should have informed the interview board as to how substantial a work it was.
3.5 The TUI gives other examples of what it describes as discrimination on the race ground against the complainant. It states that when the complainant started work at the college she was not supplied with an office, desk or computer however when another part-time Lecturer (the Irish appointee in the disputed competition) was first appointed she was assigned a newly renovated office, desk and computer. The TUI also refers to a remark made to the complainant by a student when challenged by her about plagiarism in an assignment submitted by him. The student said to her that she should not be so 'anal' about it. When she objected to the remark he described it as term used all the time by Americans. On another occasion when the complainant remonstrated with students about smoking inside a college building a student retorted "you Americans are so obsessed with smoking". The TUI suggests that these examples illustrate an atmosphere in the college whereby it was acceptable to degrade and denigrate members of staff on grounds of nationality.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent states that when the former Lecturer in Law announced his intention to resign it was incumbent on the college to find a replacement of comparable calibre and academic standing who would be capable of supervising postgraduate students. The college felt that it would have difficulty recruiting a suitable candidate at Assistant Lecturer level and sought sanction from the Department of Education and Science, which it received in November, 2001, to advertise the post at both Assistant Lecturer and Lecturer levels. The college rejects the suggestion that the complainant was assured that the vacancy would only be filled at Assistant Lecturer level and argues that the complainant was fully aware of the competition and its terms as evidenced by her application.
4.2 The respondent states that it was a requirement for the position of Lecturer as advertised that candidates would hold a masters degree or equivalent. The respondent states that the complainant was called to interview on the understanding that the Juris Doctorate qualification equated to a postgraduate masters qualification but has since learned that it equates to a primary degree qualification and argues that the complainant was not in fact eligible to apply for a Lecturer post. The respondent rejects the allegation that the successful candidate had been promised the position before the interviews took place and states that any meetings that took place between the successful candidate and the Head of the School of Humanities related to her lecturing programme and to provide information to her regarding various research programmes which she had requested.
4.3 The respondent rejects the allegation that Dr Ennis skipped over the complainant's experience in America when reading through her CV and states that her experience was dealt with in full, firstly when he was reading through her completed application form and then when he progressed to her CV. The respondent states that the complainant was afforded the opportunity at interview to add anything or to bring any aspect of her application or CV to the attention of the interview board and states that the complainant had nothing to add. The respondent states that it is incorrect of the complainant to state that her qualifications were not discussed at interview and states that the status of her PhD, as entered under the Research heading of the application form, was queried. The respondent states that the complainant was not asked at interview whether "she had difficulties in teaching Irish students" as alleged by the complainant. The respondent confirms that the complainant was asked about the differences in teaching Irish and American students and states that this question is put to all candidates who have overseas work experience or who have taught in a different forum than the one for which they are applying in order to ascertain whether the candidate can adapt their teaching style and whether they approach different groups of students in a like manner. The question was not related to the complainant's American citizenship.
4.4 Regarding the reference to the complainant's book as a 'nutshell', the respondent states that this was an accepted term given to revision aide textbooks such as that published by the complainant and is a well known term used by legal academics. The respondent produced at the hearing a textbook in a 'nutshell' series which was described as such on the cover. The respondent states that the reference at interview to law being 'boring' etc. was in the context of the question put to all candidates as to "how would you convince prospective student at WIT that a course in law was useful both educationally and professionally".
4.5 The respondent states that two candidates scored higher than the complainant at interview i.e. the appointee to the Lecturer post who is Irish and a South African candidate who was offered a temporary Assistant Lecturer position. The respondent outlines the successful candidate's academic qualifications i.e. Bachelor in Laws, NUI Galway, first class honours Postgraduate LLM in Commercial Law, University of Cambridge, a Doctorate in Family Law from Trinity College Dublin and is a Barrister at Law. The respondent states that the appointee has considerable experience of tutoring, lecturing and researching law both in Ireland and England and has been elected a Scholar of Cambridge University, has recently written a book on Family Mediation in Ireland as well as having published in a significant number of leading legal journals in Ireland. The respondent states that the appointee had excelled at interview in all categories and that her academic qualifications in comparison to the other applicants were outstanding.
4.6 With regard to the allegation of discriminatory treatment in the allocation of rooms, the respondent rejects the suggestion that the complainant was not provided with a desk, computer or office and states that when the Irish lecturer referred to was first recruited as a temporary replacement for another lecturer, she was given his old office which she shared with another member of staff. The respondent states that it received a complaint from the complainant about a student rolling her eyes when the complainant confirmed that she was from the United States but that no evidence as to the identity of the student was available. The respondent states that it has no records of complaints of discriminatory treatment by two other students as alleged by the complainant.
4.7 Referring to the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 20011 and the High Court in Davis v Dublin Institute of Technology2 the respondent states that the complainant has failed to establish prima facie evidence from which a presumption of discrimination could be made. In Davis, the High Court concluded that the Labour Court had not erred in law in finding that the complainant had failed to demonstrate any significant difference between her professional and academic qualifications and those of the successful appointee and that the existence of a gender difference between the candidates, did not of itself require the Labour Court to look for any further explanation from the respondent with regard to the appointment.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The matter for consideration is whether or not the respondent discriminated against the complainant on the basis of her nationality in terms of Section 6(2)(h) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
5.2 It is now the established practice of Equality Officers, in relation to the burden of proof in non-gender discrimination complaints under the 1998 Act, to follow the traditional approach of Equality Officers and of the Labour Court in relation to the gender and marital status grounds, of shifting the burden of proof when the complainant has established a prima facie case. This is essentially the same practice as that subsequently applied by the European Court of Justice (in gender cases only) and set out in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 (SI 337 of 2001) as referred to by the respondent. In this regard see paragraphs 4.7 to 4.9 of Equality Officer's decision DEC-E-2002-46 in McCormick and Dublin Port Company. It is for the complainant in the first instance to establish as fact one or more of the assertions on which the complaint is based and having thus established a prima facie case of discrimination, the burden of proof rests with the respondent to demonstrate that discrimination did not take place.
5.3 The substantive case put forward by the complainant is that she was better qualified for the disputed position than the appointee and that the reason why she was not appointed was that she is an American citizen. The complainant refers to her treatment at interview and remarks made to her during the interview which she contends amounted to discriminatory treatment on the race ground and refers to other incidents on the college campus involving students which she believes are supportive of her contention that the college authorities tolerate race based denigration of staff.
5.4 I will firstly consider the question of the complainant's standing vis a vis the appointee in terms of her qualifications and experience. In order for the burden of proof in this respect to shift to the respondent it is necessary for the complainant to demonstrate a significant difference between herself and the appointee in terms of her qualifications and experience relevant to the requirements of the disputed position. The advertised requirements for the position were:
"Candidates for these posts must possess an honours primary degree (2.2 or higher) in the relevant discipline (or with one of those disciplines as a major subject in the award year of the degree) and three years post-graduate experience. In addition, to be considered for appointment at lecturer level, candidates must possess a masters degree (or equivalent) in a relevant discipline."
A copy of the advertisement is included at Appendix 1. A disagreement exists between the parties as to the academic ranking of the complainant's qualifications, which she obtained in America, compared to those of the appointee who obtained her qualifications in Ireland and England. The complainant holds a Juris Doctorate qualification which the respondent understood at the time of the interview to be equivalent to a Masters qualification. I note that the respondent now believes it to equate to a primary degree but I consider what is relevant was how the complainant's qualifications were viewed at the time of the interview. She also holds a B.A. degree (majoring in Government) and was admitted to practice at the Illinois State Bar (1982), the Missouri State Bar (1983) and the US Supreme Court (1985). The complainant produced at the hearing a statement from the American Bar Association to the effect that it regards the complainant's Juris Doctorate degree to be equivalent to a PhD (Appendix 2). The complainant also produced a letter (Appendix 3) from the Higher Education and Training Awards Council (HETAC) to the effect that it regards the Juris Doctorate as equivalent to the qualifications required under HETAC regulations for the supervision of a research masters programme although it states that the Juris Doctorate, which does not always require a research project as part of its course work, is not a PhD. The complainant does not at any point suggest that her qualifications could be deemed to exceed those of the appointee. The appointee holds a BA in Laws, a postgraduate LLM in Commercial Law, a Doctorate in Family Law and is a Barrister at Law. I note that in addition to being called to the bar, the appointee has two post graduate qualifications i.e. a masters and a PhD.
5.5 The complainant refers to her experience in America and suggests that it was effectively ignored by the interview board. The complainant practised law in America in various capacities described as law clerk, law partner, judicial law clerk and consultant attorney from the time she obtained her Juris Doctorate in 1981 up until 1995 when she came to Ireland. Both complainant and appointee have various publications to their credit. The appointee spent six years tutoring and lecturing in Irish universities and the Law Society and one year in a research position in the Law Courts in London. At the hearing the respondent furnished a copy of the marking sheet completed by the interview board. The extracted table below shows (1) the marks awarded to the appointee, (2) marks awarded to the non-Irish candidate placed second and (3) marks awarded to the complainant who shared third place with two other candidates.
| Place | Qualification (25) | Experience (25) | Skills & Abilities (25) | Personal Qualities (25) | Total |
|---|---|---|---|---|---|
| 1 | 25 | 21 | 25 | 25 | 96 |
| 2 | 20 | 23 | 22 | 22 | 87 |
| 3 | 21 | 23 | 21 | 21 | 86 |
The marks show that the appointee was awarded the maximum 25 marks for qualifications while the complainant was awarded 21. The appointee was awarded 21 marks for experience while the complainant was awarded a higher mark i.e. 23 marks for experience. The respondent argues that the marks for experience for the complainant and the candidate placed second, both of whom gained their earlier experience abroad, were higher than those of the appointee and disprove any suggestion that overseas experience was not given due recognition. I am satisfied that the above evidence does not create any inference of discrimination on the race ground.
5.6 The complainant has referred to the conduct of her interview (paragraph 3.3 above) i.e. how she felt her experience was not adequately addressed when her CV was being discussed, how she would feel about teaching Irish students, disparaging comments about the legal profession and a jocose reference to an American by members of the interview board. The respondent has stated that the complainant's experience was covered in full when the relevant interview board member went through her application form (rather than her CV) and I note that the complainant was credited with higher marks than the appointee in relation to experience. I accept the respondent's argument that candidates who had trained abroad were questioned about lecturing to Irish students and that the line of questioning was not connected with the complainant's American nationality. The remarks about the legal profession to which the complainant objected were unconnected with her American nationality. While I am satisfied that the subsequent attribution of "the law is an ass" comment to an American was made in the context of the complainant's own nationality, I consider that a reference to the complainant's nationality does not in itself provide evidence of discrimination on the race ground.
5.7 I consider that the complainant's contention that the college has adopted a racist approach when making academic appointments is not supported by the evidence. The member of the interview panel whom the complainant states favoured the Irish appointee from the outset, was a member of the panel who appointed the complainant when she commenced employment with the college and there was no suggestion that her American nationality was an issue on that occasion. The college has also pointed out that a South African candidate in the disputed competition was placed second on the panel ahead of the complainant. This candidate was appointed to an Assistant Lecturer position, albeit a lower grade position than the Lecturer position which the complainant applied for. No evidence was presented as to the relative qualifications and experience of the South African candidate compared to those of the appointee or the complainant however I would regard his/her appointment as supportive of the college's contention that it recruits staff of various nationalities. The college cited several other examples where lecturing staff of different nationalities were employed by the college and referred to its ongoing contacts with American universities and the fact that a visiting group of American academics were being hosted at the college on the day of the hearing. The complainant suggests that the college was in breach of its own equal opportunities policy when it advertised the Lecturer post in the national newspapers without posting the vacancies internally in the college however the complainant has adduced no evidence that this approach affected her to a greater extent than any other candidate or could in any sense be deemed to be discriminatory treatment on the race ground. The appointee herself was an internal candidate. With regard to the complaint that the appointee had free access to the Head of the School of Humanities prior to the interviews and was promised the Lecturer post by him, the respondent has rejected the allegation and I do not consider that there is any evidence that the complainant's nationality was viewed negatively by the Head of the School of Humanities.
5.8 With regard to the incident where a student used the term 'anal' and said that it was a term used by Americans all the time (paragraph 3.5 above), I note that following her encounter with the student, the complainant sent a memo to the Head of Department concerning the student's work headed 'Re : (student's name) - Bridging Studies' . In this memo she referred to the student's use of the term 'anal' and how she found it insulting and his subsequent apology for using the term. However the thrust of the memo concerned the student's resort to plagiarism in his assignment and that the matter was in the hands of the course board. The memo did not call for any action on the part of the college authorities in relation to the use of the term 'anal' or suggest that any further action was necessary. I do not consider that this incident supports the complainant's contention that the college is tolerant of racist abuse of lecturers by students.
5.9 The college accepts that the complainant made a complaint regarding a remark made to her when she remonstrated with students about smoking in a college building (paragraph 3.5 above). The respondent states however that when the Human Resources Manager was asked by the complainant to investigate the incident, neither the complainant nor any other member of staff could identify the culprit. I do not consider that this incident is indicative of a tolerance of racist abuse by students. The complainant also referred to what she regarded as preferential treatment of the appointee at the time of her initial appointment at Assistant Lecturer level, suggesting that unlike the complainant, the Irish lecturer was allocated an office, a desk and a computer. No evidence was presented that the alleged preferential treatment was the subject of a complaint to the college authorities at the time and given the college's explanation that the Irish lecturer was allocated the office of the lecturer whom she was temporarily replacing, I do not consider that these matters support the complainant's allegation of discrimination on the race ground.
5.10 Having regard to the evidence presented, I consider that the complainant has failed to demonstrate a significant difference between herself and the appointee in terms of her qualifications and experience, has not adduced credible evidence that she was adversely treated at interview or otherwise subjected to discriminatory treatment at the Waterford Institute of Technology on the ground of her nationality. I consider therefore that the complainant has failed to demonstrate a prima facie case of discrimination and consequently failed to shift the burden of proof to the respondent in this case.
6. DECISION
6.1 On the basis of the foregoing, I find that Waterford Institute of Technology did not discriminate against the complainant on the race ground in terms of Section 6(2)(h) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act in the conduct of the competition to appoint a college Lecturer in December, 2001.
Raymund Walsh
Equality Officer
3 June, 2003
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APPENDIX 1
Advertisement for Lecturer Position
APPENDIX 2
American Bar Association's Statement
APPENDIX 3
Letter from the Higher Education and Training Awards Council
1 S.I. No. 337 of 2001
2 Davis v Dublin Institute of Technology, High Court (Mr Justice Quirke, 2000 unreported)