The Equality Tribunal

3 Clonmel Street

Dublin2.

Phone:  353 -1- 4774100

Fax: 353-1- 4774141

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Website: www.equalitytribunal.ie

Equal Status Acts 2000 to 2008

DECISION NO:  DEC-S2009-0014

Mr Brian MacMahon

(represented by Mr Gerard MacMahon)

 - V -

Department of Physical Education and Sport, University College Cork

(represented by Ronan Daly Jermyn, solicitors)

 File No. ES/2005/0056

Date of Issue 2 March 2009

Key words

Equal Status Acts, 2000 to 2004 - Section 7(2) – Gender ground - Direct discrimination, Section 3(2)(i) –Scholarship award – Section 7(4) – Sports – Athletics – Cork – Criteria for interview – Shortlisting process – Interview Process – Statistical evidence

1.     Delegation under the relevant legislation

1.1.           On 1 April, 2005, the complainant, Mr. Brian MacMahon, referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2004. In accordance with her powers under section 75 of the Employment Equality Acts, 1998 to 2007 and under the Equal Status Acts, 2000 to 2004, the Director delegated the case to me, Gary O’Doherty, an Equality Officer, for investigation, hearing and decision, and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000 to 2004. This delegation took place on 23rd November, 2007, on which day I commenced my investigation.

1.2.           As required by Section 25(1) of the Equal Status Acts, 2000 to 2008, and as part of my investigation, I held an oral hearing of the complaint in Cork on Thursday, 11^th September, 2008. Both parties were in attendance at the hearing. The hearing had been adjourned twice at the request of each party. I requested further information from both parties and final correspondence was received on 19th November, 2008.

2.     Dispute

2.1.           The dispute concerns a complaint by Mr MacMahon that he was discriminated against by the respondent on the Gender ground contrary to the Equal Status Acts, 2000 to 2004, in terms of Sections 3(1)(a) and 3(2)(a) of the Equal Status Acts, 2000 to 2004, and contrary to Section 7(2)(b) of the Acts in that he was treated less favourably than a person of another gender was, or would have been treated, in being refused access to a benefit, being the provision of a sports scholarship, by the respondent.

3.     Case for the Complainant

3.1.           The complaint concerns the application of the complainant, a track and field athlete, for a sports scholarship which was offered by the respondent in 2004. The complainant was informed on 27 October, 2004, that he had not been shortlisted for the scholarship. (His application had been sent in before 7 May 2004, the closing date for receipt of such applications). On 8 November following, he wrote to the respondent requesting it to reconsider his application. On foot of this letter, he was granted an interview, which took place on 23 November, and was conducted by three of the five members of the Sports Scholarship Committee. It was decided by the respondent to defer a final decision on the awarding of the scholarship to Mr MacMahon until after the National Senior Cross-Country Championships (hereinafter referred to as NSCC Championships), which were to be held later that week (on November 27/28), in order to provide him with an opportunity to demonstrate his abilities and/or potential. Shortly after his performance at these Championships, and in light of same, the complainant was advised that his application was being refused. He notified the respondent of his intention to make a complaint to the Equality Tribunal, in accordance with Section 21(2) of the Equal Status Acts, 2000 to 2004, and subsequently made a complaint as outlined at paragraph 1.1 above.

3.2.           The substance of the complainant’s allegation is that it is more difficult for males to receive the scholarship in question, that there is a policy of gender balancing in the operation of the scholarship, and that the respondent engages in positive discrimination (in favour of females) in relation to it. He argued that he met the three criteria the respondent had set for receipt of the scholarship, and, on that basis, he should have been awarded it. The reason he was not, he alleged, was because he was male. The criteria in question were:

·                    the applicant has reached or has the potential to reach a very high level of performance in his or her chosen sport as indicated in performance levels (including times), representational honours, achievements and recommendations from coaches (hereinafter called Criterion 1)

·                    the recipient of the sports scholarship must be prepared to participate for UCC at all levels and as required (hereinafter called Criterion 2)

·                    the recipient must be a registered student pursuing an under graduate or post graduate programme in UCC (hereinafter called Criterion 3). It was agreed by the respondent that the complainant met the requirements of criterion 3.

3.3.           With regard to Criterion 1, the complainant argued that his representational honours and times met its terms. As proof, he provided a detailed list of his athletic performances in general, including such honours and times. With regard to his performance at the NSCC Championships in question, he agreed that he had not performed well that day but argued that everyone is entitled to a bad day and pointed out that he still finished 4th in the U-23 champs on the same day and that, as he knew the scholarship “was on the line”, he was under added pressure, which had a negative impact on his performance. With regard to the element of “recommendations from coaches”, he stated that UCC ask for the recommendations, and, while females are coached by UCC coaches, males generally receive advice but not coaching from these coaches. He further stated that the respondent never spoke with the complainant’s own coaches to canvass their opinion. He said that UCC were more interested in applicants who were already coached by UCC coaches and that there was a serious lack of transparency in that regard. He added that this showed that his application was not properly researched.

3.4.           As further evidence that he met criterion 1, the complainant argued that the scholarship application in question was superior to the one he presented for the same scholarship in 2003 (as his athletic performances were superior in 2004) and yet he had been shortlisted for interview on that previous occasion. He considered that he did not “stand a chance” when he initially applied in 2003, but was interviewed nonetheless. He did not consider appealing any aspect of the application procedure that year as he did not feel that there was discrimination against him at that time. However, he felt that he had a marked improvement in 2004 and that, on that basis, insufficient weight was given in the process to improved athletic performance.

3.5.           With regard to Criterion 2, the complainant argued that he had gone out of his way to represent UCC, including by sitting one of his exams abroad to facilitate his participation in a representative event. He stated that the result of this exam was affected by the conditions involved and was his worst result of the year, so much so that it ultimately affected his overall result significantly. He argued that this was an example of his commitment to participation for UCC. He also said that he had been injured throughout the season and was unfairly treated as a result. Finally, in relation to Criterion 2, and in response to concerns expressed by the respondent in its submission, the complainant stated that his decision not to compete in an Intervarsity Road Relays (IRR) competition, which was to be held at the same time as he was seeking to have his application reconsidered, was made after receiving the letter informing him that he was not getting the scholarship (i.e. that it was his disappointment at that refusal that prompted his decision to withdraw from the competition).

3.6.           As proof of the alleged discrimination on the gender ground, he referred to the application of a named female comparator, Ms A, and gave examples of their comparative performances to show that he was at least as entitled to a scholarship as her. He submitted that she was awarded one and he was not because of their respective genders. He also stated that he was adversely affected by having a smaller interview panel than others, including Ms A. His interview was carried out by Ms B, Mr C and Mr D, who was the Chairperson of the Committee, whereas Ms A and others received an interview including the other two members of the Committee. He did not consider that he was discriminated against in the course of the interview but believed that it was carried out as just an afterthought in order to appease him. He also provided a comparison between a named hurler and camogie player where he argued that the hurler, who he stated was more accomplished, did not get the scholarship in his first two years in the college.

3.7.           In general, the complainant stated that “lower standards of athletic performance were applied for female athletes than were applied in my case”.  He presented statistical evidence for this, including that in 2004/05, there were 93 applicants for the scholarship in question and that 55% of females were successful and 36% of males were successful[1]. He argued that those statistics indicated a clear bias in favour of women applicants, both by the University in relation to the Scholarship application, and in athletics generally in worldwide terms.

3.8.           The complainant considered that the principal difference in 2004, as opposed to when he applied in 2003, was that there were less experienced personnel involved in the process. Finally, he believed that females were more favoured in the scholarship applications subsequent to the time when Ms B became involved in the process (Ms B became Acting Director of the Department of Physical Education and Sport in the respondent University in September, 2004).

4.     Case for the Respondent

Outline of the process

4.1.           The respondent confirmed that, throughout the process, the deciding factor in relation to the relevant application was the application form itself and how the information outlined in it fit the three criteria outlined at 3.2 above. The shortlisting process was carried out by a panel consisting of three members. One of these members was the Director of Physical Education and Sport (hereinafter referred to as the Director) at the University, who, at the beginning of the year in question, was Mr E. However, Mr E retired before the shortlisting process was completed, and was replaced on the panel by Ms B. The shortlisting panel also includes one other member of the main committee, (in 2004 it was Mr C), and the UCC coach for the sport for which the application is made. Thus, each sport has a different panel. The respondent also stated that, up to and including applications for the year 2004-2005, previous awardees (hereafter referred to as “re-awardees”) were not included in the normal application process. They met on an informal basis with the Director and were re-awarded the scholarship on that basis. There were no notes available relating to the shortlisting process.

4.2.           The respondent stated that, in general, the interview, which is usually short (approx. 10 minutes), is designed primarily to revisit the relevant criteria and clarify any matters that arise from a study of the completed application forms. When all the applicants have been interviewed, the Sports Scholarship Committee meets to decide, by unanimous verdict, on what scholarships are to be awarded. The respondent stated that, in the first instance, the Committee goes through an alphabetical list of shortlisted candidates in order, eliminating weak candidates and accepting candidates about whom it is easy to agree. It then discusses the applications of the remaining candidates. The respondent said that the Committee may award any number of scholarships. There was a limit on the total monetary value of the scholarships that could be awarded, though the limit could be exceeded in certain circumstances. It refuted that the exercise was subjective, on the basis that there is a lot of experience on the interview board and the Director would talk to UCC’s coaches before concluding the shortlisting process. The respondent added that, prior to 2005, when a formal document was written which provided a framework for the process, there were no written rules for it other than the information provided to the candidates on application. It stated that factors unrelated to the present complaint were responsible for the decision to set out these new procedures. There were documents given to the interviewing committee which allowed room for the taking of notes, but these were not kept and were therefore not available to me.

Consideration of the application of the complainant

4.3.           The respondent said that the reason why the complainant was not shortlisted for interview was because the shortlisting panel did not consider that he fit the criteria in question as well as others did. It said that it had reconsidered the complainant’s application and offered him an interview based on the contents of his letter of 8 November and said it did so in the interests of fairness. It confirmed that the Complainant was interviewed by a smaller panel, but said this was because it was not possible at short notice to organise a full interview panel.

4.4.           In relation to Criterion 1, the Respondent said that the complainant may well have been the top performing male cross country and track and field athlete at the time in question, as he had argued. However, in assessing potential, the Respondent looked at the achievements of the individual applicant as it was described to it in the relevant application form. It said that improvements from year to year are not considered and the application from each individual applicant is considered in isolation. On that basis, it considered that the complainant had failed to meet the required standard for the year in question.

4.5.           In relation to Criterion 2, the respondent considered that applicants must show willingness to represent UCC before it decided on its applications, except in the case of first years. In that regard, it expressed a number of concerns about the complainant’s commitment to participate for UCC. It said that, in the course of its interview with the complainant, it raised the issue of his failure to participate at the IRR Championships, as it considered that participation of all its athletes at this event was of key importance to it. It stated at the hearing that lots of people were disappointed about not receiving scholarships but still continued to represent UCC, in contrast to the complainant. Nonetheless, it informed the complainant at his interview that, as there was an important race the following weekend (the NSCC Championships), it would postpone its decision on his application until after that race, as the respondent considered that it would be a significant test of his ability and his performance at that race would, consequently, be a critical factor in deciding on his application. When this performance was not to the respondent’s satisfaction, the three members of the Committee who had interviewed the complainant, Ms B, Mr C and Mr D, made the decision to refuse his application. In doing so, they were also influenced by the complainant’s failure to participate at the IRR Championships. The respondent pointed out that the complainant himself admitted he wasn’t happy with his performances at the NSCC Championships. It also pointed to the fact that two other applicants for the scholarship were also reconsidered. It stated that the same, or a similar, procedure was followed in relation to these applicants, both of whom were males and both of whose applications were also ultimately refused.

4.6.           The respondent considered the application of the comparator, Ms A, to be irrelevant to the complaint, as it did not compare men and women in any sport. Nonetheless, it stated that her application was considered in accordance with the normal procedures as outlined in par. 4.2 above and was accepted as being very favourable. It said that the recommendation of the coaches they consulted was critical to this decision. In that context, it said that it had consulted with the comparator’s coaches in relation to her application, but had not consulted with, or at least could not state with any certainty that it had consulted with, any of the complainant’s coaches.

4.7.           The respondents also stated, in reply to the complainant’s submission with regard to his academic excellence, that academic progress was not a factor in relation to any aspect of the scholarship except where there was insufficient academic progress by an existing scholarship holder, in which case sanctions were imposed.  

General arguments

Issues regarding the process and procedures

4.8.           The respondent stated that best practice in relation to similar scholarships varied from jurisdiction to jurisdiction. For example, it said that some universities in Ireland offer a reduced Central Applications Office (CAO) Points system for high performing sportspeople. The respondent was of the view that, for the Scholarship application process in question, it was not possible to have any kind of points or scoring system, like the form of job selection process in which you could award points for particular skills, due to the difficulties associated with assessing the value of particular sporting achievements. It said that it was assessing the merits of applicants for different sports, so you were not comparing like with like.  It drew a series of analogies to illustrate this point. For example, it stated how could you decide who was better, Usain Bolt or Michael Phelps? The respondent stated that it applies standards and comparisons only within the sport of relevance to the particular application.  It argued that, as a result, it was not the kind of exercise you could compare with a job interview.  Nonetheless, it drew an analogy with an academic promotion scheme. The respondent also refuted that the exercise was subjective, on the basis that there is a lot of experience on the interview board.

4.9.           The respondent stated that the composition of the Sports Scholarship Committee does not change from year to year unless someone retires, and it includes at least one senior member of academic staff. Appointments to the Committee are made by the President of University College Cork, on a recommendation from Mr D.

4.10.       The respondent also stated that, by agreeing to interview the Complainant, after initially rejecting his application, it was providing the equivalent of an appeal, particularly when it was taken into account that he did not participate in the IRR championships as already described.

Arguments regarding gender discrimination

4.11.       The respondent submitted that the complainant’s case must fail as he had not shown that any of the allegations of discrimination on its part had a gender basis. Furthermore, the respondent submitted that it clearly does not discriminate on a gender basis as gender is not an issue in the decision-making process. It reiterated that it looks at each application on its own merits and does not compare male and female applicants.

4.12.       The respondent agreed that, in general, there are more males than females competing in athletics. However, it argued that it was not fair to say that it was easier for a man than a woman as this meant, by definition, that there are different standards and different qualifying times for men and women. It added that this was the case worldwide and that these different standards did not necessarily make it easier.

4.13.       The respondent refuted the allegation that it was engaged in a policy of gender balancing and said that it maintained standards across the board. It said that an example of this was the fact that the statistics on the gender of scholarship applicants etc. that are provided herein were initially compiled for the benefit of the Tribunal. It also refuted the Complainant’s suggestion that there was a sudden shift in ratios in favour of women after Ms B came on the shortlisting panel as it said she was already involved in the process through her role within the Department of Physical Education and Sport.

4.14.       At my request, the respondent also provided statistical evidence of the breakdown of applicants for the 2004-05 scholarship, as well as for other years. Full statistics are not available for the years before 2003-2004. Taking from that year, and for the following three years, the following table (excluding the re-awardees mentioned at par. 4.1 above) outlines these statistics:

4.15.       The respondent also provided a list of the gender and relevant sport of the scholarship recipients for a number of years, which I noted showed a variance in the number and gender of athletics scholarships awarded from year to year. 

Legal Arguments

4.16.       The respondent argued that it is exempted from the provisions of the Acts by Section 7(4) which states, inter alia,  that subsection (2) does not apply:

“(b) in respect of differences in the treatment of students on the gender, age or disability ground in relation to the provision or organisation of sporting facilities or sporting events, to the extent that the differences are reasonably necessary having regard to the nature of the facilities or events.”

It argued that, in this context, a sporting facility is a resource enabling you to progress and not just a physical structure. It said that it did not discriminate, but were it to do so, its actions would not be discriminatory under the Acts as s.7(4) covers what facilitates you need to be successful in your sport, and as money can be a facility if it makes you more able to participate in the sport, then it is covered by the exemption. In short, a facility is an opportunity to do something, of which the scholarship in question is an example.

5.     Conclusions of the Equality Officer

5.1.           Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination.  It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her.  In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant.  It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. 

5.2.           Section 7 of the Equal Status Acts, 2000 to 2008 states, inter alia,

“(2) An educational establishment shall not discriminate in relation to –

(b) the access of a student to any course, facility or benefit provided by the establishment.”

In all the circumstances of this complaint, then, there are three key questions which must be answered in considering whether a prima facie case has been established by the complainant:

i)                   Was there anything about the shortlisting process that raises an inference of discrimination as outlined at 5.1 above?

ii)                 Was there anything about the interview process that was eventually carried out with the complainant that raises such an inference of discrimination?

iii)               Was there anything else in the process and in the consequent final decision not to award him the scholarship that raises such an inference of discrimination?

If the answer to any of those questions is yes, then the complainant has established a prima facie case. If not, then his case fails.

Shortlisting process

5.3.           In the present complaint, in relation to the shortlisting process, the onus is on the complainant to elicit facts which raise a presumption that unlawful discrimination on the basis of gender was carried out by the respondent against him. In all the circumstances of the present complaint, it is not enough for the complainant to establish unfairness in the procedures, or to prove that he was treated unfairly, if he cannot show that he was treated less favourably because of his gender.  With this in mind, the key argument of the complainant in relation to the shortlisting process was, in my view, his argument that not having a UCC coach was a key factor in not being shortlisted tied in with his allegation that males whose chosen sport is athletics do not have UCC coaches, while their female counterparts do. I note that the respondent admitted that the view of the relevant coach was a key factor in the shortlisting process. I am not, however, convinced by the complainant’s arguments in this regard, particularly given that male applicants for the scholarship whose chosen sport was athletics obtained scholarships both in the year before and the year after the complainant’s application in question.

5.4.           The other key allegations of the complainant in relation to the shortlisting process included, simply, that he met criterion 1 and 2 as well as Ms A, and therefore should have been given the scholarship, particularly as it could have been given to both of them. Again, however, the complainant has been unable to establish how the decision not to award him the scholarship is related to his gender on this basis. He also argued that the process and procedures adopted by the respondent were lacking in transparency, and were skewed in favour of women. I have noted the lack of transparency, in the context that it has not aided my investigation. In particular, I noted the distinct absence of any notes for any part of the process, and the absence of any written evidence of how the respondent came to a decision in relation to the scholarship at issue, except where such evidence was put together in retrospect at my request (e.g. the statistics provided). However, the complainant has failed to show how this lack of transparency was tied in with gender discrimination. He has also failed to prove, on the balance of probabilities, that the process was skewed in favour of women, as he alleged, or was otherwise discriminatory against him on the basis of his gender.

5.5.           In relation to the shortlisting process, then, the complainant has failed to establish a prima facie case of gender discrimination as he has not proven facts on which he can rely in raising a presumption of such discrimination.

Interview process

5.6.           I will now turn to consider the interview process. The complainant argued that he was discriminated against by having a different interview board to Ms A. However, I am not convinced that he was treated less favourably on the basis of his gender as a result of having a smaller interview panel than her. He was therefore not discriminated against on that basis.

5.7.           The lack of transparency in relation to the shortlisting process, already referred to, was also evident in relation to the interview process. I am, nonetheless, satisfied that the decision not to award the complainant the scholarship following the interview was based solely on the view of the respondent that, at least in the time between the initial refusal of his application and the date when the interview took place, he failed to satisfy the two criteria which were at issue with regard to his application. In that context, I note the complainant’s performance at the NSCC Championships. I also note his failure to participate in an event of significant importance to the respondent (i.e. the IRR competition). I am satisfied that gender was not a factor in this decision. The complainant was therefore not discriminated against on the gender ground by the respondent in relation to the interview process, and has consequently failed to establish a prima facie case in relation to it.

Final decision/overall process

5.8.           In general, the complainant pointed to statistical evidence which, he said, showed there was discrimination in favour of females. In relation to these, I must first note that the complainant’s statistical evidence[5] took into account the re-awardees. However, as these applicants were subject to a separate selection process, they must be excluded from any calculations. Hence, I have calculated the table outlined at 4.14 above which more accurately reflects the outcomes of the process at issue in this complaint. On the basis of these calculations, there would seem to be significant discrepancies in the gender balance, both from year to year and between the different stages of the selection process. However, these discrepancies sometimes favour males and sometimes favour females. For example, in 2003/2004, 54% of female applicants were shortlisted as opposed to 26% of Males while in 2005/2006, 59% of males who applied for the scholarships were ultimately successful but only 36% of females were. In any event, the success rate for both males and female applicants for the year in question, leaving out re-awardees, was approximately 20%.

5.9.           The complainant also made a series of arguments surrounding his submission that the respondent discriminated against male applicants generally, extending these to argue that there was global discrimination against males in athletics. Quite aside from the fact that I have no jurisdiction to make any determination in relation to the latter, the evidence presented by the complainant in relation to the former is not convincing in this regard. The complainant has also made reference to the respondent’s selection of a particular camogie player, and failure to select a hurler who, in his view, better met the criteria at issue. However, I am not convinced that this decision was based on the gender of the applicants in question, in particular as other hurlers were given scholarships, some of whom would appear to be less qualified than the hurler referred to by the complainant, in the year in question and in other years. I am, therefore, satisfied, based on all the evidence presented to me in relation to this complaint, that the respondent does not generally discriminate against males in relation to the scholarship applications in question, within the meaning of the Acts.

Concluding remarks

5.10.       The complainant has failed to establish a prima facie case of discrimination as I am not satisfied that there has been discrimination on the gender ground in relation to this complaint. However, in light of what I have said in paragraph 5.4 above, though bearing in mind that I can make no order in this regard, I would strongly recommend that the respondent further review its process for selection of scholarship applicants, particularly with a view to increasing the transparency of the process.

5.11.       As the complainant has failed to establish a prima facie case, I do not need to consider the  submission of the respondent with regard to the application of Section 7(4)(a) of the Acts, as outlined at paragraph 4.16 above.

6.     Decision

6.1.           In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. 

6.2.           I find that the complainant has failed to establish a prima facie case of less favourable treatment on the ground of gender in terms of sections 3(1)(a) and 3(2)(a) and Section 7(2)(b).

6.3.           Accordingly, I conclude the investigation and find against the complainant.

_____________

Gary O’Doherty

Equality Officer

2 March 2009