The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
E-mail: info@equalitytribunal.ie
Website: www.equalitytribunal.ie
Employment Equality Acts 2000 to 2008
EQUALITY OFFICER'S DECISION
NO: DEC-S2011-021
Mancini
v
University of Dublin
Trinity College
(With IBEC)
File No. EE/2008/297
Date of Issue 8 February 2011
File reference: EE/2008/297 - DEC-E2011-021
Keywords
Employment Equality Acts - Access to employment - Age - Prima Facie case
1. Dispute and delegation
1.1 This dispute concerns a claim by Dr. JoAnne Mancini (hereafter "the complainant") that she was subjected to discriminatory treatment by Trinity College Dublin (hereafter "the respondent") on the grounds of her age when she applied for an employment position with the respondent. The complainant maintains that the respondent rejected her application on 31 March 2008.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 12 May 2008 under the Employment Equality Acts. On 4 October 2010, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 21 December 2010.
2. Case for the complainant
2.1. The complainant, a 41 year old academic, submitted an application for the position of the Mark Pigott Lectureship in the History of the United States in Trinity College. At the material time of this complaint the complainant was, inter alia, in a permanent position in an excellent history department, had a Doctorate from a first rate American university, had a track record in publication in elite, peer reviewed publications and had been successful in one of the most coveted international senior fellowship competitions in the humanities. She therefore submitted that she fulfilled and exceeded the job requirements set out in the job advertisement. Regardless of the foregoing, the complainant's application was rejected without the complainant being called to an interview. Furthermore, her referees were not contacted. The complainant submitted that her access to employment was impeded by discrimination on the ground of her age.
2.2. The complainant wrote to the respondent seeking feedback on her unsuccessful application. She received a sheet of scores on 11 April 2008. The complainant submitted that the sheets lacked contextual information and failed to explain why the complainant's application had been rejected or why her referees had not been contacted. The complainant contended that the respondent failed to adequately appraise the complainant's attributes and she was treated less favourably than a younger, less experienced candidate. The discrimination was about the fact that her job application did not receive the same level of seriousness than applicants from candidates of a different age.
2.3. Subsequently, the complainant became informed that the position was initially offered to a person who completed her Ph.D in 2007 and who was approximately 8 years younger than the complainant. While the complainant accepts that this candidate has merit, she submitted that the candidate was less qualified than she was. The position was ultimately accepted by a candidate who was also younger and less qualified than the candidate. The complainant submitted that it was her belief that the respondent discriminated against her on the ground of her age possibly because she is at the upper end of the Lecturer range in age and experience. The complainant had no knowledge of the other three successful candidates.
2.4. The complainant submitted that the respondent was able to assess the applicant's age because in its reply to her the respondent submitted that two of the 5 short-listed candidates were of a similar age than the complainant.
2.5. The complainant submitted that the recruitment processes did not ensure a fair process. She took exception with the respondent's claim that no threshold score applied and that applicants were ranked comparatively with the objective of finding the highest scoring candidates. The complainant submitted that such an approach is problematic as it may allow the selection committee to assign disproportionate marks to favoured and disfavoured candidates to bring out a predetermined outcome. Furthermore, she asserted that such an approach undermines the respondent's stated commitment to assessing applicants against the specification of the post.
3. Case for the Respondent
3.1. The respondent refuted the complainant's allegation. It was submitted that the respondent is an equal opportunities employer that is committed to providing equality of opportunity in an employment environment in which the merit principle operates. The selection processes are open, fair, competitive and performance based.
3.2. The respondent did not discriminate against the complainant on the grounds of her age, or any other ground, or treat her any less favourably than other applicants for the advertised position. It was submitted that there was no consideration of age during the assessment and selection process. The respondent, on foot of the complainant's complaint form, asked the interviewers to assess the approximate age of the of the five successful applicants. This assessment was made on a visual basis. That is, the interviewers estimated what age they thought the persons they had seen were. They estimated that two of the five were of a similar age than the complainant. The respondent does not have, and cannot obtain, an age profile of all of the 86 applications.
3.3. The respondent accepts it received the complainant's application on 24 January 2008. The respondent received in total 86 applications for the lectureship by the closing date of 31 January 2008. All of the applications were then forwarded to a nominating committee for assessment and short-listing. The Committee used an agreed criteria according to which all the candidates were assessed. In short-listing candidates for interview the respondent's norm is to apply a ration of five candidates per available post. The short-listing process involved an assessment of all applicants across the following five areas:
1) Academic credentials ( Max 20 points)
2) Experience of undergraduate teaching (Max 20 points)
3) Experience of interaction in a postgraduate environment (Max 20 points)
4) Research/Publications (Max 20 points)
5) Synergy with the interests of the department/capacity for leadership/experience of applying for funding (Max 20 points).
The complainant scored 62 points and was short-listed at 14. The five applicants that were called for an interview scored in excess of 80 points.
3.4. In relation to the complainant suggestion that she ought to have at least scored the minimum 16 points required (for the interview) in at least some of the scoring, the respondent submitted that the is no minimum scoring, the aim of the short-listing process is to comparatively rank the strongest five candidates. The respondent submitted that there was no attempt by the panel, or by the respondent itself, to demean or belittle the career achievements or qualifications of any candidate in the process.
3.5. Having heard the complainant's case at the hearing, the respondent, who attended with witnesses, submitted that the complainant has not established facts from which age discrimination can be inferred. Therefore, the respondent declined their right to make any further reply.
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' before a prima facie case is established and the burden of proof shifts to the respondent. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
4.2. The complainant submitted that the respondent knew her age and had admitted this in its reply to the complainant. She stated that this made it clear that the selection committee could make such an estimate solely with reference to application materials during the hiring process. I accept this. I note that the respondent replied that they had only made such an assessment after they had received the complainant's complaint form under these Acts and where only in a position to estimate the ages of the five applicants that the selection committee had actually met in person. It is accepted that an curriculum vitae or application form will reveal information about a person's approximate age. It is also clear that an interview panel - when face to face with a person - can and will make certain presumptions of a person's age. Such facts do not on their own give rise to an inference of age discrimination. I note that the respondent submitted that two other candidates who were selected for interview were of a similar age than the complainant and that the complainant has not disputed this fact.
4.3. It is clear that the process was transparent in that the criteria were determined in advance and applied to all candidates. The facts presented to the investigation rely on the fact that one of the short-listed applicants was approximately 8 years younger than the complainant. She had no knowledge of the other three. The respondent, based on a guesstimate assessment, had submitted that two of the overall applicants were the same age of the complainant. No evidence of age discrimination can be drawn from the allegation that the successful complainant should have, in the complainants' view, being given lower points than she was or that she herself ought to have received higher marks in some of the categories than what had been awarded.
5. Decision
5.1. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has not established a prima facie case of discrimination on the age ground. Therefore, the case fails.
_______________
Tara Coogan
Equality Officer
8 February 2011