Stokes v Christian Brothers High School: An exercise in splendid isolationism?

Abstract

This article will examine the case of Stokes v Christian Brothers High School Clonmel. The particular focus of the article is to question the failure to assess the prohibition on indirect discrimination within the overarching context of our European obligations, particularly our obligations in relation to the Racial Origin Directive and the Framework Employment Directive. Prior to discussing the Stokes case the article provides a brief overview of the jurisprudence on indirect discrimination particularly as applied in the context of sex discrimination. To a large extent the Court of Justice of the European Union (CJEU) has fashioned the parameters of the concept which first received legislative recognition in the Burden of Proof Directive. By necessity the evidential barrier developed in respect of gender discrimination had to be altered on the introduction of Article 19 Treaty on the Functioning of the European Union (TFEU) (ex Article 13 Treaty Establishing European Community (TEC)), which broadened the prohibited grounds of discrimination to include sexual orientation, religion or belief, disability, racial and ethnic origin and age. Traditionally the CJEU relied heavily on the use of statistical data to show a disparate impact. It is unlikely that those same statistics exist or can be collated in respect of grounds such as sexual orientation or racial origin. The Article 19 TFEU Directives introduced a new definition of indirect discrimination with a lower evidential barrier and, more fundamentally, one that is not reliant exclusively on statistical data. The Equal Status Acts 2000-2014 incorporated this new definition of indirect discrimination into Irish law.