Women only posts in Irish universities likely to be challenged in court

The plan to establish up to 45 women-only posts in Irish universities over the next three years is likely to be challenged in court due to the plan being seen as “positive discrimination” by some.

The plan to establish up to 45 women-only posts in Irish universities over the next three years is likely to be challenged in court due to the plan being seen as “positive discrimination” by some. The Department of Public Expenditure expressed concern that the plan could run into legal trouble in April of last year. In response to this, Louise McGirr, the Head of the Civil Service human resources, wrote that the plan was being described “as positive action but I am not sure if it is more along the lines of positive discrimination. Positive action being lawful and positive discrimination is not.”

She continued, writing that “positive action is not ring- fencing posts for people of a protected characteristic (i.ebeing female in this case) but you can give preference to an underrepresented characteristic (in this case women) all other things being equal and the candidates being equal on merit.”

Speaking to the The Independent.ie, Claire McDermott, a solicitor specializing in employment law, from the Flynn O’Driscoll law firm, said that “there may be an equality issue there. But they are allowed to have a bias towards female roles if there is specific policy there . . . What they’re trying to do is address a gender imbalance in the workplace.” The Department of Education has also stated that “the design of the initiative was supported by detailed legal advice from the Office of the Attorney General . . . detailed implementation arrangements will be guided by further advice to ensure that the approach is legally robust.” Irish law prohibits discrimination under nine distinct grounds including gender and the plan of female-only posts may breach this law. However, models such as these have been implemented in other European countries, including the Netherlands, with much success.

The Department of Education had been closely consulting with the University of Delft, which offers women-only fellowships at assistant, associate and full professorship level. These have been a success, leading to the number of positions available being increased from 10 to 13. The university explained to the department that they introduced the creation of women-only posts due to the “serious and persistent backwardness [in the numbers] of women scientists.”

A man took this case to the Institute for Human Rights in the Netherlands, claiming that these women-only fellowships infringed his right to equality. However, the court ruled that this is a positive action measure, therefore it is permissible. The Minister of State for Higher Education Mary Mitchell O’Connor introduced the plan last November to address the “paltry proportion of women in senior third level positions.” She wrote in The Independent.ie that she “is prepared for some minor backlash to these female- only professorship appointments,” and that she “will not apologise or shirk from [her] responsibility to make the third-level sector an equal one.” She has said that she’s “not concerned” about any legal challenged that her plan might face. She has also taken “very strong legal advice” from the Attorney General an has reviewed relevant European case law. She is “sure that that advice is very robust and will stand up to legal challenges.”

The Netherlands and Ireland are not the only countries to introduce such measures to date. Germany and Australia have launched similar programmes - The University of Melbourne advertised positions at lecturer, senior lecturer and associate lecturer level to combat the lack of women
in its school of Mathematics and Statistics. The Max Planck Institute in Berlin has also introduced a women- only programme for its senior academic roles. However, the data gathered from these experiences abroad revealed that the path to reaching gender equality is “neither linear nor guaranteed, and the rate of improvement at senior levels in HEIs internationally is extremely slow” according to a HEA report. Even countries that “have made considerable efforts to improve their gender equality still show significant under-representation of women at professor level,” such as in Germany where that figure stands at 29%.

The Higher Education Authority (HEA) revealed that in 2017, 51% of lecturers are women while 24% of professors are women. According to the Gender Equality Taskforce, if Irish universities were to continue their current trends, it would take 20 years to achieve 40% gender balance
at a professorial level. Minister Mitchell O’Connor has described this scenario as “unacceptable” and “a decisive response is now imperative.” She aims to achieve 40% of women to be in full professorial level by 2024. There also has been no female president in an Irish university while on two out of the 14 institutes of technology have a female president.

The first roles of this initiative will be available at
September 2019.