A Juvenile V A Department Store
1. Dispute
1.1 This dispute concerns a complaint by a juvenile that he was discriminated against, contrary to the Equal Status Act 2000, by a Department Store in Dublin. The complainant maintains that he was discriminated against on the race ground in terms of sections 3(1)(a) and 3(2)(h) of the Equal Status Act 2000 in being denied a service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainants' Case
2.1 This dispute concerns a complaint by a young male of African origin that he was discriminated against, contrary to the Equal Status Act 2000, by a Department Store in Dublin. The complainant states that, on 12 September 2002, he was accused of shoplifting by a security guard and was not afforded sufficient opportunity to rebut the allegation. The complainant claims that the treatment he received was on account of his race.
3. Summary of Respondent's Case
3.1 The respondents totally reject that they operate a discriminatory policy against anyone. They claim that the complainant was seen leaving the store without having paid for four bottles of mineral water and that he was treated in the same manner as anyone else suspected of shoplifting.
4 Delegation under the Equal Status Act, 2000
4.1 This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated this complaint to myself, Brian O'Byrne, 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 Act, 2000.
5 Background Note
The complainant in this case is a young male of African origin who was 16 years of age at the time of the alleged incident of discrimination in September 2002. In view of the fact that the complainant was a juvenile at the time, it was agreed at the Hearing on 20 January 2004, that the names of the parties involved in the case should remain anonymous.
5.1 Complainant's Evidence
- The complainant arrived in Ireland from Africa in late 2001 to live with his parents in Dublin.
- The complainant's native language is French. He had no knowledge of the English
language prior to his arrival and had not achieved any level of proficiency in English by the time of the incident complained of in September 2002. - He had previously visited the store on a number of occasions to purchase sweets and drinks and had not encountered any problems
- At 8 pm on Thursday 12 September 2002, he went into the grocery section of the
Department Store to buy 4 bottles of mineral water. He says that he took the bottles from a fridge cabinet and paid for the 4 bottles at a cash desk nearby. He then moved to a newspaper stand where he put three bottles into his football gear bag and opened the other to drink. He browsed through a newspaper for a few minutes and then left the store. - After he left the store, he was approached by a security man. He could not understand what the security man was saying and told him he had "No English". When he realised that he was being accused of stealing the bottles of water, he immediately replied "I pay, I pay" and felt in his pocket for his receipt. When all he could find was a €10, he remembered that he had left the receipt at the newspaper stand.
- The security man then escorted him back inside the store. As they passed behind the cash desks and newspaper stand, the youth said that he pointed towards the cash desk where he had purchased the bottles and at the newspaper stand where he thought his receipt was, in an effort to prove that he had paid for the water, but the security man ignored him.
- He was brought to the security office where he was only asked for his name and age
which he gave. A few people tried to talk to him but he had difficulty understanding what was said. The water was taken back from him by the security staff. - The Gardai arrived shortly afterwards and he was then taken to the Garda Station around 9 pm. At the Station, the Gardai asked him for his name, address and phone number. Shortly afterwards they rang his parents asking that they come to the Station. When his mother arrived, the Gardai spoke to her and then let her take him home.
- The youth's father also gave evidence at the Hearing. He described himself as a private detective and explained that he visited the store the next day to find out what had happened and to establish whether it may have been possible for the store to investigate whether his son had been wrongfully accused.
- From his enquiries, the father said that he established that the cash desks would have retained till receipts of all goods purchased and therefore, could have confirmed whether 4 bottles of water had been purchased at the time his son said that he purchased them.
- He then met with the Head of Security who confirmed to him that it was likely that the till receipts could confirm if bottles of water had been purchased at the time in question. He also confirmed that video cameras would probably have recorded whether his son had paid for goods at the cash desks the night before. The Head of Security told him, however, that it was not company policy to carry out such checks on request from a customer.
Respondents Evidence
- The security man gave evidence that a store worker, who was packing shelves at the time, approached him around 8 pm to say that he had seen a black male youth remove four bottles of water from the minerals aisle and leave the store without paying for the goods.
- The security man said that he asked the worker to identify the youth to him and he
pointed to a young black male who had just left the store. The security man could see that the youth had a bottle in his hand. - The security man then asked the worker to accompany him while he approached the
youth, as is normal practice, but the worker declined saying that he knew the youth from the area and did not want to get involved. The security man said that he then asked the store worker to stand near the door and to confirm the identity of the black youth when he was being escorted back to the store. - The respondents stated that the store worker, who is now in college, also declined to
attend the Hearing as a witness as he did not wish to get involved or to miss a day from college. - The security man then approached the youth indicating that he was suspected of
removing bottles of water from the store without having paid for them. The youth replied "No English". When the security man pointed to his bag, the youth said "I pay, I pay" and produced a €10 note from his pocket. The security man took this to mean that the youth was offering to pay for the goods at that point. The security man told him it was too late and escorted him to the security office. - The store worker nodded to the security man that the youth was the suspect as he escorted him back into the store. The security man does not recall the youth pointing towards the cash desk or newspaper stand while they were moving through the store. The security man said that the youth kept looking around him and slowing down as if he was waiting for an opportunity to run away.
- The security man said that, at no point was the youth asked to produce a receipt for the goods. He said that this is normal procedure where a member of staff has reported that they are 100% certain that a person has removed goods from the store without paying for them. He said that a receipt is only sought in situations where a suspect may have been out of view of the staff member for a short while (and may have actually paid for the goods in that time).
- The respondents say that when security staff spoke to the youth in the security room and sought particulars from him, they had a difficulty communicating with him. All he said was "No understand". When they established that the youth could speak French, the security man, who had a little French himself, endeavoured to converse with him in French and established his name and age. They were unable to establish his address or phone number from him.
- The four bottles of mineral water were taken off the youth in the office.
- The Head of Security also gave evidence that he was called to the security room at that point. He said that he also tried to speak to the youth but could not elicit any information from him.
- At that point, it was decided that the Gardai should be called. The Gardai took statements and then took the youth away to the Garda Station. The respondents understood that the Gardai would be pressing charges against him on foot of the allegation. The Store has not heard any more from the Gardai in the matter since.
- The following day, the youth's father met the Head of Security and requested that the
previous night's till receipts be checked and video cameras reviewed. The Head of
Security told him that, because of the time and effort that would be involved, that it was not company policy to do so in situations where staff were certain that an incident of shoplifting had occurred and the suspect had not proffered a receipt. - On receipt of Form ODEI 5 from the complainant, the store denied the allegation of
discrimination and explained that he had been arrested for stealing 4 bottles of water. In their reply, the store also informed the complainant that, on account of the incident and the fact that it was under Garda investigation, he was unwelcome in any of the store's outlets from then on.
6 Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to
occur where, on any of the grounds specified in the Act, a person is treated less favourably
than another person is, has been or would be treated. Section 3(2)(h) of the Act specifies the race ground as one of the grounds covered by the Act and defines the race ground as follows: " As between any two persons, the discriminatory grounds are ..... that they are of different race, colour, nationality or ethnic or national origins (the "ground of race")"
In this particular instance, the complainant claims that he was discriminated against on the
grounds of his race contrary to Sections 3(1)(a) and 3(2)(h) of the Equal Status Act, 2000 in the manner in which he was treated by security staff on 12 September 2002.
6.2 In cases such as this, the burden of proof lies with the complainant who is required to
demonstrate that a prima facie case of discrimination exists. If established, the burden of
proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
6.3 In considering the approach to be taken with regard to the shifting of the burden of
proof, I have been guided by the manner in which this issue has been dealt with previously at High Court and Supreme Court level.
7 Conclusions of the Equality Officer
7.1 At the outset, I must first consider whether the existence of a prima facie case has
been established by the complainant.
There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (e.g. the race ground)
(b) Evidence of specific treatment by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than the
treatment someone, not covered by that ground, would have received in similar
circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the
difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not.
In considering what constitutes a prima facie case, I have followed the same principles
outlined in previous decisions such as Sweeney v Equinox Nightclub (DEC-S2002-031).
7.2 With regard to (a) above, I am satisfied that anyone meeting and speaking with the
complainant would immediately recognise him as being of different race, colour, nationality
or national origin and that, therefore, he is covered by the race ground under the Equal Status
Act 2000.
To determine whether a prima facie case exists, I must, therefore, consider whether the
treatment afforded the complainant on 12 September 2002 was less favourable than the
treatment a person of apparent Irish origin would have received, in similar circumstances.
7.3 This entire complaint centres around an accusation of larceny made by a store worker
who was not prepared to confront the accused on the night in question, as is normal practice. Secondly, the same individual declined to attend the Hearing to recount his version of events of 12 September 2002. As a result, I only have the security man's hearsay evidence as to what the store worker told him he saw happening on the night of 12 September 2002. As the store worker has not appeared to give evidence, and only his written report of the incident has been submitted, I find that I must treat the written report and the security man's account of what the store worker told him as mere hearsay evidence, having little or no evidential value. This is in accordance with the decision of Henchy J. in Kiely -v- The Minister for Social Welfare (Supreme Court IR [1977] 267) who stated that to accept such evidence would be in breach of the principles of natural justice.
7.4 Of importance in this case, of course, is that it is not for me to decide whether an
offence was committed by the youth on 12 September 2002. I am only required to decide, on the balance of probabilities, whether I consider that the youth was treated less favourably because of his race than a person, not covered by the race ground, would have been treated in similar circumstances. In other words, I must decide whether a white youth of Irish origin would have received the same treatment from the respondents if he had been involved in a similar situation.
7.5 As I have said, the absence of the store worker at the Hearing means that I am unable
to make a judgement as to the genuineness of the allegation made against the complainant.
For this reason, I consider that it is appropriate to give the complainant the benefit of the
doubt and to proceed on the basis that the security man may have been acting on false
information, when he decided to apprehend the complainant.
7.6 Following on from the above, I consider that there are two questions which need to be
addressed in order for me to decide whether discrimination occurred. These are:
(1) Did the security man discriminate against the youth in the manner in which he dealt
with the situation?
(2) Are the company's policies and practices such that the youth suffered discrimination
as a result?
7.7 In relation to (1) above, in considering the incident from the security man's perspective, it would seem that he acted on a report that a youth had unlawfully deposited several bottles of water in his football gear bag. Of importance here is the fact that, in the eyes of the security man, this report was substantiated by the fact that he saw the youth in possession of several bottles of water and the report was then given even greater credence by the fact that the youth did not proffer a receipt to show that he had paid for the bottles.
7.8 It is also clear that serious language difficulties arose at the time between the parties,
as evidenced by the fact that there is serious conflict over the interpretation of the youth's
comment "I pay, I pay". The security man says that he took it as an admission of guilt while
the complainant states that it was an attempt to show that he had paid for the goods. In the
absence of any independent evidence of what happened outside the store, I find that I am
unable to take these reports into account in deciding whether discrimination occurred.
In protesting his innocence, the complainant states that he sought to persuade the security
man to check with the cash desk at which, he maintains, he paid for the goods. The youth also states that he tried to show the security man where he had left his receipt. The security man states, however, that he does not recall these requests. Again, In the absence of any independent evidence of what happened at that point, I find that I am unable to take these contrasting reports into account in deciding whether discrimination occurred.
7.9 On the basis of the above, I am satisfied, on the balance of probabilities, that the
security man was justified in thinking, at the time he was apprehending the youth, that he was dealing with a genuine case of suspected shoplifting. Having deliberated fully on the overall conduct of the security man on the night, I also find that there is no clear evidence before me to indicate that he acted out of the ordinary on 12 September 2002 in his dealings with the youth. Accordingly, I do not consider that the security man's conduct on the night constituted discrimination on the race ground contrary to the provisions of the Equal Status Act 2000.
7.10 With regard to (2) above, regarding the company's practices and policies, of interest
here is the fact that the respondents state that it is not normal practice to ask suspected
shoplifters for receipts when they are first apprehended, in circumstances where a staff
member had positively identified them. While this practice may seem somewhat unjust and
unfair, it must be recognised that such practices do not constitute discrimination if they are
applied universally by a particular chain store. Having listened to the evidence of the
respondents on this point, I am satisfied, on the balance of probabilities, that this would
appear to be the situation in this case.
In addition, while I can understand suspects feeling upset over not being allowed to prove
their innocence by checking with cashiers or being allowed to review video footage, again it would appear that this is also common practice with this chain store, when a suspect cannot produce a receipt, and, therefore, I am prepared to accept that the youth and his father were treated no differently than a suspect, who was not covered by the race ground, would have been treated in similar circumstances.
7.11 A question also arises over the manner in which the complainant was questioned by
security staff, particularly when it would have been obvious that the complainant had not got
a good grasp of English and that the experience could have had an intimidating and worrying effect on him. Having considered the evidence before me, however, I am prepared to accept, on the balance of probabilities, that the respondents were genuinely trying to establish relevant information from him as to his identity and address, from the fact that the security man tried to utilise French to elicit information from the complainant, which I consider constituted a reasonable attempt to overcome any problems the youth's race may have caused. Accordingly, I do not consider that the respondents engaged in discriminatory treatment in dealing with the youth after he had been escorted back to the security room.
7.12 As I have said earlier, I do not have jurisdiction to decide whether a crime of larceny
was committed on 12 September 2002 . However, I am required to decide whether I consider the complainant received less favourable treatment on 12 September 2002 on account of his race. Having deliberated on the totality of the evidence before me, I find, on the balance of probabilities, that the store would have treated a white or Irish youth the same as it treated the complainant, in similar circumstances and, therefore, I find that the complainant was not less favourably treated by the respondents on 12 September 2002. Accordingly, I find that a prima facie case of discrimination on the race ground has not been established under the Equal Status Act 2000.
8 Decision
8.1 I find that the complainant has not established a prima facie case of discrimination on
the grounds of his race contrary to sections 3(1)(a) and 3(2)(h) of the Equal Status Act 2000. Accordingly, I find in favour of the respondents in the matter.
8.2 As I stated earlier, there is no clear evidence before me, arising from the store
worker's non-appearance at the Hearing, to suggest that the complainant did engage in
shoplifting, which raises a question mark about the continued ban on the complainant. In
light of the fact that the allegation is denied by the complainant, and the Gardai do not seem to be pursuing the matter, I would suggest that the store might now consider meeting with the father and son to discuss the situation, with a view to a possible lifting of the ban.
Brian O'Byrne
Equality Officer
20 February 2004