Mr. Thomas O'Connor V The Icon Night Club (Limerick)(represented by McMahon O'Brien Downes Solicitors)
Delegation under Equal Status Act, 2000
The complainant referred a claim to the Director of Equality Investigations on 24 October, 2001 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 then delegated the case to me, Marian Duffy, 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.
1. Dispute
1.1 The dispute concerns a claim by Mr. Thomas O'Connor that he was discriminated against by The Icon Night Club on the gender ground in terms of Sections 3(1)(a), and 3(2) (a) of the Equal Status Act, 2000 and contrary to Section 5(1) of that Act in that females were allowed free into the night club on a Thursday night while males are charged an entrance fee. The respondent denies discriminatory treatment on the gender ground in relation to access to the night club.
2 Summary of the Complainant's Case
2.1 The complainant and a friend went to the respondent's night club on 3 May, 2001.The complainant enquired at the door about the entrance fee and was told that it was £5 for males and free for females. The complainant complained to the doorman that it was unfair that he had to pay and that females were not charged. He had been in the nightclub before and this was the first occasion he was made aware that there was a difference in the entrance fee for males and females. He choose not to pay the entrance charge on the night in question. The complainant submitted that this was discriminatory treatment on the gender ground.
3 Summary of the Respondent's case
3.1 Mr. Ciaran Gleeson, proprietor, said that since the nightclub opened in December,2000, with the exception of about 8 months, females are allowed in free up to 1a.m.on a Thursday night and males are charged an entrance fee of £5. This policy was adopted for promotional reasons and had proved very successful in attracting females to the club. In July, 2001 he opened a bar attached to the nightclub and decided to run soccer nights on Monday night. Any male who came into the bar to watch soccer was let into the nightclub free. He discontinued the practice after about 2 months because it was not successful.The respondent's representative submitted that the practice was positive discrimination in favour of women and as such was allowed under the Equal Status Act.
4 Conclusions of the Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(a) of the Equal Status Act and in terms of Section 5 (1) of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:"On any of the grounds specified... (in this case the gender ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(i) provides that: as between any two persons, the discriminatory grounds ... are... that one is male and the other is female (the "gender ground"),"
Section 5(1) provides inter alia that:"A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the sevice provided can be availed of only by a section of the public."
4.2 A person making an allegation of discrimination under the Equal Status Act, 2000 must first demonstrate that a prima facie case of discrimination exists.I have identified the three key elements which need to be established to show that a prima facie case exists as follows:
(i) is the complainant covered by the ground?
(ii) in what circumstances was the complainant not provided with a service by
the respondent on 3 May, 2001?
(iii) is there evidence that the treatment received by the complainant was less
favourable than the treatment a female would have received in similar
circumstances.
If and when those elements are established, the burden of proof shifts to the
respondent, meaning that the difference in treatment is assumed to be discriminatory
on the relevant ground. In such cases it is not necessary for the complainant to prove
that there is a link between the difference in treatment and the membership of the
ground, instead the respondent has to prove that there is not.
I am now going to examine the issues I have identified above and consider whether
the complainant has established a prima facie case.
4.3 I am satisfied that the complainant is covered by the ground. While the complainant
was not refused a service, he could have availed of the service if he had chosen to
pay. However he could not have availed of a free service. I am satisfied therefore,
that the second element of the test has been satisfied. Similarly I am satisfied that the
complainant was treated less favourably than a female would have been treated in the
circumstances, in that a female would have got into the night club free, while the
complainant, a male, would have to pay £5 solely because of his gender. While the
difference in treatment between female customers and male customers is small, such a
difference in treatment between men and women under the Equal Status Act is
nevertheless discriminatory, unless it is covered by a specific defence. I am satisfied
therefore that the complainant has established a prima facie case of discriminatory
treatment.4.4 The next question for consideration is whether the respondent has provided sufficient evidence to rebut the prima facie case raised by the complainant. The respondent stated that Thursday night free entry for females was a promotional night for females only and has proven very successful. He also stated that he ran a free entry night for males on a Monday night but it was unsuccessful. The complainant sought entry to
the disco on 3 May, 2001 and the Monday free nights were not in operation at that
time. Secondly the free nights for males was on a Monday night and ran for a limited
period and the conditions attaching to these free nights were different in that males
had to be drinking in the pub before they could get entry to the nightclub no such
conditions attached to females gaining free entry on a Thursday night.
4.5 The respondent's representative submitted in defence that the practice of allowing
free access to female customers up to 1a.m. was positive discrimination in favour of
women and allowed under the Act. Section 14(b)(i) of the Equal Status Act, 2000
provides:
"Nothing in this Act shall be construed as prohibiting--
(b) preferential treatment or the taking of positive measures which are bona fide
intended to-
(i) promote equality of opportunity for persons who are, in relation to other
persons, disadvantaged or who have been or are likely to be unable to avail themselves of the same opportunities as those other persons."I note that positive measures are permitted by the Act as an exception to the general principle that discrimination based on the gender ground is unlawful. I would need therefore to be satisfied that the particular situation in this case does in fact come within the terms of section 14(b)(i) above. The requirement under this section is that the measures taken are in "good faith" intended to promote "equality of opportunity for persons who are ...disadvantaged...". The respondent has not provided any evidence to suggest that women as a group are disadvantaged relative to men as a group in their ability to get into nightclub before 1a.m.
4.6 In considering this point in relation to relative disadvantage, I have referred to theLabour Court decision in an employment case, NBK Designs Ltd v Inoue ED/02/3Determination No. 0212. This is where the Court held that an expert tribunal could take account, even in the absence of specific evidence, matters such as risk of disparate impact on a protected ground under the Act which are well established and are obvious from its specialist experience. In Inoue, the Labour Court held that it was obvious that measures impacting on part-time workers, or on those caring for small children, would impact disproportionately on women. It would be reasonable therefore to infer from this rationale that an expert tribunal such as the Equality Tribunal could similarly take account of matters such as relative disadvantage supporting positive action, which are obvious from its specialist experience.However, the Tribunal is not aware of any such disadvantage from its own specialist experience which could be taken into account in this case. It may be that some groups of women find it more difficult to go out to nightclubs in the evening due to economic disadvantage or lack of childcare support, but the entrance fee involved is relatively small one, which would not appear in my view to present difficulties for women generally, and the waiver of the entrance fee is not targeted to any groups of women experiencing particular disadvantage. I am satisfied therefore, that the free entrance to the nightclub for females up to 1a.m. is not a positive action measure,taken in good faith in order to reduce barriers confronting women as a disadvantagedgroup. I believe the measure was taken for commercial reasons aimed at attracting more customers into the nightclub. For the above reasons this defence fails. I find therefore, that the respondent has failed to rebut the prima facie case of less favourable treatment on the gender ground raised by the complainant.
5. Decision
5.1 I find, that the Icon Night Club did unlawfully discriminate against Mr. Thomas O'Connor on the gender ground on 3 May, 2001 in terms of Sections 3(1)(a), and 3(2)(a) and contrary to Section 5(1) of the Equal Status Act, 2000.
5.2 Under section 27(1) of the Equal Status Act, 2000 redress may be ordered where a finding is in favour of the complainant. Section 27(1) provides that:"the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified."
5.3 I consider that an award of compensation would be appropriate in respect of the discriminatory treatment. Under Section 27 above the maximum amount of compensation I can award is €6,349. The complainant sought a minimum amount of compensation and I agree that the maximum would not be appropriate in this case. In the circumstances, I order the respondent the Icon Night Club to pay to the complainant, Mr. Thomas O'Connor the sum of €10 and free entry to the night club for 7 nights of his choice.
5.4 Under Section 27(1)(b) of the Act I also order the respondent to review his entrance
policies to comply with the requirements of the Equal Status Act.
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Marian Duffy
Equality Officer
5 January, 2004