A Female V A Publican
1. Dispute
1.1 This dispute concerns a complaint by a female that she was discriminated against, contrary to the Equal Status Act 2000, by a publican on the sexual orientation ground when she was refused service in his pub on 9 May 2003.
The complainant maintains that she was discriminated against on the sexual orientation ground in terms of sections 3(1) and 3(2)(d) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainant's Case
2.1 This dispute concerns a complaint by a female that she entered a pub on Friday 9 May 2003 with a female friend but was asked to leave. She maintained that the publican refused her admission because he knew that she was gay.
3. Summary of Respondent's Case
3.1 The respondent totally rejects that he operated a discriminatory policy against gay people. He maintains that the women were asked to leave as the complainant’s friend had been in the company of a man who knocked over some glasses in the pub some weeks previously.
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 the 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.
Evidence of Complainant
The complainant, who is 40 years old, has lived in the town all her life.
She knew the publican well and believes that he would have known her by name.
She had concealed the fact that she was gay for many years but decided to “go public” about it six months before the night she was refused.
She had been in the pub concerned four or five times previously and the respondent himself had served her on a few occasions.
She had only been in the pub on one occasion between the time she “went public” and the refusal. On that one occasion she spent the evening in the pub with her female partner.
She said that she felt uncomfortable that night as every time she looked towards the bar, the publican appeared to be staring at her while talking to other customers.
On Friday 9 May 2003, herself and a non-gay female friend bought tickets for a charity night in another local bar.
As they were early, they decided to go to the respondent’s pub first. As they entered, they saw a barwoman behind the bar and the publican himself sitting outside the bar.
Immediately, the publican approached them and informed them that he didn’t “want your kind in here” and made a reference to gay women.
The complainant was so upset that she just left. Outside she began to cry. She said that the incident had such an upsetting effect on her that she did not go to the charity night as planned.
Some days later she met the publican on the street and asked to speak to him for a minute about the refusal. She said that he again stated that he “did not want gay women”.
Respondent’s Evidence
The respondent is no longer running the pub.
The pub itself was a family-run pub and catered for about 50 customers. It was also a Bed and Breakfast.
Only one member of staff was on duty at any given time and practically all the customers would be locals
At the Hearing on 10 March 2005, the publican stated that he had no recollection of knowing or ever meeting the complainant prior to 9 May 2003.
He accepted that she may have been in before but insisted that he did not recognise her.
Personally he would know 99% of his customers but the complainant was a “total stranger” to him when he met her on 9 May 2003.
He said that it would be unusual for someone to be barred from the pub and that it was only people who were involved in crime or on the “edge of society” that he did not want in the pub
The publican said that he regularly has gay customers in the pub and produced a statement from one gay male confirming that he had always been made welcome. On being questioned about the statement, the publican admitted that he himself had drafted the statement but said that the gay customer had been happy to sign it.
The publican said that he was familiar with the complainant’s female friend who accompanied her on 9 May 2003 and that he knew her by name.
The publican said that the female friend had been in the pub some weeks previously with a male colleague, whom he had never seen before and who was very drunk. There was a Karaoke on and it was busy that night as it was someone’s party. Towards the end of the night, the male friend knocked over and broke some glasses.
The publican came out from behind the bar and cleaned up himself. He decided not to create a scene as he felt that the male friend was unaware of what he had done with the glasses. No further incidents occurred that night.
Both the complainant’s female friend and her male colleague left at closing time. The publican made no comment to either of them about the glasses that had been broken.
After they had left, he asked other customers for the man’s name and entered it and the female friend’s name into his incident report book with the note “Glasses + bottles knocked in Bar” . The publican produced the book in evidence at the Hearing. The male friend has never returned to the pub.
On 9 May 2003, he was sitting outside the bar when the complainant and her friend arrived. He said that when he recognised the friend, he immediately went towards the women and told them he was not serving them.
He took this decision because of the female friend’s involvement previously with the broken glasses incident. The presence of the complainant had no influence on his decision whatsoever. Neither women appeared to have drink taken, he said
When they asked for a reason, he did not give one. He simply asked them to leave. His reason for not offering a reason was that he did not want to get into an argument. On no occasion did he make any remark about gay or lesbian women.
He says that this was the first time he had ever seen the complainant. The women did not create any fuss and left quietly.
He said that he then made a further note in the Incident Report Book as follows “Refused 2 women in bar one there last night when trouble .... I met them outside bar. Left quietly”
A few days later the complainant stopped him in the street and asked him again about the incident. He accepts that she was civil and courteous at the time. However, he did not want to discuss the matter with her or get involved further and he said to her “I don’t want to talk about it”.
She then made a remark to him about getting a local solicitor on to him. He made another entry in the Incident Report Book as follows “Met woman in street refused she said she got to [Named Solicitor]. Maid no answer told her do whatever she thinks”
Evidence of Complainant’s Witness
She has been friends with the complainant for many years and suspected for a long time that she might be gay. She herself is not gay, however.
It was only a few months prior to the refusal in the pub that the complainant admitted to her that she was gay
The witness said that she was a regular in the pub and knew the publican by name. He would also have known her by name
She would not have known whether other gay people drank in the pub
She had never before seen anyone refused service or being asked to leave the pub.
She had been in the pub a few weeks earlier at a party. She remembers that it was a good night and that people were enjoying themselves as a Karaoke had been provided.
She says that the male customer identified did not go to the party with her. He was a long-time neighbour of hers who chose to join her table at the party.
She said that she has no recollection of any drinks being spilled or any unruly behaviour by the man.
At no time, that night or subsequently, did the publican approach her about the spillage or tell her she was barred
On 9 May 2003, the complainant and herself were going to a charity function elsewhere and went to the respondent’s pub first for a drink at 8.45 pm
As soon as they entered the pub, the publican approached them and said “I don’t want your sort inside” . When asked what he meant, he replied “Gay women”
The witness said that she was shocked by the comment and that they then left the pub
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)(d) of the Act specifies the sexual orientation ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public.
In this particular instance, the complainant claims that she was discriminated against on the grounds of her sexual orientation contrary to Sections 3(1), 3(2)(d) and 5(1) of the Equal Status Act, 2000 in the treatment she received in being refused service by the publican on 9 May 2003.
6.2 In cases such as this, the burden of proof lies with the complainant who, in order to demonstrate that a prima facie case of discrimination exists, must establish facts from which it may be presumed that prohibited conduct has occurred. On establishment of these facts, 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.
7 Conclusions of the Equality Officer
7.1 Prima facie case
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) Existence of a discriminatory ground (e.g. the sexual orientation ground)
(b) Establishment of facts to show that specific treatment occurred
(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.
7.2 With regard to (a) above, the complainant has satisfied me that she is gay. In relation to (b), the respondent acknowledges that the complainant was refused service on 9 May 2003. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainant was less favourable than the treatment a person not covered by the sexual orientation ground would have received, in similar circumstances.
7.3 There is no dispute in this case over the fact that the woman was refused service. What is in dispute is why the woman was refused service. She maintains that it was because the publican knew that she was gay while the publican says that it was because her female friend had been in the company of someone who knocked over glasses in the pub several weeks earlier.
7.4 From the evidence before me, it would appear that the pub in question was a quietly run establishment, that the publican knew practically all his customers and encountered very little trouble of any sort.
The reason given by the publican for the refusal on 9 May 2003 was that the witness had been in the company of a man who had unknowingly knocked over some glasses some weeks previously. The publican has also said that neither the witness nor the man had ever been spoken to about the incident.
The sort of accidental incident described is, in my experience, one that commonly occurs at many parties, where people are enjoying themselves and having a good time and this would seem to have been the case in this instance. Also of interest here is the publican’s own assertion that the male friend probably did not realise himself that he had knocked over the drinks.
In such circumstances, I consider that most people would consider it somewhat harsh if the culprit was subsequently barred from the pub because of an accidental spillage. What would be considered particularly harsh would be a situation where a person, who was only in the company of the culprit, was also barred because of the culprit’s clumsiness - especially when neither were even alerted to the fact that a spillage had been caused. Yet this is what the publican is maintaining happened in this instance. He says that the female friend was refused admission to his pub on 9 May 2003 because of her association with someone who had unknowingly knocked over a few glasses at a party a few weeks earlier.
7.5 Another point of interest here is the publican’s assertion that he had never seen the complainant before 9 May 2003 and that the refusal had nothing whatsoever to do with her.
If this was true, I cannot understand why the publican did not avail of the subsequent opportunity afforded him in the street to explain the position to the complainant, bearing in mind that the publican has said that no reason whatsoever for the refusal had been offered to her on the night in question and that the complainant had left quietly without any argument.
The publican admits, however, that he chose not to avail of the opportunity despite the fact that the complainant’s female friend was not with her and, in the publican’s own words, the complainant had approached him in a civil and courteous manner.
The refusal of the publican to avail of the opportunity presented casts a doubt in my mind as to the genuineness of the explanation he has provided. If the publican felt that he had a genuine reason for refusing the two women entry, then I cannot understand why he did not tell the complainant when the opportunity arose some days later when the friend was not around.
7.6 For the above reasons, I find that I have difficulty is accepting the evidence of the publican with regard to the events which occurred and, on the balance of probabilities, I consider that the complainant’s account of events and explanation for what happened is the more credible of the two.
Accordingly, I consider that the publican did become aware of the complainant’s sexual orientation prior to 9 May 2003 and that this was the principal reason for the refusal on 9 May 2003 and not the female friend’s previous association with her clumsy male neighbour.
7.7 I, therefore, find, on the balance of probabilities, that the refusal of service arose from the fact that the publican had recently become aware of the complainant’s sexual orientation and I consider that his decision to refuse service constituted discrimination on the sexual orientation ground contrary to the provisions of the Equal Status Act 2000.
8 Decision
8.1 I find that a prima facie case of discrimination has been established by the complainant on the sexual orientation ground in terms of sections 3(1) and 3(2)(d) of the Equal Status Act 2000 and that the respondent has failed to rebut the allegation.
I order that the respondent pay the complainant the sum of €1000 for the hurt and humiliation suffered.
Brian O'Byrne
Equality Officer
15 April 2005