Ms. Dunne referred a claim 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, the Director then delegated the case to me, Bernadette Treanor, 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. The hearing took place on 16/2/2006.
Summary of the Complainant's case
On 11th January 2002 Ms. Dunne was going out to celebrate her 21st birthday. She and her sister prepared at home and went to meet two others in time to have one drink before going to the nightclub. The group got a taxi from the pub and arrived at the nightclub around 00:45am on 12th January 2002. They walked up to the nightclub and were told "Not tonight". The complainant explained that it was her 21st birthday. The bouncer then said that she was drunk because he had seen her wobble as she approached. The complainant explained that she does not drink alcohol. At the hearing she described the high shoes she was wearing on the night. Another member of the complainant's group asked for a reason and was told that they did not have to give a reason. Overall the complainant felt that the bouncer was condescending and ignorant towards her and her group. She stated that the bouncer said that 'her kind' was not wanted in the nightclub. The complainant's group called the Gardai but there was a delay before they arrived. The complainant asked to be breathalysed but the Gardai refused. The complainant sat down very upset and crying as her birthday celebrations had been ruined. As she does not drink the complainant believes that the only reason for the refusal was her membership of the Traveller community.
Summary of the Respondent's Case
The manager and co-owner was on duty on the door with another bouncer when the complainant and her group arrived seeking entry to the nightclub. The manager stated that both of them assessed her as intoxicated. In their opinion she stumbled slightly as she approached. The bouncer was thought to be abroad now. The manager said to the group that he thought they had had too much to drink. He never said that 'her kind' was not wanted in the nightclub. One of the girls argued strongly with them and this went on for quite some time. The Gardai arrived and asked why the group were stopped. Then they went to the complainant's group who subsequently went away. Normally when this situation arises the manager suggests that those being refused should get a Garda to say that it is okay to let them in. When asked if the Gardai had ever done this the manager stated that yes they had but only where the issue in dispute was the reliability of identification relating to age. The club's door policy was that once the customer was reasonably well dressed, has proper identification, behaves in a sober manner and has an appropriate attitude, access is granted.
Conclusions of the Equality Officer
I am satisfied, and the respondent accepted, that the complainant is a member of the Traveller community. It is agreed that the refusal took place. What is in dispute is the reason for that refusal. The respondent maintains that the complainant was intoxicated. In response to questioning at the hearing this assessment was based solely on the complainant's stumble. During questioning it was put to the complainant that she stumbled as the lane leading to the club was very uneven. While she maintained that she did not stumble she agreed that the lane was uneven.
The respondent also maintained that the initial statement "In my opinion you've had enough to drink" was in fact an invitation to the customer to discuss the issue. I do not accept this. The respondent refused the complainant based only on a stumble as she approached the door, assuming one accepts that she did in fact stumble. The stumble was described as slight by the respondent who also indicated that the complainant did not fall. In my opinion, given the uneven terrain, a stumble seems a rather tenuous basis for such an assessment of a customer. It would appear appropriate for a bouncer, in circumstances where doubt exists, to engage the customer in conversation to allow for a more thorough assessment of their demeanor.
The respondent also stated that the complainant had the option of getting a Garda to say it was acceptable to let her in. While this may be acceptable with respect to evidence of age, it is not surprising that a Garda would be reluctant to get involved in a civil matter and therefore this appears to be an insurmountable obstacle to access.
I find that the outright refusal of the complainant based only on a disputed stumble could not be construed as reasonable in all the circumstances and I further find that a non-Traveller in similar circumstances would not have been refused without appropriate assessment. I find that the complainant has established a prima facie case of discrimination on the Traveller ground. On that basis the burden of proof now shifts to the respondent.
The respondent raised the issue that they were not aware of the complaint until it was too late to extract video evidence, since the notification did not go to the company's registered office. This is not a requirement under the legislation and since the nightclub was open four nights per week at the relevant time I am satisfied, in the absence of evidence to the contrary, that the notification requirements of the Act have been complied with in this case.
The respondent stated that the complainant, a non-drinker, was assessed as intoxicated based on a stumble. This has already been considered and found insufficient to support the respondent's case. No other evidence was presented by the respondent as to the grounds for the refusal. Therefore I find that the respondent has failed to rebut the prima facie case of discrimination.
Decision DEC-S2006-021
I find that the respondent has failed to rebut the complaint of discrimination made by Ms. Dunne and this decision is therefore in her favour. I hereby order the respondent to pay Ms. Dunne €1000 for the effects of the discrimination.
Bernadette Treanor
Equality Officer
6th April 2006