Equal Status Acts 2000
EQUALITY OFFICER’S DECISIONS NO: DEC-S2008-036
A Complainant
V
A Fast Food Franchise
(Represented O’Dea & Company Solicitors)
Key words
Equal Status Act 2000 –Discrimination, section 3(1) - Sexual orientation ground, section 3(2)(d) – Disposal of goods and provision of services 5(1) – Refusal of service.
1. Delegation under the Equal Status Acts 2000
1.1. A complainant referred a complaint of discriminatory treatment on 27 March 2004 to the Director of the Equality Tribunal under the Equal Status Acts 2000. In accordance with her powers under section 75 of the Employment Equality Act, 1998, the Director then delegated the case to me, Tara Coogan, 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 on 31 October 2007. A hearing was held in Galway on 31 March and 10 April 2008. Final correspondence in relation to this case was submitted on 25 April 2008.
2. Dispute
2.1. The dispute concerns a complaint of less favourable treatment on the sexual orientation ground contrary to section 5(1) of the Equal Status Act. The complainant maintains that he was refused service on the premises of a fast food franchise on the morning of Saturday 27 March 2004 and was called “a queer” by the franchisee of the restaurant. He claims that a he experienced similar treatment a week previously, on 18 March 2004, when he was refused service and called a “queer boy” by the franchisee.
3. Case for the Complainant
3.1. The complainant, a bisexual, maintains that he and his friends visited the fast food restaurant on the morning of 27 March 2004. Upon entering the premises, the complainant and his two friends sat a vacant table. The group were waiting for a third friend to join them before the complainant’s friends made their way over to the counter to order some food. Suddenly, the franchisee approached the complainant and told him to get out. He called the complainant “a queer” and refused to let him stay in the restaurant.
3.2. The complainant maintains that, a week previously, he had entered the premises on his own. He states that upon entry, he made his way directly over to the counter and ordered a drink from the franchisee serving behind the counter. The franchisee simply refused to serve him and called the complainant “a queer boy”. The complainant stated that he was shocked at this behaviour and could not understand where it came from. He felt intimidated and left the premises. He subsequently contacted the franchise’s head office to complain about the treatment he maintains he received.
3.3. The complainant stated that he did not know the franchisee, did not think the franchisee knew him and that he had not been a regular customer at the venue. The complainant could not explain how the franchisee knew his sexual orientation or imputed it upon the complainant but stated that many people had made the assumption that he was gay. He surmises that the respondent must have imputed it upon him from the manner in which the complainant conducts himself.
3.4. The reason why the complaint returned to the fast food venue after the first incident on 18 March 2004 was because his friends wanted something to eat. He says he probably would not have returned to the venue considering the treatment that he received the week previously but accompanied his friends who were visiting from another city. He did not want to discommode his friends in relation to the previous incident and thought that he could just peacefully accompany them while they had something to eat.
3.5. The complainant absolutely refutes the respondent’s claims that he was drinking alcohol on the premises on 18 May 2004 and that he had called the franchisee “a fat bastard”. He maintains that it is not part of his personality to speak to any person like that and that he comes from a well-known academic family.
3.6. The complainant also stated that he was surprised that the respondent could not show any CCTV images of the night in question. He asserts that any alleged fire on the premises must have been substantial and that the absence of such footage is convenient for the respondent as the footage would have vindicated the complainant’s account of the alleged incidents.
Evidence from the Complainant’s Witness, Mr. A:
3.7. Mr. A gave direct evidence at the reconvened hearing on behalf of the complainant. Mr. A stated that he was with the complainant on the 27 March 2004. He stated that the complainant, the witness and some friends had been out socialising and after the pubs and clubs closed, the witness had wanted to get something to eat. So, the witness, the complainant and a third person made their way to the fast food restaurant.
3.8. The witness, Mr. A, stated that he and his two friends entered the restaurant. He stated that there was no security at the door and that - in his opinion - the restaurant was not too busy at the time they entered. The group sat at a vacant table. The witnesses stated that he was about to go over to the counter to order a ‘snack box’ when a man, dressed in what he believed to be a uniform, approached his friend, the complainant, and told him to get out. According to Mr. A, a man whom he identified at the hearing as the respondent said to the complainant ‘get out you queer’. The witness, who stated that he is gay himself, stated that he was absolutely shocked by this behaviour. Despite this, he stated, neither his friends nor he himself said anything in reply. The witness stated that in his opinion the group were behaving in a civilised manner and that he could not think of any reason why the respondent would have approached the complainant, evicted him and called him names.
3.9. Mr. A maintains that after this incident, the three people (including Mr. A) seated at the table got up and left the restaurant without having purchased any food. Nothing was said between any of the party who just went home despite this unwarranted behaviour towards his friend. Mr. A stated that he knew nothing of the alleged incident involving the complainant that had taken place the week previously.
4. Case for the Respondent
4.1. The respondent has held the franchisee for the fast food restaurant for a number of years. Prior to taking up the fast food restaurant he had worked in a family run public house. The respondent maintains that he has years of experience of working with people from all walks of life in general. He also stated that a gay nightclub used to operate next door to his business and, therefore, a proportion of his customers would have been gay or associated with the Lesbian, Gay and Bisexual (LGB) community. In addition, the respondent has and currently employs openly gay people.
4.2. The respondent refutes the complainant’s version of events. On 27 March 2004, the respondent maintains that he was standing outside the restaurant on ‘security duty’, that is, vetting people at the door. This is something he says he does after licensed premises have closed on weekend nights and the reason for this vetting is to check that people are not too drunk to enter his premises. He states that he saw the complainant, whom he recognised from the encounter a week previously, with a male friend (not the complainant’s witness, Mr. A). He stopped the complainant at the door and told him, that due to his behaviour the last time he had been at the restaurant, he could not let him. He stated that he explained the situation to the complainant’s friend who, in the respondent’s opinion, accepted the reasons given by the respondent and went in to get his food while the complainant waited outside.
4.3. The respondent maintains that on 18 March 2004, he noticed that the complainant was seated at one of the tables at his restaurant on his return to the restaurant. The respondent maintains that it was about 11 pm (not a particularly busy time). He had left the premises on a small errand and on his return he noticed a hamburger wrapper on the floor. As he scooped down to pick it up he noticed that the complainant who was seated at the table next to the wrapper was drinking what the respondent identified as beer from the restaurant’s paper mug. The respondent also stated that he noticed a bag with cans of beer in it. He told the person, whom he identified as the complainant at the hearing, that it was illegal to drink on the premises and that the complainant would have to leave. The complainant, according to the respondent, protested and called the respondent a “fat bastard”. The respondent lifted the complainant’s bag outside the premises and listened to the complainant warn him to “keep your hands off me”. The respondent refutes any statement that he called the complainant “a queer boy”.
4.4. After the incident on 27 March 2004, the respondent asked a then member of staff to download the images pertaining to the complainant from the CCTV system. He stated that he has plenty of experience of keeping records of incidents as the venue often provides video footage to the Garda Siochana after incidents involving anti-social behaviour. The respondent explained that the reason why he asked for this tape to be made after his encounter with the complainant on 27 March 2004 was because he had received a phone call from the franchise’s head office informing him that the person had made a complaint of discriminatory treatment during an incident on 18 March 2004. As a result of this phone call, the respondent also wrote down an incident report of the events on 18 March. The respondent also explained that the reason why he had not recorded the events of 18 March 2004 was because he did not consider the incident to be in anyway unusual. He regularly has to ask people to leave because they attempt to consume alcohol on his premises and because they may be abusive.
4.5. The respondent categorically denies that he refused the complainant service because of his sexual orientation. He stated that he has employed people who were open about their sexual orientation in his business and that he has had and continues to have customers who were of various sexual orientations. He stated that he was in the business of serving customers and, provided that the customers behaved appropriately he had no difficulty serving them. The reason why the complainant was asked to leave in the first instance was simply because he was caught drinking alcohol on the premises and then, when asked to leave because of this offence, became abusive and uncooperative. On his return a week later, he was refused entry because of his uncooperative manner the previous time.
4.6. The respondent also stated, for the record, that as the franchisee, he does not wear a uniform or serve behind the counter.
Evidence of the respondent’s witness, Ms Z:
4.7. The witness is a former employee of the respondent who was employed by the franchisee at the time of the alleged incident. She told the hearing that during her shift on the evening of 18 March 2004, counter she noticed the complainant sitting at one of the tables quietly watching television. She said she noticed that the bag lying on the floor next to the complainant had beer cans in it. She remembers her employer coming in and recalls overhearing the exchange of words between the complainant and the respondent. She says that her employer told the complainant that he was not allowed to drink on the premises and that he would have to leave. She said she vividly recalls the complainant calling the respondent a ‘fat bastard’. To this, she said, the respondent replied “it is Mr Fat Bastard to you”. This, she says, caused a bit of hilarity among the staff and, as a result, the staff kept bantering about the exchange over the course of their shift.
4.8. The witness also gave evidence that she was asked to “make a tape” from the security footage after the incident involving the complainant on 27 March 2004. The CCTV system that operates on a loop system only stores images for a while, so it was necessary for someone to select the right images to download them on a disc for future reference. She stated that she recalls downloading images of the complainant talking to the respondent at the door of the restaurant. She also said that the person who seemed to be accompanying the complainant came in to the restaurant while the complainant stayed outside.
Respondent’s second witness, Mr Y:
4.9. The respondent also brought along a current employee who is openly homosexual and currently working with the respondent. He stated that he was open about his sexuality in the workplace and that this had never had any negative effect on him or his working conditions.
5. Conclusions of the Equality Officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.2. In making my decision I have taken cognisance of both oral and written submissions made to me before, during and after the hearing.
5.3. The two accounts presented to me at the hearings by the two parties vary extensively. On the one hand, the complainant maintains that he, having never been on the premises before, entered on an evening and walked over to the counter to order a drink where the franchisee simply, having never met the complainant, refused him service and called him a ‘queer’. Then, a week later, despite the treatment he had received previously, the complainant returned with his friends when the franchisee yet again approached him. The franchisee spoke to the complainant only, called him a queer boy and told him to get out. The complainant maintains that he told the franchisee that he would make a complaint and that he and his friends then all got up in an orderly manner and filed out.
5.4. The respondent, on the other hand, accounts an incident where he had asked the complainant to leave due to him having discovered the complainant drinking what appeared to be an alcoholic substance on the premises. The respondent stated that the complainant, who was not known to him, became abusive and as a result, when he attempted to return a week later he was turned away at the door of the restaurant where the franchisee was on security duty.
5.5. A CCTV tape of the second incident was subsequently destroyed in a fire. While the complainant stated that he was regretful and surprised than no such tape existed – as it would have supported his side of the story, that of sitting at the table with his friends – and indicated his scepticism of it been destroyed in a fire, I accept that such a fire took place and that the tape was destroyed. A note from the respondent’s insurance company was submitted to the Tribunal in which the insurance company acknowledge that there was a substantial fire on the premises resulting in “loss included figures for redecoration, loss of stock and business interruption”. While I accept that the tape could have proved the complainant’s statement it must be acknowledged that it could have equally proved the respondent’s case. As the tape does no longer exist, the above arguments are irrelevant.
5.6. However, the person whom the respondent had requested to make the tape after the second incident on 27 March 2004 gave direct evidence at the hearing and testified that she had indeed made the tape on the night in question. She fully collaborated the respondent’s version of events. Equally, the complainant’s witness gave direct evidence on the events of 27 March 2004 supporting the complainant’s account by stating that he was inside with restaurant with the complainant and that he heard the respondent call the complainant a queer.
5.7. On the balance of probabilities, having considered all the evidence presented to me at the hearings, I must conclude that the evidence provided by the respondent’s witness Ms. Z is more compelling. His witness gave a very credible account of the complainant’s first visit to the restaurant. Her account of the exchange between the complainant and the respondent was very plausible and of the nature that a person would recount even years later.
5.8. In addition, the respondent gave credible reasons why he has made the request to his staff member for a video recording of the incident complaint of. He also presented an incident report of the first incident to the hearing and gave compelling reason of why he had written them a few days after the incident.
5.9. The complainant’s witness, on the other hand, was able to account everything that had been covered at the hearing the week previously. However, when it came to anything that could have occurred outside of the alleged incident, he was not able to do so. I find it extremely unlikely that a person having witnessed their friend being evicted from a restaurant without any tangible cause or specifically because of their sexual orientation would just passively watch as their friend was being harassed and simply go home without any reference to the incident. According to the witness, the respondent - dressed in a restaurant uniform - approached the complainant without any provocation, addressed him using a derogatory reference, and consequently ‘shocked’ the witness, another friend and the complainant simply and silently walked out.
5.10. The complainant’s witness also maintained that if the complainant said anything to the respondent he did not hear it. I do not find it credible that the complainant’s witness could clearly hear anything that the respondent said but nothing of what the complainant may have said in return. Equally, I find it unlikely that the respondent - if he were operating a homophobic campaign of exclusion - would only insult the complainant (who by mutual agreement was not known to the respondent) and not the other two persons sitting with him.
5.11. The complainant had no witnesses for the alleged incident on 18 March 2004. He maintains that he walked into the respondent’s premises, behaving in a civil and appropriate manner, walked straight to the counter to order a soft drink and, was met with a refusal of service and discriminatory remarks about his sexuality from a person who did not know him. I do not accept that the complainant’s statement is a full account of what actually happened. The respondent’s witness, Ms. Z, in contrast, gave credence the respondent’s version of events by accounting a credible account of the exchange of words between the complainant and the respondent on the night in question. She remembers the complainant in the restaurant and recalls a bag with cans in it. She recalls her employer asking the complainant leave because he appeared to be drinking alcohol on the premises. She denies hearing the respondent call the complainant a queer. Mr. Z gave direct evidence about making a CCTV tape of the incident and recounted her memory of it. This account was consistent with that of the respondent and indicates that the refusal to serve the complainant had nothing to do with his sexual orientation.
6. Decision
6.1. I find the complainant has failed to establish a prima facie case of discrimination on grounds of sexual orientation in terms of section 5(1) of the Equal Status Acts 2000 and his complaint must therefore fail.
___________
Tara Coogan
Equality Officer
11 June 2008