Equal Status Acts 2000 to 2004
EQUALITY OFFICER’S DECISIONS NO: DEC- S2008 - 033
Ms Sarah Stevens
- V -
The Helix Theatre
(represented by Arthur Cox, solicitors and Ms Rosemary Mallon, Barrister at law)
Key words
Equal Status Acts 2000 to 2004 - Discrimination, Section 3(1), 3(2) - Gender ground – Family Status Ground - Section 11(1)(a) Harassment – breastfeeding – mother and breastfeeding child as unit – positive discrimination – attendance at theatre – purchase of tickets – threatening statement
1. Delegation under the relevant legislation
1.1. Ms Sarah Stevens referred a claim to the Director of the Equality Tribunal under the Equal Status Acts 2000 to 2004. In accordance with her powers under section 75 of the Employment Equality Act, 1998 to 2004 and the Equal Status Acts 2000 to 2004, the Director then delegated the case to me, Gary O’Doherty, 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.
2. Dispute
2.1. The dispute concerns a complaint by Ms Stevens on the gender and family status grounds contrary to the Equal Status Acts 2000 to 2004 in terms of Sections 3(1)(a), 3(2)(a) and 3(2)(c) of the Acts, and contrary to Section 5(1) of the Acts, in that she was told by the respondent that she would have to pay for a ticket for her child who was breastfeeding in order to attend a performance put on at the respondents premises, and in terms of Section 11(1)(a) of the Acts, in that she was harassed in so being told.
2.2. The hearing of the complaint was held at 3 Clonmel Street, Dublin 2 on 5th March, 2008.
3. Case for the Complainant
Claim relating to act of discrimination
3.1. The complainant, Ms. Sarah Stevens, is the mother of three children, the youngest of whom was breastfeeding at the time of the incident in question. Ms Steven’s complaint refers to an incident of October 2005 whereby she asked if she could bring the youngest child to a performance put on by the respondent the following month without having to pay for a ticket. She made this request on the basis that her child was breastfeeding and would sit on her knee throughout the performance. In a telephone conversation of 28th October, Ms Stevens was informed by Ms. Q, an Assistant Manager, that she would have to pay for a seat for her breastfeeding child. Ms Q said that everyone must have a ticket before entering because of fire and safety regulations and that there were no concessions in relation to that particular performance.
3.2. Ms Stevens confirmed that she was not told at any stage that she could not bring her breastfeeding child to the performance. She was told she could bring her if she paid for a seat for her. She submitted that this was inconsistent with the fact that she had attended two other performances at the Helix Theatre and brought her without having to pay for her. However, Ms Stevens said that she was first made aware of the policy of the respondent relating to infants over the age of one in the course of her conversation with Ms Q. She said that she never saw this policy in writing until it appeared on the website sometime later. Ms Stevens stated that other theatres operate a policy of allowing children under three enter for free.
3.3. Ms Stevens considers that a breastfeeding mother and child must be treated as a unit whereas bottle-fed mothers and children have a choice over whether to attend or not. She believed this to be an important issue that needs to be clarified.
3.4. She believes that it is a matter for the theatre whether a parent who wishes to bring a non-breastfeeding two-year old child to the theatre but wishes to put that child on their knee and not purchase a ticket should be allowed to do so. She did not, however, accept the respondent’s submission that the reason she had to pay for the ticket had nothing to do with breastfeeding. She felt that she had to bring an infant because that infant was breastfeeding, and therefore shouldn’t have to pay for an extra ticket. She therefore believes that she was treated less favourably on the family status ground because she was breastfeeding a child. Ms Stevens argues that, as only a woman can breastfeed, she was also treated less favourably because of her gender.
Claim of Harassment
3.5. Ms Stevens stated that she asked of Ms Q what she should do. She said that she meant this in relation to her situation vis-à-vis the box office and paying for a ticket, and that the question was almost rhetorical. Ms Q replied that Ms Stevens should consider expressing her milk and leaving her breastfeeding child at home. Ms Stevens was upset by this and considers that she was harassed by it. In the course of her phone conversation with Ms Q, Ms Stevens referred to an earlier incident when she was allowed to bring her breastfeeding child into the theatre for free by another ticket attendant, Mr F. Ms Stevens alleges that Ms Q commented that Mr F let her bring her child into the theatre without paying because he “had taken pity on her” and was “probably embarrassed”. She submits that this was harassment.
3.6. At the hearing, Ms Stevens also stated that she told Ms Q that she thought she could breastfeed anywhere under Equality legislation. She also said that in reply to her statement that she would look into this further, Ms Q said “I wouldn’t do that”.
Case for the Respondent
Facts of case
4.1. The respondent agreed with the main facts as outlined by Ms Stevens in relation to the alleged act of discrimination. In relation to the complaint of harassment, the respondent took issue with the context in which the comments of Ms Q were made. Ms Q was not available at the hearing.
Complaint of discrimination
4.2. The respondent stated that it has no issues with breastfeeding and that women are free to breastfeed in their premises whenever and wherever they like. It states the complainant has incorrectly interpreted its policy of allowing children under one in for free for certain performances. It states that the policy of requiring children over one to pay for a ticket has nothing to do with breastfeeding. It states that the policy is applied equally to all children over the age of one year, regardless of whether those children are breastfeeding during a performance or not, and regardless of the gender of the child or its accompanying parent, or of that child or parent’s family status. It therefore submits that the complainant was not treated less favourably than other patrons as the policy applies equally to all patrons over the age of one year old. The respondent also states that no additional condition was placed on the complainant because she wanted to breastfeed.
4.3. The respondent further submits that, even if Ms Stevens was allowed in on a previous occasion without having to pay for her breastfeeding child, the fact that this meant the policy was not applied on a particular occasion does not show that there was discrimination in relation to an occasion when the policy was applied.
Claim of harassment
4.4. The respondent states that in relation to the comment about the complainant expressing her milk, Ms Q did not state either explicity or implicitly that the complainant could not or should not be breastfeeding her child. The respondent submits that there was a misunderstanding in that Ms Q understood Ms Stevens to be asking what she should do so that she could attend the performance and that Ms Q was merely providing another option to Ms Stevens other than having to buy a ticket for her breastfeeding child.
4.5. In relation to Ms Q’s comment regarding Mr F, the respondent denies that Ms Q said that Mr F took pity on her but admits that she did say that Mr F may have been embarrassed at the mention of breastfeeding. The respondent submits, however, that this comment was made entirely innocently and in the context of Ms Q expressing her view that most men of Mr F’s age would be embarrassed at the mention of breastfeeding. It submits that the intention behind the remark was not to offend, humiliate or intimidate the complainant nor to embarrass her. It therefore denies that the complainant was harassed.
4.6. The respondent absolutely refuted Ms Stevens allegation regarding Ms Q’s response to her reference to the Equality legislation.
5. Conclusions of the Equality Officer
Prima Facie Case
5.1. Section 38A of the Equal Status Acts, 2000 to 2004 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that prohibited conduct has occurred in relation to her. 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. Prohibited conduct, in so far as it is relevant to this complaint, is defined in the Acts as being “discrimination against, or…harassment of…a person in contravention of the Act.” In considering whether there was discrimination, the prohibited conduct in question that the complainant must show took place is
i) that the respondent was, as described by Section 5(1) of the Acts, disposing of goods or providing a service to the public and
ii) it treated her, as defined in Section 3(1) of the Acts, “less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified”, in this case the gender and family status grounds.
5.3. In considering whether the complainant was harassed, the prohibited conduct in question that she must show took place is that, contrary to Section 11(5), the respondent engaged in conduct which had the purpose or effect of violating the complainant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for her.
It should be noted that whether discrimination or harassment took place are two separate questions and proving a prima facie case in one is independent of proving a prima facie case in the other. I will therefore consider the two issues separately.
Complaint of Discrimination
5.4. It is clear that the respondent sought to avail of the respondent’s services as defined by Section 5(1).
5.5. In relation to the performance in question, it is clear that the respondent had a policy of allowing children under one to attend for free and charging for any patrons over that age. That policy was applied to everyone equally, including the complainant, and I am satisfied that the complainant was made aware of this policy at the time. The complainant provided no evidence that she was treated less favourably than any man, or any person of a different family status to her, in relation to the performance in question.
5.6. The Equal Status Acts, 2000 to 2004 do not require a service provider to consider that a breastfeeding mother be treated as one unit with the relevant child. Accordingly, the complainant’s submission in this regard must be discounted.
5.7. The complainant also argued that she was allowed attend two performances at the respondent’s premises without having to pay for her breastfeeding child and that, in not applying the same rule to her in relation to the performance that is the subject of this complaint, the respondent was not being consistent and therefore discriminated against her. The respondent submitted that, even if the complainant had been allowed into the Theatre without paying for the child, this was done in error. I consider that, irrespective of whether these incidents occurred or not, the respondent would, in relation to those two performances, have treated the Complainant more favourably than someone of a different family status and/or gender to her. Accordingly, this does not provide any evidence of less favourable treatment on the part of the respondent and does not advance the complainant’s argument.
5.8. The complainant also submits that the respondent should allow a mother who is breastfeeding a two-year old child to bring that child into the theatre without having to pay for him or her, but that everyone else should have to pay to bring a two-year old child. On this basis, she submits that the respondent should be required to positively discriminate in favour of breastfeeding mothers of children up to the age of three, after which, she argued, it would be reasonable for the respondent to charge as a child of that age might be able to enjoy the performance.
5.9. The complainant is correct in thinking that the Equal Status Acts, 2000 to 2004 provides protection for her as a breastfeeding mother in purchasing goods and availing of services in that, under the Gender and Family Status grounds, the Acts provide protection where she is treated less favourably than someone else because she is a breastfeeding mother. However, the Equal Status Acts do not require the respondent to carry out any act of positive discrimination towards the complainant.
5.10. In the context of this complaint, I am satisfied that the respondent does not discriminate against breastfeeding mothers within the meaning of the Equal Status Acts, 2000 to 2004. Furthermore, I am satisfied that the respondent has not treated the complainant less favourably than someone of a different gender or family status to her. The complainant has therefore failed to establish a prima facie case of discrimination on both the family status and gender grounds.
Complaint of harassment
5.11. Ms Stevens argued that Ms Q’s statements constituted harassment within the meaning of the Acts. However, I am not satisfied, on balance, that the complainant has discharged the required burden of proof in respect of these comments. I agree with the respondent’s submission that Ms. Q made these comments with the intention of being helpful. I consider that there was a series of misunderstandings in the conversations between Ms Stevens and Ms Q of 27th and 28th October, 2005 and I believe that the comments of Ms Q in question were based on such a misunderstanding. While Ms Stevens was upset by these comments, and while they may be viewed as inconsiderate, I do not consider it reasonable that the comments could be regarded as creating a hostile, degrading, humiliating or offensive environment for the complainant. Nor do I believe that these comments had the effect of violating the complainant’s dignity.
5.12. I turn finally to Ms Stevens allegation that in reply to her suggestion that she may take action under the Acts, Ms Q said “I wouldn’t do that”. The respondent noted the seriousness of the allegation, but rejected the complainant’s version of this event submitting that it never took place. It further submitted that the omission of this allegation at an earlier stage of the proceedings to the hearing itself undermined the veracity of it. On balance, I find the respondent’s submission more compelling in relation to this allegation. I therefore do not need to consider the matter any further.
6. Decision
6.1. The complainant has failed to establish a prima facie case of discrimination by the respondent.
6.2. The complainant has also failed to establish a prima facie case of harassment by the respondent.
6.3. The complainant’s case fails.
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Gary O’Doherty
Equality Officer
30 May 2008