DEC-S2008-053 - Full Case Report

Equal Status Acts, 2000 to 2008

Equality Officer Decision DEC-S2008-053

Ms. Marie Flanagan Talbot

(represented by Mr. Garrett O’Neill, Solicitor,

The Equality Authority)

-v-

Casino Cinemas Limited t/a Killarney Cineplex Cinema

(represented by Mr. Liam Ryan, Solicitor,

Sheehan Ryan & Co., Solicitors

Keywords

Equal Status Acts, 2000-2008 - Section 3(1)(a) - Direct discrimination, Section 3(1)(a) - Gender  Ground, Section 3(2)(a) – Family Status Ground, Section 3(2)(c) - Disposal of Goods and Services, Section 5(1)

Delegation under the Equal Status Acts, 2000-2008

This complaint was referred to the Director of the Equality Tribunal on 18^th January, 2006 under the Equal Status Acts, 2000 to 2004.  On 11^th April, 2008, in accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 to 2008, the Director delegated the complaint to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision under Section 25 of the Acts and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000 to 2008.  The hearing of the case took place in Killarney on 5^th August, 2008. 

1.            Dispute

1.1             This dispute concerns a complaint by Ms. Marie Flanagan Talbot that she was discriminated against by the respondent on the Gender and Family Status grounds in terms of Sections 3(1)(a), 3(2)(a) and 3(2)(c) of the Equal Status Acts, 2000 to 2008 in not being provided with a service which is generally available to the public contrary to Section 5(1) of those Acts. 

2.            Summary of the Complainant’s Case

2.1             Whilst taking a family holiday in Killarney, Co. Kerry, the complainant and her husband decided to take their three children, then aged 6 years, 4 years and seven months to see a children’s film at the respondent’s cinema on 21^st July, 2005.  While her husband was elsewhere, the complainant queued with her children and on arrival at the box office requested a family ticket.  The complainant was informed by the respondent’s manager, Mr. Thomas Cooper, who was serving at the box office, that children under the age of two years were not permitted entry into the cinema.  The complainant was very surprised by this, in particular, because she had not experienced any problems in bringing her baby into her local cinema.  When the complainant asked the respondent for an explanation, he replied that he had received numerous complaints from customers about babies in the cinema.  When queried further on this, the respondent referred to breastfeeding and did not specify any other complaints.  The complainant was offended and annoyed by the respondent’s response as she was a mother who breastfed, although her baby was just about weaned at that point in time.  Having no other choice in the matter, the complainant purchased three tickets for the film for her husband and two older children as she did not want to disappoint them.    

2.2             The complainant’s husband arrived on the premises shortly thereafter and the complainant informed him about what had just happened.  The complainant’s husband immediately approached the box office and requested to speak with the manager and Mr. Cooper informed him that he was in fact the manager.  The complainant’s husband sought an explanation why his wife had been refused entrance to the cinema with their baby and Mr. Cooper stated that there were several reasons but the only one he was willing to discuss was breastfeeding.  He told the complainant’s husband that it was the policy of the cinema not to admit children under the age of two years and he indicated that the policy was in writing and clearly visible above the ticket booth.  The complainant’s husband asked Mr. Cooper for his name but he declined to divulge this information at that particular juncture.  The complainant’s husband requested and was granted a refund of the tickets that his wife had purchased and he informed the respondent that he would be taking the matter further.  The complainant and her family then left the premises, however the older children were upset because they could not see the film.  The complainant’s husband denied that he was threatening or aggressive in his demeanour towards the respondent or that he had directed an expletive towards him on leaving the premises.

2.3             The complainant submitted that she is a parent, whose seven month old child was in her charge on the date that she sought and was refused access to the respondent’s cinema and she therefore submitted that the family status ground is applicable to her.  The complainant claims that another person not accompanied by a child i.e. a person with no family status would not have experienced any difficulty accessing the cinema and therefore, it is submitted that the complainant was treated less favourably than such a person.  The complainant further submits that as only a woman can breastfeed, the gender ground applies in the present case and she claims that it was assumed by the respondent that because she was accompanied by a young baby, that she was breastfeeding.  The complainant claims that a person of the male gender would have been treated more favourably, as no such assumption would have been made and she contends that it would not have been indicated to such a person that the cinema had received complaints about breastfeeding as a justification for refusing access.     

3.            Summary of the Respondent’s Case

3.1             The respondent totally rejects the allegation that it discriminated against the complainant on the grounds of her gender or family status.  On the occasion in question the complainant approached the box office in the respondent’s cinema and sought to purchase a family ticket.  A family ticket in the respondent’s cinema permits entry either for one adult and three children or two adults and two children.  The complainant informed the respondent that her husband would be along shortly and in keeping with normal procedure the respondent asked her how many adults and how many children’s tickets that she required.  The complainant indicated that she was seeking tickets for two adults, two children and a baby who would sit on her lap.  Upon hearing that the complainant wished to admit a baby who would sit on her lap, the respondent informed her that it was the policy of the cinema not to admit children under the age of two years.  When asked for an explanation by the complainant, the respondent indicated that this policy had been adopted for health and safety reasons.  The respondent sought to explain to the complainant that there had been complaints by customers about babies in the audience and proceeded to give some examples of these complaints which included incessant crying to complaints about unattended toddlers and breastfeeding in the cinema.  The respondent stated that the complainant took offence to his reference to breastfeeding and she indicated that she herself was in fact breastfeeding.  The respondent claims that he apologised sincerely for any offence caused and he submitted that the complainant was not denied entry to the cinema, in the first instance, or because of the fact that she was breastfeeding.  The respondent claims that it was the complainant’s baby who was denied access to the cinema.  The respondent also claims that the complainant accepted his apology for the inconvenience caused and that she purchased tickets for one adult and two children before moving into the foyer with her children.

3.2             The respondent noticed the complainant speaking with a man in the foyer about five minutes later and this man, who transpired to be the complainant’s husband, subsequently proceeded to approach him in the box office.  The complainant’s husband was extremely aggressive and threatening in his demeanour, putting his face within close proximity of the respondent, and he demanded to know if the respondent had a problem with his wife breastfeeding.  The respondent made it categorically clear that he did not have any such problem and he proceeded to outline the cinema’s policy and the reasons underpinning same.  The complainant’s husband demanded to speak to the manager and the respondent informed him that he was the only manager on the premises.  At this point the complainant’s husband became louder and more aggressive in his demeanour and questioned the legality of the cinema’s admittance policy and demanded information regarding the respondent’s personal details and who owned the cinema.  The respondent refused to provide this information to the complainant’s husband as a result of his aggressive demeanour and behaviour.  The complainant’s husband demanded a refund of the ticket that his wife had purchased which was duly granted to him.  He threatened not to let the matter rest and upon leaving the premises he uttered an expletive in the respondent’s direction.

3.3             The respondent denies that it discriminated against the complainant on the grounds of her gender and claims that she was not denied access to the cinema herself.  The respondent also claims that if the complainant’s husband or some other male, who was in loco parentis to her child, approached it looking for tickets to access the cinema then the baby in question would not have been allowed into the cinema.  The respondent submitted that it is perfectly entitled to adopt a policy in relation to the entry of patrons who are under the age of 18 years onto its premises and in this particular case the policy is primarily guided by health and safety requirements and for the convenience and enjoyment of patrons.  The respondent argued that a cinema is a venue which has many hidden dangers for the patron and given the darkened environment there is an increased danger that a child would get their finger caught in the seats, wander around in the dark etc.  The respondent submitted that it is obliged to strike a balance between health and safety requirements, the comfort of its customers and the requirements of the Equal Status Acts.  It argues that it has struck a reasonable balance in its policy of not allowing children under the age of two years into the cinema.       

4.            Conclusions of the Equality Officer

4.1             The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant.  Section 38(A) of the Equal Status Acts, 2000 to 2008 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 he/she can rely in asserting that prohibited conduct has occurred in relation to him/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.  I will now proceed to examine the complaint on each of the grounds claimed.

Gender Ground

4.2             In the present case, the complainant attended the respondent’s cinema with her three children, one of whom was seven months old at the time, and she claims that she was refused entry to the cinema on the basis of the respondent’s stated policy of refusing admittance to children under the age of two years.  The complainant submitted that when she sought an explanation regarding the reasons for the implementation of this policy the respondent referred exclusively to customer complaints about breastfeeding in the cinema.  The complainant contends that the respondent immediately made an assumption she was breastfeeding when she presented at the box office with her seven month old child.  She submits that a person of the male gender would have been treated more favourably, as no such assumption would have been made, and it would not have been indicated to such a person that the cinema had received complaints about breastfeeding as a justification for refusing access.  The respondent accepts that it was the policy of the cinema not to permit entry to children under the age of two years, however it submitted that this policy was implemented primarily in the interests of health and safety requirements and for the convenience and enjoyment of patrons.  The respondent claims that when the complainant sought an explanation regarding the policy it was clearly and politely explained to her that the policy had been implemented for health and safety reasons and for the convenience and enjoyment of patrons.  The respondent claims that he proceeded to explain to the complainant that there had been customer complaints about infants in the audience, and by way of example, he indicated that customers had made complaints about incessant crying, unattended toddlers and breastfeeding in the cinema.  However, the respondent totally denies that he made any assumption that the complainant was breastfeeding or that she was denied entry to the cinema on the basis that she was breastfeeding.  The respondent also claims that he made it patently clear to the complainant’s husband that he did not have a problem with his wife breastfeeding on the premises.      

4.3             In considering this issue, I note that there is a clear conflict in the evidence of the parties regarding the reasons that were given to the complainant and her husband for the implementation of the respondent’s policy to refuse admittance to the cinema of children under the age of two years.  The complainant, on the one hand, claims that the only reason provided by the respondent was that customer complaints had been made about breastfeeding whereas the respondent, on the other hand, claims that he only referred to the issue of breastfeeding by way of providing examples to the complainant regarding the nature of the complaints that he had received from customers about infants in the audience.  Having regard to the evidence adduced, I have found the evidence of the respondent regarding this issue to be more compelling, and on the balance of probabilities, a more accurate account of the discussions that transpired on this date.  Whilst I accept that Mr. Cooper made reference to the issue of breastfeeding during the course of his conversation with the complainant at the box office, I am satisfied that this reference was proffered purely as a means of providing an example to the complainant of the type of customer complaints that had been received about infants in the audience. 

4.4             I am also satisfied that the issue of breastfeeding was not used or advanced by the respondent as a reason to refuse the complainant entry to the cinema.  In this regard, I have noted the respondent’s evidence that he immediately apologised to the complainant upon noticing that she appeared to have taken offence to his reference to breastfeeding.  Based on the evidence presented, I am satisfied that the respondent did not operate any discriminatory practices against mothers that wished to breastfeed on its premises.  I have found the evidence of Mr. Cooper regarding the reasons for the implementation of the respondent’s policy to be very credible and having regard to the evidence adduced, I accept that the policy not to permit entry to children under the age of two years was implemented for health and safety reasons and for the convenience and enjoyment of patrons.  I am satisfied that this policy was not implemented for the purpose of prohibiting a mother from breastfeeding on the premises.  In the circumstances, I find that the complainant has failed to establish a prima facie case of discrimination on the gender ground in the present case.        

Family Status    

4.5             The complainant has claimed that the respondent’s policy of refusing admittance to children under the age of two years to its premises is discriminatory on the family status ground.  Therefore, the question that I must decide in the present case is whether the complainant was discriminated against on the family status ground as a result of the respondent’s decision to refuse entry to her seven month old child on the date in question.  I note that the respondent has argued that it was the complainant’s seven month old child, and not the complainant herself, that was refused entry to the cinema, and accordingly, it submitted that the complainant was not discriminated against on the family status ground.  The complainant submitted that the respondent’s contention that it does not constitute discrimination to refuse a baby entrance to the cinema, so long as it does not refuse the parent or person in loco parentis access, is a total misinterpretation of the family status ground, which it claims relates to the person not as an individual in isolation, but the person acting as a parent.  The complainant submitted that the fact she was treated less favourably than a person not accompanied by a child is sufficient to raise a prima facie case of discrimination on the family status ground. 

4.6             In considering this issue, I note that there have been a number of previous decisions by Equality Officers on the family status ground which have addressed the issue of a refusal of service to a parent or a person in loco parentis on the basis that they were accompanied by a child at the time of the alleged incident of discrimination[1].  In particular, I have noted the Maughan case, where the Equality Officer found that “having a blanket ban on under 18 year olds being in pubs with their parents is a discriminatory policy against parents of under 18 year olds on the family status ground under the Equal Status Act, 2000. I am satisfied that the complainant was treated less favourably by the respondent and that the respondent directly discriminated against him on the basis of his family status”.  I am satisfied that the circumstances in the present case are similar to the Maughan case from the point of view that the parent was refused access to a service as a result of the respondent’s policy not to permit service to a child under a certain age limit.  In the present case, it is not disputed that the complainant was in the company of her seven month old child at the time of the alleged incident of discrimination and I am satisfied that by virtue of the respondent’s policy to refuse admittance to children under the age of two years, that she was also effectively refused admittance to the cinema on the date in question.  In the circumstances, I am satisfied that the complainant’s family status was the reason that she was refused entry to the cinema.  I therefore find that the complainant was treated less favourably than a person who did not have family status or a person with family status who was accompanied by a child who was over the age of two years and who sought to gain admittance to the respondent’s cinema on this occasion.  Accordingly, I find that the complainant has established a prima facie case of discrimination of the family status ground.

Respondent’s Rebuttal

4.7             In order to decide whether the respondent has rebutted the inference of discrimination, I must decide whether or not the implementation of the policy to exclude children under the age of two years from the cinema (referred to hereinafter as the “policy”) amounted to an act of discrimination against the complainant in the present case on the grounds of her family status.  The respondent has relied upon a number of arguments in rebuttal of the allegation of discrimination, namely:

·       The policy was implemented for health and safety reasons and for the convenience and enjoyment of other patrons.

·       The implementation of the policy is covered by the exemptions provided for in Sections 3(3)(a) and 5(2)(i) of the Equal Status Acts.

Health and safety issues and customer convenience and enjoyment

4.8             The respondent submitted that a cinema is a venue that has many hidden dangers for the patron and given the darkened environment there is an increased danger that a child would get their finger caught on the seats, wander around unattended in the darkness etc.  The respondent also submitted that it has received complaints from patrons regarding infants in the audience, such as “incessant crying” and there have been occasions where the parent or person in charge of a child has refused to remove it from the cinema when requested to do so.  The respondent claims that it can cater for an audience of up to 300 patrons at any single showing of a film and that it is, therefore, obliged to take into consideration the health and safety requirements and enjoyment of all patrons that are in attendance.  The respondent submitted that it is required to strike a balance between health and safety requirements and the requirements of the Equal Status legislation and in this regard, it claims that it has struck a reasonable balance in terms of its policy of not allowing children under the age of two years into the cinema. 

4.9             I note that the respondent did not adduce any evidence regarding any specific legislative requirements that prohibit the proprietor of a cinema from admitting children under the age of two years to their premises.  The respondent, did however, refer to the provisions of Section 12 of the Safety, Health and Welfare at Work Act, 2005 which states:

“Every employer shall manage and conduct his or her undertaking in such a way as to ensure, so far as is reasonably practicable, that in the course of the work being carried on, individuals at the place of work (not being his or her employees) are not exposed to risks to their safety, health or welfare”

The respondent argued that it is obliged under this legislation to take all reasonable steps that it considers necessary in order to protect the health and safety of patrons that attend its premises and it therefore relied upon these provisions in support of its policy.  I have noted these provisions and the respondent’s arguments in this regard, and I fully accept that an employer has a duty of care to its customers and/or patrons whilst they avail of its services and that an employer is obliged to take all reasonable measures to protect their health and safety.  In the present case, it would appear that the respondent has deemed it necessary to implement a blanket ban on the admittance of all children under the age of two years in order to comply with its obligations in this regard.  However, I cannot accept that this legislation directly or indirectly permits the respondent to impose a blanket ban on the admittance of children under the age of two years to its cinema in order to facilitate compliance with its obligations in this regard, especially in circumstances where the child is under the direct supervision of a parent or person in loco parentis.

4.10         In considering this issue further, I note that the complainant was accompanied by her three children, including her seven month old child, when she sought to gain admittance to the matinee showing of the children’s film “Madagascar”.  Given the nature of this film and the fact that it was being screened in the afternoon, it is highly likely that there would have been a substantial number of children in attendance in the audience.  I am of the view that there would be a reasonable expectation and acceptance by patrons that attend any children’s film such as this that there will be a certain level of noise and distraction generated throughout the showing given the inevitable presence of a large number of children in the audience.  I am also of the view that a seven month old child, who would have been seated on its mother’s lap for the duration of the film, would be very unlikely to present any risks or difficulties to the proprietor of a cinema in terms of its health and safety obligations.  It could also be reasonably argued that a child over the age of two years is equally, or even more likely, to present a health and safety risk or to interfere with the enjoyment of other patrons than a child who is under the age of two years.  The respondent would appear to have arbitrarily selected the age limit of two years of age in terms of its admission policy and it does not appear to have taken cognisance of any of these factors when deciding to implement a blanket ban on the admittance of children under the age of two years to its cinema.  I fully accept that cinema owners are entitled, and indeed obliged, to take cognisance of the certification of a particular film in terms of deciding upon the age profile of patrons that are admitted to its premises.  However, I cannot accept that it is necessary for a cinema owner to impose a blanket ban on the admittance of children under the age of two years, when accompanied by a parent or adult, to an afternoon screening of a children’s film in order to comply with health and safety requirements or to facilitate the enjoyment of other patrons. 

4.11         I have also considered this issue in the context of the defence that is available to a service provider, such as the respondent, in section 15(1) of the Acts which suggest that a service provider, having the appropriate experience and responsibility is entitled to refuse service to someone whom that person considers may pose a substantial risk of criminal or disorderly conduct.  There is a high threshold of proof attaching to this defence and in order for the respondent to invoke it in the present case, it would be necessary to demonstrate that there was a substantial risk of criminal or disorderly conduct if the complainant and/or her seven month old child were admitted to the cinema on the date in question.  I note that this was the first occasion that the complainant had attended the respondent’s cinema and therefore, the respondent had no previous basis for believing that either the complainant or her child would engage in disorderly conduct.  I am also of the view that this defence can only be invoked by a service provider on an individual case by case basis and therefore, it cannot be used by the respondent as a justification for the imposition of a blanket ban on the admittance of all children under the age of two years because it had previously received a number of complaints about babies crying in the audience.  In the circumstances, I am satisfied that the respondent cannot rely upon this defence in the present case.

4.12         I have noted the respondent’s evidence that it has reviewed the policy since the present complaint was referred to the Equality Tribunal (although the policy still remains in place) and I accept that the respondent has considered a number of other initiatives as an alternative to the blanket ban on the admission of children under the age of two years in order to comply with its obligations under the equality legislation.  In this regard, I note that the respondent has put new measures in place such as the introduction of additional staff members in order to supervise children that attend the cinema.  I am of the view that there is an onus, and indeed an obligation, on the respondent to ensure that adequate numbers of staff are employed in order to facilitate the effective supervision of children and/or adults who attend its cinema as patrons.  I also note that the respondent’s existing admissions policy contains a number of other provisions which address the health and safety and enjoyment of patrons that attend the cinema, namely:

• Should the behaviour of a patron be deemed unacceptable that person may be requested to leave the premises, and
• Any request by a staff member of a patron in the interests of safety and comfort must be respected.

I am satisfied that the aforementioned conditions of the respondent’s admissions policy together with the provision of adequate staff numbers in order to supervise patrons provides it with an appropriate means to deal with patrons who are presenting a risk in terms of health and safety issues and/or who are interfering with the enjoyment of other patrons.  I am of the view that the implementation and enforcement of such measures by the respondent, rather than the imposition of a blanket ban on the admission of children under the age of two years, would constitute a more reasonable policy in terms of its obligation to facilitate the health and safety and enjoyment of patrons.  Having regard to the foregoing, I find that the respondent cannot rely upon health and safety issues and the enjoyment/convenience of other patrons as a justification of its policy which has the effect of subjecting a parent or person in loco parentis of a child under the age of two years to less favourable treatment on the grounds of their family status.  I therefore find that the respondent has failed to rebut the allegation of discrimination and that the complainant was discriminated against by the respondent on the family status ground in this case.  

Sections 3(3)(a) and 5(2)(i) of the Equal Status Acts, 2000 to 2004

4.13         The respondent submitted that its policy to refuse admission to children under the age of two years to its cinema is covered by the exemptions that are provided for in sections 3(3)(a) and 5(2)(i) of the Acts.  In considering this issue, I note that the provisions of section 3(3)(a) refer specifically to discrimination on the age ground and that the provisions of section 5(2)(i) refer specifically to discrimination on the gender, age, disability and race grounds.  In the present case, I have found that the complainant, by virtue of her association with her seven month old child, has been subjected to discrimination by the respondent on the family status ground as a result of the respondent’s policy not to admit her child entry to the cinema.  Having regard to the foregoing, I am satisfied that the provisions of sections 3(3)(a) and 5(2)(i) are not relevant to the circumstances of this case and I therefore find that the respondent cannot rely upon these provisions as a defence in the present case.   

5.            Decision

5.1             In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision.  I find that a prima facie case of discrimination has been established by the complainant on the Family Status ground in terms of sections 3(1) and 3(2)(c) of those Acts and I also find that the respondent has failed to rebut the allegation of discrimination.

5.2             In accordance with section 27(a) of the Acts, I award the complainant the sum of €750 in compensation for the upset and humiliation experienced.  I also order, in accordance with Section 27(1)(b) of the Act, that the respondent review its admissions policy and that it discontinue the practice of refusing admission to children under the age of two years to its premises with immediate effect.  I further order that that the respondent arranges for comprehensive training of all members of staff in the terms and application of the Equal Status Acts, 2000 to 2008, with such training to have commenced within three months from the date of this Decision. 

Enda Murphy

Equality Officer

11^th September, 2008