THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
DECISION DEC-S2009-084
Parties
A Student
and
An Educational Establishment
(Represented by Helen Barry, IBEC)
File Ref: ES/2006/0044
Date of Issue: 8th December, 2009
Decision DEC-S2009-084
Keywords:
Equal Status Acts 2000-2008 - Direct discrimination, section 3(1)(a) - Sexual orientation ground, section 3(2)(d) - Victimisation ground, section 3(2)(j) - Harassment, section 11(2) - Educational establishment, section 7(2).
1. Delegation under the Equal Status Act 2000 to 2008
1.1 This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts on the 11th April 2006. In accordance with her powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the complaint to me, James Kelly, 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 Acts on the 21st July 2008. The hearing of the case took place on 3rd September 2009 and the final correspondence relating to the case was received on the 1st October 2009.
2. Dispute
2.1 This dispute concerns a complaint made by Mr. R, a student, that he was discriminated against by the respondent, An Educational Establishment, on the sexual orientation and victimisation grounds in terms of sections 3(1)(a), 3(2)(d) and 3(2)(j) and contrary to section 7(2) of the Equal Status Acts. He also alleges that he was harassed contrary to section 11 of the Equal Status Acts.
3. Summary of the Complainant's Case
3.1 The complainant, Mr. R, is homosexual and he claims that because of his sexual orientation he was treated less favourably by the tutors and staff of the respondent. Mr. R claims that he joined the respondent on the 13th October 2005 in a Computer Applications course, to help him build up his computer skills as he looked for a job. There were approximately 12 students in his class and he knew that one of his fellow students was also gay. He claims that he did not openly discuss his sexuality with other members at the college but he did befriend one other fellow student who he told that he was gay. He claims that the students and staff at the respondent may have guessed that he was gay because of his "flamboyant" nature and behaviour.
3.2 The complainant referred to a number of incidents where he claims he was targeted and harassed because of his sexual orientation. He also maintains that he was victimised by the respondent because he chose to lodge a complaint in relation to the treatment he was receiving. The incidents he referred to can be broadly summarised as follows:
- The complainant claims that when visiting the administration office on the 13th February 2006 where he was looking for a particular magazine from the respondent's manager, Mr. B, one of the teaching staff, Ms. A, made a comment that he could use one of the girls magazines because he was only "a little woman". Mr. R claims that there were a number of people in the vicinity who heard her comments, including Mr. B, and they all laughed. He claims that he later reported the incident to Mr. B and nothing was done about it.
- The complainant referred to an incident in the class room the following day where his tutor Ms. A questioned him about a test that she had asked all the students to take. He claims that there was a heated argument between the two of them and that she physically stopped him from leaving the room, leaving him with a bruise on his arm. He claims that he reported this incident to the management and after an internal investigation the respondent admitted that he was "assaulted" and apologised to him for the incident. He claims that he also reported this incident to the Gardaí, however it was not investigated because a prominent member of the respondent was related to a certain of the local Gardaí.
- The complainant referred to an incident in the classroom one lunchtime where a row escalated with a fellow student who called Mr. R "a f***** queer" and that "he would break [his] face". He claims he reported the incident to the manager, Mr. B, who brought both students into his office in an effort to sort out the problem. Mr. R claims that he apologised for his part in the trouble, whereas his adversary refused to apologise and no action or sanction was taken against him.
- The complainant referred to a college trip to Woodstown, Co. Wexford with his classmates, where he claims that one of the students wet Mr. R's bed. He claims that he did not see anyone actually wetting his bed however, he was convinced it was one of his fellow students, whom he named. He claims that when he reported this to the manager, who was also on the trip, they agreed not to raise the issue until the trip was over and they returned to college. However, nothing was ever done to investigate the matter further.
- The complainant claims that he was aware that one other of his classmates was also gay. He claims that this other student was treated much better by the management and staff. He claims that this classmate was allowed additional privileges in the college such as permission to access certain websites that Mr. R was prevented from accessing. He claims that he brought this to the attention of the manager, however nothing was done about it. The complainant stated that all of these incidents deeply effected his confidence and that he just stopped attending as it was too difficult to motivate himself to go to college each day.
3.3 Mr. R claims that once he had taken the internal complaint against Ms. A, the college management and staff did not engage with him any longer. He also claims that he felt that his fellow students isolated him, leaving him out of activities and he felt that there was no one available to help him. He claims that every time he reported an incident to the management, instead of action taken to investigate his concerns, he would, in some way, be subsequently punished for reporting the incident.
3.4 Mr. R vehemently denied that he ever used abusive language or threatening behaviour while he was a student with the respondent. He claims that he was the one being harassed and victimised by the tutors, staff and students at the college and because of that, he was unable to fully participate in the course and missed so many days, which eventually led him to drop out.
4. Summary of the Respondent's Case
4.1 The respondent is a small community based educational establishment which runs programmes accredited by the Further Education and Training Awards Council for a limited number of students each year. Its students had predominantly dropped out of the school system for one reason or another and accordingly have low educational levels and in many cases were finding it difficult to hold down employment. The college claims that it focuses on its students' individual needs to try to give them the necessary attention and tools to build their confidence and skills to allow them access higher education programmers and/or employment.
4.2 The respondent refutes the claim made by the complainant that it discriminated against him because of his sexual orientation. It also refutes the complainant's claim that it victimised or harassed him during his time in the college. The respondent presented Ms. A as a witness, who claims that it was obvious that Mr. R was gay. She claims that he openly made reference to that fact on a number of occasions and she claimed Mr. R would get involved with and, in ways, invite friendly banter on that topic. In particular she referred to an occasion on a college trip, when she claims Mr. R said, in front of all the other students, "that he is half woman". Ms. A was aware of other students on her programme that were homosexual and this was never an issue. She claimed that the college prided itself on its diverse environment. Mr. B, the manager, also offered similar evidence in relation to the environment and culture in the college and also of the fact that he knew that Mr. R was gay and that was not an issue for the college staff or students. The respondent also presented Mr. C, a fellow student of the complainant, who also gave evidence to suggest that Mr. R had often referred to the fact that he was gay. He also stated that he was aware of other gay students in the college and there were no problems in that, he claims everyone was treated equally irrespective of their sexual orientation.
4.3 Mr. B claims that there were a number of incidents involving Mr. R who was in trouble on a regular basis and these incidents seemed to escalate as the year went on. Mr. B claimed that he investigated the incidents that were brought to his attention and dealt with them on an ongoing basis. He claims that Mr. R had certain communication difficulties, he also claims Mr. R had behavioural issues and was very demanding and accordingly, he could be very difficult to reason with. Ms. A claims that Mr. R was very demanding in her classroom and required constant correction and attention. She claims that he was very disruptive and would often demand immediate attention if he had a problem or a difficulty even if she was dealing with another student. Mr. C claims from his perception all the students in the college were treated fairly by the management and tutors. Mr. C felt that the problems that Mr. R had were brought on by himself because of his personality and his disruptive behaviour.
4.4 Mr. B said that he investigated the incidents that Mr. R brought to his attention, and he said that he did this in line with college policy, as set out in a document entitled Safety Statement. He claims that he held a class meeting with Mr. R's classmates in an attempt to reinforce the college's polices of respect and tolerance in an effort to promote a safe environment for all students. He claims that following an investigation of any complaint sanctions were taken when management deemed them appropriate. Evidence was presented of a sanction taken against a named student for such an incident. The respondent claims it tried to accommodate the complainant in every way possible; it met with Mr. R's probation officer and discussed options to allow him access other programmes outside of the college which would better compliment, facilitate and support him. However, at the same time, it was becoming increasingly more difficult to manage the complainant and his demands.
4.5 The respondent presented its Safety Statement which included information on its disciplinary procedures, code of practice for all stakeholders involved with the college and the policy/procedures on the prevention of, and dealing with Bullying/Harassment. The respondent's evidence states that Mr. R attended a presentation on the Safety Statement and that he signed an undertaking that he had read, understood and would abide by its rules and regulations.
4.6 Mr. B presented documentary evidence of its interaction with the complainant including references to the verbal warnings and a copy of the written warning that the college served on Mr. R for his behaviour. The documents presented included contemporaneous notes recording the events that lead to the serving of these warnings on Mr. R. The evidence refers to numerous verbal insults aimed at the management, staff and student population. It also documents a series of incidents where abusive language was used by the complainant when speaking to and about persons connected to the college in a demeaning way. The documentary evidence also show that Mr. R received a written warning because of threatening and intimidating behaviour towards the staff of the organisation.
5. Conclusions of the Equality Officer
5.1 In making my decision, in this case, I have taken into account all of the evidence, written and oral, made to me by the parties to the case. 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, 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.
Discriminatory Treatment- Sexual Orientation Ground
5.2 The complainant claims that he is homosexual and he claims that he was treated less favourably by the respondent because of his sexual orientation. I am satisfied that he was in attendance in the respondent's college between October 2005 and September 2006. Therefore, the first question that I must address in the present case is whether or not the treatment that Mr. R received constitutes discrimination on the sexual orientation ground within the meaning of the Equal Status Acts. In order for the complainant to establish a prima facie case of discrimination he must show that the treatment he received was less favourable than that which would have been given to another person, of a different sexual orientation. In making this decision, I have taken cognisance of all the oral and written submissions made by the parties.
5.3 I am satisfied from the evidence adduced at the hearing that the staff and students of the respondent were generally aware that Mr. R is homosexual. I have noted the evidence presented by Ms. A and Mr. C, where they state that Mr. R openly discussed his sexual orientation particularly at the beginning of his time at the respondent college and that there were other students in the college at the time that were homosexual. I also note they claim that there were others in the college who were known to be gay and there never was a problem with that, as it was not an issue that caused anyone any difficulty. I note the incident where Mr. R claims he was treated less favourably in relation to the access to certain websites that a fellow student, who was also homosexual, had access to. Accordingly, I note that Mr. R claims that this student was treated differently, more favourably, however as both students were of the same sexual orientation, I am satisfied the reason claimed by Mr. R as to why he was treated less favourably, namely because of his sexual orientation, does not apply.
5.4 Having considered the evidence submitted in support of the complaint in relation to the sexual orientation ground, I am satisfied that there is a scarcity of evidence to show that the complainant was treated less favourably by the respondent, not to mind that he was treated less favourably because of his sexual orientation. In fact, the evidence would suggest that the respondent provided a constant support to the complainant while he attended the course and even after he had finished in the college vis-à-vis, the various contact he had with the college seeking information and assistance in non related college projects. I note a decision of the Labour Court in Determination EDA038, Anthony v Margetts, which I feel is very pertinent in the case before me, albeit in relation to a different piece of legislation, where the courts stated: "The mere fact that the complainant falls within one of the discriminatory grounds laid down under the [Employment Equality]Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred." I am satisfied that the complainant has failed to adduce facts in this case that infer on the balance of probabilities that an act of discrimination has occurred on the sexual orientation ground.
Victimisation Ground
5.5 The complainant has claimed that he was subjected to discrimination under the victimisation ground. The specific terms of that ground are set out in Section 3(2)(j) subsections (i) to (v), namely,
"(j) that one -
(i) has in good faith applied for any determination or redress provided for in Part 11 or 111,"
(ii) has attended as a witness before the Authority, the Director or a court in connection with any enquiry or proceedings under this Act,
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which is unlawful under this Act, or
(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),
and the other has not (the "victimisation ground")."
5.6 Mr. R alleges that he was victimised by the respondent as a result of the case that he referred to the Tribunal, accordingly I am therefore satisfied that he is covered by the victimisation ground. Mr. R claims that he was subjected to a series of incidents of discrimination and when he reported these incidents to the management nothing was done to investigate them. He claims he received a series of warnings which were unfair and unwarranted and that these were clearly because he had taken a case against the respondent. I note Mr. B denied these allegations and claims that he treated the complainant in the same manner as any other student in the college, and that the college still provided Mr. R with assistance even after he had left the college. At the hearing, Mr. B addressed the specific incidents that Mr. R referred to, one after another. Mr. B also provided me with notes which he claims he made at the time of the complaints when the college served warnings to the complainant in relation to his behaviour. I also note that the complainant did not deny that the incidents leading to the warnings did not occur.
5.7 Having considered the evidence of both parties on this issue, I conclude that the account provided by the respondent is more compelling than that of the complainant and that on the balance of probabilities the respondent's evidence is a more accurate account of what occurred. In coming to this conclusion, I am satisfied that the respondent recorded contemporaneous notes at the time, I am satisfied that the respondent's witnesses gave a very credible account of the complainant's attitude and behaviour while in the college. I am satisfied that the respondent's account of the exchanges between the complainant and the respondent are very consistent and credible. Accordingly, I find that the complainant, has failed to establish a prima facie case of discrimination on the victimisation ground.
Harassment
5.8 This complaint is also relevant to the provisions of section 11(1)(c) of the Equal Status Acts where an educational establishment could be found to be in breach of the provisions of the Acts for not taking reasonable steps to prevent the harassment of a student by another. Section 11(2) of the Act states that "A person who is responsible for the operation of any place that is an educational establishment or at which goods, services or accommodation facilities are offered to the public, shall not permit another person who has a right to be present ... to suffer sexual harassment or harassment at that place".
5.9 In this particular case, the respondent's manager has admitted that he was present when the complainant was subjected to a verbal attack by another student which included remarks in relation to his sexual orientation, (see paragraph 3.2 above bullet point No.3). Therefore, I am satisfied that this is sufficient to raise an inference under section 11 of the Acts. In such instances the burden of proof shifts to the respondents for rebuttal of the case of harassment.
5.10 I note Mr. B's evidence in relation to this incident, where he states that he encountered three students who were engaged in a verbal attack, insulting one another in one of the class rooms. In his opinion all three were equally involved and were therefore all equally to blame for the fight. I am satisfied that Mr. B took a reasonable approach in dealing with the situation there and then. I also note Mr. B's evidence that all students were trained up on the Safety Statement and were also invited into a group discussion to reinforce a positive message in the college following Mr. R lodging a series of complaints against students and teachers with management. I am satisfied that it undertook internal investigation, which on one occasion resulted in a student being sanctioned.
5.11 Section 11(3) states that "It shall be a defence for the responsible person to prove that he or she took steps as are reasonable practicable to prevent ... harassment ... of the other person..." On the balance of probabilities, I am satisfied that the respondent has done all within its powers and has taken such steps as were reasonably practicable to deal with the complaints lodged by Mr. R and to prevent harassment in the college. Accordingly, I find in favour of the respondent in the matter.
6. Decision
6.1 On the basis of the foregoing, I find that a prima facie case of discrimination has not been established by the complainant on the sexual orientation ground or the victimisation ground in terms of sections 3(1), 3(2)(d) and 3(2)(j) of the Equal Status Acts.
6.2 I find that the complainant has established an inference in relation to harassment in terms of section 11 of the Acts, resulting in the burden of proof shifting to the respondents. However having considered all the evidence before me, I find that the respondent has successfully discharged the burden of proof in this case. Accordingly, I find in favour of the respondent in the matter.
______________________
James Kelly
Equality Officer
The Equality Tribunal
8th December, 2009