THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2009-095
Dr. Elaine Lennon
versus
Dublin Writers Festival
(represented by Michelle Ni Longáin, BCM Hanby Wallace)
File reference: EE/2006/426
Date of issue: 22nd October 2009
Keywords: Employment Equality Acts, Discrimination, Harassment, Race, Access to Employment, Interview, Victimisation, No prima facie case
1. Dispute
1.1 This dispute concerns a complaint by Dr. Elaine Lennon against Dublin Writers Festival. The complainant alleges that at an interview for Director of the Dublin Writers Festival she was discriminated against in relation to access to employment and harassed on the grounds of race to the Employment Equality Acts 1998 - 2008([hereinafter referred to as 'the Acts']. Dr Lennon also claims she was victimised within the meaning of Section 74 of the Acts.
1.2 The complainant referred her complaint under the Acts to the Director of the Equality Tribunal on 30th October 2006. In accordance with her powers under Section 75 of the Acts, the Director delegated the case on 7th May 2009 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Acts. This is the date I commenced my investigation. Submissions were received from both parties and a joint Hearing was held on 15th September 2009 as required by Section 79 (1) of the Acts. In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties.
Preliminary issue - Jurisdiction
2.1 The respondent submits that the Tribunal has no jurisdiction to hear this complaint in circumstances where the job description for this position held this position as being that of an independent contractor. The position is remunerated on the basis of the successful candidate sending invoices to the respondent. The respondent does not deduct PAYE or PRSI from the independent contractor's remuneration on foot of receipt of invoices. The position of Programme Director consists of a contractor performing work for a set lump sum of remuneration within a set timeframe and the Programme Director has control of what is done and how it is done and whether s(he) does it personally. The Programme Director is free to provide services to more than one organisation at the same time and this has occurred in the past. The Programme Director does not have a fixed place of business and is not provided with materials for the job or subsistence payments. The respondent cites Castle Island Cattle Breeding Society Ltd v Minister for Social Community and Family Affairs
2.2 When deciding on this issue I am cognisant of the definition of 'contract of employment' in the Employment Equality Acts 1998 (as amended by the Equality Act 2004):
''contract of employment'' means, subject to subsection (3) --
(a) a contract of service or apprenticeship, or
(b) any other contract whereby --
(i) an individual agrees with another person personally to
execute any work or service for that person, or
(ii) an individual agrees with a person carrying on the
business of an employment agency within the meaning
of the Employment Agency Act 1971 to do or
perform personally any work or service for another
person (whether or not the other person is a party
to the contract),
whether the contract is express or implied and, if express,
whether oral or written;
I am satisfied that the above definition of contract of employment covers the position that the complainant applied for. Dublin City Council accepts it is the correct respondent as per the definition of same in Section 77 (4)(b) of the Act. Indeed in the respondent's submission, the Personnel Manager in Dublin City Council asks Mr. Z, the Council's Arts Officer why he did not use the Council's recruitment section to assist in the selection process. This would indicate that he accepts that the position of Programme Director of Dublin Writers Festival is a contract of employment within the meaning of the Acts. Taking all of these facts into consideration, I have jurisdiction to hear this case.
3. Summary of the complainant's case
3.1 The complainant applied for the position of Programme Director of the Dublin Writers Festival on 24th August 2006. The annual Dublin Writers Festival is a Dublin City Council initiative supported by the Arts Council and other sponsorship.
3.2 The complainant's allegations related to the subsequent interview on 10th October 2006. The members of the interview board were Mr. Z, Mr. Y, Ms. X and Ms. W. The latter three were selected as interviewers as they are members of the advisory panel for Dublin Writers Festival.
3.3 Prior to the interview, Dr. Lennon was told that all candidates would have to make a presentation on their vision for the Festival. She submits that her vision of the Festival was democratic. She maintains that Mr. Y asked her at her interview about the notion of inclusivity and trying to accommodate the 171 nationalities of people living in Dublin. Dr. Lennon submits that, in response, she said it was not entirely possible to be all things to all men especially because of linguistic difficulties. The complainant submits she said it would be difficult to accommodate the Nigerian population alone and referred to the fact that Nigeria has 250 dialects. Dr. Lennon states that she said at the interview that a virtue should be made of Hiberno-English. The complainant said that our native tongue is still English and that Joycean elements could be included as the festival takes place in the lead up to Bloomsday. She submits that Mr. Y continued his line of questioning in an agitated way which seemed calculated to maker her say something derogatory about the changing nature of Irish society. The complainant submits that she did not rise to the bait.
3.4 According to the complainant, Ms. X and Ms. W then asked her questions in a pleasant fashion. Toward the end of the interview, Dr. Lennon submits that Mr. Z then said he was disturbed by the complainant saying there should be no blacks at the festival. The complainant maintains she replied 'Excuse me? What are you talking about?' According to the complainant Mr. Z answered 'You said there should be no blacks at the Festival. I wrote it down'. The complainant submits it seemed the only notes he had written in relation to her interview so far is 'no blacks'. Dr. Lennon submits that she commented 'Just because you wrote it down does not mean I said it. I said no such thing'. According to the complainant that Mr. Z replied saying 'You said it when Mr. Y asked you about foreign writers. The complainant maintains she said 'I deeply resent your putting words in my mouth'. The complainant submits she felt ambushed. Dr. Lennon submits that unknown writers should be introduced alongside best-selling writers. The complainant states that she can control neither the present demographic profile of Ireland nor the colour of writers on the bestseller list. Dr. Lennon maintains that she said in the interview that she included both Salman Rushdie and Hisahm Matar in her suggested writers for the Festival; neither of whom, she submits, could be described as White.
3.5 At this point Ms. X complimented the complainant on her ability to speak without notes. Dr. Lennon submits that she was brusquely shepherded out of the room by Mr. Z at the end of the interview.
3.6 Dr. Lennon submits that she is outraged to be accused of racism. In her submission she states 'I don't judge writers by the colour of their skin. I'm afraid I am much more prosaic and judge writers by the quality of their writing and their sales figures. Perhaps I should point out that I am White and Irish and that my native language is self-evidently English: maybe that is what bothers Mr. Z so. I will not apologise to anyone for being White, however...I cannot rationalise what occurred that day and I suspect that no sane person could unless the Council is committed to recruitment by racial profiling, which is illegal'. The complainant also submits that the respondent deliberately destroyed their notes of the interview.
4. Summary of the respondent's case
4.1 The respondent submits that this interview board was acutely aware of equality matters. Ms. X has previously been employed as a trainer in the Mainstreaming Equality Programme in the Public Service and was also appointed by the Taoiseach to the Board of European Year Against Racism. Ms. W completed training on equality issues.
4.2 The respondent maintains that the complainant was not discriminated against when Mr. Z, as chair of the interview board, sought clarification at the end of the interview as to her statements to Mr Y. The respondent submits that she said ' the festival should incorporate white writers only' and 'people don't want to be listening to foreign poets droning on'. The respondent does not accept that any such seeking of clarification from the complainant is discriminatory or is an indication of an intention to victimise the complainant in any way. The respondent submits that clarification was sought from the complainant as to her earlier comments in the context of the Dublin Writers Festival wishing to appeal to the diverse, multi-cultural society which Dublin city has become and the international nature and ethos of the Festival.
4.3 According to the respondent, the complainant during the interview and subsequeuently responded to the respondent's mere seeking of clarification in a manner unwarranted by the question and the circumstances of the question being put to the complainant. Evidence that Mr Z maintained his line of questioning in a calm and courteous manner is supported by the direct evidence given by the interview board members. Similarly, the other interview board members say Mr Y did not communicate with the complainant in an agitated manner as alleged.
4.4 In particular when asked by Mr. Z what the complainant meant by 'no black writers' the complainant responded in a manner which evidenced her resentment at a situation which she seemed to interpret that she had been called a racist. The respondent submits that the interview ended in the same manner as the other interviews for this position in that the complainant was escorted out of the room in the normal way.
4.5 The respondent refutes the allegation that the complainant did not have equal access to employment. There were 20 applicants and Dr. Lennon was part of the short list of 6 people who were interviewed. The transparent marking system upon which the complainant proved to be unsuccessful in securing the position is submitted as evidence. The respondent investigated the matter following Dr. Lennon's complaint of mistreatment shortly after the interview. The investigators decided that Dr. Lennon's claims were unfounded. Dublin City Council submits that it does not have a policy of positive discrimination towards any nationality.
Conclusions of the Equality Officer
Access to employment
5.1 Section 6 (1) of the Acts provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated in a comparable situation. The discriminatory ground in this case is race i.e. that they are a different race, colour, nationality ethnic or national origins. Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainants to establish, in the first instance, facts upon which they can rely in asserting that they 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 relation to discriminatory treatment in relation to access to employment, the complainant claims she has been discriminated on the ground of race in two ways:
(i) that Dr. Lennon did not get the position of Programme Director because she was White, Irish and because English is her first language.
(ii) that when she said in the interview that writers should be predominantly Anglophone that she felt the interview panel interpreted this as a racist remark and that it would not be interpreted in such a way if a candidate of a different ethnicity had recommended the Festival appealing mainly to ethnic minorities.
5.3 In relation to the first claim, Dr Lennon shares similar characteristics with the other short-listed candidates. All the short-listed candidates, bar one (who was a national of an other European country but with an Irish background) were of Irish nationality and were White and English-speaking. All members of the interview board were White, Irish and English was their first language. In relation to this strand of the case, I am satisfied that the complainant has not established a prima facie case of discrimination.
5.4 Regarding the second claim, I accept Dr. Lennon's contention that she did not say that there should be no black writers at the Festival. This is supported by the direct evidence of the interview board including Mr. Z who said, in hindsight, she did not use the phrase 'no blacks'. However, all members of the interview board stated that Dr. Lennon did make the remark that 'people don't want to listen to foreign poets droning on'. The interviewers stated that they recalled this statement specifically because one of the interviewers is a well-known poet. It is common case that the complainant did recommend that the Festival should appeal, in the first place, to the majority of the Irish population rather than ethnic minorities. I am satisfied that the interview was conducted fairly. I also find that the respondent did not discriminate against Dr. Lennon in clarifying what she meant by any of the comments she made at the interview. To seek such clarification is not discriminatory within the meaning of the Acts. Therefore, in relation to both strands in relation to access to employment, I find that Dr Lennon has not established a prima facie case on the grounds of race .
Harassment
5.5 Section 14 (7) of the Acts defines harassment as any form of unwanted conduct related to any of the discriminatory grounds and being conduct which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
5.6 I am satisfied that from the evidence adduced that the interview was not conducted in a hostile or offensive manner. I also find that the subsequent investigation by Dublin City Council into Dr. Lennon's complaint was done in a professional way. Consequently the complainant has not established a prima facie case of harassment on the race ground.
Victimisation
5.7 Section 74 (2) of the Acts state victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.
5.8 The complainant submits that she was victimised because she was white. However the colloquial meaning of victimisation is different to how it is defined in the Acts. The complainant has not adduced evidence subsequent to her complaint of discrimination to Dublin City Council that she has been victimised within the meaning of the Acts. Therefore her complaint of victimisation cannot succeed.
Decision
I have concluded my investigation of the above complaints and hereby make the following decision in accordance with Section 79(6) of the Acts. I find that
(i) the complainant was not discriminated on the ground of race regarding access to employment contrary to 8 (1)(c)of the Acts
(ii) the complainant was not harassed on the ground of race in terms of 14A of the Acts.
(iii) the complainant was not victimised within the meaning of 74(2) of the Acts
Therefore I find against the complainant.
Recommendation
As the complaint has not been upheld, I am not in a position to make an order for the respondent to undertake a particular action. However, I would recommend to the respondent that all notes are retained of interviews for contracts of employment within the meaning of the Acts.
_______________
Orlaith Mannion
Equality Officer
22nd October 2009