THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 to 2008
Decision No. DEC-S2009- 060
PARTIES
Ms A
-v-
A Library
(represented by Claire Bruton, B.L.)
File Reference: ES/2007/0049
Date of Issue: 4 September 2009
Key words
Equal Status Acts - Section 3(2)(i), age ground - preferential treatment of minors - different treatment - no prima facie case
1. Delegation under the relevant legislation
1.1. On 9 August, 2007, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. In accordance with her powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director 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 Acts. This delegation took place on 17 October, 2008, on which day I commenced my investigation.
1.2. As required by Section 25(1) of the Equal Status Acts and as part of my investigation, I held an oral hearing of the complaint in Dublin on Tuesday, 16 June, 2009. Both parties were in attendance at the hearing.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that she was discriminated against and harassed by the respondent, within the meaning of the Equal Status Acts, on the age ground, contrary to the Equal Status Acts in terms of Sections 3(1)(a) and Section 3(2)(f) of the Equal Status Acts and contrary to Section 5(1) and Section 11 of the Equal Status Acts, in that the respondent treated her less favourably by providing preferential treatment to younger people ahead of her, inter alia, in the allocation of seating at its premises, and allowed her to be harassed on the age ground by other library users.
3. Summary of the Complainant's case
3.1. Ms A, the complainant, stated that she started going to the respondent library four years ago where she used to book time on a computer and has become a regular user of the library facilities since. She said that, in early July 2005, she noticed that all the desks in the library would have books and bags on them and there would not be an empty desk available. She said she would therefore occupy the desk that would have the least amount of books on it, only to find that children would come up to her very soon after and verbally abuse her, saying things like "you're just an old woman" and that the seat belonged to them. She said that she would refuse to vacate the seat, but eventually would give it up, but the children would still follow her and continue to abuse her. She felt she then had no choice but to leave the library.
3.2. The complainant also described other similar incidents, where, she said, library staff favoured children over her, including one where a member of staff came over to her and told her to vacate a seat as it was someone else's, which also prompted her to leave the library. Ms A said that she tried to deal with this matter herself initially and did not speak with any of the staff of the library at the time, though she considered that they could not but see the incidents in question occurring. The complainant said she eventually met with Ms B, the Senior Librarian, in February 2007, following an incident similar to the one described in Paragraph 3.1 above. She said that Ms B told her that the respondent only wanted to be fair to everyone but that she would have to vacate her seat. Ms A said she was quite distressed following this conversation and made a complaint directly to the library the next day. On receiving no satisfaction from it, as she described in her notification letter of 18 April 2007, she told the respondent that she can't accept "the policy of allowing children to order senior citizens off chairs, and being verbally abused, and have a chair pulled from under them" and so took a complaint to the Tribunal.
3.3. The complainant said she had seen the notices in the library outlining the policy with regarding to the holding of seats. However, she said that virtually all the users of the library were children and so she never saw someone other than a child leaving books. She agreed that a survey had been carried out that contradicted this claim but she questioned the independence of the survey and said the results did not fit in with what she was seeing in practice. In short, she did not accept that the respondent gave seats to people on a first come, first served basis. She said that only schoolchildren were allowed to leave belongings on desks and that she was told this by members of staff of the library, including Ms B.
3.4. The complainant said that, on one particular occasion, she asked if people of all ages were treated the same and was told by a member of library staff, Ms X, that the rule of being able to keep your seat for 15 minutes did not apply to her. She was unable to recall exactly when this conversation took place, however. She also agreed that if she got up early enough in the morning she could get a seat but said that at this time of her life she should not have to do so and was therefore discriminated against by the respondents as a retired person as retired people cannot be in the library all day.
3.5. The complainant said she knew that some people were gone indefinitely from their seats. She said these people would not be there when she came in and would still not be there when she left (she would have been on a computer at the time) and described instances where, she said, she witnessed this policy being abused. There were also a number of seats in the respondent library which could be reserved in advance. However, the complainant said she was told 6 weeks prior to the oral hearing that she could only reserve these seats a day in advance which she said was unfair as she could not afford to use her telephone and so had to call in to make the reservation and would therefore have to be there every day as she was there three days a week and on the other days would have to book a seat. She said that the people who took these reserved seats were almost always children.
3.6. The complainant also claimed discrimination on the grounds of age in relation to the use of computer facilities. She said that children are allowed to use the computers in the library for longer than she is. She also claimed that some minors used the computer for longer than was allowed by using other people's user cards.
4. Summary of the Respondent's case
Preliminary Legal Arguments
4.1. The respondent submitted that, by failing to provide details of the specific dates upon which she alleges she was discriminated against, the complainant has failed to fulfil her obligations pursuant to Section 21(2) of the Acts which require a complainant to notify the respondent in writing, inter alia, of the nature of the allegation. It also submits that any instances of alleged discrimination prior to 10 February 2007, six months after the referral of the complaint, are out of time within the meaning of Section 21(6) of the Acts, which outlines the procedure for referring a complaint. It also argued that Section 21(2), which provides that a complaint can refer to more than one incident, does not bring the complaint within the time limits applicable as there are no specific dates and the terms of this provision are specific. The respondent also submitted that I had no jurisdiction to consider the matter of harassment as, in her original referral form, the complainant failed to tick the box indicating that she was also alleging unlawful treatment in the form of harassment.
Substantive Matters
4.2. The respondent submitted that there was no basis whatsoever for the complainant's submission that the respondent is discriminating in favour of children. In the first instance, it does not allow children under 16 to use the library, except for Junior Certificate students. It said that, coming up to State exam time, the age profile of the users of the library lowered but there was also a significant number of students from the local third level institution. However, a Public Library Users Survey had been carried out by the Library Council of Ireland and it provided the results of this survey to the Tribunal. At peak times there can be up to, roughly, 2200 users of the library every day, and the survey clearly shows that users are of a wide variety of different ages. It said that this calls into question a lot of the complainant's evidence as she claimed that the vast majority of users of the library were children. In any event, it said that there was no basis for the complainant's allegation of preferential treatment, that everyone has a similar opportunity to get a desk and that there is therefore no evidence of discrimination. Instead, the respondent said it is clear that the complainant is looking for positive action in her favour.
4.3. The respondent said it operates like any similar library and outlined, in general, how the library was run. In particular, it said that the policy it operated in relation to the holding of seats is that there is a procedure in place which allows that if someone leaves a desk for 15 minutes, then they are entitled to that desk back when they return. This time is extended to up to 30 minutes during lunchtime. It said the rule is monitored by staff (the extent of this monitoring being subject to resources), and that the respondent does not allow the time a user holds a seat under this rule to exceed 30 minutes. If it does, users belongings are removed and the desk is forfeited. The respondent stated that this happens quite a lot in the lead-up to State and Third level exams.
4.4. The respondent said the rule is applied in line with best practice for library users and no account is taken of age. Indeed, there is age neutral information in the reference library outlining the rule. It admitted that there could be occasional incidents where someone is not at a desk for more than half an hour, and, due to resource issues, this is not noticed by staff. However, it said that, in this case, another user is free to remove the belongings in question. The respondent added that it could not see how a policy of allowing only children to avail of this rule could be implemented in practice. It asked how you could know that one desk was occupied by a child and another desk was not occupied by a child when the person in question was not present at the particular desk.
4.5. Ms B, who was present at the hearing, denied that she ever said she gave preference to children. She said that she first met with Ms A on 19 February 2007, when the complainant first brought her complaints to her attention. She said she explained the policy regarding the holding of desks to the complainant at that time, and was able to offer four desks to Ms A that were completely vacant. The respondent said that the complainant complained of the incident involving the chair being pulled from under her two days later but declined to formally report it. She said that, on a later occasion, Ms A mentioned the word abusive to her in describing some of the treatment she was receiving from other users, but said these descriptions were general in nature.
4.6. In relation to the allegation of harassment, the respondent submits that there is no agency relationship between it and its users, in terms of Section 41(2) of the Acts, and that it is manifestly unjust to hold it responsible for any alleged actions of library users in those circumstances, and where the actions in question are entirely in the realm of personal actions of the part of students. In any event, it submitted that the complainant has failed to link any treatment of her with her age.
4.7. Furthermore, the complainant did not inform it of any harassment prior to February 2007, after which, Ms B asked staff at the library to be extra vigilant in monitoring unruly behaviour and to take appropriate action should any such behaviour occur. It submits that it therefore has a defence under Section 11(3) of the Acts in that it took reasonable steps to prevent the harassment. In particular, it states that it has a large free standing sign at the entrance to its premises which states that those present are asked to "make the library a pleasant place for everyone" and asks those present to "behave in such a way that people who have come to study or read quietly are not disturbed." In addition, the library has a policy of trying to maintain decorum by regular monitoring of library usage, which is undertaken at all times by staff. It said there were no similar incidents with other library users.
4.8. The respondent said that it does not discriminate against older people in general and, indeed, organises activities for older people, particularly during the Bealtaine festival (a national festival celebrating age), and holds computer courses for senior citizens. In relation to the allegations regarding the use of computer facilities, it said that all library users are permitted to book one 55 minute session at an upstairs PC and one similar session on a downstairs PC, subject to availability. Users are automatically logged out after 55 minutes. It denied that certain users used other person's cards to stay longer. It added that its records showed that Ms A was the highest single user of PC's in the library.
Further Legal Arguments
4.9. The respondent argued that, if it did discriminate in favour of minors, the Acts allow such discrimination as Section 3(3)(a) states that
"treating a person who has not attained the age of 18 years less favourably or more favourably than another, whatever that person's age shall not be regarded as discrimination on the age ground."
5. Conclusions of the Equality Officer
Initial Legal Arguments
5.1. While the harassment box is not ticked on the complainant's form, it is clear from the narrative in the form that the complainant is alleging harassment by other users of the library. As stated in A Post-Leaving Certificate Student -v- An Educational Institution , the jurisdiction of the Tribunal in this regard "cannot be restricted by the complainant's failure to tick a box on a non-statutory form". I am also satisfied that the complainant's notification letter clearly refers to alleged incidents of harassment and it was quite clear about the details of the substance of the complainant's allegation. I therefore have jurisdiction to deal with the issue of harassment.
5.2. At least some of the dates of the alleged incidents of prohibited conduct had already been notified to the respondent in previous correspondence which were provided to the Tribunal with the complaint form. As Section 21(2)(a) provides that, where more than one incident of prohibited conduct is alleged to have occurred, the last such occurrence is the relevant one in terms of meeting the time limits required by the Acts, I am satisfied that the complainant has also met the time limits, as both the notification and the referral of the complaint were made well within the time required by the Acts vis-à-vis the last alleged occurrence of prohibited conduct. I am therefore satisfied that the complainant has met all the requirements of a valid complaint, in accordance with all the relevant provisions of the Acts.
Substantive Issues
5.3. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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.
5.4. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties. There are two aspects to the complainants case that I must consider. Firstly, she alleges that she was discriminated against by the respondent on the ground of age. Secondly, she also alleges harassment on the ground of her age.
Allegation of Discrimination
5.5. I will consider first the issue of discrimination. In order to prove this allegation, the complainant must show that she was treated less favourably than someone of a relatively different age would have been treated in the same or similar circumstances. The principal argument the complainant makes in this regard is that minors were provided with preferential treatment in the use of library facilities, particularly in relation to seating arrangements and the use of computer facilities. Her central argument revolves around the respondent's policy that users can hold a seat from which they are absent by placing their belongings on the relevant seat, allowing them to return to occupy that seat once they do so within the relevant time period. The respondent submits that this policy is applied to all persons equally. The complainant submits it was not, indeed that it is only applied in relation to minors and that she was told this directly by Ms B and others. However, in relation to the latter allegation, I find the respondents evidence to be the more compelling and that no member of staff of the respondent ever told her this.
5.6. The complainant also took issue with the respondent requesting her to leave a seat which had been held by another patron. However, in doing so, I am satisfied that the respondent was merely enforcing its policy in relation to the keeping of seats by users and that a person of a different age to the complainant would not have been treated any differently. The complainant also submitted that she knew some persons had vacated their seats for "indefinite periods of time". However, she was unable to provide any convincing proof that this had, in fact, occurred. Indeed, in seeking to prove her point, the complainant also made several attempts to occupy a seat that was being held by another user. However, on each and every occasion that she did so, the third party whose seat she sought to occupy was entitled to request her to vacate that seat as they all returned within the allotted time frame. It seems to me that this is, in fact, proof that the policy in question was implemented effectively and that the vast majority of users did actually comply with its terms.
5.7. I accept, and indeed it was accepted by the respondent, that it could not guarantee that on no occasion did anyone leave their desk for longer than the relevant period of time. To police that policy to perfection would be far beyond the resources available to the respondent, and I am satisfied that the efforts it has made to ensure this policy is complied with are beyond what could be expected of it. Furthermore, it clearly communicates the policy to its patrons, and has ample notices and signs to that effect.
5.8. I note that Ms B was in a position to offer Ms A a choice of seats when they first met to discuss these issues. In any event, I am satisfied that if the complainant had attempted to hold a seat herself in line with the library policy, then she would have been successful in doing so. That fact, in and of itself, is sufficient proof that there was no discrimination in the terms alleged by the complainant. The complainant states that she did not try to hold a seat because she was told the rule in question did not apply to her. As already stated, I do not believe that she was told this and, in any event, she formed the view that there was discrimination long before this statement was allegedly made and so had ample opportunity to attempt to avail of the policy in question.
5.9. The complainant also submits that she was denied access to computer facilities and pre-booked seats because the respondent gave preferential access to these facilities to minors. In relation to the booking of seats, and the allegation that the procedure in place for booking those seats is not conducive to the complainant, I find that the procedure in place is applied to everyone equally and the respondent cannot be held responsible for the complainant's unwillingness to use a telephone. In that regard, the complainant is looking for more favourable treatment, which the respondent is under no obligation to provide. As regards the use of computer facilities, the complainant was unable to provide any convincing evidence of preferential treatment of minors by the respondent. On the contrary, I accept the respondent's evidence that the complainant was, in fact, the most frequent user of these facilities at the respondents premises and so was clearly not treated less favourably in that regard.
5.10. In addition, the complainant makes allegations that the respondent discriminates against older people in general. Again, there is no evidence to show this. On the contrary, the respondent is involved with the Bealtaine festival, an important festival in the promotion of equal treatment of people of all age groups. It also gave other examples of where it has facilitated older users.
5.11. In general, then, I find that the complainant has failed to establish any facts from which it can be inferred that she was treated less favourably than a person of a different age. I am satisfied, based on all the evidence presented in relation to the present case, that the respondent provides a service that is equally accessible to all persons, irrespective of age, and there is no evidence that it discriminates in any way against anyone on the age ground. I therefore find that the complainant has failed to establish a prima facie case of discrimination against the respondent and I do not need to consider the matter, in particular any other legal arguments of the respondent in relation to it, any further.
Allegation of Harassment
5.12. The complainant also made allegations of harassment on the ground of age in that she outlined a series of incidents where she experienced distress as the result of statements made to her in the library by minors. To establish a prima facie case in this regard, she must show that the alleged harassment was directly related to her age and that it had the effect of violating her dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for her.
5.13. I am satisfied that the relevant statements were made to the complainant because she was sitting in the seat of persons who had, quite legitimately, sought to hold seats within the terms applied by the library and were therefore, for the most part, not associated with her age. However, I am satisfied, on balance, that in relation to some of these incidents, statements were made which also referred to the age of the complainant in a manner that had the effect of violating her dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for her. In all the circumstances of the present case, Section 11(2) requires that the respondent "shall not permit a person who has a right to be present" in the respondent's premises "to suffer sexual harassment or harassment at that place." I am therefore satisfied that there were incidents of harassment on the ground of age, within the meaning of Section 11, and that the complainant has established a prima facie case in that regard.
Respondent's Defence
5.14. However, Section 11(3) of the Acts provides a defence for the respondent if, in all the circumstances of the present case, I am satisfied that it took such steps as are reasonably practicable to prevent the harassment in question. I am so satisfied. The respondent had a policy of making sure that users were not disturbed in any way, and this policy was clearly communicated to all library users and that the staff of the library made every reasonable effort to enforce that policy. In particular, I note that the respondent has located a clearly visible sign at the entrance to its premises stating that all users must behave appropriately and the respondent's staff carried out regular monitoring of library usage, including watching out for inappropriate behaviour.
5.15. I am also satisfied that when the alleged abuse was notified to it, the respondent took reasonable and appropriate steps to investigate the allegations and was prepared to take whatever action was reasonably necessary to ensure it did not recur, and indeed took such action by instructing its staff to be extra vigilant in relation to such incidents. However, I am satisfied that no further incidents were reported to it.
5.16. In addition, I note that the complainant did not report the vast majority of the incidents in question to the respondent. Instead, she said the respondent "must have known" that these incidents were occurring. However, the respondent cannot be expected to "know" something that is not communicated to it. In all the circumstances of the present case, then, the respondent cannot be held responsible for any harassment that occurred, particularly prior to being notified of the incidents complained of in the present case, and in light of the fact that it had taken reasonable steps to prevent the type of harassment in question from occurring in the first place. I therefore find that the respondent has successfully rebutted the prima facie case of harassment established by the complainant.
6. Decision
6.1. In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
6.2. I find that the complainant has failed to establish a prima facie case of discrimination on the age ground in terms of Sections 3(1)(a) and 3(2)(f) of the Equal Status Acts.
6.3. I find that the complainant has established a prima facie case of harassment in terms of Sections 11 and 3(2)(f) of the Equal Status Acts, and the respondent has successfully rebutted the prima facie case of harassment.
6.4. Accordingly, the complainant's case fails.
_____________
Gary O'Doherty
Equality Officer
4 September 2009