The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
E-mail: info@equalitytribunal.ie
Website: www.equalitytribunal.ie
Equal Status Acts 2000 to 2008
EQUALITY OFFICER'S DECISION
NO: DEC-S2009-062
Dalton
v.
Aspire
(Represented by Donal O'Kelly & Co. Solicitors)
File No. ES/2007/0106
Date of Issue: 9 September 2009
Keywords
Equal Status Acts 2000 to 2004 - Discrimination, section 3(1) - Disability ground, section 3(2)(g) - Victimisation ground, section 3(2)(j) - Disposal of goods and provision of services, section 5(1) - Reasonable accommodation, section 4(1) -Harassment, section 11(1)
1. Delegation under the Equal Status Acts
Ms. Gaye Dalton referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 20 September 2007. In accordance with her powers under section 75 of the Employment Equality Act, 1998, the Director then delegated the case to me, Tara Coogan, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under part III of the Equal Status Act on 12 December 2008. A hearing, as part of the investigation, was held in Dublin on 2 July 2009.
2. Dispute
The dispute concerns a complaint by Ms. Dalton ("the complainant") that she was treated less favourably contrary to section 3(1) and 4(1) and harassed within the meaning of section 11(1) in relation to the provision of goods and services on the ground of her disability on and around 20 June 2007 by Aspire ("the respondent"). She claims that this less favourable treatment is on-going. She further submitted that she has been victimised within the meaning of section 3(2)(j) by the respondent. The complainant submitted that the respondent organisation did not and still fails to treat and recognise the complainant as an autonomous, independent and equal person. The complainant's complaint refers mainly to her interaction with the respondent's website. The respondent was notified on 16 July 2007.
3. Case for the complainant
3.1. The complainant is a person diagnosed with Asperger syndrome. The complainant submitted that she logged on to the respondent's website on 20 July 2007 and on a number of dates after that (around a week or so) and discovered the following:
1. That the respondent declared itself to be a support organisation for people with Asperger syndrome and their carers and states that it encourages research into Asperger syndrome. Yet, in the complainant's view, the entire website consistently fails to recognise, acknowledge, allow or provide for autonomous and independent persons living with Asperger syndrome. This, in the complainant's view, constitutes discrimination and failure to provide reasonable accommodation for people living with Asperger syndrome.
2. That the website contains un-sourced statements that, in her view, present Asperger syndrome in an inaccurate, unbalanced and unduly negative way. For example, the complainant submitted that the website contains direct quotes taken from case histories written by the partners of people with Asperger syndrome. The complainant submitted that in her reading of some of these opinions displayed on the website, they suggest to her that a person with Asperger syndrome would be better off dead and that a person living with Asperger syndrome is not entitled or capable of forming a relationship. These opinions, in the complainant's view, constitute less favourable treatment and harassment of the complainant and other persons living with Asperger syndrome.
3. That pages on the respondent's website providing support for parent's with children with Asperger syndrome state that a person with Asperger syndrome is likely to be sufficiently disabled to require full time parental care for life. This, the complainant submitted, is an incorrect, derogatory and unbalanced view and constitutes discrimination and harassment of her as a person with Asperger syndrome.
4. That one of the website's pages presented an event organised by a named third party. The complainant submitted that the Admissions page omitted to specifically mention adult people with Asperger syndrome in its admission categories. The only categories of people mentioned, according to the complainant, were 'parent/carer' and 'professional'. She submitted that the fact that persons with Asperger's syndrome were not specifically included in the admission categories constitutes less favourable treatment of her. She further maintained that by specifically failing to do so, the respondent failed to provide her with reasonable accommodation as due to her condition she finds it difficult to interpret indirect communication.
5. That she came across another event being advertised on the website on 27 June 2007 with a similar problem in the admissions categories as above. This, she submitted, is a further incident of discrimination and failure to provide reasonable accommodation.
6. That the respondent was involved in a joint research project involving named organisations concerning the accommodation needs of people with disabilities. The complainant submitted that she was not consulted for the respondent's submission for the above research project. She also submitted that she had not been able to identify any person with Asperger syndrome who had been consulted for said survey. This, the complainant submitted, is less favourable treatment of her as she alleges that the respondent speaks and continues to do on behalf of people with Asperger syndrome without consulting any person with Asperger syndrome. She also maintains that this is another example of the respondent's failure to provide her with reasonable accommodation as she submitted that the respondent effectively denied her a voice when it came to presenting her views on housing needs to this research project.
7. That views expressed on a discussion forum provided for by the respondent failed to provide the complainant with reasonable accommodation. The complainant also submitted that the "report abuse" facility appeared to be broken.
8. That the respondent treated her less favourably on the ground of her disability after a web forum dialogue that the complainant was a participant in resulted in the respondent's named employee emailing the complainant on 21 July 2007 with the following message:
"Hello all!
It has come to my attention that some posts to this forum are becoming rude and in some cases, nasty (I am not going to mention any names!)
If this persists, I can and will delete those people from this forum without prior warning. This forum has been designed so that you all could help each other. Please don't destroy this haven for others.
All the best"
The complainant submitted that as the above email's headers suggested that the mail had been sent exclusively to her, she submitted that she responded to the mail administrator (this email was submitted in evidence). The
complainant submitted that as the named staff member never made any attempt to reply to her concerns - even if to clarify that the email was not just sent exclusively to her - constitutes less favourable treatment contrary to section 4(1). This is because the complainant believes that by failing to communicate with her clearly and directly she could only interpret this and the subsequent closure of the forum as less favourable treatment, including victimisation and as compliance in harassment of the complainant on the disability ground. The complainant submitted that the removal of a post from a thread, without the removal of her reply to it, distorted her meaning and cast the complainant in a negative light. This, the complainant submitted, is harassment as it diminished her right to post on the board in the manner, and with the expectations, of an equal.
3.2. The complainant submitted that further concerns have arisen since she lodged her complaint. She submitted that the respondent has started refusing membership to adults with Asperger syndrome.
3.3. She further submitted that the respondent's website contains links to other organisation's websites. Some of these links, the complainant submitted, portray extremely negative images of adults with Asperger syndrome and the condition itself. The complainant submitted that these named links lead to sites that are aggressively marketed by subjectively biased and unqualified persons. It was further submitted that these named organisations have, inter alia, "urged social workers and family court judges to discriminate against parents with autism in child custody hearings" and "widely believed to support research into pre-natal testing with a view to elective abortion on autistic babies". The complainant submitted that in contrast to the above, the respondent's website omitted to include links to named websites that are hosted by persons with autism and/or representative of what the complainant construes as positive images about autism itself. These websites, she submitted, promote a better recognition of the rights of persons with Asperger syndrome or other condition on the autism spectrum. While the complainant stated that she had come across a "token" link on the respondent's website to a personal blog that is run by a person with autism, she firmly believes that this is "hardly representative of quality and breath of autistic culture overall".
3.4. The complainant submitted that subsequent to her making the complaint under these acts, the respondent organisation has added a section concerning human rights to their site. The complainant submitted, however, that this whole section remains meaningless as long as the respondent organisation is incapable of regarding persons with autism as their intellectual, emotional and moral equals. This failure, the complainant submitted, personally threatens and intimidates her. She submitted that it is hard enough to learn how to cope, let alone lead a full and fulfilling life, with her condition without these prejudices being promulgated by the very people who affect to support and speak on behalf of the complainant and other persons living with her condition.
4. Case for the respondent
4.1. The respondent is a voluntary organisation established by a group of parents to provide support for people with Asperger Syndrome and their carers. The respondent submitted that its purpose is to provide education and support and denies that it promotes negative images about Asperger syndrome.
4.2. The respondent denies any allegation of less favourable treatment of the complainant on the disability ground.
4.3. The respondent denies that it has harassed the complainant on the disability ground. It also denies that it failed to take steps to prevent harassment from taking place.
4.4. The respondent denies that it has victimised the complainant contrary to the acts subsequent to her making her complaint under the acts.
4.5. The respondent vehemently denies that it excludes persons with Asperger syndrome from its management. The respondent denies that it has excluded the complainant from any aspect of its service.
5. Conclusion of the equality officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she 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. The parties accepted that the complainant's condition is a disability within the meaning of section 2(1) of the Acts.
5.3. The issue of whether the complainant was in receipt of a service within the meaning of the acts needs to be addressed. I note that a majority of the complainant's interaction with the respondent took place via the respondent's website. "Service" is clearly defined in section 2(1) of the acts. By applying clear, everyday language to this definition it is clear that a website is a service within the meaning set out by the legislature. However, it is equally clear that the complainant was not refused access to this website. It is clear from her own evidence that she was free to use and access various aspects of the site. The complainant's complaint is not about being refused access to the website but with the tone and content of the said site. She maintains that she does not agree with the way in which people living with her condition are described in some aspects of it and takes objection to a number of quotes and opinions stated on the respondent's website. I accept that the complainant is entitled to disagree with the opinions expressed on this or any website for that matter. This entitlement cannot, however, be construed as less favourable treatment within the meaning of the Equal Status Acts. In order to clarify what I mean I will use a comparator situation concerning less favourable treatment in service provision. For example, if the complainant had been unable to access a shop because of her disability then she may have had a case for less favourable treatment. However, if a person with a disability is able to accesses a shop and browse the goods on offer and, because he or she disagrees with the goods on offer and chooses not to avail of the goods, then an argument for less favourable treatment in within the meaning of the acts cannot be made. There is no evidence to support an argument that the complainant was treated less favourably in this context than a person who does not have her disability would have been treated in similar circumstances. While a person who does not have the experience of living with Asperger syndrome may have interpreted these comments differently from the complainant I am satisfied that the complainant was able to avail of the service, that is, access and navigate the website. Therefore, I have not been presented with any evidence to support an argument of less favourable treatment contrary to section 3(1) and 5(1).
5.4. I note that refusal is defined as a deliberate omission in section 2(1) of the acts. I have not been presented with enough evidence to support a claim that the respondent deliberately omitted to include links to its website that are more agreeable to the complainant in order to provide less favourable treatment.
5.5. The complainant further submitted that the respondent failed to provide her with reasonable accommodation when it advertised events hosted by other bodies on its website. The complainant submitted that the respondent failed to take care to use very specific language that would have enabled her to better understand whether she would be welcome at events targeted at persons working and living with persons with Asperger syndrome. She submitted that by failing to explicitly state that adult persons with Asperger syndrome were welcome to the event the respondent failed to do all that is reasonable to accommodate her needs. I do not accept that such an omission can be construed as a failure to provide reasonable accommodation. While I accept the complainant's submission that person's living with Asperger syndrome may have greater difficulties that persons who do not have the condition in interpreting indirect communication I was not presented with any evidence to support an argument that the complainant was unable or it was unduly difficult within the meaning of the acts for her to avail of a service because of this omission. It is clear from her own direct evidence that she contacted the respondent and the named event organisers over the phone and received clarification on the issue. I am satisfied that for a person such as the complainant, a very capable person, the fact that she needed to make such a clarifying phone call does not constitute discrimination within the meaning of section 4(1).
5.6. The complainant submitted that she was harassed on the disability ground. I note that the complainant disagrees with the content of some of the opinions expressed on the website. She views some of the views as "inaccurate, unbalanced and unduly negative" and considers that, within the meaning of the acts, this constitutes discrimination and harassment. Using everyday language to interpret the supplied quotes from the website I am satisfied that they clearly express individual points of view - described as case notes - that I construe as such. Any opinion of a person - when expressed as such - is simply an opinion. These quotes do not say to me "all persons with Asperger need full time care" or that "no person with Asperger can have a successful relationship". These comments simply suggest that, in individual circumstances, these events may occur to a person with Asperger syndrome or indeed, to any person. I do not find that limited quotes taken out of the context of a whole site cannot be viewed as evidence of the creation of an intimidating, hostile, degrading, humiliating or offensive environment. I note that extensive debate took place at the hearing about whether these views were on the website on the given dates, etc. I accept on the balance of probabilities that the complainant did find these statements on the website. I also accept, on the balance of probabilities, that this website contained a large volume of pages with a view to provide information about Asperger syndrome. While the complainant may not agree with all or indeed any of the issues presented on the website, the respondent organisation has a fundamental right to express its opinions and those of its members provided that these comments do not constitute harassment in the provision of goods and services within the meaning of the section 11 of the acts.
5.7. The complainant further submitted that she believes that she was harassed by other members on a discussion forum hosted by the respondent. I note that I have been presented with only a few 'threads' of the alleged incident and am therefore mindful of the fact that what has been presented to this Tribunal can be at best be viewed as very partial evidence. That being said I am satisfied that the following paragraph can be construed as harassment on the ground of disability in accordance with section 11(5):
"I apologise to anyone else who may think this is harsh, but really, you do not come across very well in your writings. If this is the way you deal with the professionals and agencies then I am not surprised that you are making no headway with them. Perhaps it is a lack of understanding or skill in communicating with others - I don't know. All I can say, though, that I would be horrified if my DS becomes this way. I hope I will have thought him better."
I accept the above paragraph as harassment despite the fact that I have not seen the post that this person was responding to. It does appear from reading the entire post that the person responding to the complainant was very offended by comments posted by the complainant. Even if the complainant was "rude" in her communication with the other poster - I do not know whether or not she was - it does not justify the use of unlawful conduct with the purpose or effect of violating a person's dignity on the disability ground. Section 11(3) of the acts provides a defence for responsible person to prove that he or she took reasonable steps to prevent harassment. I am satisfied that the respondent, as soon as it became aware of the issue, contacted the persons involved in these posts and requested a respectful tone be maintained and warned that failure to do so would result in the post being removed. I have been presented with no evidence to support the allegation that the respondent only contacted the complainant. It is clear that a message that begins with the greeting "hello all" is not addressed at a singular person. While I note that the complainant submitted that the header of the email did not show the email addresses of the other recipients, I accept that this may have been a privacy issue with the intention of protecting the identity of persons using the forum. Further, I was also presented with a letter dated 5 July 2007. In this letter, addressed to the complainant, the respondent is seeking for clarification concerning the alleged abuse and reiterates that such behaviour will not be tolerated. From this, I accept on the balance of probabilities, that the respondent's named employee reported the emails to the organisation's responsible person who took appropriate steps in accordance with section 11(3). I note that the offending post was removed and this was confirmed in direct evidence by the complainant. I am also satisfied that the complainant did not - on her own submission - respond to the respondent's request for further information about the alleged harassment. Therefore, I am satisfied that the respondent did all that it could concerning the messages in the discussion forum.
5.8. In relation to the third party research. The complainant submitted that she was not consulted for the respondent organisation's submission. She says that she knows of no person with Asperger syndrome who was consulted for it. It is important to point out that the complainant has no right to seek redress for persons with Asperger syndrome generally as this Tribunal only has jurisdiction to investigate the treatment that the complainant specifically received in the circumstances of this case. However, I am satisfied that the complainant has no evidence to support any argument that the respondent refused or did not seek submissions from persons with Asperger syndrome. I note that the complainant submitted that she contacted the named third party directly and arranged for a private submission to be made. And this is her right. However, the complainant cannot argue that she was excluded from the respondent's submission when it is clear from her own evidence that she is not even a member of the respondent organisation.
5.9. During cross-examination it became apparent that the complainant is not a member of the respondent organisation and while she had attended an AGM in 2004 she has not since sought to be involved in the management of the organisation. Therefore, I have not been presented with any evidence to suggest that the respondent has in any way sought to exclude the complainant from the organisation. While I note that the complainant submitted that the organisation has excluded all persons with Asperger syndrome from its management - an allegation vehemently denied by the respondent - it is important to note that there is no legal obligation from an equal status point of view for a voluntary organisations to take on specific categories of people. An organisation may not broadly discriminate against protected categories of people (there are exemptions) but the management of such an organisation and its policies are matters for the organisation itself. A complainant cannot legally argue that she has been excluded from a service if she has not sought to avail of it. It is clear that the complainant has no locus standi in relation to this aspect of her complaint.
5.10. In relation to the allegations that the complainant made about named organisations in paragraph 3.3. I note that the complainant has provided no evidence that these named organisations have treated her less favourably on her disability ground. It is clear that the complainant was able to access these websites. While I note that the complainant submitted that these organisations promote what she construes as negative images about people with Asperger syndrome, she has not provided any evidence that she was so treated in the context of availing a service from this organisations. Therefore, I find no reason to consider whether the issue of vicarious liability is relevant in the circumstances of this case.
5.11. Further, I was presented with no evidence to support the complainant's claim of victimisation within the meaning of section 3(2)(j).
6. Decision
6.1. In accordance with section 25(4) I conclude my investigation and issue the following decision:
6.2. The complainant has failed to establish a prima facie case of discrimination This complaint therefore fails.
6.3. The complainant has established a prima facie case of harassment contrary to section 11. The respondent has successfully rebutted this. This complaint therefore fails.
6.4. The complainant has failed to establish a prima facie case of victimisation. This complaint therefore fails.
_______________
Tara Coogan
Equality Officer
9 September 2009