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 2011
Equality Officer Decision
DEC-S2011-036
Mr Pierce Parker
-v-
Federal Security Limited (in receivership)
File Ref: ES/2009/094
Date of Issue: 30 August 2011
Delegation under the Equal Status Acts, 2000 to 2011
This complaint was referred to the Director of the Equality Tribunal on 27 August 2009 under the Equal Status Acts, 2000-2011. In accordance with his powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2011, the Director delegated the complaint to me, Elaine Cassidy, 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, 2000-2011. On 29th March 2011 my investigation commenced, when the case was delegated to me. As required by Section 25(1) and as part of my investigation, an oral hearing of the matter was held on 12 July 2011 and the complainant was in attendance. Following the hearing, the complainant, who was unrepresented, made further written submissions and this process was concluded on 14 July 2011.
1. Dispute
This dispute concerns a claim by the complainant, Mr Parker (hereafter "the complainant") that he was harassed contrary to Section 11 of the Equal Status Acts, 2000-2008 (hereafter "the Acts"), by employees of Federal Security Solutions Ltd (hereafter "the respondent") on the grounds of gender and race in terms of Section 3(2)(a) and 3(2)(h) of the Acts.
Summary of the Complainant's Case
2.1 The complainant is an Asian American post graduate student studying at the University of Limerick. The complainant submitted that he was subjected to incidents of racial abuse on several occasions by three different employees of the respondent. These incidents took place during the summer of 2009 when he was working on the data acquisition stage of his research at the University. This part of his research required him to work on campus, during the anti-social hours of 11pm to 3am, in order to monitor incoming data through a website. At this time, the swipe card system which should have allowed him to access to his office in the campus building, was not working and so he had to ask the night security staff to give him access to the building.
2.2 On 6 July 2009 around midnight, the complainant went to reception to ask for access to the building. Mr A, the Security Officer on duty asked him whether he was Chinese. The complainant refused to answer and asked Mr A if he was Chinese. Mr A replied that he was Irish. On the walk to his office, Mr A said that the complainant must be from the Orient - perhaps China, Korea or Japan. The complainant told him that a person became "oriental" by having facial deformities. Mr A dismissed this and said that the Orient Express meant no physical deformities. The complainant realised that he had had a similar conversation with Mr A in 2008 and this realisation increased his suspicion that the respondent employees engaged in racist abuses only against people who were not racially Europeans. The complainant believed that the respondent employees could not perceive individuals as individuals, but mere facial deformities or racist cartoon caricatures to be toyed with.
2.3 The complainant submitted that on 18 July 2009, after midnight, he was walking to his office with Mr B, a security officer employed by the respondent, when Mr B launched into a racist diatribe. Specifically he asked the complainant was nationality he was and the complainant asked him to guess. Mr B guessed Korean, and said that a few years ago Korean students worked late in this building. The complainant quizzed him about how he knew that "this abnormal quality of being Korean compelled someone to work late" and Mr B responded that no Irish person would work late. Mr B said that Irish students did not work late and only Chinese students work late at night and that is why they are doing well. The complainant quizzed him about whether Scottish or German students would work late and Mr B said no.
2.4 The complainant submitted that on 13 June 2009, when he was accessing the building after midnight, he was asked where he was from by Mr C, a security officer with the respondent. The complainant refused to answer and Mr C went on to talk about famous Irish writers, concluding that "there were no werewolves in (the complainant's) country." The complainant submitted that Mr C did not know what country he was from, but that he was "absolutely convinced that the complainant was not Irish because of his race and gender".
2.5 The complainant also submitted that another incident arose much earlier than the three previously outlined incidents. On 3 January 2008, he was asked by the security guard, Mr A, what country he was from and when he told Mr A that he was from the United States, Mr A continued to ask what part of the US, adding that he (Mr A) visited South Carolina and Virginia regularly.
2.6 Following the incidents mentioned above, the complainant visited the security staff during the day to get the name of Mr B, so that he could make a complaint. He eventually did get the name although he submitted that there was a heated exchange between himself and Mr A, the officer on duty at the time. He submitted that Mr A tried to explain that the complainant was taking things up wrong and that his colleagues were just curious. The complainant also submitted that Mr A said that the security officers asked everyone similar questions. The complainant asked why they were so curious, but Mr A could not explain.
2.7 The complainant submits that he has taken this complaint in order to expose the racist employees of the respondent, to eradicate the insidious incidents of racist abuses and to ensure that non racially-European students can access the campus without abuses, lectures, interrogations or harassment.
2.8 The complainant submitted two emails from other students regarding their interaction with the respondent employees. The complainant also submitted that he tried to raise the issue with the respondent management, but they did not answer his emails and were not interested in resolving the problem.
2.9 The complainant further submitted that he is not a Chinese person, he has never been to China, he does not have Chinese ancestry, nor any other connection with that country. He submitted that they committed these racist abuses against him because they were convinced that his racial "abnormality" compelled him to perform the extraordinary act of working hard at night and at weekend, and that he "suffered from this Chinese pathology". He submitted that "there is hysteria among the respondent's employees that only Chinese students work hard"... and their "racist stereotypes and hatred" were confirmed by the complainant asking them for access to the building at night.
Summary of the Respondent's Case
3.1 The respondent made a written submission which is summarised below. However the respondent has gone into receivership and the receiver, Mr Carson of Deloitte, contacted the Tribunal to advise that he would not be attending the oral hearing, as any award in favour of a third party would rank as an unsecured creditor and he did not anticipate any funds being available to distribute to such a creditor.
3.2 The respondent submitted that their night security staff were responsible for allowing access to campus buildings in situations where the swipe card access system was not working. It was submitted that this happened fairly frequently. As the security staff did not have access to a list of authorised persons, they were tasked with trying to establish the bona fides of the person requesting access. They would request to see a student id card, ask why access was needed and then they would walk with the student from the main reception to the specific building. The respondent submits that it would have been common for the security staff to chat to students during this walk.
3.3 Regarding the specific incidents with the security guards, the respondent outlined the conversations as described by their security staff. The respondent concluded that officers in question were simply making conversation. They further submitted that the complainant's own evidence from two other students corresponds with the respondent's view.
3.4 The respondent also described the training received by their security staff which includes a FETAC Leval 4 PSA training course/exam, a HR induction, on the job training, a company handbook and their Fairness and Respect at work policy. They also submitted that some of their security staff, including Mr A, have undergone specialist training such as Conflict Resolution and Suicide Prevention training, under the direction of the UL Counselling Department.
3.5 The respondent outlined their attempts to contact the complainant to investigate his complaint of racism. These attempts failed and they concluded that the complainant wished to pursue the matter through the Equality Tribunal.
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 2011 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.
4.2 The complainant and the respondent both described the series of incidents between the two parties. The complainant was present at the oral hearing and he described the incidents in person. As the respondent was not present and the security guards could therefore not be interviewed, I can only give the appropriate weight to their written submission. However notwithstanding that, I note that there is actually very little conflict of evidence between the parties on the details of the conversations. The discrepancies arise from the interpretation put on the words used. Both parties agree that the complainant was asked a number of times, by various security officers, where he was from. The respondent claims that it was normal to talk to the students requesting night-time access to establish their bona fides, and that in the complainant's case, the officers in question were primarily just making conversation on the walk to the building. The complainant on the other hand claims that he was repeatedly accused of being Chinese and that European students would not have been treated like this.
4.3 I note that the definition of harassment under the Acts was changed in 2004 and it is now defined at Section 11:
(5) (a) In this section -
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds and.....
being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures, or the production, display, or circulation of written words, pictures or other material.
The change to the Acts in 2004 had the effect of making the definition more subjective. It means that the complainant does not have to prove that the respondent intended to harass him/her, simply that that was the effect. This made it easier for complainants to overcome what can be a difficult hurdle. Nevertheless, there must still be an element of reasonableness in the analysis; otherwise the effect would be that it would be impossible for a respondent to defend themselves and I believe that this could not have been intended by the legislators. In the present case, it is clear to me that the complainant believes that the he has been subjected to unwanted conduct related to at least one of the grounds. However it is not clear to me at all how the conversations between the complainant and the respondent employees created an environment which could reasonably be described as hostile, degrading, humiliating or offensive. I find that even if I take the complainant's case at its height, there is nothing to suggest that the respondent employees were engaged in anything more than social small talk on the walk between the buildings. I note that it is extremely common for Irish people to ask strangers where they come from and that this extends to strangers of any nationality, including Irish people. In my own experience I find that it is usual to be asked what part of Ireland I am from or indeed what area of the city I am from.
4.4 However depending on the manner and form of words used, I do accept the complainant's basic contention that in some circumstances, being asked such questions could be potentially be construed as harassment on the race ground. Therefore I asked the complainant to describe at the oral hearing how he found the conversations to be offensive to him. The complainant mentioned being "accused of being Chinese" on a number of occasions and when I asked him why he used this expression, he was adamant that being called Chinese was an accusation and not a neutral description. He said that it was associated with being deviant, sneaky and underhand. He said that the security guards were not complimenting the Chinese students for working hard and doing well at college; they were instead accusing them of deviant behaviour (staying late) and getting ahead as a result of not following the normal rules of engagement. He said that Chinese were associated with being surreptitious, untrustworthy, precisely due to the racial deformities of the eyes and skin colour. He likened it to the perception of the Jews under the Nazi regime. He also stated that in the US, the term "Oriental" has an extremely negative connotation and may be equated to the term "nigger". This may or may not be the case in the US, however I do not accept that the term has the any such connotation in Ireland.
4.5 I am conscious that the EU Directives on race and gender which underpin the Acts provide very strong protection for a complainant. I am also conscious of the difficulty which complainants may face in terms of making out a case of racial harassment, given that there is unlikely to be "a smoking gun". However in this case, the basis facts are generally agreed between the parties and as noted earlier, the difference lies in the interpretation given by each party. Conscious of the subjective element of a harassment claim, I listened carefully to the complainant's own interpretation of events. From this, I could only conclude that the complainant himself had a very negative association with the term Chinese and I do not accept it is a view shared by the majority (or even minority). I find it completely unreasonable to ask the Equality Tribunal to uphold what is essentially a personally held and extremely racist and negative view of Chinese people. The complainant insisted that this is the prevailing stereotype even though I might not personally be aware of it. I do not accept this. I note that the complainant agreed that his upset was not caused by the issue of mistaken identity (he said that he would not have minded being mistaken for Canadian for example); the reason for his upset was specifically the association with China.
4.6 In summary, I find that the security officers engaged in fairly typical small talk with the complainant. I support of this view, I note that the emails from fellow students, (which were submitted by the complainant himself), state the security guards were simply being friendly. I also note the respondent's submission that the security guards generally did engage with night time visitors, as a matter of good practice. I find that the reason the subject matter of the conversations was considered racist by the complainant was a result of his own interpretation of what it means to be Chinese.
4.7 I therefore find that he has not established a prima facie case of discrimination on the race ground. No specific evidence was submitted regarding the gender ground. However for the purpose of completeness I considered whether the combination/totality of the circumstances (race and gender) might have contributed to the treatment. I did not find any fact or circumstance which supported that view.
5. Decision
5.1 On the basis of the foregoing, I find in favour of the Respondent.
Elaine Cassidy,
Equality Officer
30 August 2011