The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774150
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Equal Status Acts 2000-2008
Decision No: DEC-S2011- 047
Sharon Dempsey
(represented by Anthony Joyce & Co. Solicitors)
V.
Dr. Quirkey's Good Time Emporium Ltd.
File Reference: ES/2010/055
Date of Issue: 7th November 2011
Decision
DEC-S2011-047
Sharon Dempsey
(represented by Anthony Joyce & Co. Solicitors)
V.
Dr. Quirkey's Good Time Emporium Ltd.
Key words
Equal Status Act, 2000 - Direct discrimination, Section 3(1) - less favourable treatment, Gender - Section 3(2)(a), Disability - Section 2 (1) and 3(2)(g), prima facie case, failure of the respondent to attend hearing, Section 27(1) - redress for the effect of discriminatory treatment.
Delegation under Equal Status Acts, 2000-2008
The complainants referred claims to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2008. On the 2nd August 2011, in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2008 the Director delegated the case to me, Marian Duffy, 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 which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on 24th October 2011.
1. Dispute
1.1 The dispute concerns a claim by the complainant that she was discriminated against on the gender and disability grounds in relation to access to a facility which is generally available to the public. The complainant alleges that the respondent discriminated against her in terms of Sections 3(1)(a), and 3(2)(a) and 3(2)(g) of the Equal Status Acts and contrary to Section 5(1) of that Act.
2. Summary of Complainant's case
2.1 The complainant states that she has a facial disfigurement because she suffers from maxillary osteoma. It is a muscular growth on her jaw and she has suffered from the condition since she was a child. She said that the condition is much more noticeable when it is very cold. On the 27th of February 2010 she and her then boyfriend went into the respondent's premises to play the slot machines. Upon entry she was approached by a member of security who said to her that he did not like the look of her and asked her to leave. She asked what he meant by that and he did not respond. The member of security then placed his hand on her shoulder and ushered her out of the premises. The complainant had some shopping bags with her and the security man then questioned her about them. She invited him to look in her bags. He ignored her and he again repeated that she could not come into the premises. At this point another security man approached the complainant and told her he had a right to refuse entry and there was no requirement to give a reason. As she walked out of the premises she saw both security men and another man looking at a photograph. The complainant left the premises and she met a member of An Garda Síochána on the street and reported the incident to him. He advised her that if she needed help with the matter she should see a solicitor.
2.2 The complainant submits that she was discriminated against on the disability ground. She submitted that her disability is very noticeable particularly when it is cold and on this particular day because the weather was cold and her face was swollen. She said that people have regularly commented on her facial disfigurement and when she was a teenager she was called terrible names. She submitted that her boyfriend was not asked to leave and was not treated in the same way as she was treated. The complainant also submitted that she was discriminated on the gender ground in that her boyfriend was allowed into the respondent's premises and unlike her he was not asked to leave.
3 Respondent's Case
3.1 The respondent did not attend the hearing and has not responded to the complaint nor has he provided any response to a request for a written submission. A notification of the hearing was issued by registered post to the respondent on the 12th of September 2011 and it was delivered and signed for on the 13th of September.
4. Conclusion of Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(a) and (g) of the Equal Status Act and in terms of Section 5 (1) of that Act.
In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
"On any of the grounds specified... (In this case the disability and gender grounds).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2) provides that: as between any two persons, the discriminatory grounds ... are ...
(a) that one is male and the other is female (the ''gender ground''),
(g) that one is a person with a disability and the other either is not or is a person with a different disability,"
4.2 A person making an allegation of discrimination under the Equal Status Act, 2000 must first establish a prima facie case of discrimination treatment. The burden of proof is set out in Section 38A which provides:
(1)" Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."
This requires the Complainants to prove the primary facts upon which she is seeking to rely to raise an inference of discrimination. It is only when she has discharged this initial burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required of her the case cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
The complainant has a disability and is covered by the Acts. I am satisfied that the complainant has a disability and is covered by the Equal Status Acts. I am also satisfied that the complainant was refused access to a service and a facility in the respondent's premises and she was requested to leave by security. She submitted that the security man said to her that "he did not like the look of her". It is clear therefore that this remark was a direct reference to the complainant's facial disfigurement. The complainant submitted that there were other customers in the respondent's premises and no other customer including her boyfriend were asked to leave. I am satisfied therefore that the complainant has established that she was treated less favourably than another person without a disability was treated in similar circumstances. I find that the complainant has established a prima facie case of discriminatory treatment. The respondent did not attend the hearing. I am satisfied that the registered letter notifying the date of the hearing was delivered to the respondent. In the circumstances, I find that the respondent has failed to rebut the prima facie case raised by the complainant.
4.3 The next matter I have to consider is whether the complainant was discriminated against on the gender ground. The complainant did not provide any evidence to support this aspect of her complaint. I find that the complainant has failed to establish a prima facie case of discriminatory treatment on the gender ground.
4 Decision
4.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 29(1) of the Equal Status Acts, 1998 to 2008. I find that:
the respondent did not discriminate against the complainant on the gender ground pursuant to sections 3(1) and 3(2)(a) of the Equal Status Acts and in terms of section 5(1) of these Acts in relation to access to a service;
(ii) the respondent did discriminate against the complainant on the disability ground pursuant to sections 3(1) and 3(2)(g) of the Acts, and in terms of section 5(1) of these Acts in respect of access to a service.
4.2 Under section 27(1) of that Act redress may be ordered where a finding is in favour of the complainant. Section 27(1) provides that:
"the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified."
4.3 Under the above Section the maximum amount of compensation I can award is €6,349. In considering the amount of compensation that I should award I have taken into account the effects of the discrimination had on the complainant. I note the complainant stated that following the incident she became paranoid and believed people were looking at her and she became anxious about going out in public and going into shops resulting in her having to seek medical help. Taking this information into consideration, I order the respondent to pay to the complainant the sum of €1,500 (fifteen hundred euro) to compensate her for the discriminatory treatment and the distress and upset experienced by her as a result of this treatment.
___________________
Marian Duffy
Equality Officer
7th November 2011