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-S2011-041
Ms Barbara Lindberg
-v-
Press Photographer's Association of Ireland
(represented by Matheson, Ormsby Prentice Solicitors)
File Ref: ES/2009/081
Date of Issue: 5 October 2011
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 15 July 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, 2000-2008, 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, 2000-2008. On 26th November 2010 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 15 June 2011 and both parties were in attendance. Following the hearing, the complainant, who was unrepresented, requested the opportunity to make an additional written submission and a deadline of 1 July 2011 was given for further submissions by either party.
1. Dispute
This dispute concerns a claim by the complainant, Ms Lindberg ("the complainant") that she was discriminated against by the Press Photographer's Association of Ireland (hereafter "the respondent") on the grounds of race and gender in terms of Section 3(2) (a) and 3(2)(h) of the Equal Status Acts, 2000-2008 in being refused a service, which is generally available to the public contrary to Section 6(1) of the Equal Status Acts, 2000-2011.
Summary of the Complainant's Case
2.1 The complainant is an American woman, who has been working in Ireland as a press photographer since 2001. At that time, she was working part-time; however in 2004 she submitted that she started working full-time as a press photographer and since then she has been published in all the national newspapers.
2.2 In 2007 the complainant decided to join the respondent organisation, whose goal is to promote press photography. She completed an application form, direct debit form and provided the two nomination letters required. A few months later she met a committee member and asked him how her application was coming along. He asked her to send some photos to his email address. She sent 14 photos to him that day. About 3 months later, she met this committee member again and he asked her if she had received her membership money back. She had not been accepted to the respondent association. She was told that she had only submitted 3 photos and this did not convince the committee that she was a full-time press photographer, which was necessary in order to ensure a successful application. It was suggested that she should have submitted a portfolio. The complainant submitted at the hearing, that in practice no-one sends a portfolio and she further rejected the respondent's later assertion that she did not have enough by-lines. The complainant submitted that she gets bylined for a small percentage of her photos and this is normal. She submitted that no-one else gets bylined for every picture and it is not evidence at all of whether or not she was working full-time in press photography. She stated that, in addition to the 14 pictures, she did provide a list of all the national newspapers who she had worked for, despite being unasked.
2.3 At that time of the complainant's rejection, 20 applications were made and of these, 3 were rejected. The complainant submitted that she was extremely disappointed and made her feelings known to the committee member, in what she intended as a personal email. The email however was sent around to the whole committee and she later received an email from the (now former) president, saying that the tone of her email indicated that it was obviously not an association which she wanted to be part of.
2.4 The following year, in October, the complainant made another application to join the respondent organisation. In December that year, she was at an event and another photographer advised her that she should have heard back from the respondent by that stage. In January she sent emails to the Secretary and the Treasurer of the respondent association to check whether they had received her application, as she had not heard anything for three months. When she did not get a reply, she decided to speak to the respondent President at his workplace. She went to see him in January and she found that he was very annoyed that she had contacted him directly. She apologised and asked about her application. He told her that it was denied. She had brought extra information with her and demonstrated to him that she had been published 521 times in the previous year in national newspapers alone. This excluded all the work she had done for regional newspapers and internal newsletters. She asked to show him her accounts, to demonstrate that 100% of her income came from press photography, but he declined. He told her that the association had the right not to accept someone if they so chose. She thanked him for his time and left. At the end of May, 7 months after her application was made, she received a rejection letter and the return of her bank draft.
2.5 The following year, 2009, the complainant submitted that she was declined membership without even applying.
2.6 Based on the events which occurred, the complainant concluded that despite the respondent's claim to have a long list of criteria for membership; in practice the only criterion actually used was whether or not she was known to the members of the committee. She further submitted that the respondent compounded this by their failure to give her a chance to prove her credentials. As a result of being judged in this way, she was automatically put at a disadvantage by being non-Irish.
2.7 The complainant submitted that the respondent organisation is the only organisation in Ireland for her industry. The respondent runs an important awards ceremony once per year and only members are eligible to win an award. She submitted that these are prestigious awards and have a significant influence on the winner's career. She submitted that both the title and the prize money are highly desirable. She submitted that she is very much the outsider, being both female and non-Irish. She submitted that most female photographers work for magazines, so when she goes on shoots, she is often the only woman there, which makes it difficult for her to get involved in the banter and general camaraderie going on. This contributes to her not being well known in the industry.
2.8 The complainant submitted that the two applications she made form part of a chain of events, because the reason she was rejected the second time related to events and correspondence around her first rejection, particularly the email she sent to a committee member (see para 2.3).
Summary of the Respondent's Case
3.1 The respondent submitted that the first application made by the complainant is out of time, as the decision on that application was dated 26 September 2007 and there is no connection to her second rejection letter (which was in time) which could link the events together to create a chain of events.
3.2 The respondent submitted that it is an association of press photographers founded about 30 years ago. One of the principle objectives of the association is to promote press photography nationally and internationally and their main activity to achieve this goal is to hold annual photographic awards. The respondent also organises occasional social outings for its members.
3.3 The respondent contends that it does not discriminate against applicants for membership on the basis of gender, nationality or any other grounds. At the time of the complainant's first application, it had 247 members, of whom 19 were female and approximately 8 were non-national. At the time of her second application it had 241 members, of whom, 20 were female and approximately 9 non-national. No members fell into the category of female non-nationals, a fact which the respondent attributes to the low number of such people in the industry overall. The respondent submitted that the complainant is trying to paint a picture of nepotism and the sidelining of women; however this is not true in their view. The respondent submitted that there had been a female president on one occasion in the past and a female chair of the judging panel for the annual awards. Regarding the question of nationality, the Respondent submitted that membership is not confined to individuals of Irish nationality; in fact they do not ask applicants for details of their nationality when applying, as it is not considered relevant.
3.4 The Respondent submitted that it has in place a number of criteria which must be met by an applicant in order to be accepted into its membership; the applicant must have had at least two years full-time work as a freelance photographer or be employed by an established newspaper or agency. The applicant must be proposed by two paid-up members of two years standing and must also derive at least 85% of their earnings from press photography. The respondent submitted that the claimant failed to meet the established criteria and that was the sole reason why her application was refused.
3.5 The respondent submitted that it is insufficient for the complainant to point to an apparent unfairness in the application procedures. It referred to the Equality Officer decision of MacMahon v UCC (ES/2005/056) and quoted the following passage, in support of its argument that the claimant had failed to establish a nexus between her complaint and her grounds:
"In all the circumstances of the present complaint, it is not enough for the complaint to establish unfairness in the procedures, or to prove that he was treated unfairly, if he cannot show that he was treated less favourably because of his gender."
The respondent also referred to the Labour Court's decision in Rescon Ltd v Scanlan (085/2008), wherein it was held that " a mere difference in gender and a difference in treatment...could never in itself provide sufficient evidential basis upon which to raise a presumption of discrimination."
3.6 Regarding the 2009 application, the respondent submitted that the complainant is incorrect about her 2009 application being denied and that she is basing this assertion on the fact that their year does not run on a calendar year basis - hence the 2008 application is called 2008/2009.
3.7 Witness for the respondent - a former President of the association
The witness was holding the position of president at the time of the complainant's first application. He submitted that when the committee members reviewed the complainant's first application, most members did not know her. They asked for more pictures, but only received 4, so they decided that she did not fulfill the criteria.
The witness's memory of the complainant's second application was similar to the first one. The Secretary was asked for further information, but they didn't receive any more information. The witness submitted that he did ask his own picture editor in Cork about her and was told that she was not a regular contributor to that newspaper. He submitted that although he knew her through work, he did not know whether she was a "bona fide press photographer". The witness also said that the complainant contacted him at his workplace and he preferred to keep his volunteer role separate from his work. Therefore he told her to stop contacting him.
3.8 Witness for the respondent - a former Secretary of the Association
The Secretary stated that membership was decided by way of a vote. The complainant was unsuccessful because the committee did not know her. He accepted that the complainant may have sent 14 pictures, but thought there might have been a technical issue, which resulted in him not receiving most of them.
3.9 Witness for the respondent - a former President of the Association
The witness was President at the time of the complainant's second application. He recalled that the committee thought that nothing had changed since her previous application and therefore they rejected her application. He submitted that they had used the same process for 25 years and it had worked fine. There was never a need to seek evidence of whether the person was working full-time in the industry or not.
This witness was contacted by the complainant at his office in January 2009, as she wanted to give him more information about her work. He was annoyed that she had used a personal contact to get in touch with him and felt it was inappropriate. Her attempts to demonstrate her financial accounts and the volume of her work as a press photographer were not of interest to him because they had already rejected her application.
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 2008 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 Preliminary Issue
The respondent has argued that the first application made by the complaint is out of time, as the decision on that application was dated 26 September 2007 and the complaint was referred on 15 July 2009. However it is well established law, that where the events complained of are sufficiently connected, it may be possible to regard them as a chain of events. In such a situation, the time limit for the referral begins on the most recent date of alleged discrimination, which in this case was 28 May 2009, the date of the second rejection of the complainant's application. The referral to the Tribunal was made on 15 July 2009, which was inside the 6 month time limit.
I note that the decisions to reject the complainant's two applications were taken by committees made up primarily of the same members on both occasions. I also note that the events surrounding the first application played a clear role in the second decision to reject the complainant's application. Therefore I find that the two events are sufficiently connected to establish a chain of events and thus put the first application within the time limits.
4.3 Prima facie case
The complainant applied on two occasions to join the respondent association, on the basis of her interest and work in the area of press photography. The respondent has stated that the complainant was not working full-time as a press photographer and this is the essential criterion in order to join the association. However the complainant has offered the respondent a large volume of documentary evidence, including her annual accounts and detailed lists of the dates and papers in which she has been published. She has stated without contradiction that she had 521 pictures published in national newspapers alone, in the year she was rejected by the respondent association. As her evidence was specific, credible and not contradicted by the respondent, I accept that she works full-time in press photography as a career. Therefore the complainant has established a prima facie case on the grounds of gender and race, on the basis that, despite her obvious qualifications, she has been denied membership of this association. It therefore falls to the respondent to rebut the claim.
4.4 Respondent's rebuttal
4.4.1 The respondent has given evidence showing that although they have female members and they have non-national members, they do not currently have any female non-national members. They submitted that this is because of the low numbers of both of those categories working in the profession itself. I accept that in a case like this when the numbers are small, statistics may well be unreliable, and therefore I have not given extensive weight to the fact that there are no members in the combined category.
4.4.2 There was much dispute between the complainant and the respondent in terms of the specific details of the applications processes and the many conversations which went on between the complainant and the respondent committee members. Overall I found the evidence of the complainant considerably more credible, as it was backed-up by extensive documentary evidence. For example, although the respondent said they did not receive them, the complainant was able to show the date and details of the emails she sent with all her photos. On another occasion, the respondent also said that they could not verify whether two particular pictures belonging to the complainant had been published, despite the fact that they were given the photos together with the dates and names of the national newspapers in which they appeared. Additionally the complainant's evidence at the oral hearing was specific and precise, in contrast to the somewhat vague recollections of all the witnesses for the respondent.
4.4.3 First Application
It appears on the face of it that the respondent application procedure is less than satisfactory. However a less-than-perfect application process does not automatically mean that it is discriminatory. In a case such as this, where the complainant has already made out a prima facie case, it would be up to the respondent to show that their procedures were robust and non-discriminatory. In such circumstances they may be able to show there is no link between the complainant's grounds and the impugned decision. However that has not happened in this case. I note that the application form is very basic and could not possibly be used to judge anyone's application. It appears to be a formality and not a genuine part of the decision-making process. The respondent members have said that they make their decision based on whether or not they know the applicant, and that this approach has served them well in the past. Their argument is that "everyone knows everyone" in the industry and therefore they have a good sense of who is genuinely working full-time in the industry. The complainant has stated that she does not socialise with the members and that is the reason they do not know her. (Indeed there is something of a circular argument here - if the complainant is not permitted to join the association, then the members will not get to know her. But they will not let her join because they do not know her. ) The fact the committee's primary criterion in practice is to see if the person is known to them, is potentially discriminatory towards newly-arrived non-nationals, who are less likely to be known. They could have overcome this potentially discriminatory criterion by asking for more information from the candidate. The respondent said that they did, but I found the complainant's version of events more credible. I find that they made no genuine effort to establish whether the complainant fulfilled the criteria or not.
If the respondent was prepared to be open to allowing "outsiders" into their organisation, they would design an application form which allowed the potential applicant to fully present him/herself and provide all the details required. A thorough application procedure would remove the need for the applicant to be personally known to the committee.
Overall, taking into account the fact that the respondent application form (at the material time) did not cover the supposed criteria for entry, the fact that they failed to show an application of the criteria in any other way, and the fact that they did not wish to see any proof of the complainant's status as a full-time photographer, I find it is fair to assume that the selection criteria were not used in practice except as a reason given after a rejection decision was already made. In fact the (now former) president himself told the complainant that they didn't have to let anyone in if they didn't want to. On balance therefore I find that the process used in the complainant's first application was discriminatory towards her on the grounds of her nationality.
4.4.4 Second Application
It is clear that the complainant and the respondent exchanged words after her first rejection and I find that this had an impact on her subsequent application. Although it took seven months to receive the rejection letter, it was clear from the discussion 4 months earlier between the complainant and the (now former) President, that the decision was made within a much shorter timeframe. It was also clear that the respondent was not prepared to seek additional information about the complainant. Although there was some suggestion from the witnesses that attempts had been made to gain further information, this was successfully rebutted by the complainant at the oral hearing. The complainant also stated, (without contradiction) that the (now former) president himself told her that they didn't have to let anyone in if they didn't want to. I found that the respondent committee members developed a personal dislike for the complainant, based partly on her persistence in following up on her application and trying to send them information to substantiate her application. In considering this case I am guided by the Labour Court decision in the case of Ely Property Group Ltd and Zena Boyle Determination No. EDA0920 where the Labour Court was considering prima facie evidence in a gender discrimination case and stated:
"In considering the primary facts relied upon by a Complainant the Court is not seeking prima facie evidence that the discriminatory ground relied upon was the only or the dominant reason for the impugned treatment. In Wong v Igen Ltd and others [2005] IRLR 258 (a decision of the Court of Appeal for England and Wales) Peter Gibson L.J. pointed out that where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out. That decision was made having regard to the wording of Article 2 of Directive 2000/78/EC which provides that there shall be no discrimination "whatsoever" on any of the grounds proscribed by that Directive. This Court has consistently adopted the reasoning in that case."
The Labour Court in this case further stated:
"Furthermore the evidence can point to either conscious or subconscious discrimination. As was pointed out by Neill L.J. in King v Great Britain China Centre [1992] I.C.R. 516, in a case involving racial discrimination: -
It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that 'he or she would not have fitted in.' (my emphasis)
The views expressed by Neil L.J. were echoed by Lord Nicholls of Birkenhead in Nagarajan v London Regional Transport [1999] IRLR as follows: -
I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. It goes without saying that in order to justify such an inference the tribunal must first make findings of primary fact from which the inference may properly be drawn.
While both judgments were given in cases in which racial discrimination was at issue there is nothing in principal or in logic to prevent their application to a case in which the gender ground is relied upon. There will be many cases in which the primary facts point to the possibility that an employer, consciously or subconsciously, treated a woman as he did because he believed that she did not fit in (my emphasis) or that she was unsuited to the job because she is a woman. In such cases an inference of discrimination arises and it is for the Respondent to prove the contrary.
I find that this reasoning of the Labour Court is relevant to the case in hand. I believe that in the present case, the respondent members held (and perhaps still hold) the view that complainant simply "does not fit in". They have provided no cogent reason for rejecting both of the complainant's applications and so the remaining explanation is the discriminatory one. I find the combination of the complainant's circumstances in this case is significant. She is both female and non-national and is attempting to join an association, whose membership is predominantly Irish male. While this is not discriminatory per se and in fact it is more likely that it simply reflects the industry itself, it means in practice that the complainant is automatically outside the group in certain ways. The complainant does not fit into the respondent association because the combination of her race and gender automatically put her into a very small minority. If she was prepared to overcome this categorisation by acting more like one of the group, it is possible that they may not have denied her entry. However the complainant has her own communication style which conflicts with that of the committee members and she takes no part in the social interaction of this group, which further reinforces her outsider status. The wording of the Directives on the grounds of both Race and Gender state very clearly that there shall be "no discrimination whatsoever". This means if any element of discrimination is made out, the complainant must be successful. In the present case I note that the complainant is clearly working full-time as a press photographer. I note that she offered sufficient information to the respondent to allow them to establish this fact, if they chose to. The respondent's defence has been that their sole criterion for refusing her was the fact that she was not a full-time press photographer. I do not find this credible. Therefore considering all of the circumstances surrounding the applications, I find that the complainant has established sufficient evidence to show that her race had at least an indirect impact on her first application because the respondents did not attempt to seek information outside their immediate circle. In the second application, I find that the totality of circumstances, which includes her race and gender, again put her into the category of "outsider" and this had an impact on the second decision to deny her membership.
4.4.5 The complainant considers her exclusion from the respondent association to be a serious matter, and contends that this is not just a social club. It is the only association relevant to her profession and her exclusion from it impacts on her career.
4.4.6 However it must also be noted that the respondent association is a voluntary organisation and the committee members are undertaking it in their own time. As a result, they stated that they don't hold meetings very frequently, and they have very little time for paperwork. Overall they conceded that they were not very organised. Their argument, (which I accept), is that it would be unreasonable to expect the same procedural standards which might be expected from an employer for example. Nonetheless the law clearly prohibits discrimination against service users and this prohibition is unconditional. I note that it would not have placed an undue burden on the respondent members, even as unpaid volunteers, to simply give consideration to the additional material which was supplied by the complainant to show her status as a full-time press photographer. By doing this they could have genuinely established whether or not she had the credentials for membership.
5. Decision
5.1 On the basis of the foregoing, I find in favour of the Complainant and order that the respondent offer the complainant membership of the Press Photographer's Association of Ireland, within 60 days of this decision. I also award her €1,000 for upset and humiliation suffered as a result of the discrimination.
5.2 I further order that the respondent put into effect an Equality Policy within 6 months of the date of this decision and I recommend that the respondent make their admission policy more open and transparent for future applicants.
Elaine Cassidy,
Equality Officer
5 October 2011