The Equality Tribunal
3 Clonmel Street
Dublin 2
Phone: 353-1-4774100
Fax: 353-1-4774141
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Website:www.equalitytribunal.ie
Equal Status Acts, 2000 to 2008
Equality Officer Decision
DEC-S2011-040
A hotel guest
(represented by James Peart BL, instructed by O'Gorman Solicitors)
-v-
A Dublin Hotel
(represented by Claire Bruton BL)
File Ref: ES/2009/039
Date of Issue: 19 September 2011
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts, 2000-2008 on 31 March 2009. 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 1 June 2011 (following a series of adjournments at the request of the parties). Both parties were in attendance.
1. Dispute
This dispute concerns a claim by the complainant, A Hotel Guest (hereafter "the complainant") that he was harassed, sexually harassed and victimised by the A Dublin Hotel (hereafter "the respondent") on the grounds of gender and sexual orientation, in terms of Sections 3(2)(a) and 3(2)(d)of the Equal Status Acts, 2000-2008. The request of both parties for anonymity was granted in the circumstances of the case.
Summary of the Complainant's Case
2.1 The complainant is a film-maker from the US, and he was staying at the respondent hotel for a film festival on the October Bank Holiday weekend in 2008. On Friday night/Sat morning 24th /25th October, the complainant returned, accompanied by a friend, to the hotel and asked for a key to his room. The hotel representative, Mr A, responded in a manner which the complainant found rude and hostile. Mr A told him that he could not bring a friend to his room and he made a comment about not allowing men to be with men. The complainant said that his friend needed to go to the toilet, so Mr A gave him the key to the hall toilet. While the friend was gone, the complainant asked why he was not allowed to bring a guest to his room. Mr A said that he knew what they were up to and he didn't allow that sort of thing at the hotel. The complainant asked what he meant by this remark. Mr A said that he meant "the kind that diddles young boys" and the complainant understood this to be a reference to paedophile behaviour. Mr A said that he had the authority to refuse him and he showed him the hotel sign, which said that management have the right to refuse access to non-residents. The complainant's friend returned and Mr A said that he should go away with his young man, and that he (Mr A) had cameras everywhere and could see all their comings and goings. The complainant submitted that he was extremely embarrassed and had only wanted to show a book to his friend.
2.2 The following morning, the complainant went to reception to complain about Mr A. The receptionist seemed embarrassed in his opinion and she told him that Mr A was just a crazy old man. She said that she would tell the manager what happened. The manager called him from her cellphone later that day and he told her what happened. She apologised, but the complainant felt that her manner was too beezy, given the seriousness of his complaint. She said that she was off for the weekend, but that she would speak to Mr A. She advised him not to take it personally and hoped that he would enjoy the rest of his stay.
2.3 That night the complainant returned to the hotel and was shocked to discover that Mr A was still working there. He had expected him to be gone, but instead he found Mr A still working and smug and unapologetic. He found Mr A's manner to be provocative, so he asked him what was the problem. Mr A said that he (the complainant) was the problem. The complainant said that he had spoken to the manager, but Mr A said that he could have him thrown out if he wanted. He submitted that Mr A said that he had friends in the US embassy who could make his life hell. The complainant said he could not wait until there were no more of his kind left in Ireland. (The complainant submitted that he was referring to homophobic people). The complainant submits that at that point Mr A became very dramatic and started shouting for help. When Security arrived, Mr A shouted "he likes to f*** young boys".
2.4 The complainant was then taken outside by Security. At that point a film, which was being shown in the Film Festival, ended and people came out onto the street. The complainant submits that these people were his students, his colleagues and a journalist and it was therefore extremely embarrassing for him to be outside with Security. He submits that he told the Security guards that they were being discriminatory towards him and that he would take a case against them. At that point they agreed to let him back in and asked him if he could re-enter the hotel through the nightclub. The complainant found it very offensive to be asked to use the back door as it made him feel like a second class citizen. He tried to go through the nightclub but found it too crowded, so asked if he could come back past Reception. The Security guard agreed to accompany him past Mr A.
2.5 The next morning he received a note to say that the hotel owner would contact him about the incident, but he never did. He also submits that the organiser of the Film Festival tried to contact the hotel, but they never got back to him either. The complainant submits that he had a double room and should have been allowed to bring a guest. He submitted that the sign regarding non-residents is there to stop parties from taking place and that the only reason he was stopped from bringing a guest to his room was that he is gay.
2.6 The complainant submitted that he felt humiliated victimised and embarrassed and he is still upset. He considers it to be bullying and it has become a theme of his films to deal with bullying issues.
Summary of the Respondent's Case
3.1 The respondent submitted that the complainant was booked into a single room for the weekend, and while some of the single rooms are large enough to allow two people to use the room, a double rate is charged in those situations. In any event, they submitted that the complainant in this case was staying in a single-only room. The respondent submitted that they do not permit non-residents access to the hotel bedrooms and their sign clearly states this policy. They stated that because they are located in a busy part of the Temple Bar area of Dublin, they are particularly vigilant about this policy at night, when it is common for bar customers to try to access the rooms.
3.2 Witness for the respondent - Mr A, night porter at the hotel
Mr A said that around 2.30am on 25th October, the complainant and a young man went from the Bar towards the Reception/upstairs. He approached them and asked them where they were going. The complainant said that they were going to his room. Mr A said that non-residents were not allowed upstairs. He pointed out the sign and said that he was just an employee and he did not make the rules. He said that the complainant was very surprised but went back to the Bar. Shortly afterwards he was in the kitchen and saw the complainant and his friend back in Reception again. By the time he came out to Reception they were gone and he believed that the complainant's friend had gone to the room.
The following night he reported for duty at 11pm as normal. A little later the complainant arrived and Mr A gave him his key immediately. He submitted that Mr A immediately launched into a verbal attack on him. He told him "I f***** the a*** off that boy last night and I'll do the same again tonight, and there's nothing you can do about it you old f*****". He witness submitted that the attack also referenced his religion and his age. He submitted that the complainant said that they had got rid of (President) Bush and now they would get rid of him (Mr A). The complainant told him that he would never work in this hotel again and that he should be in a home. Mr A said that the complainant went beserk and the threats were frightening to him. He said that the complainant was frothing with anger and kept coming back leaning over to him. Mr A then tapped on the window to alert the Security Guard who was outside. Security came and they took the complainant outside. After a while the complainant came back accompanied by a Security Guard and went straight upstairs to his room.
Mr A submitted that he had worked in the hotel for just over 2 years but prior to that he was in business for 40 years and he would never use language such as that attributed to him by the complainant. He particularly noted the phrase "diddling" and said that he had never used that word. He said that he had previously suffered a physical assault at the hotel and was genuinely frightened by the complainant. He submitted that he decided to leave his employment immediately after the incident because he was not prepared to take any more abuse on the night shift.
3.3 Witness for the respondent - Hotel Manager
The hotel manager said that the Film Festival had paid in advance for the complainant to stay in a single room. She had spoken to the complainant on the day he arrived and the relationship had been very friendly. On the morning of the 25th, it was her day off, but she visited the hotel briefly to see that everything was ok. The receptionist told her that there had been a complaint about Mr A, so she called the complainant's room. There was no answer, so she left the hotel. Later when the complainant returned, the receptionist put him through to her mobile phone. The complainant told her that Mr A had refused to allow him to bring a friend to his room to show him a book. He said that Mr A had been rude and that he was embarrassed that his friend was turned away. The manager said that the complainant offered her no more details about the incident, and she guessed immediately that Mr A had been enforcing the "no non-residents" rule, which they were very strict about. She said that she would talk to Mr A about it. (By this she said that she meant she would look into it and hear Mr A's side of the story). She submitted that it was a brief call and she did not think it was a serious issue. She submitted that this is evidenced by the fact that she did not call Mr A immediately. Instead she left a message at reception for Mr A to say that he should be courteous, but avoid getting into any discussion with the complainant that night. The following morning, she submitted that she tried to talk to Mr A about what had happened on Friday, but he said that there had been an incident on the Saturday and he was very upset and wanted to go home immediately. The manager stated that she was unavailable for family reasons for the rest of Sunday, but on Monday morning, she tried to contact the complainant at 7.30am to discuss; however he had checked out of the hotel. She submitted that she did not know the alleged details of the row between the complainant and Mr A, until the ES1 form was submitted. She submitted that she later asked the Security guard on duty about the incident and was told that the complainant was out of control and had to be asked to go outside, to avoid making so much noise at reception.
3.4 Witness for the respondent - Hotel Owner
The hotel owner stated that he was delighted that the complainant was staying in the hotel because they wanted to encourage Film Festival business, and that he personally welcomed the complainant when he arrived. He also invited him and the rest of his group to visit the night club for free during his visit.
The hotel owner submitted that he was not aware of any incident on the Friday night /Saturday morning. He became aware of the Saturday-night incident on Sunday and he asked Mr A to go for coffee with him to tell him what happened. Mr A told him on this occasion that he had had enough abuse and could not take it anymore. The owner asked him to take a break and think about it, but Mr A did not come back to work at the hotel again.
The hotel owner stated that he had known Mr A for 40 years and considered him to be a totally honest and trustworthy person, as well as an excellent employee. He described him as a "black-and-white" person and not inclined to bend the rules in any circumstances. The owner submitted that while it might have been ok for management to show discretion in allowing guests into rooms, it was not permissible for employees to do so. Therefore he submitted that Mr A had simply been doing his job. He did not believe Mr A would use the language described by the complainant.
The owner stated that they had gay employees working at the hotel and had run a successful gay night at the nightclub for 6 years.
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 In addition to harassment, the complainant claimed he was sexually harassed and victimized. However the oral evidence at the hearing dealt exclusively with the question of harassment. Harassment is defined under Section 11 (5) of the Equal Status Acts as:
(a) "In this section -
references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,
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.
(b) Without prejudice to the generality of paragraphy (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."
4.3 The complainant has claimed that he was harassed on two occasions by the respondent employees; both were verbal attacks and the second one also involved him being denied access to the hotel for a while. The majority of the facts concerning the incidents are entirely disputed between the parties, so consideration must be given to which version is more credible and supportable by evidence.
4.4 In the first incident, the complainant claims that his guest was denied access to his room because he was gay. Having examined the facts I note that:
- The respondents had a sign up to advise residents that guests were not allowed to rooms.
- The respondent operated an adjoining bar in a very busy area of Temple Bar and it would seem prudent to refuse access to non-residents, in order to ensure the safety of their guests.
- The hotel owner appeared to me to have chosen Mr A to work the night shift, precisely because he operated the rule so strictly.
- The booking form, the rate and the daily guest log all support the fact that it was a single room, a fact which the complainant also conceded during the hearing.
4.5 For the above reasons I do not accept that the complainant's guest was denied access to the room because he was gay. I find on the balance of probabilities that his guest was denied access because it was a single room.
4.6 The complainant also claimed that he was subjected to verbal abuse by the respondent employee Mr A as described at para 2.1. Having considered the alleged exchange, I find on the balance of probabilities that Mr A did make some insulting remarks to the complainant and that these remarks did reference the complainant's sexual orientation. I note that the complainant recalled the remarks in detail, whereas Mr A could not remember the exchange. Therefore, while I find it unlikely that Mr A used the specific term "diddling", overall I find the complainant's version to be more compelling. I find that Mr A's remarks were directly linked to the complainant's sexual orientation and they created a humiliating and offensive environment for the complainant. Therefore I find that the respondent did harass the complainant on this occasion contrary to the Equal Status Acts.
4.7 On the following night there was a further verbal exchange between the parties which resulted in the complainant being asked to step outside the hotel for a few minutes. In order to establish what happened, the hotel, upon request from the complainant, supplied DVD footage of the incident. As it was picture-only, I allowed it to be shown twice during the oral hearing, with each party narrating their version of what happened. It is clear from the footage and from the oral evidence given, that the complainant collected his key, and started to walk away, but then turned back to reception. The complainant claims that he was provoked by some noise made by Mr A; something like a "tsk" sound, which made him turn back. It appears to me from the footage that the complainant was very angry and shouted at Mr A. Mr A did not appear to say much but went to the window to signal for Security. Mr A described in detail some of the language used by the complainant, but the complainant was less specific about the remarks made by Mr A, other than the noise which he found provocative. At the oral hearing, the complainant submitted that when Security arrived, Mr A shouted "he likes to f*** young boys" twice. However this was the first time the complainant mentioned this, despite giving detailed statements to the Tribunal on earlier occasions. The complainant mentioned that Mr A threatened that he had friends in the US Embassy, and while I found this credible, I do not find it linked to any of the grounds under the Equal Status Acts. In general I found Mr A's version of this incident somewhat more compelling and much of what he said can be backed up by the footage, which shows the complainant leaning towards him, pointing at him repeatedly and looking very animated. I find it likely that the complainant arrived at the hotel, already very wound up by the incidents of the previous day, and ready to snap at Mr A. Overall while his annoyance may well have been justified based on the previous night's events, I do not find it reasonable to claim that he was harassed, when on this occasion he appeared to be play a more instigating (rather than simply defensive) role.
4.8 Directly following from this, was the incident with Security. I understand that it was both professionally and personally embarrassing to the complainant to be asked to leave the hotel; however I find that the incident was a direct result of him shouting at Mr A. The hotel is located in an area which is very busy, noisy and sometimes aggressive at night; therefore it would not be unusual for Security to ask someone to step outside in order to calm down a fraught situation. Despite what had happened on the previous day, I do not find there was any link on this occasion to a ground under the Equal Status Acts. I find that Security were acting in the normal course of their duties where they perceived a potentially difficult situation developing.
5. Decision
5.1 On the basis of the foregoing, I find in favour of the complainant with respect to one of the two incidents complained of. I find that the respondent verbally abused the complainant in terms which amount to harassment on the grounds of his sexual orientation in the early hours of the 25th October 2008. I award the complainant €1,500 for the hurt and humiliation suffered.
Elaine Cassidy,
Equality Officer
19 September 2011