EQUAL STATUS ACTS
Decision No. DEC-S2012-019
PARTIES
Kevin Stanley
-v-
Google Ireland
File Reference: ES/2011/062
Date of Issue: 22nd May, 2012
Key words
Equal Status Acts - Section 3(2)(g), Disability Ground - Complainant deaf - Section 4(1) Reasonable Accommodation - whether respondent discriminated in communication mechanisms made available to complainant - whether complainant's lack of fluency in English means reasonable accommodation provisions apply
1. Delegation under the relevant legislation
1.1. On 6th April, 2011, Mr Kevin Stanley (hereinafter referred to as "the complainant") referred a claim against Google Ireland (hereinafter referred to as "the respondent") to the Director of the Equality Tribunal under the Equal Status Acts. On the 17th November, 2011, in accordance with his powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the case to me, Gary O'Doherty, 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 ("the Acts"), on which date my investigation commenced.
1.2. Written submissions were received from both parties. A hearing of the complaint was held on 2nd March, 2012.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that he was discriminated against by the respondent on the disability ground contrary to the Equal Status Acts in terms of Sections 3(1) and 3(2)(g) and Section 4(1) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts in that it discriminated against him and failed to provide him with reasonable accommodation in communicating with him about the disabling of an AdSense account.
3. Summary of the Complainant's case
3.1. The complainant stated that he is deaf. He stated that he set up an AdSense account with the respondent on 20th September, 2010 (AdSense is a product provided by the respondent which facilitates a website owner in generating advertising income on their website). He stated that this account was disabled by the respondent on 6th October, 2010 as it "possessed a risk of generating invalid activity". He stated that he still does not know what the invalid activity in question was as the respondent never told him. He stated that he used the mechanism provided by the respondent for appealing the disabling of his account but was informed by e-mail on 8th October, 2010 that this appeal was unsuccessful.
3.2. The complainant stated that he was not provided with a suitable method of communicating with the respondent about the matter. He stated that the e-mails he received were automated and he could not find any other way of communicating with the respondent. He stated that he e-mailed the automated address and received a reply on 20th October, but received no other response from the respondent despite sending letters to it on 8th December, 2010 and 14th January, 2011. He stated that he was discriminated against in that context as a person who was not deaf could have phoned the respondent.
3.3. The complainant stated that Irish Sign Language (ISL) was his first language and English was his second language. He stated that this did not mean he could not read or understand written English, but said that the information provided by the respondent was not the English used "in everyday life" and was "very heavy" English. He stated that he was also discriminated against by the respondent in that context.
3.4. The complainant described his lack of fluency in written English and the reasons for that lack of fluency. He described the difficulties he had encountered in his education, in particular that he was not able to access education through ISL. He stated that he acquires information through ISL and described the difficulties he encounters in learning English through ISL, particularly in obtaining resources for doing so. He said that his situation in this respect was analogous to a Polish person who does not have access to resources to learn English through Polish.
3.5. In this respect, the complainant stated that when the respondent saw that he was a deaf person it should have considered options for communicating with him, such as having a nominated customer service representative who would communicate with him directly by e-mail. If that failed, he said that it could have made an ISL interpreter available to communicate with him. He stated that making an ISL interpreter available to him would not be that expensive for the respondent. He stated that he did not agree with the respondent's claim that it had communicated with him as it had sent only automated responses to his e-mails. He stated that he was discriminated against in that context as a person who was not deaf would have known English and could have phoned the respondent.
3.6. In summary, the complainant expressed his surprise at what he saw as the respondent's lack of deaf awareness. He reiterated that the respondent did not use "plain" English in its correspondence with him and that the language it used was not suitable for a deaf person whose first language is ISL. With respect to the issue of time limits as raised by the respondent (see par. 4.1 below), the complainant stated that the first official complaint was 15th February, 2011 but it related to his letter to the respondent of 14th January, 2011.
4. Summary of the Respondent's case
4.1. The respondent submitted that the complainant did not, within two months of the alleged incident of discrimination, notify it of the nature of the allegation and his intention to seek redress under the Acts if not satisfied with the response. In that respect, it stated that the complainant has failed to comply with the requirements of Section 21(2) of the Acts. It stated that the last communication it had with the complainant was the automated response that was sent to him on 20th October, 2010 whereas the notification was not issued until 15th February, 2012. It stated that it had no record of having received letters from the complainant in either December, 2010 or January, 2011.
4.2. The respondent submitted that the complainant was treated in precisely the same manner as other users and as such there was no less favourable treatment of him. It submitted that he did receive replies to his e-mails of 8th, 10th and 15th October, which was the only correspondence it received in the matter. It stated that it could not tell the Tribunal what the invalid activity was as, for security reasons, its Fraud Detection Team guards its information very closely and had not disclosed this information, even to anyone else within the organisation itself. It explained that when an account is terminated, a customer receives a link to a plain English explanation of what has occurred. If that customer appeals, the appeal is then sent to a team who review the decision and conclude whether the decision should stand. It stated that this was the procedure that was operated in the case of the complainant.
4.3. The respondent stated that hearing people are not set at an advantage as communication with all customers with respect to the disabling of AdSense accounts is carried out solely through the same e-mail address used by the complainant. It stated that it could not entertain any customers by telephone due to the volume that it has of such customers. In any event, it stated that it could not tell them anything and could not have told the complainant anything in that context even if it had arranged a personal meeting with him. It stated that, in its e-mails to customers, it keeps its language very plain and denied that it discriminated against the complainant in that context. It further submitted that reasonable accommodation was not necessary in view of the fact that the complainant was fully able to avail himself of the AdSense service regardless of his disability.
4.4. The respondent stated that the provision of personal customer service is the wish of every AdSense customer. However, it stated that it would have to employ thousands of people to provide same. It added that it would have thought it would be quite expensive to send someone with ISL to speak with the complainant in any event. It outlined its deaf awareness policies and stated that it has a very active diversity and inclusion team. It stated that it generally does not provide telephone customer service to any customer about any matter, with the exception of its principal corporate customers. It stated that even if any customer had managed to make contact with the respondent (e.g. by dialling an extension number), no-one would speak with that customer about the disabling of an AdSense account.
5. Conclusions of the Equality Officer
Preliminary Matters with respect to jurisdiction
5.1. Section 25(11) of the Acts states that "For the purposes of this section prohibited conduct occurs -- (a) if the act constituting it extends over a period, at the end of the period, (b) if it arises by virtue of a provision which operates over a period, throughout the period". Insofar as the complaint's complaint relates to the alleged failure of the respondent to provide him with a method of communicating with it which was and is being provided to persons without a disability, or with a different disability, that failure is a continuing one. In that context, I am satisfied that the provisions of Section 25(11) of the Acts apply in this case. As the alleged discrimination is ongoing, the notification was served in time.
Substantive Matters
5.2. Section 38(A) of the Equal Status Acts 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. Therefore, in deciding on this complaint, I must first consider whether the existence of a prima facie case has been established by the complainant. 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. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
5.3. The complainant has made a complaint on the disability ground, and I must consider whether the respondent has discriminated against him on that ground. As the complaint is on the disability ground, I must also look, in accordance with Section 4(1) of the Acts, at whether the respondent did "all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities", and whether "if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service." If relevant to considering what is reasonable in this context, and in light of Section 4(2), I must take into account whether the provision of the special treatment and facilities referred to in Section 4(1) would "give rise to a cost, other than a nominal cost" to the respondent.
5.4. I am satisfied that the respondent does not provide any customer service to any person who wishes to raise a query concerning the closing of their AdSense accounts. I am satisfied that no person who wished (or wishes) to make such an inquiry is, was or would have been provided with a telephone number to contact it. Nor would they have been provided with a different e-mail address to the one made available to the complainant. I am satisfied that, even had such a person managed to get in touch with the respondent through any telephone number belonging to the complainant, they would not have been able to speak with a customer service representative about the matter.
5.5. Therefore, I am satisfied that any person who was or would be in the same or similar circumstances as the complainant was in this case, irrespective of whether or not they had a disability, would have been treated in the same manner by the respondent. In that context, this is an issue of customer service not one of discrimination as there was no less favourable treatment of the complainant by the respondent on the disability ground. Additionally, reasonable accommodation does not arise in this respect as the service would not have been provided to him in any event. Indeed, the provision of any special treatment or facilities to the complainant would have resulted in him receiving more favourable treatment than someone without a disability or someone with a different disability to him.
5.6. The complainant also submitted that the respondent was obliged under the Acts to communicate with him in "plain" English as English is not his first language. While this submission was based primarily on the issue of the provision of further customer service to him and is thus irrelevant when there is no discrimination on that basis, this submission also related to the fact that the e-mails he did receive from the respondent were alleged by him not to be in "plain" English. The issue here is not whether the complainant was treated less favourably because of his disability but whether the respondent was obliged to provide him with reasonable accommodation and failed to do so. In that respect, the first question that arises is whether it was impossible or unduly difficult for the complainant to communicate with the respondent in written English as, if it was not, then Section 4 does not arise.
5.7. The complainant's frustration in describing the serious obstacles that he has encountered in his education was evident. I fully understand that the resources available to assist him in learning written English are limited. I also appreciate that, as a deaf person, the challenges that the complainant encounters in everyday life are manifest. However, having carefully examined the correspondence provided by the parties in that respect, and while it is clear that the complainant's comprehension of written English was limited, he was able to communicate effectively with the respondent in the context of the issues at stake in this complaint. Therefore, in all the circumstances of the present complaint, it cannot be said that it was impossible or unduly difficult for him to do so. Thus, reasonable accommodation does not arise in that context. I do not need to consider the matter any further.
6. Decision
6.1. Having investigated the above complaint, and having concluded my investigation, I hereby make the following decision in accordance with Section 25(4) of the Equal Status Acts:
6.2. I find that the complainant has failed to establish a prima facie case of discrimination of him by the respondent on the disability ground in terms of Sections 3(1)(a), 3(2)(g) and Section 4(1) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts.
6.3. The complainant's case fails.
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Gary O'Doherty
Equality Officer
22nd May, 2012