ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000515
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 |
CA-00000722-001 |
05/11/2015 |
Date of Adjudication Hearing: 21/04/2016
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 25 of the Equal Status Act, 2000 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
The Complainant stated that on 26 August 2015 he and his wife attended an event in the premises operated by the Respondent. The Complainant stated that during the event in question a named singer openly and specifically invited the audience to join in ridicule of English people in a way that he (the singer) openly and specifically said he would not want to ridicule an Irish person in the same position.
The Complainant submits that the invitation to ridicule began at the introduction to a song about a singer from Birmingham (England) who sang American folk songs with a fake American accent. According to the Complainant, the singer informed the audience that he wrote the song about somebody from Birmingham because he did not want to offend anybody from his own country (Ireland) so he chose somebody English instead.
The Complainant stated that the invitation to ridicule, which was contained in the singer's introduction to the song, constituted harassment on the grounds of race. The Complainant went on to say that while it was the singer's remarks during the introduction to the song that constituted their harassment, the song itself could be considered to have reinforced it.
According to the Complainant the audience laughed in response to the singer's comments. The Complainant asserted that the laughter was prompted by the singer's assertion that it was permissible to insult the English in a situation where it would not be permissible to insult the Irish.
The Complainant submitted that he felt extremely uncomfortable as an Englishman and the mocking laughter of the audience compounded this feeling. The Complainant stated that as a result of this he started shaking and had to leave the auditorium where the performance was taking place.
The Complainant submits that he complained to the Respondent's manager who informed him that the matter was not her concern. He further stated that the manager did, however, offer to inform the promoter of the event about the situation. According to the Complainant the manager went away and came back sometime later saying that the promoter would ring him the following day if he provided contact details.
The Complainant stated that he advised the Respondent's manager that he would like to speak to the promoter and provided his details. However, according to the Complainant the promoter made no contact with him. Consequently, he proceeded with his complaint against the Respondent.
In support of his complaint of harassment the Complainant stated that such racial stereotyping provides the justification for the day-to-day discrimination any English person living in Ireland constantly endures. He submits that, more importantly, such racist assumptions about how to interact with other races have been proven to facilitate the targeting of groups and individuals via hate crime. Consequently, he considered this to be a hate incident. The Complainant stated that he was victimised by the singer's words and the audience joined in this victimisation by laughing.
The Complainant submits that this incident took place during a public performance in which the singer's opinion was presented as a fact. The Complainant also suggests that the singer expected his audience to share the opinion and no opportunity was provided for an alternative viewpoint to be presented.
The Complainant submits that the words were targeted at English people and were expected to cause insult. He further submits that the comments deliberately provoked laughter at a racial minority. The Complainant stated that he perceived the laughter as hostile and hateful because of all the racial slurs and taunts he suffers on a day-to-day basis because of his accent.
The Complainant stated that empirical academic research has shown that what might be called disparagement narratives of the kind indulged in by the singer in this situation, have a long-term effect that supports the continuation of discrimination towards the disparaged grouping. He suggested that, in particular, those who are already prejudiced when they encounter racist humour on a public stage are more likely to perceive a social norm of tolerance of discrimination against members of the disparaged. In addition, the Complainant submits that it strengthens and reinforces any tendency to hatred towards the disparaged group and must, therefore, be seen as a hate incident.
In summarising, the Complainant stated that comedy is a great device for bringing people together by creating an understanding. However, he stated that deliberately offensive jokes do the opposite. He stated that such jokes create insiders and outsiders and have the ultimate impact of reinforcing existing racial hatred.
Respondent’s Submission and Presentation:
Background to Complaint:
The Respondent confirmed that the incident giving rise to the complaint took place while the support act to the main attraction was performing.
According to the Respondent when the singer was introducing one song he described the background leading to him writing the song. He described being inspired by singers who sang country and western songs in an American accent despite not having an American accent. In explaining this inspiration he referred to "people from Birmingham.....and I don't mean the one in Alabama."
According to the Respondent, rather than having a racial element, the object appeared to be to make fun of singers when they took on an American accent when they are not American and who do not usually speak with an American accent. The Respondent contended that the remarks were made in a light-hearted manner and the song was also performed in that manner.
The Respondent submitted that staff of the venue became aware that the Complainant was unhappy because he left the auditorium. The Respondent stated that the Complainant complained at the ticket desk and also asked to speak to management. The Respondent further stated that, after having made his complaint, the Complainant returned to the auditorium where he attended the performance of the main attraction on the bill.
Preliminary Application:
Before responding to the substantive complaint, the legal representatives for the Respondent submitted, by way of preliminary application, that the Complainant's claim should be dismissed pursuant to Section 22 of the Equal Status Act, on the basis that it is frivolous and misconceived.
In support of this preliminary application, the representatives of the Respondent submitted that the Complainant was not, at any stage, identified as being the subject of the intended humorous comment nor was he capable of being identified as being the target of such humour. It was contended on behalf of the Respondent that the circumstances represented an innocent attempt at humour by the singer and it was not intended to, nor did it, discriminate against and/or harass the Complainant.
It was submitted on behalf of the Respondent that the Complainant's reference to the incident as "racial stereotyping" and as a "hate incident" is blowing the matter out of all proportion. Consequently, it is submitted on behalf of the Respondent that the complaint is frivolous.
Furthermore, the Respondent submits that the complaint is misconceived. According to the legal representatives for the Respondent, the Complainant's grievance is clearly against the performer as opposed to the Respondent. It is further submitted that the Respondent had no control as regards the content of the singer's performance.
Substantive Complaint:
(1) Discrimination,
The Respondent denied that they discriminated against the complainant because of his race and/or treated him unlawfully by allowing him to be harassed.
The Respondent submits that the Complainant has not established facts that will allow a presumption of discrimination against him on the basis of his nationality. The Respondent contends that the remarks by the singer and the song were part of a musical performance, which was made in a light-hearted manner.
The Respondent submits that the Complainant was not discriminated against, as he was not treated less favourably than any other person in the audience on the night in question on the grounds of his race and none of the actions or words complained of could be said to have identified or inferred an identification of the complainant.
Consequently, the Respondent submits that it does not accept that the Complainant can establish a case of discriminatory treatment in accordance with Section 3(1) of the Equal Status Acts 2000.
In addition, it was submitted that, in any event, the Respondent would seek to rely on Section 5(2)(i) of the Equal Status Act, which offers an exception to Section 5(1), and allows differences in treatment of people on the grounds of race as reasonably required for reasons of authenticity, aesthetics, tradition or custom connected with dramatic performance or other entertainment.
(2) Harassment:
The Respondent denies that the Complainant was harassed or allowed to be harassed in that the conduct or words complained of did not and could not have had a purpose or effect of violating the Complainant's dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Complainant.
The Respondent submits that it is incorrect for the Complainant to state that the singer specifically invited the audience to join in ridicule of English people. The Respondent stated that in its view, the ridicule, if any, was of those people who took on an American accent when they were not American and did not usually speak with an American accent. The Respondent contends that, in that case, it cannot be said that the ridicule was invoked as any particular racial background.
The Respondent submits that, despite contending that the song performed by the singer reinforced the harassment, the Complainant did not provide any detail with regard to the specific content of the song in support of his claim that it was offensive.
The Respondent denied that the Complainant's dignity was violated in any significant manner evidenced by the fact that the Complainant's complaint was listened to by the Respondent's management and the position explained to him in a courteous manner. It was further submitted on behalf of the Respondent that the Complainant remained within the venue and took advantage of the facilities of the bar before returning to the second part of the show for the performance of the main act.
(3) Reasonableness:
The Respondent submits that it prides itself on providing an exciting diversity of artistic and entertaining events in a variety of genres. The Respondent further submits that given the diversity of those activities, it has a wide range of customers including audiences, artists, performers, members of the public, business interests, tourists etc. The Respondent drew attention to its customer charter which sets out that its aim is to ensure that each customer's rights to equal treatment is upheld in the delivery of their services and that it is fully compliant with its obligations under the Equality Act.
The Respondent further submits that it cannot censor musicians and other performers. It further contends that it would be unreasonable to require performers to script their performances prior to show as this would certainly stifle creativity and interfere with the authenticity of the performance. It was submitted by the Respondent that when the Complainant complained about this incident it was explained to him that the Respondent does not and cannot censor an artist's material.
Consequently, the Respondent submits that it would be unreasonable to be expected to censor performer's work or to foresee a performance causing offence to a customer when the performer in question had not had any previous complaints made about them, as far as the Respondent was aware.
The Respondent also submitted that the performer in question had not been hired directly by them but had been brought to their venue by a reputable promoter.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 25 of the Equal Status Act, 2000 - 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
Issues for Decision:
The issue for decision is whether the Complainant was discriminated against by the Respondent in that they permitted him to be exposed to a discriminatory act which constituted harassment contrary to the provision of the Equal Status Act
Legislation involved and requirements of legislation:
This investigation was carried out under the Equal Status Act 2000 - 2015
Decision:
The Complainant contends that the Respondent discriminated against him on the grounds of race by allowing him to be harassed by a singer who was performing in the venue owned by the Respondent. In determining the validity or otherwise of the Complainant's claim in this regard, it was necessary to consider a number of different aspects.
Preliminary Application:
Firstly, I'm required to consider the preliminary application made on behalf of the Respondent that the Complainant's claim should be dismissed pursuant to Section 22 of the Equal Status Act, on the basis that it is frivolous and misconceived.
Section 22 of the Act states as follows:
"The Director may dismiss the claim at any stage in the investigation if he or she is of the opinion that the claim has been made in bad faith or is frivolous or vexatious or relates to a trivial matter."
The Respondent's application to have Complainant's claim dismissed under Section 22 of the Act is based on the twin premise of it being frivolous and misconceived. While the Act itself does not define what is meant by "frivolous", I believe that any claim being so described would have to be considered as being without any serious purpose or value.
Having carefully considered all the evidence adduced both in the written submissions and at the oral hearing, I was struck by the depth of conviction displayed by the Complainant in terms of the impact the incident in question had on him. Consequently, I am satisfied that his pursuit of his complaint could not be construed frivolous.
The second element of the Respondent's application for dismissal under Section 22 of the Act pertains to its view that the complainant is misconceived. The Respondent submits that the Claimant's grievance is against the performer in question. The Respondent further submits that as it had no control as regards the content of the singer's performance, the complaint being pursued against it is, therefore, misconceived.
The established facts of this case are that the Respondent's premises was hired, under legal contract, by a large entertainments promoter, who in turn contracted two entertainers to perform on the night. One of those performers is the subject of the Complainant's complaint of discrimination and harassment.
Having carefully considered all the evidence adduced in this regard, I am of the view that there is significant validity to the claims being made by the Respondent in this regard. It is clear that the Respondent is at a two step remove from the alleged act of discrimination and I am of the view that the Respondent in this case shoulders least, if any, responsibility for the alleged act of discrimination.
However, notwithstanding the conclusions in the previous paragraph, I must find against the Respondent in this regard, on the basis that Section 22 of the Act does not provide for the dismissal of the complaint on the grounds that it is or maybe misconceived.
I am satisfied that there is no evidence to suggest that the Complainant's claim was made in bad faith or is frivolous, vexatious or trivial in nature. Consequently, the Respondent's application for dismissal under Section 22 of the Act is denied.
Discrimination/Harassment:
Having found against the Respondent in relation to the preliminary application to have the Complainant's claim dismissed under Section 22 of the Act, I am then required to consider the substantive element of the complaint.
Section 5 of the Equal Status Acts 2000 to 2015 defines "harassment" at Section 5, as follows:
"Harassment takes place where a person subjects another person (“the victim”) to any unwelcome act, request or conduct, including spoken words, gestures or the production, display or circulation of written words, pictures or other material, which in respect of the victim is based on any discriminatory ground and which could reasonably be regarded as offensive, humiliating or intimidating to him or her."
It is clear from the evidence submitted by the Complainant that he considered the comments made by the singer during his introduction to a particular song, to have been offensive, humiliating and intimidating to him and to his partner, who accompanied him on the night and who is of the same race as the Complainant.
In addition, Section 5 (1) of the Act states that:
"A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public".
However, the Respondent submits that the legislation provides a series of exceptions where the above section of the Act does not apply. In particular, the Respondent submits that the specific matter been complained of by the Complainant is covered by the exception contained at Section 5 (2) (i) of the Act which states as follows:
(2) Subsection (1) does not apply in respect of—
(i) "differences in the treatment of persons on the gender, age or disability ground or on the ground of race, reasonably required for reasons of authenticity, aesthetics, tradition or custom in connection with a dramatic performance or other entertainment."
I am satisfied that the particular situation being complained of by the Complainant is specifically covered by the above subsection and, therefore, must conclude that Section 5 (1) of the Act does not apply in this situation.
Reasonableness of the complaint:
Finally, I considered the reasonableness of the Complainant's complaint under a number of specific headings.
Firstly, I consider the application of Section 11 (3), which states as follows:
"It shall be a defence for the responsible person to prove that he or she took such steps as are reasonably practicable to prevent the sexual harassment or harassment, as the case may be, of the other person referred to in subsection (2) or of a category of persons of which that other person is a member."
As has already been stated, the Respondent was actually two steps removed from the alleged act of discrimination. The Respondent submits that it cannot censor musicians or other performers and that it would be unreasonable to require performers to script their performances prior to show. It is contended that this would stifle creativity and interfere with the authenticity of a performance.
While I accept and agree with the Respondent's submissions as set out above, I am also of the view that even if the Respondent sought to script a performance in advance, they have no way of ensuring that performer stays on script and/or other does not ad lib when on stage.
The Respondent had a contract in place with the promoter covering all aspects of the event. I am satisfied from the evidence presented, that the selection of the artists to perform on the night was at the complete discretion of the event promoters. I am further satisfied that the Respondent had no prior indication of the material to be performed by the artist in question.
Consequently, taking all the above into consideration, I conclude that, in the circumstances pertaining in this situation, the Respondent could not reasonably have been expected to have taken any further or more effective steps to vet or check the performer's material in advance of the show.
Finally, is clear from the evidence presented by the Complainant during the oral hearing that he was very dissatisfied with the manner in which the Respondent responded when he raised the matter with the venue manager after he (the Complainant) had left the auditorium following the allegedly discriminatory comment by the performer. In his evidence, the Complainant stated that the Respondent refused to either accept responsibility for the situation or provide him with his money back.
As already stated above, the Respondent submits that it could not be held responsible for any comments made by the artist in question during his performance. In addition, the Respondent stated in evidence that it was not in a position to refund the Complainant or any other patron as the ticket sales and the proceeds thereof were solely matters for the promoter and the Respondent did not have any flexibility or discretion in this regard.
In addition, from the evidence submitted at the oral hearing, I am satisfied that the Complainant also accepted that the Respondent did not, in effect, have responsibility for the comments made on stage by the artist. This view is based on the Complainant's acknowledgement, when questioned in this regard at the oral hearing, that if he had received his money back on the night in question he would not have pursued his complaint. He further clarified this position by stating that in circumstances where he got his money back he would have accepted that it was not the Respondent's fault.
Consequently, taking all the above into consideration and for the reasons stated above, the Complainant's claim is not upheld and I find in favour of the Respondent.
Dated: 25th July 2016