Complainant

Respondent

Parties

Mary Byrne

Manager/Board Of Management Woodenbridge Golf Club

Representatives

Mr. Francis Daly, B.L.

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00011973-001

17/06/2017

The complainant said she wanted to play golf at the respondent’s Golf Club on a day that a male only “open day” competition was being held. She claims that she was not allowed to play and the only reason given to her was that she was female. She claims that there was no justified reason for the respondent to refuse her to play, and that it should have ran a parallel competition for women at the same time. Accordingly, she claims that she was discriminated against by the respondent on the gender ground.

The respondent refutes the claim that the complainant was discriminated against. It claims that it does not discriminate. It claims that it was holding a men’s competition at that point in time. The complainant was invited to use the golf course later on in that day when the competition was over. It claims that is also runs women only competitions where men would have to wait to use the golf course until after such competitions are finished.

The following is a short summary of the complainant’s case.

The complainant is a keen golfer and claims that herself and her husband retired a few years ago and have gone on many mini-breaks to various parts of the country. She claims while on these breaks she generally tries to locate “open days” in nearby golf clubs. She said that these “open days” allow members of the public, who hold official golf handicaps, to play the course at a very much reduced rate. She said that she had noticed that a large percentage of these open days are open to men only. However, she said that she generally manages to locate some golf course close by to where they are staying which allow for both women and men to play side by side in open day golf competitions. She claims that there is no justifiable reason, other than “blatant misogyny”, as to why there are men only open days in this day and age. She said that many golf clubs have now moved into the 21st Century but she felt that the respondent has not. The complainant claims that golf is one of those sports where men and women can play side by side, not segregated based on gender, as men and women competitions can be run concurrently successfully.

The complainant claims that she and her husband had booked into the Woodenbridge hotel for three nights on 23 May 2017, she said that they hoped to play golf in a nearby club open day on 24 and 25 May. She said that she checked the Golfnet website, a website ran by the golfing unions, which advertises club open days. She said that there were a lot of reasonably priced open days in nearby clubs. She said that she went into Woodenbridge golf club’s professional shop at around 10.30am on Wednesday 24 May, having checked the Golfnet website she saw they were hosting an open day on that day. She said that she was informed that there were spaces available in the competition but she was told that she could not play because it was a “male only” competition and she was female. She said that her husband could play there and then at a reduced open day rate but she was told that she could play at a different time and would have to pay the regular green fees. She said that she pointed out to the golf club’s professional that it was unfair that she could not play the golf course at the same time as her husband, that she would have to pay more and play at another time simply because she was female. She said that the Club professional said something about ladies having an open day some other time. She said that this was blatant inferior treatment because of her gender and it really upset her.

She said that she notified the respondent of her grievance and was unhappy with their reply.

She argued that the respondent attempts to use a "separate but equal" doctrine as justification for the discrimination. She said that this justification of discrimination was rejected in case law decades ago. She said that the respondent states that open day "competitions are organised throughout the year for both gentlemen and ladies and a similar number of competitions are available for both genders". She claims that this is not exactly correct, that having checked the Golfnet website for 2017, Woodenbridge advertises 36 open days for "men only" but only 17 open days for "ladies only". She said Woodenbridge also advertises 7 open days where both men and women can play side by side. She said that there is no justifiable reason why all the respondent’s open days cannot be open to both genders, as males and females can enjoy the benefits of the golf course at the same time.

In relation to the legal points raised by the respondent in their submission the complainant asked me to consider the following,

She said that Section 5(2)(f) is similar to Section 9(1)(e) of the Equal Status Act. Section 5(2)(f): “differences in the treatment of persons on the gender, age or disability ground or on the basis of nationality or national origin in relation to the provision or organisation of a sporting facility or sporting event to the extent that the differences are reasonably necessary having regard to the nature of the facility or event and are relevant to the purpose of the facility or event,”

She said that the respondent asserts that opening the golf course to male members and male members of the public only and excluding female members and female members of the public, is “justifiable discrimination” because of the exemption in Section 5(2)(f). She said that the respondent seems to be claiming that this exemption allows it to escape section 5(1) of the Equal Status Act altogether. She claims that on that line of reasoning all golf clubs can forever discriminate (on the basis of age, gender, disability and national origin) at will and call it “justifiable discrimination”, because they can use Section 5(2)(f) to escape the Section 5(1) of the Equal Status Act and Section 9(1)(e) to escape Section 8 of the Equal Status Act. She said on that basis of reasoning the only application of the Equal Status Act to females is that the club must admit them for membership. With regards to use of the course or playing facilities, the club can discriminate at will and call it “justifiable discrimination”.

She said that she understands that the Equal Status Act was designed to promote equality and prohibit discrimination and therefore that any exemptions must be construed in the narrowest possible sense, to avoid defeating the purpose of the legislation. She said that she considers that the respondent is interpreting Section 5(2)(f) way too liberally. She said that she accepts that Section 5(2)(f) may allow for male only golf competitions and female only golf competitions. Also, Section 5(2)(f) may allow for female tees to be forward from the male tees. However, the respondent is “taking it a step too far when they state that Section 5(2)(f) also allows them to allow male members and male non-members to have exclusive use of the course and exclude female members and female non-members”. She said that there is no justifiable reason why the female and male competitions cannot be run simultaneously as because of its nature, the facility can be used by both genders at the same time.

The complainant said that excluding female members and female non-members in order that male members and male non-members can have exclusive use of the golf course indirectly discriminated against her contrary to Section 3(1)(c) of the Equal Status Act. She said that Section 3(1)(c) states that where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. The complainant said that she did not know what “legitimate aim” is involved in excluding women from the golf course.

The complainant said that in other jurisdictions outside of Ireland that there is case law that supports her contention that restrictions on women’s access to tee-times has always been considered unjustifiable gender discrimination.

The respondent is a Golf Club. It claims that it holds “open day competitions” to give an opportunity for non-members to play the course and for the Club to make much needed funds. It said that it runs a number of different open day competitions throughout the year and many of them are advertised on the Golfnet website but not all of them. It said it holds a range of competitions, male only competitions, female only competitions and mixed male and female competitions. It holds youth competitions and senior competitions. Outside of these competitions, any member of the public, male or female are allowed to play the course and pay the set green fee which is the same for males and females.

The respondent said that it cannot run competitions that are not viable and it tries to manage its definite resources in the best interest of the Club and to meet its financial needs. The respondent gave a presentation of the membership of the Club and went at length to demonstrate that membership is open to both men and women, and sharing of the administrative and honorary roles within the Club is shared by both sexes. The respondent said that it was specifically hurt in the complainant’s comments. The respondent explained how well the ladies and gentlemen committees work together in the best interest of everyone at the Club, it presented witnesses at the hearing to testify the harmony within the Club. The respondent set out in broad terms the efforts to run an open day competition and the need of its members to volunteer to set up the course, help run the event on the day and help with the post event duties. It explained the work involved in running competitions and the viability of completions is based on supply and demand. It said there is simply more of a demand for some completions over others.

The respondent said that open days are held during the week in an effort to encourage more people to play the course when its less in demand. The weekends are left open for its own Club members and members of the public who are willing to pay the green fee admission. The open days are organised on a simple supply and demand basis. When the demand for a particular competition is higher than all others it is an economic reality that it supplies that service more often. The respondent said that the Club would have a 3:1 ratio of men to women membership which is on par with the national average approximately.

The respondent said that section 5(1) of the Equal Status Act “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, that is tempered by subsection (2) where 12 different exceptions in which Section 5(1) do not apply. Most notably Section 5(2)(f), which provides for “differences in the treatment of persons on the gender, age or disability ground or on the basis of nationality or national origin in relation to the provision or organisation of a sporting facility or sporting event to the extent that the differences are reasonably necessary having regard to the nature of the facility or event and are relevant to the purpose of the facility or event,”

The respondent said its ability to provide and support gender-specific open competitions remains an important feature for the fair running of the sport.

The respondent said in reply to the complainant’s submission that the respondent’s use of the exception provided for in the Equal Status Act is a means of “escaping section 5(1)” demonstrates her lack of understanding of the purpose of the legislation and applicable exceptions. The exceptions provided for under section 5(2) were deliberate and intentional and reflect the plain intention of the Oireachtas. The inclusion of the exclusions in the Act reflects an understanding that if a direct application of section 5(1) were to apply, without any consideration for the material facts of a given situation, same could be deemed a contravention of the Act which would be unfair and unjustified. For this reason, the Oireachtas included twelve exceptions where section 5(1) will not apply and where the discrimination complained of will be deemed lawful.

The respondent said that the complainant herself in her own submissions said that she “accepts that section 5(2)(f) may allow for male only golf competitions and female only golf competitions but states that the respondent is taking it a step too far when it allows male members and male non-members have exclusive use of the course and exclude female members and non-female members”. The respondent said that given the contradictory nature of this position, the respondent believes it is fair to intimate that the incident in question centres round convenience or inconvenience as it were, as opposed to discrimination. It said that neither the complainant nor her husband were precluded from playing the course before or after the open day competition, albeit for the standard green fee. The respondent said that it is also worth bearing in mind that had the complainant sought to play golf the day before, on a day when a “ladies only open competition” had been scheduled, her husband would have been refused entry for the period that competition was running.

In relation to the logistics involved in running an open competition the respondent referred to the necessary administration of an open day competition, what is needed to be undertaken in advance of the competition and throughout the day of the competition and the difficulties that would naturally arise in the event of a participant who was not registered to play seeking to participate, especially in circumstances where the course was set up to accommodate the particular participants in question. It said that the exact same principles would apply if a ladies-only open day competition or indeed a mixed open competition were scheduled for a specific day. The respondent said that changing or adopting the format of a course as suggested by the complainant to permit gender-specific competitions to run concurrently would increase the work load of the individuals tasked with running the competition thereby adding a strain on resources and diminish or interfere with a participant’s enjoyment and ability to play the sport. It said that ultimately such a decision would have an adverse effect in such revenue-generating competitions and golf clubs would struggle to survive.

The respondent said that it is certainly not a Club that could, in any manner, be considered as a discriminating club. It goes to great lengths and strides to ensure that the services it provides to the public, as well as its members, are fair, equitable and accommodative to both genders in as far as possible. The open days it provides are vital for the continued success of the Club and generate much needed revenue for the Club to ensure it survives in a time in what has become very challenging for clubs. It said that it is extremely unfortunate and disappointing that the complainant felt discriminated against and this was not its intention and goes against all efforts to ensure its continued compliance with the Equal Status Acts.

I must first consider whether the existence of a prima facie case has been established by the complainant. Section 38A 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 she can rely in asserting that prohibited conduct has occurred in relation to 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.

In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.

The issue for consideration by me is whether or not the respondent discriminated against the complainant on the grounds of gender contrary to Section 5 of the Acts.

The relevant law

I note in Section 2 of the Equal Status Acts the term “service” refers to: ‘‘service’’ means a service or facility of any nature which is available to the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes — 

(a) access to and the use of any place, 

(b) facilities for — 

(i) banking, insurance, grants, loans, credit or financing, 

(ii) entertainment, recreation or refreshment, 

(iii) cultural activities, or 

(iv) transport or travel, 

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and 

(d) a professional or trade service, but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies;” 

I note in Section 3 of the Equal Status Acts provides for

3.— (1) For the purposes of this Act discrimination shall be taken to occur —

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B) , (in this Act referred to as the ‘ discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

( a) that one is male and the other is female (the “gender ground”),

…

I note in Section 5 of the Equal Status Acts refers to the disposal of goods and provisions of services. Section 5(1) states:

“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."  

Conclusions

I am satisfied that Section 5 of the Equal Status Acts is the applicable section of the Act that I will be considering the case under.

I am satisfied that although general references were made with regard to section 8 (discrimination clubs - membership) and section 12 (prohibited advertisements) they were not argued in this case and do not apply to the thrust of the case presented by the complainant.

It is clear that the crux of this case from the evidence adduced is that the complainant wanted to play golf with her husband on a particular day and time at the respondent’s Golf Club. I have heard and it has not been disputed that at that particular time, the respondent was running an open day for a “men only” competition. Accordingly, the complainant was excluded from the competition and from using the golf course while this competition was in progress. I note that she was invited to return to play after the competition was over. I note that there was a difference in the fee charged to play the competition and the regular green fee charged for anyone who was not playing the competition and was not a member of the Golf Club. It is the complainant’s position that she has been discriminated against by the respondent by not allowing her to play with her husband during the male only competition.

I note that the respondent states that Section 5(2)(f), provides for “differences in the treatment of persons on the gender, age or disability ground or on the basis of nationality or national origin in relation to the provision or organisation of a sporting facility or sporting event to the extent that the differences are reasonably necessary having regard to the nature of the facility or event and are relevant to the purpose of the facility or event,” The respondent said its ability to provide and support gender-specific open competitions remains an important feature for the fair running of the sport. It referred to the different events it provides and the different requirements and how they are run. I note both parties agreeing on the suggestion that the ratio roughly men to women player membership/playing population in the country is 3:1. I see that the complainant cites that the number of open day events listed on Golfnet for the respondent are 36 open days for "men only" but only 17 open days for "ladies only". A rough calculation would suggest that this ratio is much favourable than the 3:1 men to women golf playing populations. I note how these events are organised and run. I note that the demand for certain competitions is the main and significant factor for organising such events and the respondent needs to make critical economic decisions in the best interests of the Club’s future on behalf of its members. Notwithstanding the complainant’s view that it is as easy to run a mixed competition as a gender-specific competition I note that there is a difference and additional resources including human resources are required to do so.

I note the complainant’s view remarkably that section 5(2)(f) does allow for gender specific only competitions where she said “[i]accepts that section 5(2)(f) may allow for male only golf competitions and female only golf competitions but the respondent is taking it a step too far when it allows male members and male non-members have exclusive use of the course and exclude female members and non-female members”. In essence I believe that is where the case lies, Section 5(2) is clear that discrimination shall not apply in a restricted list of situations. The provisions of Section 5(2)(f) are written in very clear and simple language and I suggest were inserted into the legislation to protect against the possible erosion of our societal needs having regard to the nature of limited facilities and the running of specific events. The complainant appears to believe that the respondent has over relied on that provision. However, the evidence does not support that.

I am satisfied that the respondent is entitled to run its affairs in the best interest of its membership having regard to what is fair and reasonable and not discriminatory in the provision of its services to its members and the public generally. I am satisfied that the respondent allows access to its services in a non-discriminatory fashion. I am satisfied that it runs many different types of events to encourage non-members to use it facilities at times that impinges less on its own membership’s use of the facility. The decision around what competitions are organised are based on demand, simple economics, volunteer capacity and resource availability within the Club to cater for running these events. I am satisfied that Section 5(2)(f) allows the respondent to hold specific competitions and therefore causes for a difference in the treatment of persons on the gender and indeed on the age ground in relation to the provision of its sporting facility and/ or hosting event having regard to the nature of the facility and/or event. Section 5(2)(f) provides for, in particular, sporting facilities and hosting specific sporting events. I find that the respondent is entitled to rely upon section 5(2)(f) as a defence in this case.

In relation to the Section 3(1)(c) claim – indirect discrimination – an apparent neutral provision has not been argued in this case insofar in relation to indirect discrimination. The complainant’s case as presented relates to the exclusive use of the Clubs facilities at the time and date the complainant wished to use those facilities, which I am satisfied relates to direct discrimination on the gender grounds and has been dealt with above.

Accordingly, to summarise, I find that the complainant was refused entry to use the respondent’s facilities solely on the basis of her gender and therefore she has established a prima facie case of direct discrimination on the gender ground under Section 5(1), as she was refused to avail of the respondent’s services on the day and time in question.

However, the respondent has satisfactorily outlined the reasons for its decision and accordingly I am satisfied that it can avail of section 5(2), the exceptions in which Section 5(1) do not apply. Most notably Section 5(2)(f), which provides for “differences in the treatment of persons on the gender, age or disability ground or on the basis of nationality or national origin in relation to the provision or organisation of a sporting facility or sporting event to the extent that the differences are reasonably necessary having regard to the nature of the facility or event and are relevant to the purpose of the facility or event,”

I find that the complainant has established a prima facie case of discrimination on the gender ground in terms of sections 3(1) and 3(2)(a) and section 5(1) of the Equal Status Acts and that the respondent has succeeded in rebutting the inference of discrimination.

Accordingly, I find in favour of the respondent in relation to the above matters. I find that complaint fails.