Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00018162-001

21/03/2018

The Complainant says that she suffered discrimination under the terms of the Equal Status Act, 2000. She says that the discrimination occurred in the Respondent’s store and was perpetrated by an employee of the Respondent, on the 28th December 2017.

The Complainant’s case is that she entered the Respondent’s store on the 28th December 2017 and spoke to her mother, who is an employee of the Respondent about car keys and the return of a bottle of perfume – an unwanted Christmas gift – to another store, for her sister.

She says that while this conversation was in progress that an employee of the Respondent, known to the Complainant, came by and asked the Complainant, in an aggressive manner, “have you nothing better to be doing”. She said that the employee continued to be abusive asking the Complainant to come outside to fight or to do so later when her workday finished.

The Complainant said that she ignored much of this even though she said the employee was now shouting. She says that as the employee was moving away she said, in a loud voice, in front of other customers, “you are only a lesbian”.

She says that she was discriminated against by the words spoken and by the circumstances in which they were spoken.

She says that she complained to the management of the store, on the day, but has not had any response to date.

She says that she was the victim of discrimination and harassment on the basis of her sexual orientation.

She goes on to say that “Section 3 of the Equal Status Act 2000 defines ‘discrimination’ in general and prohibits direct discrimination on the basis of sexual orientation as follows:

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

The Complainant goes on to say that Section 11(5)(a) of the Act of 2000 says that:

(i)                  References to harassment are to any form of unwanted conduct related to any of the discriminatory grounds and

(ii)                References to sexual harassment are to any unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct that in either case has the purpose 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 paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other materials,

She goes on to deal with the burden of proof in this case, citing Section 38A of the Act as follows:

“Where in any proceedings facts are established by or on behalf of a person, from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the Respondent to prove the contrary”

She says that the standard of proof is on the balance of probabilities i.e. that it is more likely than not that the proposition is true.

She goes on further to deal with the issue of vicarious liability, citing Section 42 of the Act:

“Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated, for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval”

Finally the Complainant cites the case of O’Regan v The Bridge Hotel, Waterford, DEC-2004-037, where the Equality Officer found the Claimant was discriminated against when asked to leave a hotel because he was gay.

The concluding remarks from the Complainant contend that she has been subjected to direct discrimination and harassment by the Respondent as prohibited by the Equal Status 2000.

The Respondent’s submission commenced by recounting the spoken words as reported by the Complainant and the conversations that took place by way of follow-up on the day. These conversations conducted by the store manager with the employee accused of making the discriminatory statement and the Complainant’s mother, who was there at the time of the exchanges between the Complainant and the employee referred to above.

They say that the employee said that she did not recall using the discriminatory words allegedly uttered.

They say that in order to succeed in her claim for discrimination under the Act, that the Complainant must have been in the store to purchase something or to consider purchasing something. If this was not the case then they say “it is clear that the matter giving rise to the Complainant’s complaint falls outside of the scope of Section 5(1) of the Act”. They go on to say that “that being the case, the Respondent submits that the Adjudication Officer does not have jurisdiction to consider the within complaint”.

They then turn to consider the matter of the burden of proof quoting from 38A(1) of the Equal Status Act, which provides that:

“Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the Respondent to prove the contrary”

They say that that this provision is analogous to Section 85A of the Employment Equality Acts,1998-2015 which provides that:

“Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary”.

They go on to cite Labour Court decisions dealing with the burden of proof.

In the case of Teresa Mitchell v Southern Health Board [2001] ELR 201, the Labour Court held that:

“The first requirement is that the Complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a Complainant must prove, on the balanced of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the significance of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment”.

They say that the Complainant and the employee of the store knew one another and were accustomed to banter with one another and that this had nothing to do with the Respondent.

They say that the store employee denies making the discriminatory remarks.

There were witnesses -the Complainant’s mother and grandmother inside the store and a shop assistant from a store directly facing the store in the instant case - who heard the argument and the words used by the employee of the Respondent. They gave evidence to this affect.

I find that the complained-of words were spoken by the store employee. She seemed to remember everything else she said but “could not recollect having said” the words complained of.

This was all within 24 hours of the discussion.

Section 11(5)(a) of the of the Equal Status Act, 2000 says—

(i)                  References to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii)                References to sexual harassment or 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.

I find that the comments made to the Complainant were in breach of the Equal Status Act, 2000.

I also find that the Respondent is vicariously liable for the actions of their employee in accordance with S. 42 of the Equal Status Act, 2000.

I award the Complainant 2000 Euro as redress for the discrimination she suffered.