This decision was corrected by notice in writing dated 19th of February 2019 pursuant to powers at section 29(2) of the Equal Status Acts and should be read in conjunction with Adjudication Officer Decision DEC-S2018-020 issued on 9th of November 2018.
EQUAL STATUS ACTS
DECISION NO. DEC-S2018-020
PARTIES:
Jonathon Brennan
-v-
Noel Tuite t/a Beulah Print
FILE NO: et-155724-es-15
Date of issue: 9th of November, 2018
- Dispute
This dispute involves a claim on behalf of the complainant that he was discriminated against and harassed by the respondent, on grounds of sexual orientation and religion when the respondent, a provider of a printing service, refused to print invitations in respect of the complainant’s civil partnership.
2. Background
2.1 The complainant referred a complaint under the Equal Status Acts, 2000-2015 to the Equality Tribunal on the 29th of April 2015. It is submitted that the complainant had contacted the respondent with a request to print invitations for his civil partnership ceremony. It is submitted that the respondent refused to provide the complainant with this service and that such refusal amounts to discrimination on grounds of sexual orientation.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 and under the Equal Status Acts, 2000-2015, the Director delegated the case in March 2018 to me Orla Jones, Adjudicator/ Equality Officer, for for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2015. Written submissions were received from both parties. As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 26th of April 2018.
2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84 of the Workplace Relations Act 2015.
3. Summary of the complainant’s case
3.1 The complainant submits that
- He had used the printing services of the respondent company for four years for printing requirements relating to his hairdressing business,
- When he requested that the respondent print invitations for the celebration of his civil partnership they refused to provide the service stating that they did not believe in gay marriage,
- This amounts to discrimination on grounds of sexual orientation.
- 4. Summary of the Respondent’s case
- 4.1 The respondent submits that
- the complainant had availed of their printing service for a number of years to print business cards and flyers,
- the complainant made enquiries about the printing of wedding invitations and the respondent engaged with him in respect of the request,
- When the respondent became aware that the invitations were for the complainant himself and related to the complainant marrying a man, the respondent refused to provide the printing service as he stated that he and his business partner are committed Christians and do not support gay marriage which they understood to be the purpose of the invitations,
- The respondent did not refuse the service due to the complainant’s sexual orientation but due to the fact that they do not believe in or support gay marriage and in the circumstances, could not provide the personal and bespoke service required for wedding invitations.
- Findings and Conclusions of the Equality Officer
5.1 The issues for decision by me are, whether or not, the respondent discriminated against and harassed the complainant, on grounds of sexual orientation and religion, in terms of Section 3 and, contrary to Section 5 of the Equal Status Act, 2000-2015. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
5.2 Discrimination and Harassment
5.2.1 Section 3 (1) and (2) of the Equal Status Acts, 2000-2015 set out the definition of discrimination as follows;
Section 3(1) of the Equal Status Acts provides that discrimination occurs “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)…"
Section 3(2)(d) provides that: as between any two persons, the discriminatory ground ofsexual orientation is,
(d) that they are of different sexual orientation (the “sexual orientation ground”),
Harassment is defined in Section 11 as
11.—(1) A person shall not sexually harass or harass (within the meaning of
subsection (4) or (5)) another person (“the victim”) where the victim—
(a) avails or seeks to avail himself or herself of any service provided by the person
or purchases or seeks to purchase any goods being disposed of by the person,
Section 11(5) provides as follows
(5) (a) In this section—
(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 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.
5.2.2 As can be seen from the legislation, discrimination shall be taken to occur where one person is treated less favourably than another on any of the stated discriminatory grounds. The stated discriminatory grounds refer to the position as between any two persons who for example, have different sexual orientation.
5.2.3 Section 38A (1) provides that the burden of proof is: " 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." It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that the prohibited conduct has occurred. Therefore, the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination. I am satisfied that the respondent is providing a service within the meaning of the Equal Status Acts.
5.3 Allegations of Discriminatory treatment and harassment.
5.3.1 The complainant Mr. B advised the hearing that he had availed of the respondents printing service for a number of years. He stated that he had used the respondent’s services for printing business cards and flyers for his hair salon and for his mobile hairdressing business. The complainant told the hearing that he had never encountered any problems in availing of the service provided by the respondent until he asked them to print invitations for the celebration of his civil partnership in March 2015. The complainant told the hearing that he had initially made enquiries by phone and email regarding the proposed invitations and that he had forwarded to the respondent a sample of the type of invitation he was interested in. He stated that respondent had replied to him and discussed different types of paper and print. The complainant told the hearing that he assumed the respondent was willing to provide the service until Mr. N of the respondent company showed up at his salon.
5.3.2 The complainant told the hearing that Mr. N had been waiting for him in the salon foyer when he returned from the bank on the 4th of March 2015 and that Mr. N proceeded to ask him questions about the invitations sought. The complainant stated that Mr. N had asked him if the invitations were for him personally and if they were for his marriage to his partner Mr. J. The complainant stated that he clarified that the invitations were not for a wedding but for a Civil Partnership. The complainant told the hearing that Mr. N had then told him that they could not print the invitations as he and his business partner Mr. M were bible believing Christians and did not believe in homosexuality and did not support gay marriage. The complainant stated that he had at the time clarified that the invitations were for a Civil Partnership and not a marriage but that Mr. N s response was that it was still for two men committing to each other and they could not take the order for this reason. The complainant told the hearing that Mr. N then went on to give other examples of the types of orders they would have to refuse due to their religious beliefs stating that they would equally refuse any request to print pictures of a naked woman again due to their religious beliefs.
5.3.3 The complainant Mr. B told the hearing that he was shocked and embarrassed to be told this by Mr. N and stated that he had done business with the respondent company for a number of years prior to this and had never had a problem with them. The complainant went on to state that they had been happy to take his money for other orders but not when it came to invitations for his Civil Partnership.
5.3.4 Witness for the respondent Mr. N told the hearing that the respondent company had received an enquiry from the complainant in March 2015 asking if the respondent company printed wedding invitations and forwarding a sample of a wedding invitation from another print company. Mr. N stated that they confirmed that they did print wedding invitations and proceeded to engage in discussions with the complainant about print and paper which could be used. Mr. N stated that the complainant had phoned him to discuss the wedding invitations and whether they stocked particular suitable card for such invitations. The respondent stated that he was not sure at that stage if the wedding invitation enquiry was for the complainant’s own wedding and stated that he had assumed that the complainant was gay. Mr. N went on to state that that a colleague of his subsequently confirmed that the complainant was in a relationship with a same sex partner and stated that he then realised the wedding invitations could be for a same sex wedding. Mr. N stated that it was at this point he realised there could be a potential conflict for him and his business partner in providing the invitation service to the complainant as same sex marriage was against their Christian beliefs. Witness for the respondent Mr. N told the hearing that he and his business partner Mr. M are committed Christians and that their beliefs mean that they do not support same sex marriage. Mr. N stated that he understood that what the complainant Mr. B was asking for was for the respondent to print wedding invitations for his marriage to a man, and that they could not engage in printing invitations for a same sex marriage as it went against their beliefs. The respondent stated that he decided to clarify the purpose of the invitations with the complainant and as he considered it to be a sensitive matter he decided to discuss it with the complainant face to face. Mr. N stated that he called to the complainant’s salon with samples of the invitation paper as requested and waited for the complainant to return so he could speak to him. Mr. N stated that the complainant sat with him in the foyer of the salon to discuss the matter but adds that he had asked the complainant initially if they should go somewhere more private to have their discussion but that the complainant declined this suggestion.
5.3.5 Mr. N went on to state that he then asked the complainant if the invitations were for himself and if he was marrying a man. Mr. N stated that the complainant confirmed that this was the case. Mr. N told the hearing that he went on to advise the complainant that there was a conflict of interest involved for him if he were to accept the complainant’s request for the wedding invitation service due to the fact that he and his business partner Mr. M were committed Christians and did not support same sex marriage which is what they understood the invitations to be for.
5.3.6 Mr. N stated that he went on to explain that they had refused to do other forms of printing in the past where they had objected to its content due to their religious beliefs. Mr. N stated that he thought the complainant understood and accepted what he had said and that he then went to shake the complainants hand but that the complainant did not reciprocate.
5.3.7 The respondent went on to state that the refusal of this service was not due to the complainant’s sexual orientation as they had previously provided printing services to the complainant for his hairdressing business and did not object to providing a printing service to the complainant but objected to providing a printing service in respect of something which was contrary to their beliefs. The respondent stated that it was the subject matter of the request which they took issue with and not the person requesting the service. The respondent went on to state that they would have refused the same request if the request had been made by someone of a different sexual orientation.
5.3.8 The respondent stated that if the request to print wedding invitations in respect of a gay marriage had come from the complainant’s mother it would equally have been refused. The respondent went on to state that it had in the past refused service where the material being requested was contrary to their beliefs and as an example stated that they refused to print posters for a pub which wanted to advertise an event involving a male stripper. They stated that they would also refuse to print anything involving pornographic images or any request that they print material of a nature which was contrary to their belief system. The respondent stated that it has many gay customers and would never refuse service to someone due to their sexual orientation.
5.3.9 I am satisfied that the complainant in this case was refused a service by the respondent but I must be satisfied that the refusal of the service was due to the complainant’s sexual orientation.
5.3.10 The respondent in advancing its case submits that it cannot be expected to provide a service which supports something which runs contrary to the respondent’s own belief system. The respondent in advancing its case has referred to Article 40.6(1) of the Constitution and submits that the respondent is entitled to hold beliefs which are legitimate and important to him and that he is entitled to act on foot of such beliefs and to express them. The respondent also seeks to rely on Article 9 and 10 of the European Convention on Human Rights. I am satisfied that the case before me is not a claim in respect of the constitutional or Human rights of the respondent but that the case before me is in respect of a claim lodged under the Equal Status Acts alleging that the respondent in this matter refused to provide a service to the complainant due to the complainant’s sexual orientation.
5.3.11 I am thus satisfied that what is at issue here is whether the complainant was refused a service by the respondent due to his sexual orientation. This claim has been taken under the Equal Status Act which prohibits discrimination in the provision of goods and services on the ground of sexual orientation.
5.3.12 In considering this matter I note that some of the facts of this case are similar to those of the UK Case of Bull Vs Hall in which Mr. and Mrs. Bull, refused to let Steven Preddy and Martyn Hall stay in a double room at their hotel in Cornwall due to the fact that they do not allow unmarried couples to stay in double rooms in their hotel. The respondents claimed that this policy was operated by them due to the fact that they were devout Christians who only let double rooms to “heterosexual married couples. The complainants in that case were a gay couple who were in a civil partnership, a union for same-sex couples recognized under British law which gave similar rights to those enjoyed by heterosexual married couples The Court of first instance found in favour of the complainants finding that they were discriminated against on grounds of their sexual orientation as they were treated differently to a heterosexual married couple and that this treatment was on grounds of their sexual orientation. This matter was appealed by the hotel owners and both the Court of Appeal and the Supreme Court upheld the decision in favour of the complainants.
5.3.13 At the hearing of the present case both parties agreed that the complainant had previously engaged the services of the respondent and that the respondent had provided him with printed material in the form of business cards for his hairdressing business. The respondent at the hearing stated that it was only when the request was made to print invitations for a gay marriage ceremony that they refused to provide the service as they do not believe in gay marriage.
5.3.14 The respondent advised the hearing that it had engaged with the complainant when he first made enquiries in respect of wedding invitations but stated that it only refused to provide them upon learning that the invitations were for a gay marriage ceremony which they did not support. The respondent went on to state that upon learning that the invitations may be for a gay marriage ceremony Mr. N personally went to talk to the complainant to ascertain if this was the nature of the invitations and also to advise him that they could not provide this service as it was contrary to their Christian beliefs as they don’t agree with same sex marriage. The respondents in the present case Mr. M and Mr. N agree that they refused to provide the complainant with what they understood to be wedding invitations for a same sex marriage ceremony. The complainant states that the invitations related to a civil partnership and not a wedding as same sex marriage was not legal in Ireland at that time.
5.3.15 The respondents submit that their understanding was that the request was for wedding invitations but submit that in any event they would not print either wedding invitations or invitations to a civil union involving a same sex couple due to the fact that these are contrary to the respondent’s Christian beliefs. The respondent states that this refusal was due to the fact that they do not agree with or believe in same sex marriage but they state that the refusal was not due to the complainant’s sexual orientation.
5.3.16 Witness for the respondent Mr. M told the hearing that he was always aware that the complainant was gay and that it was never an issue or never impacted on their providing him with a service. The second witness for the respondent Mr. N stated that he had assumed but he had not been sure if the complainant was gay until the issue of the wedding invitations arose and following discussions with a colleague of Mr. N’s who confirmed to him that the complainant was gay. Mr. N stated that it was following this that he realised that the invitations in question may relate to a same sex marriage which he stated is contrary to the respondent’s Christian beliefs.
5.3.17 The respondent in this case is submitting that the motive for their refusal to provide the service to the complainant is due to their Christian beliefs but the case being advanced by the complainant is that he was refused this service due to his sexual orientation.
5.3.18 In examining the motive for the treatment versus the ground I note the judgement of Underhill P in Ahmed v Amnesty International [2009] All ER (D) 140 (Sep) UKEAT/447/08. Ahmed, of northern Sudanese ethnic origin, was employed as a campaigner on issues relating to Sudan. In 2007 she was shortlisted for promotion to the position of researcher for Sudan but wasn’t appointed as Amnesty International had concerns about staff of a particular nationality or ethnic origin undertaking work in or related to their country of origin. One concern was that their impartiality or perceived impartiality might be prejudiced, with implications for their effectiveness and the organisation’s reputation. Another concern was that the employee in question might be at greater risk of ill treatment or violence when visiting the country in question. Amnesty International concluded that these concerns meant that she should not be appointed to the post. The employment tribunal upheld her claim of discrimination on the ground of race. Amnesty International appealed to the Employment Appeal Tribunal (EAT) which upheld the decision in respect of direct discrimination. It held that the basic question in a direct discrimination case is, what are the grounds for the treatment complained of? It found that a benign motive for the treatment is irrelevant. It further found that the only question for the tribunal was whether Amnesty’s decision not to appoint Ahmed as Sudan researcher was on the ground of her ethnic origins. Once it found that this was the case, Amnesty’s motive for the treatment was irrelevant.
5.3.19 The respondent in the present case has confirmed that it does provide a wedding invitation service. The respondent has also confirmed that they were willing to provide this service to the complainant before they became aware that the invitations being requested were for a same sex marriage or a same sex civil union. The respondent has indicated that either purpose is unacceptable to them as same sex marriage or unions are contrary to their Christian beliefs. The respondent in advancing this case provides the motive for its treatment of the complainant.
5.3.20 The respondent has confirmed that its wedding invitation service is available to heterosexual couples and thus it is clear that the complainant could have availed of that service if he had been a heterosexual male. The respondent in this case refused to provide its wedding invitation service to the complainant, a gay man, who was seeking to access a service which is freely available to heterosexual couples. Thus, it is clear that whatever the respondent’s reasons for refusing to provide the complainant with the wedding invitation service the complainant could have accessed that service but for the fact that he is a gay man. I am thus satisfied that in refusing to provide the service to the complainant the respondent did discriminate against the complainant on the ground of his sexual orientation.
5.3.21 I am satisfied from the totality of the evidence adduced that the respondent in the present case refused to print the invitations requested by the complainant once it became aware that these invitations were for a ceremony involving the complainants proposed union with his same sex partner and that this amounts to discrimination on grounds of sexual orientation.
5.3.22 The complainant had also submitted a claim of harassment on the sexual orientation ground. I am satisfied from the totality of the evidence adduced that the respondent did not harass the complainant on grounds of his sexual orientation in relation to this matter.
5.3.23 The complainant had also submitted a claim of discrimination and harassment on grounds of religion but no evidence was adduced at the hearing to substantiate these claims of discrimination and harassment on grounds of religion. I am thus satisfied that the complainant was not discriminated against or harassed by the respondent on grounds of religion.
- Decision
6.1 Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under section 27 of that Act. I have concluded my investigation of this complaint and based upon the aforementioned, I find pursuant to Section 25(4) of the Acts, that
I. the complainant was discriminated against by the respondent on grounds of sexual orientation contrary to Section 3 of the Equal Status Acts, 2000 to 2015 in relation to this matter,
II. the complainant was not discriminated against by the respondent on grounds of religion contrary to Section 3 of the Equal Status Acts, 2000 to 2015 in relation to this matter,
III. the complainant was not harassed by the respondent on grounds of sexual orientation and/or on grounds of religion contrary to Section 11 of the Equal Status Acts.
6.2 In accordance with Section 27 of the Acts, I order the Respondent to pay the complainant €2,500 in compensation in respect of the finding of direct discrimination on the ground of sexual orientation.
___________________
Orla Jones
Adjudication Officer/Equality Officer
9th November, 2018
EQUAL STATUS ACTS
DECISION NO. DEC-S2018-020
PARTIES
Jonathon Brennan
-v-
Beulah Print
FILE NO: et-155724-es-15
Date of issue: 9th of November, 2018
- Dispute
This dispute involves a claim on behalf of the complainant that he was discriminated against and harassed by the respondent, on grounds of sexual orientation and religion when the respondent, a provider of a printing service, refused to print invitations in respect of the complainant’s civil partnership.
2. Background
2.1 The complainant referred a complaint under the Equal Status Acts, 2000-2015 to the Equality Tribunal on the 29th of April 2015. It is submitted that the complainant had contacted the respondent with a request to print invitations for his civil partnership ceremony. It is submitted that the respondent refused to provide the complainant with this service and that such refusal amounts to discrimination on grounds of sexual orientation.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 and under the Equal Status Acts, 2000-2015, the Director delegated the case in March 2018 to me Orla Jones, Adjudicator/ Equality Officer, for for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2015. Written submissions were received from both parties. As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 26th of April 2018.
2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84 of the Workplace Relations Act 2015.
- Summary of the complainant’s case
3.1 The complainant submits that
- He had used the printing services of the respondent company for four years for printing requirements relating to his hairdressing business,
- When he requested that the respondent print invitations for the celebration of his civil partnership they refused to provide the service stating that they did not believe in gay marriage,
- This amounts to discrimination on grounds of sexual orientation.
- 4. Summary of the Respondent’s case
- 4.1 The respondent submits that
- the complainant had availed of their printing service for a number of years to print business cards and flyers,
- the complainant made enquiries about the printing of wedding invitations and the respondent engaged with him in respect of the request,
- When the respondent became aware that the invitations were for the complainant himself and related to the complainant marrying a man, the respondent refused to provide the printing service as he stated that he and his business partner are committed Christians and do not support gay marriage which they understood to be the purpose of the invitations,
- The respondent did not refuse the service due to the complainant’s sexual orientation but due to the fact that they do not believe in or support gay marriage and in the circumstances, could not provide the personal and bespoke service required for wedding invitations.
- Findings and Conclusions of the Equality Officer
5.1 The issues for decision by me are, whether or not, the respondent discriminated against and harassed the complainant, on grounds of sexual orientation and religion, in terms of Section 3 and, contrary to Section 5 of the Equal Status Act, 2000-2015. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
5.2 Discrimination and Harassment
5.2.1 Section 3 (1) and (2) of the Equal Status Acts, 2000-2015 set out the definition of discrimination as follows;
Section 3(1) of the Equal Status Acts provides that discrimination occurs “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)…"
Section 3(2)(d) provides that: as between any two persons, the discriminatory ground of sexual orientation is,
(d) that they are of different sexual orientation (the “sexual orientation ground”),
Harassment is defined in Section 11 as
11.—(1) A person shall not sexually harass or harass (within the meaning of
subsection (4) or (5)) another person (“the victim”) where the victim—
(a) avails or seeks to avail himself or herself of any service provided by the person
or purchases or seeks to purchase any goods being disposed of by the person,
Section 11(5) provides as follows
(5) (a) In this section—
(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 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.
5.2.2 As can be seen from the legislation, discrimination shall be taken to occur where one person is treated less favourably than another on any of the stated discriminatory grounds. The stated discriminatory grounds refer to the position as between any two persons who for example, have different sexual orientation.
5.2.3 Section 38A (1) provides that the burden of proof is: " 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." It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that the prohibited conduct has occurred. Therefore, the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination. I am satisfied that the respondent is providing a service within the meaning of the Equal Status Acts.
5.3 Allegations of Discriminatory treatment and harassment.
5.3.1 The complainant Mr. B advised the hearing that he had availed of the respondents printing service for a number of years. He stated that he had used the respondent’s services for printing business cards and flyers for his hair salon and for his mobile hairdressing business. The complainant told the hearing that he had never encountered any problems in availing of the service provided by the respondent until he asked them to print invitations for the celebration of his civil partnership in March 2015. The complainant told the hearing that he had initially made enquiries by phone and email regarding the proposed invitations and that he had forwarded to the respondent a sample of the type of invitation he was interested in. He stated that respondent had replied to him and discussed different types of paper and print. The complainant told the hearing that he assumed the respondent was willing to provide the service until Mr. N of the respondent company showed up at his salon.
5.3.2 The complainant told the hearing that Mr. N had been waiting for him in the salon foyer when he returned from the bank on the 4th of March 2015 and that Mr. N proceeded to ask him questions about the invitations sought. The complainant stated that Mr. N had asked him if the invitations were for him personally and if they were for his marriage to his partner Mr. J. The complainant stated that he clarified that the invitations were not for a wedding but for a Civil Partnership. The complainant told the hearing that Mr. N had then told him that they could not print the invitations as he and his business partner Mr. M were bible believing Christians and did not believe in homosexuality and did not support gay marriage. The complainant stated that he had at the time clarified that the invitations were for a Civil Partnership and not a marriage but that Mr. N s response was that it was still for two men committing to each other and they could not take the order for this reason. The complainant told the hearing that Mr. N then went on to give other examples of the types of orders they would have to refuse due to their religious beliefs stating that they would equally refuse any request to print pictures of a naked woman again due to their religious beliefs.
5.3.3 The complainant Mr. B told the hearing that he was shocked and embarrassed to be told this by Mr. N and stated that he had done business with the respondent company for a number of years prior to this and had never had a problem with them. The complainant went on to state that they had been happy to take his money for other orders but not when it came to invitations for his Civil Partnership.
5.3.4 Witness for the respondent Mr. N told the hearing that the respondent company had received an enquiry from the complainant in March 2015 asking if the respondent company printed wedding invitations and forwarding a sample of a wedding invitation from another print company. Mr. N stated that they confirmed that they did print wedding invitations and proceeded to engage in discussions with the complainant about print and paper which could be used. Mr. N stated that the complainant had phoned him to discuss the wedding invitations and whether they stocked particular suitable card for such invitations. The respondent stated that he was not sure at that stage if the wedding invitation enquiry was for the complainant’s own wedding and stated that he had assumed that the complainant was gay. Mr. N went on to state that that a colleague of his subsequently confirmed that the complainant was in a relationship with a same sex partner and stated that he then realised the wedding invitations could be for a same sex wedding. Mr. N stated that it was at this point he realised there could be a potential conflict for him and his business partner in providing the invitation service to the complainant as same sex marriage was against their Christian beliefs. Witness for the respondent Mr. N told the hearing that he and his business partner Mr. M are committed Christians and that their beliefs mean that they do not support same sex marriage. Mr. N stated that he understood that what the complainant Mr. B was asking for was for the respondent to print wedding invitations for his marriage to a man, and that they could not engage in printing invitations for a same sex marriage as it went against their beliefs. The respondent stated that he decided to clarify the purpose of the invitations with the complainant and as he considered it to be a sensitive matter he decided to discuss it with the complainant face to face. Mr. N stated that he called to the complainant’s salon with samples of the invitation paper as requested and waited for the complainant to return so he could speak to him. Mr. N stated that the complainant sat with him in the foyer of the salon to discuss the matter but adds that he had asked the complainant initially if they should go somewhere more private to have their discussion but that the complainant declined this suggestion.
5.3.5 Mr. N went on to state that he then asked the complainant if the invitations were for himself and if he was marrying a man. Mr. N stated that the complainant confirmed that this was the case. Mr. N told the hearing that he went on to advise the complainant that there was a conflict of interest involved for him if he were to accept the complainant’s request for the wedding invitation service due to the fact that he and his business partner Mr. M were committed Christians and did not support same sex marriage which is what they understood the invitations to be for.
5.3.6 Mr. N stated that he went on to explain that they had refused to do other forms of printing in the past where they had objected to its content due to their religious beliefs. Mr. N stated that he thought the complainant understood and accepted what he had said and that he then went to shake the complainants hand but that the complainant did not reciprocate.
5.3.7 The respondent went on to state that the refusal of this service was not due to the complainant’s sexual orientation as they had previously provided printing services to the complainant for his hairdressing business and did not object to providing a printing service to the complainant but objected to providing a printing service in respect of something which was contrary to their beliefs. The respondent stated that it was the subject matter of the request which they took issue with and not the person requesting the service. The respondent went on to state that they would have refused the same request if the request had been made by someone of a different sexual orientation.
5.3.8 The respondent stated that if the request to print wedding invitations in respect of a gay marriage had come from the complainant’s mother it would equally have been refused. The respondent went on to state that it had in the past refused service where the material being requested was contrary to their beliefs and as an example stated that they refused to print posters for a pub which wanted to advertise an event involving a male stripper. They stated that they would also refuse to print anything involving pornographic images or any request that they print material of a nature which was contrary to their belief system. The respondent stated that it has many gay customers and would never refuse service to someone due to their sexual orientation.
5.3.9 I am satisfied that the complainant in this case was refused a service by the respondent but I must be satisfied that the refusal of the service was due to the complainant’s sexual orientation.
5.3.10 The respondent in advancing its case submits that it cannot be expected to provide a service which supports something which runs contrary to the respondent’s own belief system. The respondent in advancing its case has referred to Article 40.6(1) of the Constitution and submits that the respondent is entitled to hold beliefs which are legitimate and important to him and that he is entitled to act on foot of such beliefs and to express them. The respondent also seeks to rely on Article 9 and 10 of the European Convention on Human Rights. I am satisfied that the case before me is not a claim in respect of the constitutional or Human rights of the respondent but that the case before me is in respect of a claim lodged under the Equal Status Acts alleging that the respondent in this matter refused to provide a service to the complainant due to the complainant’s sexual orientation.
5.3.11 I am thus satisfied that what is at issue here is whether the complainant was refused a service by the respondent due to his sexual orientation. This claim has been taken under the Equal Status Act which prohibits discrimination in the provision of goods and services on the ground of sexual orientation.
5.3.12 In considering this matter I note that some of the facts of this case are similar to those of the UK Case of Bull Vs Hall in which Mr. and Mrs. Bull, refused to let Steven Preddy and Martyn Hall stay in a double room at their hotel in Cornwall due to the fact that they do not allow unmarried couples to stay in double rooms in their hotel. The respondents claimed that this policy was operated by them due to the fact that they were devout Christians who only let double rooms to “heterosexual married couples. The complainants in that case were a gay couple who were in a civil partnership, a union for same-sex couples recognized under British law which gave similar rights to those enjoyed by heterosexual married couples The Court of first instance found in favour of the complainants finding that they were discriminated against on grounds of their sexual orientation as they were treated differently to a heterosexual married couple and that this treatment was on grounds of their sexual orientation. This matter was appealed by the hotel owners and both the Court of Appeal and the Supreme Court upheld the decision in favour of the complainants.
5.3.13 At the hearing of the present case both parties agreed that the complainant had previously engaged the services of the respondent and that the respondent had provided him with printed material in the form of business cards for his hairdressing business. The respondent at the hearing stated that it was only when the request was made to print invitations for a gay marriage ceremony that they refused to provide the service as they do not believe in gay marriage.
5.3.14 The respondent advised the hearing that it had engaged with the complainant when he first made enquiries in respect of wedding invitations but stated that it only refused to provide them upon learning that the invitations were for a gay marriage ceremony which they did not support. The respondent went on to state that upon learning that the invitations may be for a gay marriage ceremony Mr. N personally went to talk to the complainant to ascertain if this was the nature of the invitations and also to advise him that they could not provide this service as it was contrary to their Christian beliefs as they don’t agree with same sex marriage. The respondents in the present case Mr. M and Mr. N agree that they refused to provide the complainant with what they understood to be wedding invitations for a same sex marriage ceremony. The complainant states that the invitations related to a civil partnership and not a wedding as same sex marriage was not legal in Ireland at that time.
5.3.15 The respondents submit that their understanding was that the request was for wedding invitations but submit that in any event they would not print either wedding invitations or invitations to a civil union involving a same sex couple due to the fact that these are contrary to the respondent’s Christian beliefs. The respondent states that this refusal was due to the fact that they do not agree with or believe in same sex marriage but they state that the refusal was not due to the complainant’s sexual orientation.
5.3.16 Witness for the respondent Mr. M told the hearing that he was always aware that the complainant was gay and that it was never an issue or never impacted on their providing him with a service. The second witness for the respondent Mr. N stated that he had assumed but he had not been sure if the complainant was gay until the issue of the wedding invitations arose and following discussions with a colleague of Mr. N’s who confirmed to him that the complainant was gay. Mr. N stated that it was following this that he realised that the invitations in question may relate to a same sex marriage which he stated is contrary to the respondent’s Christian beliefs.
5.3.17 The respondent in this case is submitting that the motive for their refusal to provide the service to the complainant is due to their Christian beliefs but the case being advanced by the complainant is that he was refused this service due to his sexual orientation.
5.3.18 In examining the motive for the treatment versus the ground I note the judgement of Underhill P in Ahmed v Amnesty International [2009] All ER (D) 140 (Sep) UKEAT/447/08. Ahmed, of northern Sudanese ethnic origin, was employed as a campaigner on issues relating to Sudan. In 2007 she was shortlisted for promotion to the position of researcher for Sudan but wasn’t appointed as Amnesty International had concerns about staff of a particular nationality or ethnic origin undertaking work in or related to their country of origin. One concern was that their impartiality or perceived impartiality might be prejudiced, with implications for their effectiveness and the organisation’s reputation. Another concern was that the employee in question might be at greater risk of ill treatment or violence when visiting the country in question. Amnesty International concluded that these concerns meant that she should not be appointed to the post. The employment tribunal upheld her claim of discrimination on the ground of race. Amnesty International appealed to the Employment Appeal Tribunal (EAT) which upheld the decision in respect of direct discrimination. It held that the basic question in a direct discrimination case is, what are the grounds for the treatment complained of? It found that a benign motive for the treatment is irrelevant. It further found that the only question for the tribunal was whether Amnesty’s decision not to appoint Ahmed as Sudan researcher was on the ground of her ethnic origins. Once it found that this was the case, Amnesty’s motive for the treatment was irrelevant.
5.3.19 The respondent in the present case has confirmed that it does provide a wedding invitation service. The respondent has also confirmed that they were willing to provide this service to the complainant before they became aware that the invitations being requested were for a same sex marriage or a same sex civil union. The respondent has indicated that either purpose is unacceptable to them as same sex marriage or unions are contrary to their Christian beliefs. The respondent in advancing this case provides the motive for its treatment of the complainant.
5.3.20 The respondent has confirmed that its wedding invitation service is available to heterosexual couples and thus it is clear that the complainant could have availed of that service if he had been a heterosexual male. The respondent in this case refused to provide its wedding invitation service to the complainant, a gay man, who was seeking to access a service which is freely available to heterosexual couples. Thus, it is clear that whatever the respondent’s reasons for refusing to provide the complainant with the wedding invitation service the complainant could have accessed that service but for the fact that he is a gay man. I am thus satisfied that in refusing to provide the service to the complainant the respondent did discriminate against the complainant on the ground of his sexual orientation.
5.3.21 I am satisfied from the totality of the evidence adduced that the respondent in the present case refused to print the invitations requested by the complainant once it became aware that these invitations were for a ceremony involving the complainants proposed union with his same sex partner and that this amounts to discrimination on grounds of sexual orientation.
5.3.22 The complainant had also submitted a claim of harassment on the sexual orientation ground. I am satisfied from the totality of the evidence adduced that the respondent did not harass the complainant on grounds of his sexual orientation in relation to this matter.
5.3.23 The complainant had also submitted a claim of discrimination and harassment on grounds of religion but no evidence was adduced at the hearing to substantiate these claims of discrimination and harassment on grounds of religion. I am thus satisfied that the complainant was not discriminated against or harassed by the respondent on grounds of religion.
- Decision
6.1 Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under section 27 of that Act. I have concluded my investigation of this complaint and based upon the aforementioned, I find pursuant to Section 25(4) of the Acts, that
I. the complainant was discriminated against by the respondent on grounds of sexual orientation contrary to Section 3 of the Equal Status Acts, 2000 to 2015 in relation to this matter,
II. the complainant was not discriminated against by the respondent on grounds of religion contrary to Section 3 of the Equal Status Acts, 2000 to 2015 in relation to this matter,
III. the complainant was not harassed by the respondent on grounds of sexual orientation and/or on grounds of religion contrary to Section 11 of the Equal Status Acts.
6.2 In accordance with Section 27 of the Acts, I order the Respondent to pay the complainant €2,500 in compensation in respect of the finding of direct discrimination on the ground of sexual orientation.
___________________
Orla Jones
Adjudication Officer/Equality Officer
9th November, 2018