Complainant

Respondent

Parties

Suchavadee Foley

Atercin Liffey Unlimited T/A Starbucks Tallaght

Representatives

None

None

Act

Complaint Reference No.

Date of Receipt

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

CA-00036577-001

09/06/2020

This is a complaint pursuant to the Equal Status Act on grounds of race. The complainant bought a matcha tea latte at a branch of the respondent. When handling the cup to be provided to the complainant, the server drew the complainant’s smile and eyes, rather than inscribing her name. The eyes are referred to in the evidence as ‘slanty’ eyes. The complainant asserts that this was offensive to her because of the racial connotation and her Thai-Irish heritage. The respondent asserts that this was not motivated by racism and it apologised for the incident. It asserts that the complainant’s boyfriend used a racial slur during the incident, calling the employee a ‘f****** Black c***’, an assertion he denied.

At the outset of the hearing, the respondent played CCTV footage of the incident of the 12th January 2020. This shows the complainant at the counter, ordering a beverage. It depicts the respondent employee taking a cup and writing on it. The complainant then paid for this item and a water with her phone. The employee then marks the cup and shows the complainant, who smiles and laughs. The complainant’s boyfriend looks at the cup and is seen to laugh on moving away from the counter. The CCTV depicts the boyfriend interacting with the supervisor and a further conversation between the supervisor, the complainant and her boyfriend. The complainant and the boyfriend are seen to wait by the exit, standing for some time and then, they leave.

The complainant outlined that on the 12th January 2020, she went to a Starbucks in Tallaght. At the counter, the employee asked for her name and the complainant gave a shortened version of her name. The employee laughed, as did the complainant, who proceeded to spell her name. The employee then said that she would draw the eyes. The complainant said ‘okay’. The employee drew a set of eyes on the cup and showed the complainant.

The complainant outlined that while she had said ‘okay’, she was shocked and nervous. She was not sure how to react. The complainant and her boyfriend laughed and then left the counter. He said that this was racist. The complainant was then too uncomfortable to collect the cup, so sat down. Her boyfriend returned to the counter to collect the cup. He showed her the drawing. The complainant was confused by the smiley face and the ‘slanty’ eyes.

They spoke about whether to make a complaint. The complainant said that she does not like confrontation. Her boyfriend approached the counter and spoke with the supervisor, who came to apologise. The supervisor offered vouchers, but the complainant did not want them. She stayed for about two minutes and this was an uncomfortable experience. She had understood that the supervisor had asked the employee to come out and apologise to her, but the employee did not come out. It felt like a long time as she was uncomfortable.

After this incident, the boyfriend’s grandmother emailed to complain about what had happened. The respondent replied to say that it was very sorry and that it would speak with those involved. The later email was very apologetic. The respondent stated that it had organised some cultural training for Brazilian staff and made an offer of vouchers.

The complainant said that she did not respond as she was not happy that the respondent had taken this seriously. She would not use vouchers. The respondent later said that this was not a racial incident, but the complainant asked why then organise cultural training? The complainant sent the ES1 form at the end of February 2020. Commenting on the CCTV, she said that this mirrored what she had explained in her letter. The complainant explained that she wanted justice and did not want this to happen to anyone else.

In cross-examination, the complainant outlined that she is Irish. She and her parents moved to Ireland from Thailand when she was five or six. She agreed that she had been served the tea she had ordered and that she was provided with a service. She was asked whether she knew that employees could draw on cups when serving customers; she replied that she had not asked for a drawing. It was put to the complainant that she had said that the employee had cut her off spelling her name; the complainant replied that this had happened quickly. The complainant had just started to spell her name when the employee said that she would draw eyes.

It was put to the complainant that from the CCTV, it looked like a pleasant encounter as both she and the employee were laughing, as had the complainant and her boyfriend on leaving the counter; she replied that this was a nervous laugh as she did not know how to react. The complainant outlined that the employee drew the eyes and showed her. The complainant said ‘yes’ and laughed, but this was her reaction as this was so unbelievable. The complainant said that this was not a normal encounter and she did not want to collect a cup with ‘slanty’ eyes.

Commenting on the CCTV footage, the complainant said that she thought her boyfriend had made a phone call to a family member, as depicted in the footage. The complainant said that while they had not directly asked for an apology, they expected the employee to come out and speak with them. It was put to the complainant that the employee was on a break at this time; she replied that they were not informed of this.

The complainant agreed that her boyfriend was unhappy with the employee. It was put to the complainant that her boyfriend had referred to the employee as a ‘f****** Black c***’ when making the complaint to management. The complainant replied that she did not witness this conversation.

The complainant was asked why the image was offensive given that it is drawn like an emoji; she replied by asking why the drawing was drawn in this way. She accepted that a full picture of her would not be offensive, i.e. an accurate picture. It was put to the complainant that this was not meant as a racial slur. It was put to the complainant that her youtube channel includes anime; she replied that she shares the account with her young cousin, and this is what the cousin watches. It was put to the complainant that she had said ‘yes’ to the drawing on the cup.

It was put to the complainant that an American band called ‘Slants’ had sought to re-appropriate the depiction of eyes in the same way that ‘queer’ had been re-appropriated by the LGBT community. She replied that she wanted her name to be marked on the cup and not a depiction of eyes as this would be called out by the employee. It was put to the complainant that it was only the type of beverage that was called out and not her name or anything else.

It was put to the complainant that the employee had thought the complainant was glamourous and did not mean any malice. It was put to the complainant that there is large population in the employee’s native Sao Paulo of Japanese heritage. It was put to the complainant that she was not treated less favourably. The complainant said that she gave permission for her boyfriend to complain because she was nervous and in shock.

Evidence of the boyfriend

The boyfriend outlined that the employee cut the complainant off as she was spelling out her name. Instead, the employee drew eyes and showed this to the complainant. Later, he collected the cup and they discussed what to do. The complainant was then very upset. He approached the counter to complain and spoke with the supervisor. The boyfriend said that he tried to explain that the drawing was racist, given the complainant’s background. He said that the supervisor had twice come to the table and sought to get the employee in the meantime.

In response to my question, the boyfriend said that the hearing was the first time he had heard an allegation of him using a pejorative term in respect of the employee. The boyfriend denied making this statement. He said that he had not said anything offensive but accepted that he may have referred to the employee’s skin colour in saying how the drawing had impacted on the complainant.

In closing comments, the complainant outlined that she felt offended as this incident demeaned her. She had been racially abused and this was not a friendly event.

Evidence of the employee

The employee gave evidence through an interpreter. She outlined that Japanese-Brazilians living in her native Sao Paulo are well-respected. They often work in healthcare. The employee explained that she drew a smiley face as she thought the complainant was glamourous. She had started at the respondent about a month before the incident and had just worked on the till. She said that staff would write customers’ names but also draw cups. Giving an example from her own appearance, the employee said that if someone drew her hair, she would put it on her Instagram.

Commenting on her training, the employee said that she was trained to be nice. She does not now draw on cups, unless it is for a child looking for ‘happy birthday’ or a birthday-related drawing on the cup.

The employee said that she initially did not understand what had caused offence. However, a supervisor, also from Brazil, said that it could be seen as a problem. She spoke with

Korean colleagues, who said that while they understood she was from another country, it could be a problem. Another supervisor told her of the complaint and that the complainant felt offended. The employee was warned to be careful as she was new.

The employee said that she was very sorry. She had not thought that the complainant would not like it. The employee said she had sought to make the cup easy for the complainant to identify.

Evidence of the supervisor

The supervisor outlined that the boyfriend approached the counter and went to get the cup. The supervisor saw the cup and apologised on behalf of the respondent. The supervisor described the boyfriend as being quite nervous and the boyfriend referred to ‘a black c***’. The supervisor said that he gathered the vouchers to give to the complainant. He tried to find the employee but did not want her to leave the counter because of the language that had been used. He could not find that employee and went to give the vouchers.

The supervisor said that he could not remember whether an incident report had been prepared. He no longer works for the respondent and he attended the hearing to help the employee.

The respondent outlined that the boyfriend making a racial slur had not been mentioned before the hearing as it did not want to get into vulgarities. The respondent wished to convey that it had not done anything wrong.

Closing

In closing comments, it was submitted that the complainant had not made out a complaint of discrimination. It submitted that it could avail of the defence under section 42(3) of the Act as it had provided training to staff.

The respondent acknowledged that discrimination was not always conscious, relying on Nevins, Murphy, Flood v Portroe Stevedores [2005] 16 ELR 282. The respondent said that the CCTV footage showed that this was a benign incident, and this was an independent source of evidence. The complainant had not been treated less favourably and others would have drawings composed of them. In this case, the drawing was positive as it was motivated by the employee thinking the complainant was glamourous.

The respondent referred to the burden of proof in equality complaints, as described by Advocate General Mengozzi in Meister C-140/10. This described the burden of proof as ‘a measure of balance is maintained between the parties, enabling the complainant to claim his or her right to equal treatment but preventing proceedings from being brought against a respondent solely on the basis of the complainant’s assertions.’ There were subjective and objective elements to the test.

Relying on Smith v Ombudsman [2020] IEHC 51, the respondent submitted that animus should be present but there was no evidence of animus in this case.

The respondent referred to the defence available to an employer pursuant to section 42(3). It was a defence for an employer to show that it took the ‘reasonably practicable’ steps to prevent employee’s act. It referred to its harassment policy and the training. It stated that this did not have to be perfect. Referring to the Labour Court authority of McCamley v Dublin Bus EDA 164, the respondent submitted that the training was comprehensive enough to protect the employer from liability. It commented that it had a diverse workforce, including Asian colleagues.

The respondent asked that the decision be anonymised because of the disproportionate impact this might have on the business.

On a Sunday during the busy January sales, the complainant and her boyfriend attended the respondent Starbucks branch for a matcha tea latte and some water. It is not disputed that the employee drew an image of a smile and ‘slanty’ eyes on the cup as a way of marking it as the complainant’s. The complainant has Thai-Irish heritage and it is clear that the visual depiction relates to her race. It is as offensive and as unimaginative as a 19th century Punch cartoon.

The incident took place on the 12th January 2020. The complainant immediately complained and then served the ES1 form on the 22nd February 2020. The respondent served the ES2 reply on the 16th March 2020. The complaint of the 9th June 2020 was heard at adjudication on the 9th October 2020.

Statutory background

The Equal Status Act prohibits discriminatory conduct on ten grounds in the provision of services or the disposal of goods, for example going for coffee. Included amongst the grounds is race, colour, nationality or ethnic or national origins. This encompasses a race or nationality imputed to a person.

Vicarious liability arises when you are held legally liable for a wrong committed by another person, for example because one of your employees has committed a wrong in the course of their employment. The Equal Status Act provides that an employer is vicariously liable for prohibited conduct of their employee where this occurs in the course of their employment, even without the employer’s knowledge or approval.

As cited by the respondent, section 42(3) provides a defence for employers where they can show that they took ‘reasonably practicable’ steps to prevent the employee from doing the act that constituted prohibited conduct.

The Equal Status Act defines ‘prohibited conduct’ as including both discrimination and harassment. It prohibits discrimination, for example a service provider refusing to provide a service to one group of people, for example because of their race etc. The Act also prohibits harassment, including when a person avails of a service, for example buying a cup of tea.

In respect of harassment, section 11(2) identifies as the ‘responsible person’ as a person who 'is responsible for the operation of any place' and who 'shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place.' The responsible person here is the respondent, an operator of a coffee shop.

In similar terms to section 42(3), section 11(3) provides as a defence that the responsible person took ‘such steps as are reasonably practicable to prevent the sexual harassment or harassment’.

Section 11(4) provides that a person’s submission to unwanted conduct ‘may not be used by any other person as a basis for a decision affecting that person.’ A person’s submission or acquiescence to an act, therefore, does not mean that it was not harassment.

Section 11(5) defines ‘harassment’ as ‘unwanted conduct’ related to a discriminatory ground and which may have ‘the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.’ This wording looks to the intention behind any unwanted conduct, but, separately, also to its effect. The section further provides that the unwanted conduct may consist of ‘acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.’ A drawing on a cup clearly falls within this definition.

Finding on prohibited conduct

I find that the events of the 12th January 2020 constitute ‘unwanted conduct’ as defined by section 11 of the Equal Status Act. I reach this finding for the following reasons.

The events began as the complainant ordered her beverage. She began to spell out her name and was interrupted by the employee, who improvised a physical representation of the complainant. The complainant did not ask for this.

The drawing depicts what was referred to as ‘slanty’ eyes, clearly a reference to race. I note that this took place in the context of labelling the cup as the complainant’s. Instead of her name, a physical descriptor was used, in this case her eyes. This was not a drawing of the complainant, but a sketch of one part of her and one clearly associated with race.

When a beverage is ready, the customer’s name or the descriptor is called out so that the customer can collect it. I accept that here, the staff member called out the type of tea and there was no reference to the complainant’s race.

I accept that the CCTV depicts the complainant as having smiled and laughed in the interaction with the employee. She sat down after paying for the items and did not go collect her drink. She then waited for some time to meet the employee and left. She outlined in evidence that she was shocked, nervous and uncomfortable and reacted accordingly.

I agree that the complainant’s actions were of someone unsure how to react in the moment, in particular in a busy coffee shop. I find that the complainant was shocked and taken aback by what happened. I say the same about the boyfriend’s reaction on leaving the counter. Their reaction was one of shock. I do not agree that their reaction was acquiescence or agreement to the drawing. Nor was this a benign event. The complainant left the counter to consider what to do next and her boyfriend complained as soon as they received the cup. This is consistent with their evidence.

At this point, I record that I accept the bona fides of the employee’s evidence. She apologised to the complainant and did not intend to humiliate her or make her feel uncomfortable. I am not sure how common such drawings are in Sao Paulo coffee shops, but I fully accept that this was a mistake on her part and one that she regrets. I accept, therefore, that it was not the employee’s intention to harass the complainant.

While finding that the employee did not intend to harass the complainant, it is clear that the drawing had a degrading and humiliating effect on the complainant. This is especially the case in the context of the drawing being the descriptor ordinarily used to announce that her beverage was ready for collection. I also understand why the complainant asked her boyfriend to collect the cup, rather than go herself to collect an item with such a pejorative image. This was unwanted by the complainant and she did not agree to it. It follows that harassment occurred within the ambit of the Equal Status Act.

Finding on whether the statutory defences can be availed of

The Equal Status Act provides that a service provider is not liable for an act of harassment where it, as the responsible person, took reasonably practicable steps to prevent the employee from doing the act. This may also mean that it is not vicariously liable for an employee’s act.

I find that the respondent is not entitled to rely on the statutory defences. This incident stems from the well-established practice of writing on the cup to identify the customer. It is generally the customer’s name, but staff sometimes struggle to spell names correctly, for example an unfamiliar name or for language reasons. The staff member can also draw on the cup. This is an important interaction as the point of identifying the cup is to personalise the customer experience. It, therefore, requires care to ensure that the personalisation is appropriate. While there is customer service training and a harassment policy, I am not satisfied that they provide sufficient information to staff about the power of drawings and pictures, and that what’s important, is how they are perceived.

It is difficult to see how the respondent can rely on the statutory defences where it continues to assert that this was not a racist incident. It does so because the employee’s motivation was not based on prejudice. However, this does not take account of the impact the drawing had on the complainant. Harassment is in the eye of the beholder. It is wrong to rely on the perceived acquiescence of the person at the receiving end of the conduct.

It follows that the respondent cannot avail of the defence in section 11(3) of the Act and is also vicariously liable.

Finding on whether the boyfriend used the racial slur attributed to him

It was asserted during the hearing that the complainant’s boyfriend used a racial slur in his interactions with the supervisor on the 12th January 2020. I find that no such slur was made.

In reaching this finding, I note the professional approach of the supervisor in handling the incident of the 12th January 2020. As depicted on the CCTV and reflected in his evidence, the supervisor was calm in dealing with the complaint and toed and froed to the table where the complainant was sitting.

While there was no audio on the CCTV, I was able to observe the comportment of the supervisor and the boyfriend during this interaction. They were calm and professional. It is said that at one point, the boyfriend used a racial slur, calling the employee a ‘f****** Black c***’ or a ‘Black c***’. One would expect the supervisor to alter his demeanour on hearing such racist language about the employee, for example to stand back as he is taken aback. After all, the supervisor no longer works for the respondent and attended the hearing as a support for the employee. I was not referred to any point in time in the CCTV footage when the slur was allegedly said, but at no point in the footage does the supervisor change his calm and business-like demeanour.

I note the absence of any contemporaneous documentary evidence regarding the racial slur. One would expect to see an incident report where there is racial abuse directed at or concerning a member of staff. There is no incident report. There is no mention of the racial slur in any of the respondent’s replies to the complainant, even though the emails refer to an investigation. Whatever about the early emails, one would certainly expect to see the allegation of a racial slur being mentioned in the ES2 reply.

I also have regard to the boyfriend’s direct evidence at the hearing. He denied making the statement but accepted that he may have mentioned the employee’s race in explaining the effect the drawing had on the complainant.

Taking these factors and inferences into account, I find that the complainant’s boyfriend did not use the words attributed to him, i.e. ‘Black c***’ or ‘f****** Black c***’.

Redress

I have found that the drawing of eyes on the cup amounted to harassment and therefore was prohibited conduct within the ambit of the Equal Status Act. In assessing redress, I accept that employee’s sincere apology and the professional reaction of the supervisor on the day of the incident.

However, I also note that the respondent has not categorised this as a racist incident, which it clearly was. This applies both to its responses to the complainant, for example referring to the incident as benign or affable, and to her apparent submission. I note the offer of vouchers, which may be appropriate where there is a customer service issue, but this was not a customer service issue but racial harassment.

I have regard to the effect the incident had on the complainant and the upset and shock it caused her. I note that the respondent has not fully acknowledged the racist nature of the incident, so there is an ongoing effect on her. I take account of the incorrect allegation made against the boyfriend.

Redress under the Equal Status Act should compensate for the effects of the prohibited conduct. I take account of the complainant’s compelling account of these effects on her and that the respondent has not accepted that this was a racist incident. I have regard to the fact that this is a claim of harassment directed against a person of Asian heritage (in this case, Thai heritage). I note the need in 2020 to have particular regard to the effects of discrimination and harassment directed at a person like the complainant who are Asian, have Asian heritage or who are imputed to be Asian. Taking these factors into account, I award redress of €12,000.

Decisions pursuant to the Equal Status Act are published without anonymisation. Given that I have found that prohibited conduct occurred, there is no basis to anonymise the decision.

CA-00036577-001

I decide that the complainant was the victim of racial harassment when attending the respondent branch and the respondent is the responsible person under section 11 of the Equal Status Act. The respondent did not take reasonably practicable steps to prevent the act of harassment and is also vicariously liable. The respondent shall pay to the complainant €12,000 as compensation for the effects of the prohibited conduct. The award is redress for the infringement of the complainant’s statutory rights and therefore not subject to the PAYE/PRSI/USC code.

Equal Status Act / harassment / picture / race