Equal Status Act 2000-2004
Equality Officer Decision DEC-S2007-08
Equal Status Acts 2000-2004- Direct discrimination, Section 3(1)(a)- Gender Ground and Race Ground, Section 3(2)(a) and 3(2) (h)- "Eviction", Suspension, Expulsion- Section 5(1)- Discrimination in relation to service provision
Delegation under the Equal Status Act 2000
This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000-2004. In accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated the complaint to me Mary O'Callaghan, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act 2000 -2004. The hearing of the case took place in Dublin on 7th December, 2006.
1.1 The complainant alleges that he was subjected to discriminatory treatment when he was sent home from college on 8th November 2004 and subsequently when conditions were laid down governing his return. He maintains that this treatment is in breach of the Equal Status Act 2000-2004 in terms of Sections 3 (2) (a) and 3(2) (h) and contrary to Section 5 (1) of the Act, i.e. that he was refused access to goods and services because of his gender and race.
2. Summary of the Complainant's Case
2.1 The complainant is a Bulgarian national who has lived in Ireland for a number of years. He was pursuing a course of study in the respondent college with a view to gaining a qualification with which he could set up his own business. In November 2004 he was told at a party by a fellow student (A), that another student in the college (B), had said that the complainant was a pervert. He was angered and distressed by this information. The incident arose following contact the complainant had made with a female student (C) with a view to establishing a friendship. That student had not responded to his approach.
2.2 He said that he went to the Principal of the college seeking assistance in dealing with the issue and was told by her that she would take advice on the matter and that he should set out what had happened in writing.
2.3 When he met student (A) again, he demanded that student (A) tell him who had made the remark. He said he suspected he knew who had said it but he wanted to be absolutely sure before he took any action in this regard. The complainant said that student (A) told him that he would let him know and show him who had said it. The complainant said that for the following few days students (A), (B) and (C) were absent from the college and when he met student (A) again he refused to show him the student (B) who had made the allegation against him. He said that he became angry and that an argument broke out between him and student (A). The complainant said he approached the principal again but that on this occasion he felt that the finger of blame was being pointed at him in relation to what had occurred. He was told that he should leave the college and return the following Monday to discuss matters with the Principal.
2.4 On the following Monday when he met with the Principal he was told that the whole matter was a misunderstanding and that there had been no slander. He refused to accept this explanation and the Principal then issued him with a note instructing him to leave the college for a "cooling off" period and to return the following Monday. He received another letter in the interim from the Principal stating that she had found no basis for his complaint and that the meeting the following Monday could only take place "if you accept my explanation of recent events and are prepared to guarantee that your future behaviour is in keeping with the rules of the college..." Mr. Stanev did not attend for the meeting. A series of strongly worded letters were exchanged between him and the Principal over a number of the following months and he has not returned to the college. Mr. Stanev's view is that the reason for his exclusion from the college was mainly on the ground of race although since the party he was in dispute with was a woman he also believes that there was a gender dimension to his treatment. He said that he believes the Principal had twisted the situation to defend student (B) who was Irish and a female and that he was blamed for what had happened because he was a foreigner and that racism is a hatred of foreigners. When asked if he would return to the college now he said he had not considered it. He has not been able to continue with his studies since the incident partially due to financial constraints and he is not working at present. He said that the situation has caused him great stress. He did not know if there had been similar treatment of other students of his ethnic background at the school or of Irish students.
3. Summary of the Respondent's case
3.1 The Principal of the college said that the complainant had not come to her particular attention in his time at college before the incident complained of, apart from an incident during the previous year when he was peripherally involved in defending a female student who was in dispute with another girl. She was unaware of the complainant's nationality until the circumstances surrounding the incident complained of blew up and his application form to attend the college came to her attention. She said that there are over 80 international students attending the college out of a student complement of 540.
3.2 She said that the complainant approached her regarding the remarks made just prior to the mid term break when the college would be closed for a week. She understood that there had been a social event organised by the student council in a bar in the centre of Dublin and the original allegation that the complainant was a pervert had been made there. She told the complainant that she needed time to consider the situation and to take advice. The college was closed for a number of days due to the mid-term break and after initially trying to contact the VEC head office without success she decided to let the matter rest until after the mid term break. On receipt of advice she told the complainant to put his complaint in writing. She received this a day or two later and she forwarded it to head office seeking advice. The advice received was that if the matter had occurred outside the college she should not get involved. The complainant demanded that the matter be investigated and in a meeting in her office an argument developed where strong language was used and the complainant was ultimately asked to leave.
3.3 Following this she took written statements from students (A), (B) and (C) and made a decision on the complaint made. The statements of the students were not made available to the complainant for comment at the time (and on the evidence it would appear that their existence only came to his attention in the lead up to the hearing of this matter). The principal said that the normal policy for dealing with complaints from students was to question the student making the complaint and then to consult with the person with whom the complaint was against and to come back to the student making the complaint about it. In relation to the race or gender dimension to this complaint she said that the only person who had raised these issues was Mr. Stanev, the complainant. She said that he had called her a racist, a label which she considered to be discriminatory against her but she let it go. She said as far as she was aware the complaint made by Mr. Stanev to her was handled no differently than the way she would handle a complaint from any student. She said there had been about two incidents of a similar nature in the college neither of which involved the complainant and they were dealt with in a similar manner to the incident involving the complainant. Generally, she said that there were no more that one or two incidents in a year.
3.4 The principal said that the suspensions or expulsions would not occur in the college as there were specific regulations set down by the VEC that stipulated that such actions would have to come before the board of the college for decision and therefore, she would not have been in a position to impose such a sanction on a student herself. She said that a student could be asked to leave temporarily to allow time to arrange a meeting, where a sensible discussion on the issues in dispute could take place. She said that this was what was involved in Mr. Stanev being sent home. She said she was concerned for Mr. Stanev's fellow students on the grounds of health and safety and she wanted to be sure that when he returned he would abide by her decision and behave in a manner that was compliant with VEC rules. Mr. Stanev refused to attend the meeting and a number of letters were exchanged between the parties since then. The principal stated that her position in regard to Mr. Stanev's return to college remained that Mr. Stanev could return to the college if he complied with the registration requirements and his behaviour did not conflict with the rules laid down by the VEC. She said that he was not discriminated against on either the ground of gender or race.
4. Conclusions of the Equality Officer
4.1 At the outset the burden of proof in relation to whether discrimination occurred rests with the complainant. I must first consider whether the complainant in this case, has established a prima facie case of discrimination. In order to do so the complainant must satisfy three criteria. It must be established that he is covered by the relevant discriminatory grounds i.e. in this case the gender and the race grounds. It must also be established that the actions complained of actually occurred and finally it must be shown that the treatment of the complainant was less favourable than the treatment that would be afforded to another person in similar circumstances who was not covered by the discriminatory grounds referred to above. He must establish all of these facts if a prima facie case of discrimination is to be established. If there is a prima facie case of discrimination the burden of proof shifts to the respondent who must then rebut the case of the complainant if it is to fail.
4.2 With regard to the first of the criteria, I accept that the complainant satisfies the criterion set down above at para 4.1 above, in that he is of a different gender to some and of a different ethnic origin to the other students with whom he compared his treatment with, i.e. students (A), (B), and (C). I do not accept, however, that the fact that the respondent i.e. the principal's gender is different from the complainant is sufficient to ground his complaint on gender and at times this was the proposition made by the complainant. I do accept, however, that the principal ground of complaint asserted by Mr. Stanev is that of race and that he believes that the treatment afforded to him by the college in response to his request for an investigation was rooted in his ethnic origin and that any allegation of gender based discrimination may be secondary to this. I am satisfied that there is sufficient evidence to support the second criterion that of specific treatment in that the complainant was asked to leave the college premises on the day of the meeting with the principal. What occurred subsequent to this including his failure to return to the college under the conditions laid down leads me to consideration of the third criterion outlined, that is the test of less favourable treatment being afforded to the complainant than that which would be provided to another person in similar circumstances who is of another gender or race (ethnicity).
4.3 The facts of this case are that the complainant sought to have the incident where it is alleged he was described in a derogatory and offensive manner by fellow students investigated and dealt with within the college where they were attending. He pursued the investigation by reporting the incident to the college principal and by conversations with one particular student about the matter. This led to a heated exchange between him and other students which resulted in him being summoned to the college authorities i.e. principal and vice principal. Following on this meeting the principal conducted an investigation through interviews with the students with whom the complainant associated the offensive remark and made a decision on the merits of Mr. Stanev's grievance arising from statements made by the parties concerned. The outcome was that, on communicating her decision to the complainant, a number of conditions were laid down governing his resumption of his course of study. The complainant Mr. Stanev has refused to accept the decision of the principal believing it to be grounded in racial and possibly gender discrimination. He, therefore, has not returned to the college.
4.4 The manner in which the incident reported by Mr. Stanev was dealt with by the principal gives rise to some concern regarding his access to the statements made by the other students to the principal during her enquiries. It is noted that he was not informed that these statements were actually made until a submission was made by the respondent in the lead up to the hearing of this case and he did not see them until the day of the hearing, when they were provided to him when a request do so was made. He, consequently, had no basis on which to assess the reasoning underpinning the decision made, nor had he an opportunity to assess in his own right the version of the incident presented by students (A), (B) and (C). While it is acknowledged that the principal's enquiries were made within the context of an educational/school type environment, the students concerned were adults, pursuing tertiary education, having at a minimum completed the second level. My conclusion from all of the evidence considered in this case is that while the enquiries were made in good faith by the principal with a view to bringing a swift conclusion to the issue, the approach taken may have only served to exacerbate the frustration and anger already felt by the complainant. While this approach may have been more appropriate if one were dealing with minors, it failed to take account of an adult's legitimate expectation of what would constitute fair procedures in such circumstances. I should, however, also note that the tone of the complainant in the series of letters to the principal in the aftermath of the incident went beyond mere anger and frustration.
4.5 It remains for me to determine whether what happened was less favourable treatment within the criteria outlined at para 4.1.Having carefully considered the evidence presented by both parties I have concluded that the approach taken by the principal which resulted in the complainant leaving the college and not returning to date is the approach that would have been taken to dealing with a similar situation involving any student regardless of gender of race/ethnic origin and consequently while it was in my view imprudent it was not discriminatory on the grounds complained of. Accordingly the complainant has not established a prima facie case of discrimination.
4.6 I note particularly that the college would still be open to an approach from Mr. Stanev to return to complete his studies subject to compliance with the rules of the VEC and I would hope that he would consider this option so that he could pursue his desire to set up his business, and that the college could facilitate a trouble-free return if he chooses to take this opportunity.
5.1 The complainant, having failed to establish a prima facie case of discrimination on the gender and race grounds cannot succeed in his complaint (ES/2004/0235) and accordingly my finding is for the respondent in this case (DEC-S2007-08)