(Represented by Mason Hayes and Curran, Solicitors)
1.1 This dispute concerns a claim by Mr Paul MacGabhainn that he was discriminated against by Salesforce.com on the ground of age, contrary to the provisions of the Employment Equality Acts 1998 and 2007, when he was asked his date of birth at an interview.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on 14 October 2004 under the Employment Equality Acts 1998 to 2007. Following an unsuccessful mediation process, and in accordance with her powers under section 75 of the Acts, the Director then delegated the case on 5 May 2006 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Submissions were sought from the parties, and a joint hearing was held on 15 June 2007. Subsequent correspondence concluded on 13 July 2007.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant says he was interviewed for the position of Sales Representative covering the DACH region (Germany, Austria and Switzerland) at the respondent's premises on 9 August 2004. There were two interviewers, the male Regional Vice President of the group and the female Regional Vice President Corporate Sales, Ms C. The complainant says the first part of the interview went well, consisting of the interviewers going through his CV and questioning him about his professional background.
2.2 The complainant says that, spoken German being a requirement of the job, the male interviewer then left the room and he and Ms C resumed the conversation in German. The complainant says that Ms C remarked that his date of birth was not on his CV and she asked him upfront what his age was. The complainant says this made him uncomfortable, because he felt it to be irrelevant. He says that he answered reluctantly because he wanted to keep the positive feeling of the interview going.
2.3 The complainant submits that there had been no mention of upper or lower age limits in the job specification, and in hindsight he feels the whole incident smacks of ageism. He says that, needless to say, he did not get the job. He says that he contacted the company's HR department for an explanation. He says he subsequently had correspondence from the HR Director which basically gave him the company's official policy on age discrimination, but did not do enough either to convince him that the HR department had carried out a thorough investigation of his complaint or provide the criteria used in deciding he was unsuitable.
2.4 The complainant submits that asking a question about his age was in itself a legal anomaly which in itself contravenes fair and impartial selection criteria. He says the focus of this question was in no way connected to performance factors that can be demonstrated in the selection procedure or understanding the departmental or organisational goals as they related to the advertised position. He says it is his firm belief that this incident cast a shadow on the integrity of the interview, while merely asking this age related question was clear evidence of discriminatory intent and violated his right to a legitimate interview.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent says it is the Irish branch of Salesforce.com, the world leader in on-demand customer relationship management services. It says that it advertised a vacancy for the post of Account Executive in 2004. It says the complainant was interviewed for the position in July but was unsuccessful because his experience was not sufficient. However, he impressed the interviewer who recommended that the Regional Vice President of the group interview him for a Sales Representative position.
3.2 The respondent says the complainant was interviewed on 9 August for the position of Sales Representative covering the DACH region (Germany, Austria and Switzerland). It says the role of the male interviewer, as the manager to whom the Sales Representative position reported, was to establish the complainant's background and skills so as to ascertain his fitness for the position. Ms C's role was to ascertain the complainant's proficiency in the German language, which was a requirement for the position.
3.3 The respondent says that after the first stage of the interview, during which the complainant's CV was reviewed, the male interviewer left the room and Ms C proceeded with the language-testing phase of the interview. It says she found it difficult to get a conversation going with the complainant and therefore asked very basic questions. The respondent says she based some of these questions on the complainant's CV and it was in this context that she mentioned that the complainant's age was not on his CV.
3.4 The respondent says that the successful candidate for the position was 22 years of age. She had specific experience in the relevant area, having done similar work for Oracle. She was also a native German speaker. The respondent says it was for these reasons that the successful candidate was appointed over the complainant, and that age was not a factor in the decision-making process. The respondent says the complainant was subsequently informed by telephone that he had not been successful due to the fact that a stronger candidate had been identified. It says correspondence passed between the parties but failed to resolve the matter to the complainant's satisfaction.
3.5 The respondent submits that the Equality Tribunal decision in Hegarty v Hollywood Home Entertainments (DEC-E2004-015) is clear authority for the proposition that merely enquiring as to a candidate's age does not amount to prima facie evidence of discrimination on the ground of age. The respondent also refers to the decision of the Tribunal in McCormick v Dublin Port Company (DEC-E2002-046), wherein it said "...it is not enough just to demonstrate a difference upon which one can ground a complaint under the 1998 Act, such as the fact that there is a difference in gender, marital status sexual orientation or age between the successful candidate and the complainant."
3.6 The respondent submits that the complainant must establish as primary facts the matters that he says shifts the burden of proof to the respondent, following the Labour Court in Flexco Computer Stationery v Kevin Coulter (EED0313). The respondent says that if it were sufficient to show simply that a person of a different age obtained the position would be to set the threshold so low as to be meaningless. The respondent says that the only fact upon which the complainant relies is the fact that he was asked his age during the interview. The respondent submits that the complainant has failed to establish prima facie evidence to support his allegation.
3.7 In the alternative, and without prejudice to the foregoing, the respondent submits that, should the Tribunal take the view that the complainant has established a prima facie case, the presumption of discrimination is rebutted by the facts of the case. It says there is clear evidence that the decision not to appoint the complainant was based on objective criteria with no reference whatever to any age related factors. While acknowledging that the complainant's age was asked, the respondent says that the disclosure of his age in no way influenced the decision to appoint another person to the position. It says the issue of age was addressed with the sole purpose of eliciting a response in German from the complainant, in order to assess his proficiency in that language.
3.8 The respondent says it understands the complainant is in his early thirties. It says it currently employs 106 people in its Dublin operation, 81 of whom are between the ages of 30 and 35 years. It says it is clear, therefore, that there is no policy or pattern of age discrimination in the respondent's staff appointments. The respondent submits that, in all the circumstances, it did not discriminate against the complainant and requests the Equality Officer to find accordingly and to dismiss the complaint.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainant alleged that the respondent discriminated against him on the ground of age contrary to the provisions of the Employment Equality Acts 1998 and 2004. Section 6 of the Acts provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, including gender. Section 8 provides that
(1)In relation to-
...(a) access to employment...
an employer shall not discriminate against an employee or prospective employee...
4.3 The Labour Court, in a recent determination of a claim on the gender ground, said "In order to establish a prima facie case of discrimination, the evidential burden is on the complainant to establish the primary facts on which they rely and to satisfy the Court that these facts are of sufficient significance to raise an inference of discrimination, thus shifting the burden to the respondent..." (Health Services Executive and Michael McGoldrick, Determination No EDA076).
4.4 At the hearing of the complaint, the respondent's legal representative argued that the formulation of words in paragraph 4.3, quite commonly used in Labour Court determinations, meant that the complainant must establish more than one fact before an inference of discrimination can be raised. It was submitted that, since the complainant had established only the fact that his age had been referred to, the burden could not shift to the respondent. I am unable to accept this argument. The Labour Court has also used the term "factual basis" in describing what the complainant must establish. In any case, section 18 (a) of the Interpretation Act 2005 provides that in interpreting an enactment, a word importing the singular shall be read as also importing the plural, and a word importing the plural shall be read as also importing the singular. I am satisfied that the same reasoning should be applied to the interpretation of court decisions or other such determinations, unless it would be manifestly irrational to do so.
4.5 The respondent's legal representative accepted that to, say, ask a female interviewee about her plans to have children could be sufficient to successfully ground a successful claim, but submitted that in this case the mere fact that the complainant's age was referred to was not sufficient in isolation to establish his case.
I am unable to accept this argument. In the decision Phelan v Michael Stein Travel ( ELR 58), the Equality Officer found that asking a female candidate about her childminding arrangements was in itself discriminatory. The Equality Officer found that other candidates had better qualifications and the complainant would not have been successful in any case, but awarded compensation for the discriminatory questioning.
4.6 Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation [irrespective of religion, disability, age or sexual orientation] ("the Framework Directive"), was implemented in Ireland by the commencement of the Employment Equality Act 2004. Even if it were the case that age related complaints under the 1998 Act were to be less strictly determined than the original grounds of gender and marital status, without so finding, it is surely the case that the new grounds in the Framework Directive must receive the same level of protection following the Directive's implementation. Accordingly, I am satisfied that the reference to the complainant's age was discriminatory.
4.5 However, I do not find that the complainant would have been successful at interview if he had not been asked about his age. The respondent adduced evidence, undisputed by the complainant, that the successful candidate was a well qualified native German speaker. I accept the respondent's explanation that the complainant's age was referred to solely in the context of trying to engage him in German-language conversation, but the respondent should consider drawing up some standard format questions to ensure discriminatory remarks or questions do not inadvertently arise.
5.1 Based on the foregoing, I find that the respondent discriminated against the complainant on the ground of age, contrary to the provisions of the Employment Equality Acts 1998 to 2007.
5.2 I hereby order that the respondent pay the complainant the sum of €1,000 in compensation for the effects of the discrimination.
3 September 2007