Equal Status Acts 2000 to 2008
BRC Shooting Club
(Represented by Smyth O'Brien Hegarty Solicitors)
Case ref: ES/2008/0221
Issued 24 August 2010
Equal Status Acts 2000 to 2008 - Discrimination - Harassment - Gender - Provision of goods and services
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Ms. Brenda Brooks referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 5 December 2008. In accordance with her powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, the Director then delegated the case to me, Tara Coogan, 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 Acts. An investigation, in accordance with section 25(1) of the Acts, commenced on 13 April 2010. An oral hearing, as part of the investigation was held in Dublin on 29 June 2010.
2.1. The dispute concerns a complaint of unlawful discrimination on the gender ground. Ms. Brenda Brooks ("the complainant") maintains that she was treated less favourably and harassed by BRC Shooting Club ("the respondent") contrary to the Acts. It was submitted that the unlawful treatment has been on-going since the complainant joined the club in 1999. The respondent was notified on 14 October 2008.
3. Case for the complainant
3.1. The complainant, an accomplished silhouette shooter, became a partner member with the club in 1999. She became a full member in April 2001 and a lifetime member in the summer of 2001. She was one of the first females to become involved in the respondent activities.
3.2. It was submitted that in October 2008 the complainant had volunteered to write an article for a local newspaper. The article was to be accompanied by a photograph that had been taken of the respondent members. Subsequently, the complainant received an email from a named member who complimented her on the article and merely hinted that it may be necessary to ask the members' permission to use the photos in the media. However, it was submitted that this email was in stark contrast with the email he then sent to the respondent's trustees. It was submitted that set against the backdrop of sustained gender discrimination and harassment by individual club members against her, the complainant was particularly shocked and upset by the tone of the email and felt she had no option but to seek redress under the Equal Status Acts and to inform the respondent accordingly.
3.3. It was submitted that earlier that year, in January 2008, the complainant had been harassed by a named member at the Club's AGM. It was submitted that the member sat directly opposite the complainant staring at her in an intimidating fashion. Each time the complainant tried to speak the member spoke over her and he ignored all her requests to bring the meeting back to order. The member also encouraged other members to join in the heckling. When the complainant finished delivering the Chairperson's report, the named member told her: "You have had plenty of airtime, now it is my turn". The conduct of some of the members, including the named member, was such that the complainant felt that she had to resign from her post despite the fact that she had another two years before her tenure expired.
3.4. The complainant made a written complainant about the above incident by letter dated 29 January 2008. The letter makes it clear that the complainant felt that a named member engaged in time wasting and intimidation of the Club Executive, badgered and harassed the complainant, and prevented her from effectively carrying out the business of the meeting. She referred to the Club's Constitution which provides that a member who engages in unbecoming behaviour may be sanctioned. The complainant requested that she receive a response in 14 days.
3.5. The complainant stated that the respondent submitted a response stating that it was looking into the matter and that it would revert in due course. By the end of February 2008 the complainant received a letter informing her that a thorough investigation had been carried out and that the committee did not believe that the named member had behaved in an unbecoming manner. The complainant was never asked to participate in the investigation and therefore was surprised with the outcome. She wrote to the respondent requesting information about the details of said investigation. It was submitted that she received an invitation to meet with the Committee on 10 April. She received the invitation on 7 April and, due to a longstanding commitment, was unable to attend. Similarly, she was unable to attend on an alternative date of 12 June. She requested minutes of the meeting concerning her complainant and never received them. It was submitted that by failing to supply the complainant with the requested documents the respondent was in breach of the respondent's rules which state that all books and papers of the club must be granted to all members, provided that a reasonable request has been made. Furthermore, the failure to provide the papers has frustrated the complainant's efforts to present her case as comprehensively as she would have liked.
3.6. It was submitted that in March 2007 two incidents of note occurred. The complainant stated that the named member said about her: "she thinks she is a schoolmistress" at the first meeting the complainant held as the Chairperson of the respondent. It was submitted that he later apologised to the complainant and the apology was accepted. Also, a sign with the wording 'Lepers only' was displayed outside the smoking shelter immediately after it had been built and the respondent rules regarding smoking were altered. The change had been brought about by the complainant who had acted on foot of complaints about smoking in the respondent premises from other members. The complainant submitted that she believed that the sign was an attack on her simply because she was ensuring the respondent adhered to the legislation concerning smoking.
3.7. The complainant also submitted that in 2001 a number of incidents occurred. In February, a notice with the statement "Who the fuck is Brenda" was displayed. The notice was removed and the matter was brought to the Committee's attention. It was submitted that the then Chairperson suggested that as the notice had been placed anonymously, the author should also post an anonymous apology. Around the same time, at an EGM meeting to discuss whether spouse/partners ought to pay insurance premiums, the complainant was reduced to tears by the named member who, inter alia, suggested to a member that he could always shag his partner for the €30 that the premium would cost.
3.8. Later that year, in May, the complainant submitted that the named member behaved in disrespectful manner towards her at the shooting range and used foul language. Later, the complainant and her then partner (another member who gave evidence) spoke with the named member in a local public house where the member commented to the complainant - who had become a full member and was thus paying fees - "at last you were embarrassed into paying up, one down two to go (in reference to other female, non-fee paying spouse/partner members). It was submitted that when the complainant asked him whom he was referring to, he replied: "one is a fat cow". The complainant raised these matters at a Committee meeting but no action was taken. The complainant, who had sought the special meeting as a result of the incidents, was told by the then Secretary that they would not take action and that he, the Secretary, would rather resign than write to the named member. The complainant's request that the member be informed of her complaint in writing was declined. It was submitted that the member finally apologised to the complainant two months later. The apology was accepted by the complainant.
3.9. The complainant was abroad for most of 2003 and 2004. No significant incidents occurred in 2005 or 2006.
3.10. It was submitted that if the club had addressed the complainant's concerns in a timely manner, and taken decisive action in relation to same, the complainant would not have had to seek redress under the Acts.
3.11. The complainant submitted that the conduct outlined at the hearing has effected her dignity and has created an intimidating, hostile, degrading, humiliating and offensive environment for her within the respondent premises. She stated that she no longer feels welcome and, if not for her passion for her sport, she would have left the respondent a long time ago. The complainant also believes that some of the other members now believe her to be a nuisance and that this is having a divisive effect on the club.
4. Case for the respondent
4.1. I was submitted that the respondent is in dismay that any allegation of discrimination, on gender or any other grounds, be levelled at the club. It was submitted that the club is open to all persons. It was submitted that the complainant was elected 'Member of the Year 2007' on the basis of the contribution she had made to the Club. The same year, the complainant was elected the Chairperson. The respondent submitted that every member of the Club agrees that the complainant has made an exceptional contribution to the development and administration of the Club. The respondent submitted that in such circumstances where the complainant has given such commitment and dedication to the Club, her allegation against the Club is unbelievable.
4.2. It was submitted that the complainant had misunderstood the email sent out about the photos and had been oversensitive to any tone and/or implied meaning. In relation to the incident of January 2008. It was submitted that the named member had made a written submission to the Committee, prior to the AGM, raising questions about the proposed changes to the respondent's Constitution. It was submitted that the member was simply seeking a response to his queries. The member found that answers were not forthcoming and he was vociferously debating his argument. It was submitted that such behaviour was relatively normal and that members have a right to debate matters. It was submitted that if the complainant, as Chairperson, believed such behaviour had become disruptive then it was a matter for her to control the proceedings and call an adjournment. This she did not do.
4.3. It was submitted that as the complainant and other Committee members resigned their posts threatening to close the entire club, an emergency Committee was formed by three named members.
4.4. It was submitted that it is not unusual for the named member to argue his opinions vehemently. It was submitted that this had been recognised previously when the member had admitted that he: "went hot and heavy with the (then) Treasurer at the meeting". The member had apologised and the apology accepted. It was queried whether one could conclude from such facts that the member had also harassed a male member? The respondent stated that it is obvious from the above matters that the member means no harm to anyone but that his nature will be argumentative regarding his views and strongly held opinions. It was submitted that all members are entitled to hold views and that the member merely does not hold back when expressing his. The member submitted that he viewed the complainant as a bit autocratic and overbearing.
4.5. The respondent submitted that it may be just be possible that the complainant did not accept the members' verdict and was thus complaining. The respondent also submitted that the complainant frustrated the respondent's efforts to solve this matter amicably by not turning up when requested to do so, even when given two months notice. The club believes the complainant wishes to make an example of the respondent.
4.6. The respondent submitted that it declined the complainant's request for copies of the Committee meeting on the basis that they were privileged. The respondent did agree at the same meeting to provide copies of the same meeting to the Tribunal, if requested.
5. Conclusion of the Equality Officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.2. The issue of time in relation to a claim of on-going discrimination needs to be addressed. The complainant submitted in her evidence that certain comments had been made to her in 1999 concerning partner members who, at the time, where all females. S. 21(11) of the 2004 Act provides:
"For the purposes of this section prohibited conduct occurs-
(a) if the act constituting it extends over a period, at the end of the period,
(b) if it arises by virtue of a provision which operates over a period, throughout the period."
Statutes cannot generally be said to have retrospective application. This means that, unless it can be shown that a precise condition, requirement or a rule - depending on the circumstances of the case - has continued to operate past the commencement of the Act I have no jurisdiction to investigate it. The Equal Status Act came into operation in October 2000. The Act was amended in July 2004 to include the above provision that clarifies the position set out in section 21(2)(a) of the 2000 Act which requires that notification must be made within two months in circumstances where more than one incident of prohibited conduct is alleged to have occurred. Therefore, I am satisfied that I have jurisdiction to hear the claim from February 2001. However, in accordance with the notification limits set out in the Acts I have examined the complainant backwards from 2008 to investigate if indeed a chain of discrimination and/or harassment has taken place.
5.3. I am satisfied that the respondent is a provider of services in accordance with section 5 of the Acts. There is no question that the club is a discriminating club within the meaning of section 8 or a non-discriminating club within the meaning of section 9.
5.4. The prohibition on harassment in the provision of goods and services is clearly set out in section 11 of the Acts:
"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(2) sets out the responsibility on a 'responsible person':
"A person (''the responsible person'') who is responsible for the operation of any place that is an educational establishment or at which goods, services or accommodation facilities are offered to the public 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."
Using normal everyday language, it is clear that the above section imposes a legal onus on a service provider to prevent harassment occurring where a service is being provided. Section 11(3) provides the service provider with a defence:
"It shall be a defence for the responsible person to prove that he or she took such steps as are reasonably practicable to prevent the sexual harassment or harassment, as the case may be, of the other person referred to in subsection (2) or of a category of persons of which that other person is a member."
The onus to establish a defence rests with the respondent on the balance of probabilities. That is, there is a legal requirement on providers of goods and services to show that they took reasonably practicable steps to prevent harassment from occurring.
5.5. For the purposed of the Acts, harassment if defined as:
(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.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
5.6. It is clear from the facts of this case that the complainant had raised the issue of less favourable treatment contrary to section 3 and harassment contrary to section 11 with the respondent. It is also clear that in the past the respondent had taken certain informal action and the matters had been dealt with to parties satisfaction. This occurred despite the fact that the respondent had no policy in relation to these matters. It is clear that the solution had been reached because an individual member was willing to put himself forward to facilitate the matter.
5.7. It is also clear that subsequent to the incident in January 2008 the complainant clearly raised new issues concerning the manner in which she viewed that she was being treated by some of the respondent male members. Its is clear that the then Board were uncomfortable with these allegations, and as personal friends with the alleged harasser, admitted that they did not want to become involved. It was submitted that they felt that the best way to deal with this issue was to ask ten members, who attended the meeting but were not directly involved, what they thought of the alleged incident. It was submitted that these anonymous people were asked, inter alia, whether they thought the named person's behaviour was unbecoming to a member. On foot of this 'straw poll' the Board then decided that the named member had no case to answer and communicated the decision to the complainant. In such circumstances, I find the respondent's claim that the investigation was thorough and that the complainant simply did not like its outcome to be very disingenuous
5.8. Furthermore, I find that it is rather flippant to suggest that one person has a right to express their views in whatever manner they find fit and that another person, offended and intimidated by such manner, ought to grin and bear it. There is no balance in such an approach. While people are entitled to their personal views, they also bear a responsibility to be respectful towards others in circumstances where they are availing of goods and services. The onus to ensure that a culture of respect exists is with the provider of goods and services. Such a culture does not gag persons from expressing their views but ensures that views are expressed in an appropriate and measured manner, that is, in a manner that is not hostile and does not include personal attacks on a person's innate traits, such as their gender. It is not appropriate to presume that a woman is 'oversensitive' and ask male members to confirm what she ought to be feeling. While I do not find that much of the alleged conduct was at all times overtly gender specific it is clear that the named member is known for his uncompromising manner and that others, including himself, view his manner as such. I note that the member has had to apologise to other members because he had unintentionally offended them or behaved in a manner that objectively warranted an apology. It is also clear that this behaviour has been tolerated because it has been 'unintentional'. The relevant fact in law is that the complainant had made the respondent well aware of how the named member's behaviour made her feel and was requesting that the respondent take action to curtail his behaviour. It is not relevant whether the offending person intended or did not intend to cause such offence. What is relevant is what followed subsequent to a complaint.
5.9. It is clear that an allegation of harassment and discrimination was made. It is equally clear that the respondent carried out no investigation, within the proper meaning of the word, into the matter. It is equally clear that as a result of this failure, both parties became even more distrustful of one another. In such circumstances, even emails that may have appeared to be inoffensive to one person will have a very different meaning to the other.
5.10. The case law concerning the duties of employers in relation to allegations of harassment in the workplace has been well developed. It imposes clear obligations on employers in relation to how deal with such matters. I note that the respondent is a voluntary Club and that its management depends on such volunteering. While I appreciate and acknowledge that it would be unfeasible and unfair to impose the same degree of obligations to such voluntary bodies, the legal obligation to protect service users from harassment and discrimination is unconditional. This means that a service provider must take complaints of harassment and discrimination seriously and investigate them in a manner that is consistent with the principles of natural justice. The person making the complainant must be given an opportunity to state his/her case and it must be appreciated that harassment, by its vary nature, is a subjective experience. What is intimidating and hostile to one person may not be so to another. Therefore, it is crucial that the complainant be given an opportunity to explain the facts from her perspective. It is not acceptable to treat the person making the complainant as 'the problem' and presume that she is making a complainant for some petulant reason. It is equally clear that the responsibility of having to investigate such a complainant is a challenging one especially in circumstances where people are also friends. Therefore, such an investigative role should not simply be imposed on anyone.
5.11. The above facts have raised an inference of gender discrimination that has not been rebutted. While it may be argued that the complainant was treated exactly like any man in her shoes would have been treated in similar circumstances, it should be clear that she is not a man. Some of the slurs that have been made about her have been gender specific and I am not satisfied, on the balance of probabilities, that similar tactics would have been levelled against another man. The complainant, who undoubtedly has been a proactive member and a 'doer', has influenced change and obviously annoyed some members in the process. I find that such is often the burden of a person who actually gets things done. I accept that a person in such a position will have to deal with some comments and difficult questions. And I find that the complainant has. However, she has very clearly stated that she felt harassed and discriminated against on the ground of her gender, and has asked that such allegations be examined impartially. In response, the respondent accused the complainant of being disloyal to it and finds her actions unbelievable. I do not find that it is unbelievable that she referred a complainant. It is clear that the complainant, who truly cares about the respondent Club, did so as a last resort. The complainant had no choice in the matter in circumstances where the respondent saw her, the woman, as the problem because she objected to treatment that made her feel uncomfortable, disrespected and intimidated. Much of the evidence that I heard implied that the named member's behaviour was acceptable because that is the way he is. It is a shame that the respondent did not afford the complainant the same level of appreciation and accept her feelings as hers. Such an attitude betrays a serious failure to appreciate the responsibilities that the Acts require.
6.1. In accordance with section 25(4) I have concluded my investigation and issue the following decision:
6.2. The complainant has established a prima facie case of less favourable treatment contrary to sections 3(1), 5(1) and 11(1) on the ground of her gender.
6.3. In accordance with section 27(A) I order the respondent to pay the complainant €2500 in compensation for the effects of the discrimination and harassment.
6.4. In accordance with section 27(B) I order the club to immediately implement an equal status/harassment policy that will be binding on all of the clubs users, regardless of the nature of their membership. Such a policy must - at minimum - afford all parties involved in disputes the right to be heard and the right to have the matter decided by an impartial person.
24 August 2010