THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 to 2008
Decision No. DEC - S2010- 014
Mr Nicholas Kealy
(represented by Mr. Alan Haugh, B.L.)
File Reference: ES/2008/050
Date of Issue: 8 March 2010
Equal Status Acts 2000-2008 - Section 3(2)(g), disability ground - blindness - refusal to allow guide dog in taxi - failure to provide reasonable accommodation - discrimination
1. Delegation under the relevant legislation
1.1. On 15 April 2008, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2008. In accordance with her powers under section 75 of the Employment Equality Acts, 1998 to 2008 and under the Equal Status Acts, 2000 to 2008, the Director delegated the case to me, Elaine Cassidy, 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, 2000 to 2008. This delegation took place on 18th January 2010, on which day I commenced my investigation.
1.2. As required by Section 25(1) of the Equal Status Acts, 2000 to 2008, and as part of my investigation, I held an oral hearing of the complaint in Dublin on 1st March 2010. Both parties were in attendance at the hearing.
2.1. The dispute concerns a complaint by the complainant that she was discriminated against by the respondent on the Disability ground contrary to the Equal Status Acts 2000 to 2004 in terms of Sections 3(1)(a), 3(2)(g) and Section 4(1) of the Equal Status Acts, 2000 to 2004, and contrary to Section 5(1) of the Equal Status Acts, 2000 to 2004, in that the respondent discriminated against him by refusing to allow him into his taxi because he was accompanied by a guide dog.
3. Case for the Complainant
Evidence of Complainant
The complainant, Mr Kealy, is totally blind. He alleges that, around midnight on 2 February 2008, he and his girlfriend Ms A approached the respondent's taxi, as the engine was running and it appeared to be first in the rank. Mr Kealy was accompanied by his guide dog which was wearing a full reflective harness. As he approached the car, he heard the locks click and assumed the driver was opening the doors for him. It turned out that the doors had been locked and he could only speak to the driver through a small opening in the window. The driver told him he could not take the dog. Mr Kealy told him that he could not refuse to take him and his dog. Mr Kealy explained that it was a fully trained and harnessed guide dog, but the driver still refused to take the dog. He offered to take the couple but not the dog. Mr Kealy said that that was impossible. Mr Kealy then asked for his taxi registration number which the respondent refused to give. Mr Kealy said he would have to call the Gardai, because he obviously could not read the registration number himself. The respondent agreed to this suggestion and Mr Kealy called and asked the Gardai to come quickly. When he hung up, he put his arm on the car to prevent the respondent from driving away. He says the respondent became very annoyed and told him to "get the f*** away from his car". He refused because he believed the respondent would drive away. While they waited for the Gardai, he says that the respondent offered to take another couple in his car. He says that the couple refused and pointed out that the complainant was ahead of them in the queue. The Gardai arrived very quickly and spoke to both parties. Mr Kealy says that the Gardai told the respondent that he was obliged to take guide dogs, but the respondent said that he was afraid that the dog would foul his car. The Gardai then arranged for another driver to take the complainant and his girlfriend home. A few days later the Gardai called again to his house to take a statement regarding the incident. This statement was sent to the taxi regulator who upheld the complaint and fined the respondent 250 Euros for refusing to carry a guide dog.
Evidence of Witness
3.1. Ms A is the girlfriend of the complainant, Mr Kealy. She confirmed the complainant's evidence and added that she was carrying a white stick on the night in question, as she is also blind. She could not accept the respondent's assertion that he did not know it was a guide dog, given the fact that they are both blind, that they had a fully-harnessed dog and a white stick with them. When the complainant said that he would call the Gardai, Ms A said that she felt things were getting tense with the taxi driver and she stepped back away from the car, because she was scared. When she stepped back, she said that a couple came towards her and the woman asked if she was ok, and the man said that the situation was appalling. She understood him to be referring to the taxi driver's refusal to carry them.
3.2. Mr Alan Haugh, for the complainant, submitted that the respondent was clearly aware of the complainant's disability and in addition to refusing to make reasonable accommodation for him, he made matters worse by being aggressive towards him. This added considerably to the complainant's distress and humiliation in the presence of his girlfriend and several members of the public to whom he is known.
4. Case for the Respondent
4.1. The respondent, Mr Orayinyin, was waiting in the taxi rank when the complainant and his girlfriend approached him. He saw immediately that they had a dog with them and he locked his doors. The respondent said that because he had a fear of dogs, he was too afraid to get out of the car, so he opened the window to talk to them. He rolled down his window and asked them to take the next taxi. He says that the complainant became very annoyed about this and started talking very fast to him. As English is not his first language he could not understand everything the complainant was saying. He understood when the complainant said he would call the Gardai and he agreed, because it would give him a chance to tell his side of the story. He was annoyed when the complainant put his arm on the car and completely dismissed the complainant's theory that he would otherwise have driven away. He pointed to the fact that he had been a taxi driver in Carlow for two years at that stage, that he owns a home and that he has a family there. Therefore there would be no point in him driving away, because he is well known.
4.2. When the Gardai arrived, he says that he told them about his phobia of dogs and that he would put his passengers in danger because he would not be able to concentrate on driving if there was a dog in the car. He said that his fear of dogs developed as a result of the death of a family member who was bitten by a dog.
4.3. Mr Orayinyin said that he called the Taxi Regulator after the incident and explained what happened. He told them that he had refused to pick up the complainant's guide dog, because of his phobia. He says they told him that he was not allowed to refuse the service unless he had shown the Regulator satisfactory medical evidence before the event. He says that he accepted that this had not happened and he paid the 250 Euro fine which they levied on him. After the incident he went to his GP and got a letter to say that he could not accept passengers with dogs due to his phobia. He submitted this letter to the Tribunal.
5. Conclusions of the Equality Officer
5.1. Section 38(A) of the Equal Status Acts, 2000 to 2004 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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. In making this decision I have taken account of all the oral and written submissions made by the parties.
5.2. It is clear from these submissions that the respondent did refuse to carry the complainant's guide dog, but there is disagreement between the parties as to the rest of the incident, including the reasons why.
5.3. Having considered the matter carefully, I find the complaint's version more compelling for the following reasons:
- The complaint gave a clear and detailed oral description of the incident which matched his written submission. The respondent on the other hand contradicted himself on several minor points which questions his credibility.
- The complaint's girlfriend was a very credible witness whose account matched that of the complainant.
- The respondent claimed that he had no idea that the dog was a guide dog until the Gardai arrived. He supposed that they were out walking their dog. I do not find this to be a credible statement given the fact that it was midnight, the complainant and his girlfriend are clearly blind and one of them was carrying a white stick.
- Both the complainant and his girlfriend recalled the very clear language which the respondent used and they were certain that at no time during the incident did the respondent mention a fear of dogs. The complainant says that he is a reasonable person, that there were other taxis in the rank and if the respondent had explained his phobia to him, he would have taken a different car.
- The respondent claims that he would not use foul language or behave towards potential customers in such a rude way; however during the hearing itself he became somewhat hostile and this made his assertion less credible.
5.4. As the respondent did not refuse to provide a service to the complainant, this is not a case of direct discrimination. However in the case of a complaint being made on the disability ground, consideration must be given to the issue of the provision of reasonable accommodation to a disabled person. Section 4 of the Equal Status Acts states as follows:
"(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficulty for the person to avail himself or herself of the service.
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question."
5.5. In that context, it is well established in the Tribunal that, where there is an allegation of discrimination similar to the one in question, the general approach taken is as laid out in Mr. John Maughan -v- The Glimmer Man Ltd , where the Equality Officer reached the following conclusions;
[9.7]"In reaching my conclusions on this ground I am satisfied that if a person brought a dog, which was not a guide dog, into the respondent's premises they would not have been served in line with the respondent's no dogs policy. On the face of it, therefore, the complainant was not treated less favourably because he was treated the same as anyone else with a dog would have been treated. However, because of his visual impairment the complainant was not in the same circumstances as someone else with a dog who was not visually impaired. This difference is important and to quote the European Court of Justice ruling in the case of Gillespie and others v Northern Health and Social Services Boards and others (Case no. C-342/93) "discrimination involves the application of different rules to comparable situations, or the application of the same rules to different situations". This principle is supported by the ruling in the US Supreme Court case of Jenness v Fortsom (403 US 431 (1971)) and the rulings in the Irish Supreme Court cases of O'Brien v Keogh (1972 IR 144) and de Burca v Attorney General (1976 IR 38).
.....I consider that allowing a guide dog into a pub with a visually impaired person is special treatment without which it would be impossible or unduly difficult for the visually impaired person to avail of the service."
So, as the Equality Officer stated in Gabriel Moloney -v- Park House Hotel
"[a guide dog is] not just a pet...it had a specific purpose and function, its owner was visually impaired and requires the use of the dog to find his way around...the complainant requires specific special treatment because of his disability as it would be unduly difficult for him to avail of the accommodation service otherwise."
I find that the respondent, by refusing to allow the guide dog to accompany the complainant into his taxi, failed to provide the complainant with special treatment or facilities to accommodate the needs of a disabled person with a visual impairment contrary to Section 4(1) of the Equal Status Acts.
6.1. In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2004, I conclude this investigation and issue the following decision:
6.2. I find that, further to Section 38A of the Equal Status Acts, 2000 to 2004, the complainant has established facts from which it may be presumed that prohibited conduct by the respondent has occurred in relation to her, in that the respondent discriminated against the complainant on the disability ground by failing to provide reasonable accommodation in accordance with Section 4(1) of the Acts. The complainant has therefore established a prima facie case of discrimination by the respondent, which the respondent has failed to rebut.
6.3. In reaching my decision in relation to the calculation of the redress to be awarded in this case, I have taken the following factors into account:
- That, in the context of this complaint, the respondent was unaware of his obligations under the Equal Status Acts until he called the Taxi Regulator after the incident;
- That he has already paid a fine of €250 in relation to the same incident;
- That he did use abusive language towards the complainants which further compounded the offence.
- That the amount should be proportionate, effective and dissuasive in the context of this complaint.
6.4. In accordance with Section 27(1)(a) of the Equal Status Acts, I order the respondent to pay to the complainant the sum of €1000 in compensation for the inconvenience caused and for the upset and humiliation experienced by the complainant.
8 March 2010