Equal Status Acts, 2000 to 2008
Equality Officer Decision
Ms Jia Yue Wang
Jo Jo Paris Angel
(represented by ESA Consultants)
File Ref: ES/2008/199
Date of Issue: 14 May 2010
Keywords: Equal Status Acts 2000-2008 - Section 3(2)(h), race ground -prima facie case - discrimination - victimisation
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 14 October 2008 under the Equal Status Acts, 2000-2008. In accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2008, the Director delegated the complaint 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, 2000-2008. On 22 January 2010 my investigation commenced. As required by Section 25(1) and as part of my investigation, an oral hearing was held on 19th April, 2010 and both parties were in attendance.
This dispute concerns a claim by the complainant, Ms Wang that she was discriminated against, and victimised by the respondent on the grounds of race in terms of Sections 3(2)(h) and 3(2)(j) of the Equal Status Acts, 2000-2008 in being treated less favourably at the respondent's shop.
2. Summary of the Complainant's Case
2.1 The complainant is a Chinese national. On the 12 September 2008 she was shopping with her friend in the respondent's store and she tried on a dress which she liked. It was too big, but she decided to buy it anyway because she liked it. After purchasing it, they left the shop and a short time later they saw the same dress in her size in another shop. They went back to the respondent's shop and Ms Wang asked if it was possible to return the dress. She said that she knew it was a final sale item, but as she works in retail herself, she knows that it is sometimes possible to make exceptions. The person who dealt with her request was a named store manager. The store manager was very aggressive to her and said that "you Chinese people always make trouble". He told her that eight out of ten people are coming back to try to return the products. Ms Wang was very embarrassed as there were other people in the shop at the time. She told him that what he was saying was not fair and it was racist. He replied that it was the truth. Ms Wang said that he ultimately gave her a credit note but it was difficult to get it, and he did so in a rude manner.
2.2 Ms Wang asked for his name and said that she would be making a complaint. She subsequently made the complaint and received in return a voucher for €20 and an apology from the store management as a gesture of goodwill. Ms Wang says she was very upset by the incident and she never spent either the voucher or the credit note, because she did not want to return to the shop.
2.3 The complainant withdrew her claim of victimisation during the oral hearing, when the specific meaning of "victimisation" under the Acts was explained to her.
2.4 The complaint's friend who was with her during the incident, gave evidence at the Tribunal which corroborated her account of the incident. They both disputed the store manager's evidence that he had only arrived at the end of the whole incident to be briefed by one of the employees. They said that he was present throughout the incident.
3. Summary of the Respondent's Case
3.1 The store manager who was named in Ms Wang's complaint gave evidence at the oral hearing. He said that he had only arrived at the end of the incident, but he was told by his employees that the complainant had come into the shop, tried on lots of clothes, spent a couple of hours there and eventually looked for a discount on her purchase. They did not give a discount because it was a sale item and they also explained to her that it could not be returned. Then only a few minutes after she bought it, she came back looking for a refund. They explained that they did not offer refunds on sale items. The store manager came over and heard the whole story and he explained the policy to the complainant. The complainant kept looking for a refund and he admits that he did get upset because she was so persistent and because he is tired of so many people asking for refunds. He offered her a credit note which she accepted. He denies that he ever mentioned her nationality and he says that it was the complainant who brought up the issue of nationality by asking if he was treating her this way because she was Chinese.
3.2 The respondent also presented as a witness one of their employees who was working in the shop at the time of the incident. The employee said that the complainant had spent a long time there, tried on a lot of clothes, made a mess and asked for a discount. When she came back to ask for a refund she asked her boss to explain the policy. She said that the complainant yelled at her boss and that it was the complainant who brought up the issue of nationality, not her boss.
3.3 The representative for the respondent wished to point out that if the manager had given offence to the complainant, the respondent immediately apologised for it and offered a voucher as a gesture of goodwill. This happened prior to the Tribunal complaint and with the objective of maintaining a good relationship with their customer. The respondent's representative further pointed out that the manager involved in the dispute is from Pakistan and thus as a non-national himself, he would be aware of race issues.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 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. 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.
4.2 The heart of this complaint is the alleged racist comment which was made to the complainant. As the parties completely disagree on whether the remark was made, it becomes an issue of credibility. During the oral hearing, both the complainant's and the respondent's account of the incident appeared to be exaggerated. In particular the respondent witness and manager's story of the complainant spending hours trying on clothes, making a mess and haggling with them, was simply not very credible. The friend of the complainant however gave a straightforward and factual account of what happened and I found her credible. I therefore find as a fact that the manager said to them that Chinese people caused trouble. I do believe however that he was referring to the issue of returning clothes, rather than insulting them generally.
5.1 On the basis of the foregoing, I find in favour of the Complainant and order that the Respondent pay her €400 for the upset caused. I find that the incident was somewhat mitigated by the respondent company's immediate offer of an apology and a voucher as a goodwill gesture.
14 May 2010