The Equality Tribunal
3 Clonmel Street
Phone: 353 -1- 4774100
Fax: 353-1- 4774150
Equal Status Acts 2000-2008
A Parent (on behalf of her son)
File Reference: ES/2009/048
Date of Issue: 29th March 2011
A Parent (on behalf of her son)
Equal Status Act, 2000 - 2008, Direct discrimination, Section 3(1) - less favourable treatment - Disability, 3(2)(g) - refusal to provide a service, Section 5(1), Section 4 - refusal to provide reasonable accommodation Section 38A - prima facie case, Section 11 - harassment, Defence - section 11(3).
Delegation under Equal Status Acts, 2000-2008
The complainant on behalf of her son referred complaints to the Director of the Equality Tribunal under the Equal Status Act 2000-2008 on the 22nd April 2009. On the 22nd of November 2010, in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to me, Marian Duffy, 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. On this date my investigation commenced. A submission was received from the complainant on the 8th October 2009 and from the respondent on 25th November 2009. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 10th of February 2011.
1.1 The dispute concerns a claim by the complainant on behalf of her son that he was discriminated against on the disability ground when the respondent refused to allow his guide dog to stay in the shop. The complainant alleges that the respondent discriminated against her son in terms of Sections 3(1)(a) and 3(2)(g) of the Equal Status and contrary to Section 5(1) of that Act.
2 Complainant's Case
2.1 The complainant submitted that she and her son together with his guide dog entered the respondent's shop on the 28th January 2009. Her son is 7 years old and suffers from autism and he uses guide dog assistance for over 3 years. They walked around the shop and picked up some groceries and proceeded to the checkout. While they were in the queue they were approached by a member of security and they were asked to leave because dogs are not allowed in the shop. The complainant explained that the dog was a guide dog and pointed out the dog's high visibility jacket with the identification of the Irish Guide Dogs Association on it. The security refused to accept this and asked them to leave. The complainant then called the manager who again refused to accept that the dog was a guide dog even after she showed him the dog's ID from the Irish Guide Dogs Association. She said that the manager told them that neither of them was blind and he did not accept that the dog was assisting anyone and threw the ID back at her. He suggested that the dog was a pet and asked her and her son to leave the shop. She said that he was supported all the time by the security officer who was very aggressive towards them and was shouting at her to get out and called her a liar.
The complainant said that she left the shop after paying for the groceries and both she and her son were very distressed. She submits that the treatment they were subjected to constitutes discrimination and harassment of her son because of his disability.
2.2 The complainant contacted one of the Directors of the company and made a complaint. Following a meeting with him the complainant received a letter of apology. She was not satisfied that the respondent understood that discrimination had occurred or that procedures were in place to prevent it happening in the future. She said that she was in the shop without her son but with the guide dog on two other occasions, once she was approached by the manager and she told him she did not want to talk to him. The other occasion was about 6 months later and she was told by the same security guard that dogs were not allowed in the shop, but after she showed him the dog's jacket he left her alone.
3 Respondent's Case
3.1 The respondent denies that the complainant was discriminated against. The respondent accepted that the complainant and her son were asked to take the guide dog outside because the security person did not recognise him as a guide dog. The manager said that he recognised the dog as a guide dog but he did not see the guide dog assisting anybody. He said that he tried to explain to the complainant that the security guard may have thought that, because neither she nor her child are blind that they were not entitled to have the guide dog in the store. The manager denied that he said to the complainant that the dog was not assisting anybody and that neither she nor her son is blind.
3.2 The company director submitted that the security guard made an error of judgment and his actions were against company policy. The security guard had full training but the training did not include training about guide dogs. The security guard was disciplined about the incident. After the incident the company reviewed their training and ensured that all the employees were fully trained about all disability issues. They also sought advice from the Irish Guide Dogs Association. After the respondent received the complaint, the operations manager wrote to the complainant and apologised for the incident and offered an explanation. Further correspondence was entered into and the respondent sent the complainant and her son 2 vouchers in the amount of €300.
4. Conclusion of Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to the Equal Status Act and if the respondent failed to provide the complainant's son with reasonable accommodation in accordance with Section 4 of the Acts.
I have also to consider whether the conduct of the respondent constituted harassment contrary to Section 11 of the Acts. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
"On any of the grounds specified... (in this case the disability ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(g) provides that: as between any two persons, the discriminatory grounds ... are ... that one is a person with a disability and the other either is not or is a person with a different disability," and Section
5. -- (1) provides: " A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public".
and Section 4 provides : -- (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 difficult for the person to avail himself or herself of the service."
The burden of proof is set out in Section 38A which provides:
38A. -- (1)" Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."
4.2 The complainant submits that they were discriminated against on the grounds of disability when she and he were not allowed to shop accompanied by the guide dog. The respondent accepts that the complainant was asked to leave the shop because of the guide dog.
4.3 I am satisfied that the complainant's son has a disability and is covered by the Equal Status Acts. I am also satisfied that the complainant was refused a service in the respondent's shop when she and her son were requested to leave the shop because they were accompanied by a guide dog which was assisting a person with a disability. I note that the respondent accepts that the complainant was requested to leave the shop because of the guide dog. Therefore the matter I have to consider is whether that request constitutes failure to provide reasonable accommodation contrary to Section 4 of the Acts. Section 4 requires a respondent to provide "special treatment or facilities" for a person with a disability to enable them to avail of a service. In this case the complainant's son was shopping with her in the respondent's shop and she had in her possession all the identification necessary to establish that the dog which accompanied them was a guide dog assisting a child suffering from autism. The complainant said that the guide dog, which is provided by the Irish Guide Dogs Association, for children with autism, is a new service which is in operation for the last 7 or 8 years. The purpose of the guide dog is to direct children with autism and keep them safe. The dog is registered to her and she has full control of the dog at all times. She submitted that the guide dog is her son's lifeline he guides him to and from school to the shops and when they are out and about.
4.4 From the evidence, I am satisfied that it would have been unduly difficult for the complainant's son to go to the shops with his mother without the assistance of his guide dog. I am satisfied therefore that the respondent in asking that the guide dog be removed from the shop failed to provide reasonable accommodation to the complainant's son. For the foregoing reasons I find that the respondent did unlawfully discriminate against the complainant by refusing to provide reasonable accommodation to a person with a disability in accordance with Section 4 of the Equal Status Acts when she was asked to remove the guide dog from the shop.
4.5 The next matter I have to consider is whether the complainant was harassed contrary to the Acts. Section 11 of the Acts provides inter alia:
11. -- (1) "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,
(2) 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.
(5) (a) In this section --
(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."
4.6 The complainant submitted that the security officer acted in an aggressive manner towards them when he asked them to leave the store because of the guide dog. She said that he shouted at them to get out and called her a liar and said that they could not have the dog in the store because neither of them were blind. She also said that when the manager came on the scene he disregarded the ID for the dog and threw it back at her. She informed him that the dog was a guide dog. She said that he also shouted at them that neither of them was blind and that the dog was a pet and was not allowed in the store. The complainant stated that her son because of his condition is very sensitive to loud noises and lights and he became very upset at the shouting and when they left the shop a customer had to come to her assistance. She denied that she ever raised her voice. The manager stated that he went to the checkout after he heard commotion. He said that there was shouting by all parties and when he tried to explain to the complainant why the security guard had assumed the dog was not a guide dog the shouting continued. I am satisfied from the evidence that the security man did shout abuse and call names during the course of the incident and he thereby created an intimidating and hostile environment for the complainant and her son while they were shopping in the respondent's store. I am satisfied therefore that the complainant was harassed contrary to the Acts.
The next matter I have to consider is whether the defence under section 11(3) applies. Section 11(3) provides:
(3) 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.
4.7 I note that when the manager came on the scene he did not make any attempt to stop the abusive behaviour of the security guard and in fact the shouting and abusive treatment continued until the complainant and her son left the shop. I am satisfied that the manager took no steps to prevent the harassment of the complainant and I find therefore that the defence cited above does not apply.
5.1 I find that the complainant was discriminated against on the disability ground contrary to the Equal Status Acts. Under section 27(1) of that Act redress may be ordered where a finding is in favour of the complainant. Section 27(1) provides that:
"the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
(b) an order that a person or persons specified in the order take a course of action which is so specified."
5.2 Under the above Section the maximum amount of compensation I can award is €6,349. In considering the amount of compensation that I should award I have taken into account the effects of the discrimination had on the complainant's son. I note his sensitivity to noise and that he was upset and crying after he left the shop. Likewise I note that the respondent did apologise for the incident and offered vouchers to the complainant and her son. Taking these matters into consideration, I order the respondent to pay to the complainant on behalf of her son the sum of €1,500 (one thousand five hundred euro) to compensate him for the discriminatory treatment in relation to his guide dog and the distress and upset experienced by him as a result of the harassment.
29th March 2011