Banter Defense rejected in Race Discrimination case | Fieldfisher
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Banter Defense rejected in Race Discrimination case




Waiter referred to as "Chico" awarded €12,500

The Workplace Relations Commission ("WRC") held that there is no question that the term Chico is offensive to persons of Latin American descent and rejected the Hotel's defence that the term was used generally and not meant to be derogatory.

What happened?
The Complainant is of Latin American descent and was employed by the Hotel as a waiter to cover the Christmas period.
On his first day at work the Manager referred to him as "Chico". The Complainant was taken aback by this particularly since he was wearing a "name tag with my name on it at all times". The Complainant responded "excuse me, what did you call me?" He told the Manager that he found the term offensive and asked him to refrain from using it. However, his concerns were dismissed by the Manager on the basis that he speaks to everyone like that and who then continued to repeat "Chico, Chico". The Complainant said that he felt very uncomfortable for the remainder of his shift and there was no one to complain to as the Manager was in charge.
The following day, the Complainant was sent home from work because he was visibly upset and distracted from doing his job. The Complainant mistakenly took this as his dismissal and did not return to work despite being rostered over the Christmas period.
At the WRC hearing, the Manager apologised for the use of the term and accepted that it was an offensive and inappropriate remark. He stated that he used the term generally and never intended to cause offence. The Hotel also offered to make good the loss of Christmas pay arising from the incident.
Race Discrimination and the "Banter Defence"
Race discrimination occurs where a person is treated less favourably because of their race, colour, nationality or ethnic or national origins. Harassment is a form of discrimination and harassment on race grounds is unwanted conduct related to a person's race which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. The Employment Equality Acts 1998 ("the EEA") provides that employers can be vicariously liable for discriminatory acts of their employees in the course of their employment.
It is well established that it is irrelevant that the harasser did not intend to harass the victim or that the harasser believed that the behaviour was mere workplace banter or frolic. There is no requirement that the conduct itself must be reasonably capable of being viewed as harassment.
In a previous Labour Court decision, the respondent employer's defence to a claim that lewd comments amounted to sexual harassment was that the comments were not unwelcome as the claimant would often partake in the banter and no complaints were made until 2 years after the conduct began. However, the "banter defence" was rejected by the Labour Court.
Notwithstanding the above, the EEA provides that it shall be a defence for an employer to show that they have taken reasonably practicable steps to prevent the alleged discriminatory conduct occurring. In this case, the WRC accepted that the Hotel has a comprehensive policy concerning dignity and respect at work. However, there was no evidence that the policy was provided to the Complainant and the Hotel could not rely on this defence.
While the WRC accepted that the Manager and the Hotel apologised for the comment and that no offence was intended, it held that the Complainant was racially discriminated against and awarded €12,500 by way of compensation.
How can Fieldfisher help?
It is generally accepted that in order to rely on the defence under the EEA, at a minimum, employers must:
  • Ensure that there are appropriate anti-discrimination policies in place that are regularly updated to include specific risks identified in the workplace;
  • Provide evidence that such policies were effectively communicated to all employees; and
  • Provide sufficient training to ensure that employees, including management, clearly understand how discrimination could manifest in the workplace and the standard of conduct expected of them. 
Fieldfisher has extensive experience advising corporate clients on equality, inclusivity and diversity. Feel free to reach out to your local Fieldfisher contact if you require assistance implementing Dignity at Work policies or anti-discrimination training to staff.

Written by Maeve Griffin

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