The Complainant bought a matcha tea latte at a branch of the Respondent. When handling the cup over to the Complainant, the server drew the Complainant’s smile and eyes, rather than inscribing her name. The eyes were referred to in the evidence as ‘slanty’ eyes. The Complainant asserted that this was offensive to her because of the racial connotation and her Thai-Irish heritage. The Respondent affirmed that this was not motivated by racism and apologised for the incident. The Respondent maintained that the Complainant’s boyfriend used a racial slur during the incident, calling the Respondent’s employee a ‘f****** Black c***’, an assertion he denied.

The Complainant outlined that at the counter of the Respondent’s premises, the employee asked for her name and the Complainant gave a shortened version of her name. The employee laughed, as did the Complainant, who proceeded to spell her name. The employee then said that she would draw the Complainant’s eyes. The Complainant said ‘okay’. The employee drew a set of eyes on the cup and showed the cup to the Complainant. The Complainant was unsure of how to react and proceeded to laugh uncomfortably. The Complainant’s boyfriend approached the counter and spoke with the supervisor, who came to apologise. The supervisor offered vouchers, but the Complainant did not want them. She had understood that the supervisor had asked the employee to come out and apologise to her, but the employee did not come out.

After the Complainant had sent an e-mail describing the incident, the Respondent stated that it had organised some cultural training for Brazilian staff and made an offer of vouchers to the Complainant. The Respondent asserted that this was not a racial incident, but the Complainant asked why then organise cultural training? The Complainant explained that she wanted justice and did not want this to happen to anyone else.

The Respondent’s employee gave evidence at the hearing through an interpreter. She outlined that Japanese-Brazilians living in her native Sao Paulo are well-respected. The employee then explained that she drew a smiley face as she thought the Complainant was glamourous.

The Adjudication Officer stated that “Vicarious liability arises when you are held legally liable for a wrong committed by another person, for example because one of your employees has committed a wrong in the course of their employment”.  The Equal Status Act provides that an employer is vicariously liable for prohibited conduct of their employee where this occurs in the course of their employment, even without the employer’s knowledge or approval. The Adjudication Officer concluded that the events that took place would constitute ‘unwanted conduct’ as defined by the Equal Status Act and decided that the Complainant was the victim of racial harassment when attending the Respondent branch. The Respondent did not take reasonably practicable steps to prevent the act of harassment and is vicariously liable. Therefore, the Respondent was ordered to pay the Complainant €12,000 in compensation for the effects of the prohibited conduct.
https://www.workplacerelations.ie/en/cases/2021/january/adj-00028487.html