no. 07-00-79/2023-02 date: 18.1.2024.

OPINION

The opinion was issued in the proceedings regarding the complaint of AA, which she filed against the restaurant “BB” due to discrimination based on sexual orientation. The complaint describes an event that greatly shook the complainant and her partner, which happened during their stay at the “BB” restaurant. Namely, the waiter of this restaurant approached the complainant and her partner, indicating that they made his guest leave because they kissed. In the statement of witness VV, it was stated that the girls, after a short kiss in the restaurant, the guest’s resentment because of the said kiss, and the waiter’s criticism, were practically thrown out of the restaurant. In its statement, the “BB” restaurant pointed out the objection of the lack of passive identification because the described event took place between the guests, without the participation of persons from the restaurant or staff, stating that it is indisputable that the situation described in the complaint occurred in the restaurant, but that in this specific case, there can be no question of discrimination. The witness proposed by the complainant confirmed the complaint’s allegations, while GG’s testimony proves that his fellow waiter approached the complainant and had a short conversation with her and that, after that, the girls were annoyed and asked for managers. The Commissioner notes on this occasion that the statements of GG and the complainant are not contradictory since the witness confirms that the conversation between the waiter and the complainant took place but that he could not confirm the content of this conversation because he was not nearby to be able to hear it. However, it is indisputable from his statement that after the conversation, the girls were annoyed and asked for the managers, which indicates their dissatisfaction with the conversation with the waiter. Bearing in mind that the waiter who addressed the complainant and her partner was employed in the restaurant, i.e., that the restaurant was his employer at the time of the disputed event, and that the restaurant, as the employer, did not react in any way after the incident, nor was the inappropriate and discriminatory behavior pointed out to the waiter, there is an objective responsibility of the restaurant for the behavior of employees. The restaurant staff did not protect the complainants from harassment and humiliating treatment. The Commissioner issued the opinion that the restaurant “BB” violated the provisions of Article 12 in connection with Article 21, paragraph 2 of the Law on Prohibition of Discrimination. The restaurant was recommended to send a written apology to AA and to take care in the future not to violate legal regulations on the prohibition of discrimination.

COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković