HomeNEWSThe fine line between refusal to serve and discrimination

The fine line between refusal to serve and discrimination

Early this week, an Australian branch of JB Hi-Fi came under fire from the public for refusing a 21-year-old man with Down’s Syndrome entry to the store. The stated grounds for refusal were that the man, James Milne, resembled another patron suspected of shoplifting. We wondered, what rights and responsibilities to New Zealand retailers have when it comes to refusing customers service?

According to a post made in the store’s ‘Reviews’ section on Facebook by Milne’s sister Victoria, Milne and his father were denied entry to the Mt Ommaney JB Hi-Fi by a security guard on Monday. When questioned, Victoria Milne said, the guard showed Milne’s father a photograph of a white male with Down’s Syndrome and explained that this man was not allowed into the store.

“My dad says [the man in the photograph] is clearly not James, who has olive skin, and the manager replied ‘Well they look the same’,” Victoria Milne said on Facebook. “Despite the evidence that my brother had been mistaken for another young man, the manager still refused to let him in.”

By this stage James, the sweetest boy who is still in love with The Wiggles and Ben 10, was visibly upset at what was happening and my dad took him home.”

Victoria Milne said in the same post that when her mother called the store manager to demand an apology, the manager refused.

“He replied that ‘[she] would never, ever, ever get an apology’ from him and that he had ‘the right to stop anyone he pleased from entering the store,’” Victoria Milne said. “I have never been so disgusted and mad in my life.”



The incident has triggered outrage from the public. Within hours of Victoria Milne’s post on Facebook, which called for readers to share it and “take a stand against bullying and ignorance”, JB Hi-Fi Mt Ommaney had received more than 4000 one-star reviews. Over 38,000 Facebook users have commented on the original post, most in support of the Milne siblings.

JB Hi-Fi that day released a statement saying it had investigated the incident and apologised to Milne and his family. It acknowledged the situation could have been managed better and signaled that its customer policies will be reviewed to make sure they reflect best practice.

Richard Murray, the CEO, apologised unreservedly: “We should have done better yesterday. We are going to make sure we learn from this and do better in the future. I have sent a personal letter of apology to James and we are continuing to endeavour to contact the family to apologise directly.”

Greg Harford, Retail NZ’s general manager of public affairs, says these situations don’t commonly arise in New Zealand. He highlighted that the Human Rights Act 1993 makes it illegal to discriminate on the grounds of sex, marital status, religion, ethics, ethnicity, nationality, disability, age, political opinion, employment status, family status and sexual orientation, but pointed out that customers have no automatic right of entry to a shop.

“Shops are private property, and retailers are within their rights to ask customers to leave and/or issue trespass notices for reasons other than those above,” Harford says. “You can’t discriminate because you don’t like someone’s nationality or religion, but you can ask people to leave if they behave inappropriately or are engaged in criminal activity, for example.”

When The Register spoke with the Human Rights Commission, representative Christine Ammunson expressed her support of the Milne family’s belief that disability-based discrimination had taken place.

“It remains illegal to discriminate against a person in our country because of their disability and James Milne’s family believe he was discriminated against because of his disability,” Ammunson says. “This brings us back to empathy and respect for others – the founding factors in human rights legislation.”

Ammunson says that the Human Rights Commission would expect and hope Kiwi retailers would demonstrate these values. In New Zealand, she says, the Commission would encourage both sides to meet and resolve this issue. It has an expert team of mediators available to assist.

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