Equal Status Acts 2000 to 2004
EQUALITY OFFICER’S DECISIONS NO: DEC-S2008-015
Mr Ciarán McMahon
V
Bridal Heaven Ltd
Key words
Equal Status Acts 2000 to 2004 –Discrimination, section 3(1) – ground of gender, section 3(2)(a) – Disposal of goods and services, section 5(1) – infringement of privacy on gender ground 5(2)(g) – Denied entry to bridal store – ‘no men policy’
1. Delegation under the Equal Status Act 2000
1.1. Mr McMahon made a claim to the Director of the Equality Tribunal under the Equal Status Acts 2000 to 2004. In accordance with her powers under section 75 of the Employment Equality Act, 1998, the Director then delegated the case to me, Tara Coogan, 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.
2. Dispute
2.1. The dispute concerns a complaint by Mr McMahon that he was discriminated against on the grounds of gender contrary to the Equal Status Acts 2000 to 2004 by Bridal Heaven Ltd when the shop refused Mr McMahon a service which is generally available to the public contrary to section 5(1) of the Acts on 18 February 2005.
3. Case for the complainant
3.1. Mr McMahon and his then fiancée were looking for a wedding dress for their forthcoming wedding. In their search for the perfect dress, the couple had visited a number of bridal shops. After extending their search to the Internet, Mr McMahon’s bride-to-be identified a potential dress. Bridal Heaven Ltd was listed as a supplier of the said dress and the couple decided to visit the premises to take a closer look.
3.2. On February 18, 2005 the couple journeyed to the shop. On arrival they buzzed the door. Mr McMahon opened the door to let his fiancée in and proceeded to follow her in when the shop assistant’s shout “No men allowed here” stopped him in his tracks. Mr McMahon says that he was highly surprised and embarrassed and stepped outside the store where he waited for his fiancée who had entered the shop.
3.3. While Mr McMahon’s then fiancée remained in the shop for 5 to 10 minutes browsing, no member of staff approached her to explain why her companion was not welcomed in the store. He also pointed out that he is a foot taller than his now wife and that it is, in his opinion, very unlikely that he would not have been visible through the glass in the door to the person in the boutique as they rang the door bell. Mr McMahon believes it could have been less embarrassing if the sales person had come over to the door to explain the situation to them. He does not accept that the reason for the assistant’s yell was out of shock or surprise.
3.4. Mr McMahon states that there was no indication anywhere that the store had a ‘no men’ policy or that it had an ‘appointment only’ policy. Mr McMahon stated that he had visited a number of other bridal stores with his fiancé and had never had any difficulties in being allowed in. He submitted that he had visited a named store where he and his fiancée had been asked to come back in a couple of minutes as the named store had a scheduled appointment. This message was conveyed in a completely different manner than the shout he received from Bridal Heaven Ltd and the store had made it clear that both he and his partner would be welcome later.
3.5. Mr McMahon denies the shop’s counterclaim that there is no reason for a man to enter as they only stock items for women. The store, he says, sells communion dresses and it is highly likely, in his opinion, that some fathers would wish to accompany his daughter/partner when choosing such an item. Mr McMahon stated that it would be very difficult for a child to comprehend why her father would be yelled at in such a manner. He also asserts that at no stage did the store assistant try to find out whether he and his partner where there as parents looking for an outfit for their child. Instead, he was made to feel like there was something sinister about him shopping with his partner.
3.6. Further, Mr McMahon denies that the shops reliance on section 5(2)(g) of the Acts is not valid as the shop had dressing rooms and that people walking-by could see into the store. The front door had a glass pane in it. And there was also a window. Mr McMahon was also at a loss to understand why the shop still (they have since moved to newer much larger premises) operates a strict ‘no-men’ policy when dresses can be secured to size in the new much larger dressing rooms and there is no need for anyone to use the shop floor while trying on the dresses.
4. Case for the Respondent
4.1. Bridal Heaven Ltd is a boutique that specialises in bridal and evening wear. Bridal Heaven Ltd accepts that the incident took place and do not wish to contest Mr McMahon’s statement of him being turned away from the shop. The respondents wished to clarify that the shop assistant had told her employers that she did not see Mr McMahon at the door as he was behind his fiancée. Only when she had spotted him on the stoop did she realise that a man was about to enter the premises. She maintains, through her employers, that the yell was not directed at Mr McMahon to be rude but was more of a warning to the customers present in the shop to take cover.
4.2. Mr McMahon’s attempt to visit the store came at a time when a number of bridal fairs would have just finished and the shop would have been particularly busy with appointments.
4.3. Bridal Heaven Ltd only stocks sample dresses. These tend to be in larger sizes that can be adjusted to a variety of body shapes and sizes. When a customer tries on a dress a shop assistant will adjust it to a correct size so that the bride gets a proper idea of what the dress looks like. Measurements are taken and the chosen dress is then ordered from the stockists. This process means that brides to be enter the shop floor in the large dresses and to hold them up while a shop assistant pins the dress to the right size. This, they argue, exempts their shop from the complaint as the reason why they do not allow men into the store is because it may cause embarrassment to women trying on dresses. The respondents refer to section 5(2)(g) of the Acts to justify this differential treatment.
4.4. Bridal Heaven Ltd states that it adheres strictly to its ‘no men’ policy. This means that no male members of staff are allowed on the shop floor during trading hours and trade persons are met at the door. Only female trade representatives are allowed into the shop. No exceptions of this rule are allowed during normal business hours.
4.5. Men are only allowed into the shop by special arrangement and during such times the shop is not available to general public. This has been done a couple of times when a bride has wished to bring her father along. The shop has never had a request to accommodate both the bride and groom and the shop’s management maintain that most of its clientele would not wish to have their dress seen by the groom before the actual wedding ceremony as this is traditionally seen as bringing bad luck. They stated that most people would not want to parade themselves around when purchasing wedding dresses.
4.6. While the business has moved to larger premises since the complaint was made, and the new shop allows for the dresses to be adjusted in the new larger dressing rooms, Bridal Heaven Ltd still operates a ‘no men’ policy. This is because they firmly believe that most of their clients would prefer to shop in a single sex environment.
4.7. Bridal Heaven Ltd claimed at the hearing that while it was possible to see into the shop, a person would have to stand very closely to the window as there would have been dresses, a half divider and net curtains obstructing the view. They stated that they have never had any difficulties in relation to a person trying to hang around the window and look in an intrusive manner.
4.8. Bridal Heaven Ltd also objected to Mr McMahon bringing up lone fathers at the hearing as his complaint was about him not being able to enter the shop with his then fiancée. They feel it is not appropriate for Mr McMahon to ‘try and champion lone parents rights’ as his complaint is not about this matter.
5. Conclusion of the Equality Officer
5.1. In order for Mr McMahon to establish a prima facie case of discrimination he needs to establish that:
i. he is covered under one of the discriminatory grounds, i.e. the gender ground,
ii. the incident complained of actually occurred,
iii. the treatment he received was less favourable than another person belonging to the same discriminatory ground is, has been or would be treated in a comparable situation.
5.2. Mr McMahon is male and he was turned away from the shop because of this fact. This is not in dispute. It is also clear that the treatment he received was less favourable than a woman would have received in a comparable situation as he was denied access to the boutique. The question that remains is whether Bridal Heaven Ltd is right in its argument that it qualifies for an exemption on the grounds that embarrassment or infringement of privacy is likely to occur if they were to allow men entry to their boutique?
5.3. Section 5(2)(g) of the Equal Status Acts 2000 to 2004 allows for differential treatment on the gender ground where;
“embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender”.
I must evaluate whether the presence of a man in the given circumstances of Bridal Heaven Ltd could reasonably been understood to cause embarrassment or infringement of privacy to the boutique’s main target audience of women. While doing so, it is my obligation to interpret the exemptions of the Equal Status Acts 2000 to 2004 in a way that ensures overall purpose of the legislation is achieved, that is, that there should be no discrimination in the provision of goods and services between men and women. The Acts are a remedial social statute designed for this purpose. Any departure from the principle of equal treatment must therefore be construed in the narrowest possible sense.
5.4. While the then shop had two dressing rooms, any adjustments to the dress needed to be carried out on the shop floor because the dressing rooms were not large enough. This meant that a person trying a dress on had to stand in full view of any other person visiting the store while the dress was adjusted to size. I do not accept that a person wearing a wedding or evening dress - whether they are entering the shop floor to look in the mirrors or having the dress adjusted – could be reasonably be presumed to be embarrassed or that their privacy infringed by a man visiting the store.
5.5. A person wearing a full wedding dress, to my mind, has their privacy protected. I do not accept that a store where dressing rooms are available justifies such differential treatment on the grounds that women might be embarrassed if men were to enter. Women purchasing dresses can protect their privacy in the dressing rooms provided. While the dress is pinned to size, the person trying on the dress is covered. Equally, any person who may feel self-conscious about being seen in a wedding dress by other people has the option of booking an appointment with the shop.
5.6. The shop’s representatives maintained at the hearing that even now when they have a larger shop with much larger dressing rooms they still insist on their ‘no men’ policy. This is, they argue, because women tend to like to come out onto the shop floor where they have a wall of mirrors. The respondents maintain that women would not want to ‘parade’ in front of men and do prefer to have a environment free of men when shopping for dresses. When questioned, the respondents admitted that they have never carried out any customer surveys or anything similar to back up this claim. The fact that women are more comfortable in bridal shops without men is ‘just known’. I do not accept this statement based on ‘knowing the market’ as a valid argument for a single sex environment. Section 5(2)(g) may justify the exclusion of men from changing rooms designated for women but to apply it here would be the equivalent of granting permission to ban men from any shop selling women’s clothing.
5.7. Furthermore, any person who wishes for complete privacy while trying on their dresses can avail of the shop’s appointment service. During such an appointment the customer(s) is entitled to expect privacy in the store’s public areas. It is important that Bridal Heaven Ltd does not allow for exceptions as any deviation from a policy can create an inference of discrimination. By allowing some people in (women) while an appointment is under way is not keeping with the policy and may lead to less favourable treatment. Outside such an appointment, the store must remain open to the public generally.
5.8. I can find no legitimate justification for this bridal store to maintain such a blanket ban on male customers. As Bridal Heaven Ltd offers an appointment service I see no reason why outside such hours any person wanting to browse could not do so. While I accept that a large majority of people visiting bridal stores are women, I do not agree that there is anything inappropriate about a man, in whatever role, accompanying a woman or a young person who is perusing for a bridal, evening or communion dress into a bridal shop. This does not mean that any client wishing to use an appointment with the store should not be afforded the privacy they had requested when booking for such a service. During an appointment the shop should not accommodate any third parties on the premises.
6. Decision
6.1. Mr McMahon has established a prima facie case of discrimination. I order the respondent to pay him €1500 as redress for the embarrassment caused.
6.2. In accordance with section 27(1)(b) I also order that Bridal Heaven Ltd revisit its appointment only policy and ensure that a) clients are appropriately notified of such a policy b) that during appointments the policy is strictly applied in a non-discriminatory manner. This means that during appointments no other customers - male or female - be allowed in. All staff must be instructed accordingly.
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Tara Coogan
Equality Officer
19 February 2008