DEC-S2008-032 - Full Case Report

Equal Status Acts 2000 to 2004

EQUALITY OFFICER’S DECISION NO:  DEC- S2008- 032

Mr. Thomas Blaney

-V-

The Bridal Studio

Key words

Equal Status Acts 2000 to 2004 - Discrimination, Section 3(1), 3(2) - Gender ground, section 3 (2)(g) – Section 5(2)(g) Privacy exemption – refuse entry to premises – bridal shop-

1.      Delegation under the relevant legislation

1.1.            Mr. Thomas Blaney referred 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 Acts, 1998 to 2004, and the Equal Status Acts, 2000 to 2004, the Director then delegated the case to me, Gary O’Doherty, 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 Act.

2.      Dispute

2.1.            The dispute concerns a complaint by Mr. Thomas Blaney that he was discriminated against by The Bridal Studio on the gender ground contrary to the Equal Status Acts, 2000 to 2004, in terms of Section 4(1) and Sections 3(1)(a) and 3(2)(a), in that he was refused entry to the premises of the respondent because of his gender.

2.2.            The hearing of the complaint was held in Drogheda, Co. Louth on Tuesday, 26^th February, 2008

3.     Case for the Complainant

3.1.           On the 13^th day of August, 2005, the complainant and his fiancée at the time, now his wife, Ms. Annette Blaney, visited the respondents’ shop, The Bridal Studio in Drogheda. Ms. Blaney had visited the premises on a previous occasion, sometime in early May 2005, on foot of a newspaper advertisement. She submitted that there were no notices anywhere in or near the shop, or in the advertisement, stating that any appointments needed to be made or making any mention of men not being allowed in the shop.  This is true in reference to both the visit in May and on the day of the incident that is the subject of this complaint. Ms. Blaney said that, consequently, neither she nor the complainant were aware of any policy of the respondents in relation to these issues at the time of the incident in question.

3.2.           In describing the interior of the premises, the complainant stated that when you walked in the front door, there were fitting rooms directly facing you and the door opened directly onto the main shop floor area, which was roughly 20-25m²  in size. Ms. Blaney entered the shop first and proceeded to the right; at the end of it, in this direction, there was a counter. She said that a member of the staff of the shop was standing directly in front of her as she was walking in the door. This person was identified by the respondents as being a shop assistant, Ms. R. Ms. Blaney said that there were three other customers being served, all of whom were female. She added that she believes at least one of these customers was being fitted for a dress, although she did not know if they had made an appointment.

3.3.           The complainant stated that Ms. R was not more than three feet away from him when he walked towards the door. He said that he was just about to stop over the entrance to the premises when he noticed her moving towards him, whereupon she put one hand up and told him that he could not come into the shop as they did not allow men to enter it. He said that he was aghast at this and replied that the respondents would hear further about the matter. Mr. Blaney then went back down the stairs where he waited for Ms. Blaney to return. He commented at the hearing that if someone had given him an explanation as to why he had been refused entry into the shop, or made some effort to “defuse” the situation, he may not have made the complaint.

3.4.            Ms. Blaney admitted that she did not pass any comment on this incident at the time, but continued towards the counter. She stated that she was served by Ms. Geraldine Doyle but that she did not at that time ask for information on the respondents’ policy regarding the presence of men in the store. She said she didn’t know who was who and whether anyone was the shop manager, so she could not identify with whom she needed to speak about the matter.  Ms. Blaney said that she had been to many bridal shops before this and had never come across any policy similar to the one in question in any of those shops. The complainant added that they were not made aware of the relevant policies of the respondents before they made contact with the Equality Tribunal.

4.      Case for the Respondents

4.1.            Ms. Geraldine Doyle and Ms. Ashley Alwright are, in joint partnership, co-owners of the Bridal Studio, and they identified themselves as the respondents. They did not dispute that Mr. Blaney had been refused entry into their shop, but stated that the reason for this was because he was male and, at the time of the incident in question, there was a female in the shop floor area who was being fitted for a dress and who might therefore be embarrassed by his presence. They submitted that they were entitled to refuse him entry under the exemption provided for in s.5(2)(g) of the Equal Status Acts, which states:

                        “subsection (1) does not apply in respect of –

                        .....................

           (g) differences in the treatment of persons 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”

Facts relating to incident

4.2.            The respondents generally agreed with the complainant’s description of its premises at the time of the incident in question. As regards the facts relating to the events described by the complainant, the respondents stated that there were two prospective brides in the shop at the time  – one was in the fitting room, and one was on the main shop floor area. Both sets of customers had made appointments. This would be normal on a Saturday.  Ms. Doyle said that she therefore knew that if someone else wanted to try on a dress, they didn’t have a fitting room free.

4.3.            Ms. R did not attend the hearing. However, Ms. Doyle said that she observed her approaching Mr. Blaney, but didn’t hear what was said between them, although she can accept that it was something to the effect he described. The respondents stated that there was a female standing in a dress that didn’t fit her. They said that it would be normal practice, at such times, to approach anyone entering the store to explain what was happening. However, in the circumstances of this particular case, they believe Ms. R’s first response was to “protect” her bride from embarrassment, and they reiterated that it was not their intention to offend Mr. Blaney.

4.4.            Following this incident, Ms Doyle turned to Ms. Blaney and explained to her what had occurred, saying that she felt this action was necessary to “protect everybody”. Ms. Doyle believes that she would have made Ms. Blaney aware that there was a female being fitted for a dress in the shop floor area. She stated that she never spoke with Mr. Blaney, having imagined at that stage that he had left the store. Ms. Doyle added that, in a telephone conversation with Ms. Blaney of Monday, 15th August, she told her the reason why her partner was refused entry, a contention which Ms. Blaney denies.

Policy of the respondent regarding presence of men in their premises

Substance of the policy

4.5.            The respondents provided me with considerable detail on their policy in relation to the presence of men in the store, and on how they apply it in practice.  They said that they could not admit men while there were customers (all female) having fittings, as the customers would be in a state of undress. They agreed that there were, in the shop at the time, two fitting rooms where customers changed clothes, but these customers then had to come out to the shop floor to be fitted into their particular dress as there was not adequate space in the fitting rooms for this operation. They said that, as wedding dresses are expensive to buy, to ensure that they fit exactly, customers picked a selection of dresses and got fitted for these in the main shop floor area.

4.6.            The respondents said that if there was a female present on the main shop floor area who was trying on dresses when a man walked in, they would explain this policy to him. They added that, normally, the men involved would not take issue with this. If, in those circumstances, a woman came in who wanted a man to attend with them, the respondents would ask them both to come back at a suitable time. Furthermore, the respondents said that they would serve men who want to try on dresses and, in fact, do so. The respondents have one particular male customer who avails of this service; they stated that they wouldn’t take any other appointments when he was being served, and wouldn’t allow women into the store at that time.

4.7.            The respondents provided me with further examples of situations that might arise, and how they would deal with those situations. In short, the principle by which they worked was that if men are not causing embarrassment to a woman in the shop, then they are more than welcome to stay, and when a man enters the store without an appointment, they would serve him where there was no issue of embarrassment.

Implementation of the policy in general

4.8.            The respondents stated that the policy outlined above is not a written policy and, indeed, is only communicated to customers where a relevant situation arises. They said that they were “naïve enough” to think that it was not necessary at the time to explain this policy to the complainant. The respondents expressed regret that he was of the view that a situation had arisen which needed defusing. They stated that they were not aware of the upset caused and therefore made no attempt to follow him to explain why he had been refused entry to the shop. 

4.9.            The respondents submitted that the purpose of the policy is to prevent embarrassment to the prospective bride and the man in question. They stated that other bridal shops do not allow men to enter their premises except by appointment. They have received complaints whereby, when a man is present on the main shop floor area, female customers have said that they would not go out there until the man left the shop. Finally, it considers that the operation of the policy achieves its objectives.

Appointments policy

4.10.        The respondents encourage people to make appointments but will serve people without them, at least in particular circumstances. They stated that a lot of people would phone beforehand and that most people who walk in off the street would just make appointments. They added that if a member of staff is free, they would serve a passer-by. They also said that, during the week, they used to lock the door but on a Saturday that was impossible to do.

5.      Conclusions of the Equality Officer

5.1.            In deciding on this complaint, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which must be satisfied for the complainant to show this. These requirements can be identified as follows:

(i)    Is the complainant covered by the discriminatory ground?

(ii) Is there evidence that he has been subject to specific treatment by the respondent?

(iii) Was the treatment received by the complainant less favourable than the treatment someone, not covered by the discriminatory ground or of a different status under that ground, would have received in similar circumstances?

If the complainant succeeds in establishing a prima facie case of discrimination, the burden of proof shifts to the respondents. In that event, it is for them to rebut the case made by the complainant.

5.2.            Both parties agreed that the incident took place and that the specific treatment alleged actually occurred, namely that the complainant, a man, was refused entry to the store. The first two criteria have therefore been met. In relation to the third criterion, irrespective of the dispute about the facts, the respondents did not dispute that Ms. R did refuse Mr. Blaney entry to the premises on the basis of his gender. The third criterion has therefore been met. It is thus clear that the complainant has satisfied the relevant criteria and he has established a prima facie case of discrimination in relation to the incident in question. The burden of proof in this case now shifts to the respondent.

            Section 5(2)(g)

5.3.            I refer again to Section 5 of the Equal Status Acts, 2000 to 2004 which states:

           “(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise, and whether the service provided can be availed of only by a section of the public.

            `           (2) subsection (1) does not apply in respect of –

                        .....................

            (g) differences in the treatment of persons 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”

Expectation of privacy/presence of a person of another gender

5.4.            The respondents stated that the layout of the premises required that customers would be fitted for dresses while on the shop floor area. I have no reason to doubt this submission, and consider that the respondent honestly felt that their customers would, in this situation, be likely to feel embarrassed, or would probably consider that their privacy might be infringed. It is clear to me that this expectation did arise only in relation to males being present where females were in a state of undress and vice versa. Furthermore, it seems to me that the respondents refuse men entry into the shop only where they have such an expectation. I understand from the respondent’s evidence that this would usually occur only where the customer in question has made an appointment.

5.5.            I therefore believe that, in relation to the incident in question, the respondents have attempted to apply the exemption only in relation to the presence of a person of one gender where a person of another gender may feel embarrassed or feel that their privacy has been infringed. It is also useful at this point to consider that the policy was applied to both men and women, and was therefore consistent, as is evident by the example of their male customer in serving whom they do not allow women into the store.

5.6.            I would distinguish this case from the decision in Ciaran McMahon-v- Bridal Heaven[1] in that the respondents in that case believed that “the fact that women are more comfortable in bridal shops without men is ‘just known’.” and furthermore the Equality Officer found that the respondents in her case “maintain a blanket ban on male customers”. The respondents in McMahon would appear to have made no effort to consider whether there was an expectation on the part of the customers in question. On the other hand, The Bridal Studio operates a policy “that if men are not causing embarrassment to someone, they are more than welcome to stay and when a man enters the store without an appointment, they would serve him where there was no issue of embarrassment.” [2]

5.7.            I note that the respondents also stated that this policy was designed to protect everybody from embarrassment, including the customers to whom they denied access to their shop. However, it is clear to me that the complainant was embarrassed, and upset, by the incident in question. He was left in a situation where he was informed that he was not allowed enter the premises only when he was already at the threshold of it. Indeed, the complainant would appear at that point to have already seen the customer who the respondents were trying to protect from embarrassment or infringement of privacy. I note that the respondents have not, at least to date, sought to avail of the exemption provided in Section 5(2)(g) in their new premises.  In that context, it was unfortunate that the respondents did not give greater consideration to how they might prevent the incident in question, or other similar incidents, from arising. Indeed, they admitted themselves that, after being informed of this complaint, they felt the need to consider the operation of the policy further.

5.8.            However, having considered the matter at length, and given that the policy of the respondents in relation to this matter was provided to me in great detail in the course of my investigation, I am, on balance, satisfied that the respondents were reasonably clear about the policy they were applying in relation to the exemption provided in Section 5(2)(g) of the Equal Status Acts, 2000 to 2004. I am also, on balance, satisfied that, at least in so far as it is relevant to this complaint, they applied it in a reasonable manner in relation to their premises at the time of the incident in question. I am particularly persuaded in this from the fact that they exercised the exemption in a non-discriminatory manner in applying it for the benefit of male customers as well as female customers. I must therefore conclude that the provisions of Section 5(2)(g) apply in this case and the respondents have successfully rebutted the complainant’s case.

5.9.            Before concluding, I would like to draw the respondents’ attention to the fact that Mr Blaney admitted at the hearing that if the matter had been dealt with in a different fashion, he may not have made the complaint. Indeed, the respondents admitted as much when they conceded that they were “naïve enough” to think that it was not necessary to explain their policy to the complainant. He was clearly upset at the time of the incident and since, and, in my view, the customer service of the respondent provided to the complainant and his wife left a lot to be desired. It may well be that a different approach to explaining the policy to the complainant may have avoided hurt and upset.

6.      Decision

6.1.            The complainant has established a prima facie case of discrimination;

6.2.            However, the provisions of Section 5(2)(g) of the Equal Status Acts, 2000 to 2004 apply in relation to this complaint and the respondent has successfully rebutted the complainant’s case.

6.3.            I therefore find that the complainant was not discriminated against by the respondent on the gender ground contrary to Section 3(1)(a) and 3(2)(a) of the Equal Status Acts, 2000 to 2004.

_____________

Gary O’Doherty

Equality Officer

23 May 2008