EQUALITY OFFICER'S DECISION NO: DEC-S/2015/005
PARTIES
Elaine Carroll
-v-
Gruaig Barbers
(Represented by Malone and Martin, Solicitors)
FILE NO: ES/2013/0067
Date of issue: 30th of April, 2015
1. Dispute
1.1 This dispute involves a claim by the complainant
that she was discriminated against by the respondent, on grounds of gender, contrary to section 3(2)(a) of the Equal Status Acts, 2000-2012 when she was refused a haircut due to the fact that she is a woman.
Background
2.1 The complainant, Ms. C referred a complaint under the Equal Status Acts, 2000-2012 to the Equality Tribunal on 25th of June, 2013. The complainant went to the respondents premises on 24th of May 2013 and requested a haircut. The complainant submits that the respondent refused to provide her with a haircut due to the fact that she is a woman.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 and under the Equal Status Acts, 2000-2012, the Director delegated the case on 6th of February, 2015 to me Orla Jones, Equality Officer, for for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2012. This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 6th of March, 2015.
3. Summary of complainant’s case
3.1 The complainant submits that she entered the respondent’s premises in Liffey Valley Shopping Centre on 24th of May 2013 at 11 am.
3.2 It is submitted that the complainant asked the female barber for ‘an undercut’ (to shave the side of her hair).
3.3 The complainant submits that the barber replied that she couldn’t do this as the complainant is female. The complainant submits that she had her hair cut there previously and informed the barber that she had her hair cut there previously.
3.4 The complainant submits that the barber stated that she is not allowed to cut women’s hair and that she would get into trouble if her boss saw doing so on camera.
3.5 The complainant submits that the owner of the respondent company advised her that they are not qualified to cut women’s hair.
3.6 The complainant submits that the respondent also advised her that they could not cut her hair due to insurance purposes.
4. Summary of Respondent’s case
4.1 The respondent submits that it operates a business as a Barbers Shop. It is a service provided to male customers.
4.2 It is submitted that the respondent’s staff members are qualified as barbers trained in the cutting of men’s hair. The staff are not trained or qualified as hairdressers and are specifically employed to cut men’s hair and for the services provided in a men’s barber shop.
4.3 The respondent submits that the premises and business is insured as a Barbers Shop with insurance specifically covering the cutting of men’s hair.
4.4 The respondent submits that the premises is leased from the owners of Liffey Valley Shopping Centre for specific use as a Barbers Shop.
4.5 Section 5(1) of the Equal Status Act 2000 states “5.—(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.
However Section 5(2) states that Section 5 (1) of the 200 Act does not apply in respect of
“(c) differences in the treatment of persons on the gender ground in relation to services of an aesthetic, cosmetic or similar nature, where the services require physical contact between the service provider and the recipient,
4.6 It is submitted that the service provided by the respondents Barbers Shop is a service of aesthetic, cosmetic or similar nature as provided for in Section 5(2)© of the Equal Status Act and can therefore be exclusively provided to the male gender.
5. Conclusions of the Equality Officer
5.1 The issue for decision by me now is, whether or not the respondent discriminated against the complainant on grounds of gender in terms of sections 3(1) & 3(2)(a) of the Equal Status Acts, 2000 to 2012 in relation to their refusal to provide her with a haircut. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
5.2 Section 3(1) provides, inter alia, that discrimination shall be taken to occur where:
(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds)’’
Section 3(2)(a) provides that: as between any two persons, the discriminatory ground of gender is,
(c) that one is male and the other is female (the ‘‘gender ground’’),
5.3 The complainant is required to establish facts upon which she can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination. I am satisfied that the respondent is providing a service within the meaning of section 2 of the Equal Status Acts.
5.3 Section 38A (1) provides that the burden of proof is: " Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary." It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.
5.4 The complainant advised the hearing that she had entered the respondent’s premises on 24th of May 2013. The complainant stated that she had approached an employee of the respondent and had asked her if she would cut her hair. The complainant stated that she had requested an undercut. The complainant advised the hearing that the employee, whom it later emerged was Ms. D, had told the complainant she could not cut her hair as she was not allowed to cut women’s hair. The complainant advised the hearing that Ms. D had been very polite but had refused to cut her hair due to the fact that she is a woman.
5.5 The complainant stated that she had told Ms. D that she had previously got her hair cut at the respondent’s premises 6 weeks prior to this visit. The complainant stated that Ms. D’s response was that she would get into trouble with her boss if her boss was to check back on the camera and see that she had cut a woman’s hair.
5.6 The respondent advised the hearing that Ms. D was not able to attend the hearing as she was pregnant and had to avoid stress. The respondent produced a written statement from Ms. D which corroborated the complainant’s evidence that the complainant had approached Ms. D on the day in question and asked her for a haircut. It stated that Ms. D refused to cut the complainant’s hair and stated that this was because they do not cut or style ladies hair as it is a Barber Shop and went on to state that they only offer men’s and boys hair cuts.
5.7 The complainant in the present case submits that she was refused a service by the respondent and that this refusal was due to the fact that she is female. The respondent does not deny that the complainant was refused a service and agrees that this refusal was due to her gender. I am thus satisfied from the totality of the evidence adduced here that the complainant has established a prima facie case of discrimination on the grounds of gender which the respondent must now rebut.
5.8 The respondents advised the hearing that they are a Barbers shop and that they only offer hair cuts to men. The respondents went onto state that to their knowledge no woman has ever had a hair cut in their barber shop. The respondent denied that the complainant had ever had a hair cut in their premises. The respondent advised the hearing that it had interviewed all staff members in relation to the matter and that all staff members including Ms. D had denied aver cutting the complainant’s hair. The respondent stated that all of its staff members are trained as barbers and spend about 15 to 20 minutes on each haircut. They stated that as barbers they would not be able to cut women’s hair.
5.9 The respondent advised the hearing that under the terms of its lease it is only permitted to provide a’ barber shop service’ and that it is a condition of its lease agreement that the premises is only allowed to be used as a “barber shop to include retail sale of ancillary products and the provision of hot shaves”. The respondent went on to state that when it had bought the lease for the premises, in 2011, it had initially wished to include ladies hair cuts but was not permitted to do so under the terms of its lease. The respondent advised that this was due to the fact that a well-known women’s hairdressers was already situated in another premises within the shopping centre and so the barber shop was not permitted to offer the same services. The respondent stated that it had to comply with the terms of its lease agreement, a copy of which was provided to the hearing. The respondent advised the hearing that any inquiries or requests it receives in relation to women’s hair cuts are directed by them to the women’s hairdressers which is also in the shopping centre. The respondent advised the hearing that it is insured as a barber shop and that it has no insurance to cover women’s hairdressing.
5.10 It is also submitted on behalf of the respondent that in responding to the question of, whether the respondent in providing barber services to men only, is in breach of the Equal Status Act 2000, it is entitled to rely on the specific exemption contained in Section 5(2)© of the Act.
Section 5 provides that
(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—……..
(c) differences in the treatment of persons on the gender ground in relation to services of an aesthetic, cosmetic or similar nature, where the services require physical contact between the service provider and the recipient,
5.11 The respondent submits that the purpose of the Equal Status legislation is to allow Ireland to comply with its obligations under EU legislation and various international conventions. It is submitted that its purpose is not to eradicate all differences between men and women but that it allows for certain differences to continue and these are comprehended within the explicit exceptions provided for within Section 5(2) of the Act. The respondent at the hearing, went on to state that the respondent in this case is in the business of providing ‘barber shop services’. It is submitted that this is covered by the provision under Section 5(2)(c) and falls into the category of ‘ services of an aesthetic, cosmetic or similar nature’. The respondent advised the hearing that this is a traditional service and that it is tradition that this service caters for men only. It is submitted that men availing of this service expect to be in the company of other men. The respondent advised the hearing that it did not wish to offend or discriminate against the complainant but stated that its service is that of a barber shop which caters to men and not to women. The respondent at the hearing acknowledged that the complainant may have been embarrassed by the refusal of a hair cut and apologised to the complainant for any embarrassment or disappointment caused. The respondent went on to state that it would like to offer the complainant something on the lines of free service to her son or boyfriend to make up for any upset.
5.12 I am satisfied from the totality of the evidence adduced here on behalf of the respondent that the cumulative effect of the defences advanced by the respondent in this case both justify and explain the respondents refusal to provide the complainant with a hair cut. I am also satisfied that the respondent has rebutted the inference of discrimination raised by the complainant and that the respondent in this case was constrained by the terms of its lease agreement and that it is entitled to rely on the exemption provided under Section 5(2)©. I am thus satisfied that the complainant was not discriminated against on grounds of gender in relation to this matter.
6. DECISION OF THE EQUALITY OFFICER.
6.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision.
(i) the complainant was not discriminated against by the respondent on grounds of gender in terms of sections 3(1) & 3(2)(a) of the Equal Status Acts, 2000 to 2012 in relation to their refusal to provide her with a haircut.
____________________
Orla Jones
Equality Officer
30th of April, 2015