EQUALITY OFFICER'S DECISION NO: DEC-S/2015/007
PARTIES
Elaine Carroll
-v-
Short Cuts
FILE NO: ES/2013/0116
Date of issue: 14th of May, 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.
2. Background
2.1 The complainant, Ms. C referred a complaint under the Equal Status Acts, 2000-2012 to the Equality Tribunal on 11th of October, 2013. The complainant went to the respondents premises on 20th of June 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 the Mill Shopping Centre on 20th of June 2013 at 11 am.
3.2 It is submitted that the complainant approached a female barber and asked her for ‘an undercut’ (to shave the side of her hair).
3.3 The complainant submits that the barber replied “No we don’t cut women’s hair” and directed her to go to a well known hairdressers which is also in the centre.
3.4 The complainant submits that she then asked the barber for her name and for the managers name which the barber refused to give her.
3.5 The complainant submits that she had got her hair cut in the respondent’s premises 4-6 weeks previously. It is submitted that this was done by a different staff member.
3.6 The complainant submits that following the incident she received a phone call from the owner of the respondent shop who advised her that legally he cannot cut women’s hair as his lease precludes him from doing so.
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 The respondent submits that the premises are leased from the owners of The Mill Centre for specific use as a Barbers Shop.
4.3 The respondent submits that he would love to cut women’s hair as it would be more profitable for him, but that to do so, would be in breach of his lease contract and that he would run the risk of losing his shop.
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.
5.4 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.
5.5 The complainant advised the hearing that she had entered the respondent’s premises on 20th of June, 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 had told the complainant she could not cut her hair as they ‘do not cut women’s hair’. The complainant advised the hearing that the staff member was shaving a male customer’s hair at the time and that the complainant explained that all she was asking for was the same haircut as she was giving the male customer. The complainant stated that the barber responded again that they do not cut women’s hair. The complainant advised the hearing that she became annoyed at the barber and told her that she was discriminating against her based on her gender. The complainant stated that the barber then replied that she didn’t care.
5.6 The complainant stated that she had previously got her hair cut at the respondent’s premises 4-6 weeks prior to this visit by an Irish girl who was not present at the time of the second visit.
5.7 The respondent at the hearing agreed that the complainant had attended the respondent’s premises and had been refused a haircut. The respondent stated that the refusal to cut the complainant’s hair was due to the fact that she is female and that the staff member in question was following his instructions and that they are a barber shop and do not cut women’s hair. The respondent stated that this been the case for the past 14 years and that all staff are aware of this.
5.8 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.
5.9 The respondent advised the hearing that he runs a Barbers shop and that they only provide haircuts to men. The respondent went onto state that this has been the case for the past 14 years and that to his knowledge no woman has ever had a hair cut in his barber shop. The respondent denied that the complainant had ever had a haircut in his premises. The complainant had stated that she had previously got her hair cut by an Irish girl working in the respondents shop. The respondent stated that he only employed three staff and that all were well aware that they could not provide haircuts to women. The respondent advised the complainant at the hearing that the only Irish girl working there was his niece, Ms. T who was also the manager, and that she would not have cut a woman’s hair on the premises. He stated that Ms. T was currently on maternity leave but that she had advised him that she had never and would never cut women’s hair on the respondent’s premises as she knew it would be in breach of the lease agreement.
5.10 The respondent advised the hearing that he would love to be able to cut women’s hair and stated that his turnover had decreased by 50% over the past 5 years and stated that he would certainly not turn away business if it was up to him but stated that he had no choice due to the terms of his lease.
5.11 The respondent advised the hearing that under the terms of his lease the premises is not
“To be used for any other purpose other than the business of cutting men’s hair with no ancillary services offered”.
5.12 The respondent went on to state that when he had bought the lease for the premises, in December 1998, he was advised that he was not to cut women’s hair 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 respondent was not permitted to offer the same service. The respondent stated that he had to comply with the terms of his lease agreement, a copy of which was provided to the hearing.
5.13The respondent advised the hearing that it clearly states in his shop window and on the price list that they only provide haircuts to men and boys. The respondent stated that his staff are qualified and trained as barbers and stated that they are not qualified to cut women’s hair.
5.14 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,
5.15 Thus Section 5(2)(c) of the Equal Status Act allows for certain differences in treatment on the gender ground where the service is that of an aesthetic, cosmetic or similar nature, where the services require physical contact between the service provider and the recipient,
5.16 In examining the question of whether the respondent in providing barber services to men only, is in breach of the Equal Status Act 2000, I must consider whether the respondent is entitled to rely on the specific exemption contained in Section 5(2)(c) of the Act. It is submitted that the service provided by the respondent is that of a Barbers Shop whose business is exclusively cutting men’s hair. I am satisfied that this is a service of an aesthetic, cosmetic or similar nature as provided for in Section 5(2)(c) of the Equal Status Act and can therefore be exclusively provided to the male gender.
5.17 I am satisfied from the totality of the evidence adduced that the exemption provided for under Section 5(2)(c) of the Equal Status Act, in addition to the evidence advanced by the respondent, in this case, justifies and explains the respondent’s 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 is entitled to rely on the exemption provided under Section 5(2)(c). 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 the refusal to provide her with a haircut.
____________________
Orla Jones
Equality Officer
14th of May, 2015