Gender equality in hairdressing customer service (TAS/228/2024 and TAS/373/2024, issued 22 October 2024)
In two separate contacts, the Ombudsman for Equality was asked to investigate the implementation of equality in the hairdressing sector. The first contact asked for an opinion on operating a hairdressing salon for women only. This salon takes into account the specific needs of women who, for religious reasons, cannot expose their hair to men outside their own family (TAS/228/2024). The second contact concerned a barber shop where a male barber refused to serve a female customer because he could not touch a female stranger for cultural reasons (TAS/373/2024). The Ombudsman for Equality considered it appropriate to handle the cases jointly.
As the grounds for discrimination mentioned in the Non-Discrimination Act are relevant to the assessment of the case, the ombudsman for Equality asked the Non-Discrimination Ombudsman for an opinion on the matter. The Ombudsman for Equality made a general assessment of the issue so did not ask businesses in the hairdressing sector for an explanation.
The Ombudsman for Equality notes that the Act on Equality between Women and Men allows the provision of the service exclusively to members of one gender if there is a legitimate aim for such conduct and the means to achieve that aim are appropriate and necessary.
The preamble to the provision and the underlying Council Directive mention, among other things, privacy and decency issues as a legitimate aim for different treatment. In assessing the prohibition of discrimination on the grounds of gender, it is important to respect other basic rights such as the freedom to conduct business and the freedom of religion.
Touching a person of another gender is an essential part of the concept of privacy and decency. Religion and culture also influence the concept of privacy and decency. From the point of view of basic rights, it is logical that, in the hairdressing sector when touching the customer is an integral part of the work, reasons of decency can be taken into account. However, these do not automatically justify a derogation from equal treatment. The relationship between equality and other basic rights must always be weighed on a case-by-case basis.
When assessing whether there is a possibility to derogate from the principle of equal treatment, the aim is to ensure that it is not a situation where the trader would deliberately seek to increase inequality, abuse basic rights, or otherwise act in a way that is incompatible with such rights.
In its statement to the Ombudsman for Equality, the Non-Discrimination Ombudsman holds that treating everyone in the same formulaic way does not guarantee that non-discrimination is actually achieved. Taking diversity into account may require measures. Similarly, ignoring diversity can lead to an indirectly discriminatory outcome despite a formally non-discriminatory practice. Positive special treatment under the Non-Discrimination Act is possible if a trader seeks to ensure equal access to their service for a group of people whose non-discrimination could not have been achieved without positive special treatment.
In its opinion, the Ombudsman for Equality states that a concept of privacy and decency based on religious or cultural grounds that does not accept the touching of a stranger of the opposite gender, can be taken into account in the services offered by a hairdressing business. The Act on Equality between Women and Men can therefore be interpreted in a way that allows the provision of hairdressing services exclusively for women or exclusively for men. The act can also be interpreted in a way that allows an individual hairdresser to refuse to serve a customer of the opposite gender on the grounds of their religion or culture in a situation where the hairdresser would otherwise serve all customers.
In a previous opinion on customer service in the hairdressing sector, the Ombudsman for Equality considered that a hairdresser cannot choose their customers on the basis of gender. However, in the cases discussed above, the hairdressers did not invoke their religion, culture or reasons of privacy or decency as a justification for offering services only to women or only to men.
15.11.2024
