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Restaurant drinks offer discriminated on the basis of gender expression (TAS 357/2020, issued on 23 October 2020)

The Ombudsman for Equality was asked to find out whether a restaurant acted in accordance with the Equality Act when offering two drinks for the price of one to customers wearing a dress.
According to the restaurant’s statement on the matter, the offer was valid for everyone, regardless of age or gender. In other words, men wearing dresses would have also been eligible for the drinks offer. Consequently, the restaurant took the view that its offer did not discriminate against its customers on the basis of gender. 

The advertisement for the offer stated the restaurant's intention to hold a similar women’s night on the fourth Saturday of each month. The advertisement gave the impression that the special offer was aimed specifically at women. The restaurant informed the Ombudsman for Equality that it did not intend to hold similar events until it was assured of their legality. 

In relation to similar situations, the Ombudsman for Equality has previously found that offers appearing to be gender-neutral may actually put customers at a disadvantage on the basis of gender. The Equality Act has since been refined to prohibit discrimination on the basis of gender expression in addition to legal gender. 

Gender expression can be, for example, dressing in clothing typically associated with either men or women. Although a man can wear a dress and many women do not wear dresses, wearing a dress is much more typical of women than men. Aiming a special offer solely at dress-wearing customers could lead to a situation in which some men are indirectly discriminated against on the basis of gender expression. 

Special offers aimed solely at representatives of a certain gender are only permissible in business if the offer is limited both in terms of its infrequency and its monetary value being relatively small. In other words, an assessment of the frequency and monetary value of the special offer was needed in this case.

A monthly offer could not be considered to be an infrequent discount. Moreover, the monetary value of the offer could not be considered insignificant as it could repeatedly be benefited from during the restaurant's opening hours. In this case, although increasing the number of customers was in itself an acceptable goal under the Equality Act, the different pricing of the drinks could not be considered an appropriate and necessary way to achieve this. Consequently, the Ombudsman for Equality found the restaurant guilty of indirect discrimination on the basis of gender expression.