On 10 November 2014, the Eastern High Court ruled in the much discussed hairdresser case, which concerned the question whether gender-specific prices at hairdressers constitute unlawful discrimination due to gender.

DIFFERENT PRICES FOR MEN AND WOMEN

The case stated back in 2012 when a short-haired woman lodged a complaint with the Board of Equal Treatment concerning a chain of hairdressers. The woman was dissatisfied with the fact that she had to pay more for a haircut than male customers as she claimed that the service was the same.

The Board concluded that the chain of hairdressers had discriminated against the woman with its gender-differentiated prices contrary to the Equal Rights Act and awarded compensation to the woman of DKK 2,500.

Two chains of hairdressers then brought legal action against the Board hoping to have the Board's decision overruled. The Danish Association of independent hairdressers and cosmeticians (DOFK) joined the legal action due to the far-reaching implications for hairdressers all over the country. Due to the fundamental importance, the legal action was referred to the Eastern High Court.

EASTERN HIGH COURT RULING

The Court found that the advertising of different prices for men and women actually constitutes an assumption speaking in favour of discrimination due to gender contrary to the Equal Rights Act.

It was then up to the two chains of hairdressers to prove that discrimination had not taken place.
The chains argued that haircuts on men and women are in fact two different services, and the price difference is justified by a female haircut being technically more difficult and thereby time-consuming than a male haircut. Also, more products are used when styling a woman's hair.

The court noted that it does not in itself constitute discrimination to call it a "male" or "female" haircut as long as this describes different services and the customer's gender is not decisive as to the service that he or she is entitled to receive. The price difference of the two services was believed to be proportionate with the extra time spent on a female haircut.

Based on the evidence, the Court could not take into account that the original claimants had actually asked for and been refused a "male haircut" at the same price as a male customer. Based on the above, the Court found that the hairdressers had met the burden of proving that the price difference of the gender-specific services did not constitute unlawful discrimination.

COMMENTS

The case was fundamental as an affirmation of the Board's decision would have resulted in hairdressers all over the country having to change their price policies - policies that are often based on male/female haircuts.

The ruling would also have been important for other cases on pricing heard by the Board as the Board has previously assumed that gender-specific prices in connection with i.a. hair removal constitutes unlawful discrimination. If these decisions are resumed, the results will depend on a specific assessment as to whether the gender-specific prices are based on an objective reason, and it would be for the hairdressers to meet the burden of proof.

The High Court's ruling also follows the Board's own practice from 2006 when the Board decided that price differences of gender-specific hairdresser services were based on objective reasons.

The content of this Newsletter is not, and should not replace, legal advice.

contacts

Finn Schwarz

Managing Partner

Marianne Lage

Partner