Stereotyping as Direct Discrimination?
The Hungarian Equal Treatment Authority (ETA) found that the entrance policy of a music club violated anti-discrimination legislation. The club in Budapest only charged men for entrance but not women. Whose equality was at stake?
The complaint to the ETA was submitted by a male consumer. The complainant argued the he had to bear a differential financial burden because of his sex. The club indeed only charged men with an entrance fee of 1000 forint (£2.5). As a secondary argument, the complainant also referred to the practice as discriminatory to women because the entrance policy relied on the sexist assumption that women are sexual objects that attract men to clubs.
Clubs in numerous European countries adopt this policy because it is profitable. However, profitability has no justificatory force for defending direct discrimination under the national anti-discrimination law (which is shaped by EU law). Nonetheless, a defendant-club can still prove that the directly discriminatory policy is inherently related to the service (e.g. a call for exclusively women for female roles in a theater production) or that it is part of a measure aimed at fostering equality (which a government regulation must permit first). Neither of these defences was available in the instant case, so the policy was doomed.
But doomed for what reasons?
The ETA found against the club solely on the ground of discrimination against men. But I would argue that there were two avenues for challenging the policy and, ultimately, one was superior due to its basis in the concept of ‘substantive equality.’
First, one must construct the aim of the policy in relation to the ground of discrimination. The idea behind the policy is that, the more women present at a club, the more men turn up, thereby leading to increased consumption (the underlying assumption is that men consume more than women in these clubs). If the policy has this economic justification, then it seems to render women sexual objects used to attract male clientele (this is why the complainant labeled the policy ‘passive prostitution of women’). Therefore, the policy enhances crude gender stereotypes and inflicts harm upon women’s self-respect.
Second, we must examine any harm resulting from the differential treatment. On the one hand, men have to pay a fee, unlike women. This is a financial harm. On the other hand, women are compelled to participate in sexual stereotyping tantamount to an attack upon their self-respect (harm in stereotypes).
Both claims against direct discrimination are grounded in equality. But they are different claims even though they may lead to the same result (i.e. banning the policy). The Hungarian authority only focused on the financial harm to men, and – probably against the will of the complainant – remained silent about the harm caused to women. The decision led to a sexist puzzle for the general public: one kind of sexist commentator vindicated victory of the ‘oppressed’ men while another deplored the fact that such a nice rule of courtesy was overruled.
I would argue that we ought to conceptualize this case as one involving direct discrimination against women, in spite of the financial harm caused to men. We are used to the two harms inflicting the same group; financial and self-respect harms are often bundled. Not here, though. The entrance policy was discriminatory against men in a weak, ‘flat equality’ sense. Yet, the other harm inflicted upon women was a competing and arguably stronger claim grounded in ‘substantive equality.’ Only charging men an entrance fee is best understood as a policy that seemingly places women at an advantage, but at a considerable price: subjecting them to a crude gender stereotype. The well-intentioned male complainant publicly stated that he intended to make a case for the equality of women, but because only he was harmed in a legal sense, he based his argument on ‘flat equality’ rather than on ‘substantive equality.’ This may have been a successful litigation strategy, but in principle, there should be no reason against construing stereotyping policies as harms to self-respect in obvious cases related to differential treatment, and to attack them as such. In the instant case, the harm to women’s self-respect should trump the financial harm to men as justification for overruling the policy.