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Nasir and Matt close out the week by talking about the woman that was refused a haircut at a barbershop because itwas described as a men's only business.

Full Podcast Transcript

NASIR: Welcome to our podcast where we cover business in the news and add our legal twist to that business news. My name is Nasir Pasha.

MATT: And I’m Matt Staub, and sometimes we cover haircuts as well.

NASIR: That was a great lead-in to our story which is our barber’s episode, actually – our annual barber gratitude episode of the year. September is haircut month, I believe.

MATT: I don’t know if you did this on purpose.

NASIR: First of all, I do everything on purpose, unless I do it on accident and it’s not good.

MATT: So, the term “barber,” I’ve heard people say that A”barber” is only for people that cut men’s hair. I don’t know if that’s accurate or not.

NASIR: I think that’s the implication.

MATT: Okay.

NASIR: When someone says “barber” or “barber shop,” they’re referring to a male – not necessarily a male haircutter but a haircutter for men.

MATT: See, I never know because you’ll hear “hair cutter” or “hair stylist.” I never know what to say so I just say “the girl that cuts my hair.” It always sounds awkward, but that’s the only way I know how to describe it.

NASIR: I always say “the person that cuts my hair” because who knows if it’s a man or a woman?

MATT: You don’t see gender or you’re better than I am.

NASIR: What I say is just “the animate object that cuts my hair, just in case it’s a robot.”

MATT: Yeah, anyone that listened to our last episode, you went into, after your Bank of America experience, you went to a virtual haircutting spot where it was just a person on a camera and they robot-cut your hair.

NASIR: Or they directed me how to cut my own hair.

MATT: That’s be impressive.
So, I didn’t even look to where this was located. Oh, Pennsylvania.

NASIR: Of course. It’s in the title but okay.

MATT: Yeah, I didn’t look at the title.
We have this self-described “high-end gentleman’s barbershop” – at least it’s how it’s described on its website – and, basically, long story short, they had a woman who came into the barbershop to get a haircut, specifically a fade, and she was turned away because they said that – and the funny part is the person that turned her away was a woman – they only cut exclusively men’s haircuts. It was funny because it was a woman who turned this woman away but, like they said, “we are a gentleman’s barbershop. We only cut men’s hair and you will not be able to get your hair cut here.” It’s kind of a slap on the wrist, a $750 fine which I guess adds up for haircuts, but I think they did pretty well with that. I mean, if that’s what the fine is, I think they can handle that.

NASIR: Yeah, of course, they can handle it. Well, actually, I had a barber tell me, it’s like, you know, he happened to be male and obviously trained. Actually, no, she was female. Now that I remember who told me this, she was saying that a lot of stylists are not trained to cut men’s hair. I mean, apparently, there’s a better market or more money in styling women’s hair than men’s, but a lot of times, when they go to training and whatever school they go to – barber school or what-have-you – they spend very little time on learning how to cut men’s hair and I think, for our purposes, I think, you know, physically, the heads are the same but, just from a perspective of the types of haircuts that men get versus women, I think that’s what we’re talking about here.

MATT: Yeah.

NASIR: It goes to this concept of why this particular woman went to this gentlemen’s barbershop because she wanted to get a fade which was more traditionally for a men’s style haircut so it kind of fits that kind of concept that you’re going to the barber that is trained in that kind of type of haircut.

MATT: Yeah. I mean, not to generalize or do any sort of stereotyping but, typically, men’s haircuts are shorter.

NASIR: That’s so sexist.

MATT: It’s observational. It’s not even sexist. But, typically, shorter and I would think it’s not as difficult and women’s haircuts and typically women have longer hair than men and it’s probably more – and I guess this is the biggest thing – any time a girl’s haircut has been screwed up, it seems like it’s the end of their life. And, if a guy’s haircut gets screwed up, it’s like, “Uh, well, it sucks but I’ll figure it out.” You can always just…

NASIR: Shave it off or something.

MATT: Well, that’s the thing. Guys get haircuts much more frequently, typically, than women do. I mean, that’s part of it.

NASIR: Every sentence there was pretty much a sexist comment so I’m just going to move on from that. I don’t endorse anything that you just said.

MATT: That’s fine.

NASIR: But, despite that, that’s fine. So, what’s interesting here is gentleman’s barbershop, how they describe it – “high-end gentleman’s barbershop” – this isn’t the only business that caters to one gender or the other, right? And, in this case, in Pennsylvania, the state ended up fining them $750 for gender discrimination. Frankly, that could be mild compared to what other businesses may encounter through an actual full-fledged lawsuit and, you know, the comments that they said are obviously they’re not represented because these comments are such that just kind of begs more of these legal issues. For example, you know, “We don’t discriminate against men here. We don’t stop them from joining.” She explains, “We tell them that there’s only women here and most of them don’t join. I’m not sure why they might want to join here but we wouldn’t stop them.” That whole statement is totally counter to the woman turning that person away and she’s like, “I’m a barber. That’s what I specialize in,” she told the newspaper. “That’s why I work here. I don’t cut women’s hair.” She went into this job thinking, “I’m never going to have to cut women’s hair,” but, you know, look, those kinds of statements are not very helpful.

MATT: Yeah. I mean, a gym’s going to have different concerns than a barbershop. I think there are some issues with privacy at a gym and barbershop, I mean, my only thought would be, is if it’s only men, is there are women’s restroom? But, if there’s a woman that cuts hair there, well, maybe it’s just a unisex restroom. I don’t know.

NASIR: Well, that’s what they should do – a unisex restroom instead of a gender-specific.

MATT: At a gym, you’re going to have locker rooms. It’s a whole different ballgame. I mean, I think there’d be a problem if there was a unisex locker room at the gym. I think they would run into some issues with that.

NASIR: Let’s talk about the law for a second here. I mean, we’re kind of dancing around it but here’s the deal. If you have a business – and, by the way, there are state-specific laws and we can talk about that in a second but we’re talking about federal law here – under Title 7 which is part of the Civil Rights Act, if it is a business of a public accommodation and what a business is, whether a business is considered a public accommodation is a whole question in itself but, just to make it simple, traditionally, these are things like restaurants, retail stores, barbershops would fall into that category, even gyms to a certain extent, right? Even if it’s a private gym, even if it’s an exclusive gym that is very high-end or whatever, these can still be public accommodations except, when there’s a public accommodation, generally, you can’t discriminate based upon gender but sometimes there is a legitimate business purpose towards that. And so, as an example, the right to privacy is implied can be implied in certain, you know, types of situations such as a women-only gym and so it changes the context a little bit.
Just as a quick reference, this reminded me of that company in San Diego. Cheek? Chic? Chic CEO?

MATT: Chic CEO, yeah.

NASIR: Sorry, yeah, Chic CEO.

MATT: You always have so much trouble with that.

NASIR: I know; it’s my bad.

MATT: I’m familiar with this, the case that they were involved in. I mean, there’s probably a lot people that are familiar with it now because it’s actually gained quite the momentum across these major websites and I think CNN, Yahoo!, things like that. But Chic CEO is a women’s entrepreneurial group, caters to women. They held an event. I don’t want to misstate any of the facts but more or less what happened was they held this event marketed towards women. A couple of men showed up, were turned away for whatever reason, and then those men turned around and sued Chic CEO because they weren’t allowed into the event which was supposedly a women-only event.

NASIR: Yeah. And so, let’s put the actual facts aside for a second, right? Just from a conceptual perspective of what the organization is trying to do – and, by the way, in that particular case, both sides had its arguments and that case I think has since been settled – but the bottom-line is here, okay, this organization, this women’s gym, this barbershop all have certain objectives to create a certain environment that is, again, not for the purpose of excluding one gender or the other but creating an environment for one or the other. But it’s a fine line because, of course, if you’re creating an environment for one group, it’s by definition creating an anti-environment for that other group and so it’s very difficult to do, right? By the way, in California and other states, it doesn’t stop at just gender. Every protected class whether it’s age, family status, or sexual orientation, these things you have to start thinking about when you start actually creating this environment that excludes people. The main trick is that you can create an environment but you have to be able to open it. For example, you can create an environment that is more appealing to men or a certain type of man, but if a woman comes in and wants a haircut then it might just be easier for you to accommodate that person that wants to get a haircut rather than face a $750 fine or a lawsuit or a class action lawsuit that can spiral out of control.

MATT: Yeah, especially when you can do the work. She said she came in for a haircut typically done – I’m assuming the barber does on a frequent basis. I don’t think it was going to be an issue if somebody… I can’t see an issue of a guy walking into that barbershop and being, “Oh, I’m taking my business elsewhere because I see a woman in here.” I mean, for businesses that kind of cater towards these different protected classes, I mean, it’s a tough thing to handle. I mean, you’re obviously better off just not even addressing it at all – I mean, not making those claims at all – but, on the flip side, if a business, the main reason they’re getting customers is because they are catering to a specific type of person like women-only or whatever then it’s a fine line they have to walk.

NASIR: Yeah. Speaking of California and this particular case with Chic CEO, it’s not uncommon, especially in California, because they have this particular statute that describes discrimination relating to these different classes for businesses and everything from national orientation to religion and we covered that but the concept here is they actually permit plaintiffs to recover attorney’s fees and the significance of that is that means that automatically you’re going to have attorneys that are going to be looking for these cases. So, even if there may not be any real effective damage, you know, beyond maybe a certain incident or what-have-you, or maybe it was unintended or a mistake or whatever, that one incident could cause a full-fledged lawsuit that you’re going to have to defend because the attorney has an incentive to win and get you because of that attorney’s fees and that also means that attorneys are going to be more willing to take these on contingency and defend our plaintiffs that are, you know, not necessarily have enough money to pay for attorney would be able to find an attorney to take on this case.

MATT: Yeah, if anything, it’s kind of almost an incentive for the lawsuit to be filed if they know that and if the law is protecting them, it’s a tough break for these businesses.

NASIR: Anyway, gender discrimination, you’re for it or against it? Because I don’t think you stated your policy very clearly. Like, you’re kind of avoiding it like a political candidate.

MATT: Gender discrimination, definitely against that discrimination, yeah.

NASIR: Okay. I just want to make sure you’re not flip-flopping, you know?

MATT: Actually, you know what, I do hate men so… what is the Seinfeld? Is it sexist or racist? I think it’s racist when Jerry says, “How can I be racist if I like that race?” It’s something to that effect.

NASIR: Yeah, I think it was sexist though; I can’t remember. You’re right.

MATT: It’s basically like, how can I be sexist or racist if I’m saying something positive about that sex or race?

NASIR: Yeah.

MATT: Which is a good point.

NASIR: Okay. Well, I think that’s it for me. I don’t know if you have anything else to add.

MATT: Not at this time. As of right now, we might be on a little bit longer break than normal but it’s possible we might be back at the normal time so we’ll just have to…

NASIR: Yeah. Well, I’m trying to convince Matt to do an episode by himself with his imaginary friend – or a real friend, whichever he can get first.

MATT: Yeah. Or I just think out loud for fifteen minutes.

NASIR: I think you should do an episode – at least one episode or two while I’m gone. That would be nice.

MATT: I’ll try to. Got some people I’m going to reach out to. See if we can make it work. Who knows? We’ll see. Suspense!

NASIR: All right, guys. Thanks for joining us.

MATT: Yeah, keep it sound and keep it smart!

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Legally Sound | Smart Business covers the top business stories with a legal twist. Hosted by attorneys Nasir N. Pasha and Matt Staub of Pasha Law, Legally Sound | Smart Business is a podcast geared towards small business owners.

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