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Only work and no play permitted for ladies at golf clubs?

This week, for the first time in its history, Augusta National Golf Club invited a woman into the fold. In fact, two women were invited to join the club including former US Secretary of State Condoleezza Rice.
In the UK it is unlawful for private members clubs to discriminate against members or prospective members and guests because of sex. If for example a golf club with male and female members affords preferential rates to men and not to women, this would amount to unlawful discrimination.
However, restricting membership to single sex members is permitted. Several Scottish golf clubs do not admit female members. That said, although female golfers may not be allowed to play the course, ladies can assert their rights to work for a golf club.
In their capacity as employers, private members clubs in the UK are of course bound by the rules against discrimination in the workplace. The circumstances in which employers can discriminate because of gender are limited. The exceptions exist because the law recognises that a man as opposed to a woman (or vice versa) may be required in order to meet the requirements of a particular job.
The permissible exceptions are known as the”occupational requirement” (OR) exceptions. The exceptions are applicable if the requirement to be either male or female is effectively crucial to the post, and not merely one of several important factors. An example could be the need for authenticity or realism in an acting role or a modelling job. For example, you could argue the need to employ a male actor to play the lead in a film about the world’s most famous golfer – to employ a woman wouldn’t be all that realistic!
The OR exception could also be applied for reasons of privacy or decency which might require an attendant in a changing room to be of the same sex as those using the changing room. There are some interesting case examples of employer trying to use the exceptions in practice. In O’Connor v Contiki Travel Ltd ET/13674/76 a woman complained after being turned down for a coach driver role. The reason given was that she would have to drive in Islamic countries where a female driver would be unacceptable. As the only Islamic country she had to visit was Turkey and there was no evidence it would not be acceptable for her to drive there, she was held to have been discriminated against because being male was not fundamental to the post. The need to be of a particular gender clearly cannot be a pretext or sham, it must be genuine.
In addition, an employer is only entitled to apply the OR exception where doing so is a “proportionate means of achieving a legitimate aim”. Considerations of privacy or authenticity for changing room assistants or actors probably qualify as legitimate aims. If the means of achieving the legitimate aims are disproportionate, the employer will be held to have discriminated. For example, if a man applies to work in a ladies’ clothes shop and is refused a job as a sales assistant because female staff are needed to monitor the changing rooms, he is likely to have been discriminated against if female staff are otherwise available to monitor the changing room.
For now it remains only work and no play for ladies at some Scottish golf clubs. However, with increased pressure for clubs such as St Andrews and Muirfield to follow Augusta National’s example, including calls from Scotland’s leading female golfer Catriona Matthew and Shona Robison, Scottish Minister for Commonweath Games, we may see some more play for ladies in the future.
For further information on discrimination matters, please contact a member of Balfour+Manson’s Employment Law team: Robert Holland.