You may have seen this BBC News article about a women-only Cambodian taxi service ‘Moto Girls’ and we bring you the employment law implications of similar businesses in UK employment law.
Female members of the public face greater risk of sexual violence and other crime both inside and outside the home. This is why there are women-only train carriages in Japan, India, Egypt, Iran, Brazil, Mexico, Indonesia, the Philippines, Malaysia, and the UAE.
“Tourists like girls who drive slow, not weave in and out of traffic” said a hotel customer of Moto Girls.
Of courses, this mixes up driving skills with gender, which is the definition of prejudice.
Nevertheless, 30% of people would rather hire a female tradesman (ahem) if they had the choice, according to an insurer’s survey. The reasons given ranged from the feeling that women have better attention to detail (66% of respondents) to feeling safer around them (54%), punctuality (46%) , better customer service (45%) and better multi-tasking (42%).
This is a funny form of ‘egalitarian’ sexism. 80% of people thought that men could do just a good job as women in traditionally female roles such as child caring, beauty or cleaning.
But businesses are not allowed to choose the gender of their employees just because the client base prefers it. If society has a particular expectation, employment law is there to change that expectation.
Because sex discrimination laws prevent recruitment policies that only accept one sex or the other, gender-specific companies are rare, as the removal company Van Girls found out when they failed to secure Dragon’s Den funding. “Our largest demographic is couples who are expecting a baby very soon or who have young children. But there is a real mixture. Men, women, couples, the elderly or their children and the LGBT community all seem to like the idea“, says its business owner.
It would be against employment law to only employ women removers, so she can’t admit that. She can only say that she happens not to have any male removers and that she employs a male mechanic and accountant.
Skating carefully around the employment law implications, she says “Our brand name represents how the company started and what it will always be able to offer, but doesn’t mean that men who wanted to work for Van Girls wouldn’t be given a fair chance to form part of a mixed crew, if they matched our ethos and fulfilled our selection criteria“.
Employment lawyers have little experience of this type of practice, since employment law only allows specific gendering of employees when it is a necessary part of the job, which judges construe very narrowly. An acting role for a female character would certainly benefit from the exception. And we have seen it used (but not tested in court) by services counselling troubled children, who may not want to speak to a man/woman for understandable reasons. We think that it is overwhelmingly likely that a would-be male bra-fitter would not be given legal protection if rejected for a job.
This is despite the fact that the legal test of what is a “necessary part of the job” is really just another way of saying “in what areas should employment law let customer preference win out?“. We know that men can play women’s roles if allowed – see Widow Twankee(!) but employment law agrees that a director should not have to ask an audience to suspend disbelief in this way.
Likewise, it is only customer embarrassment and the social custom of sex-segregated privacy about our bodies that makes a male less wanted by customers as a bra-fitter. Judges choose to allow this to continue rather than to use employment law as a tool to change this societal expectation, whilst denying the tool to, say, a golf club that wants to remain men-only because of male golfers’ preferences.