Assigning rights via efficiency

I stumbled upon this article earlier today and it really got me worked up.  The short of the situation is that Ms. McGregor walked into Mr. Sadeen’s barber shop wanting a male haircut.  Mr. Sadeen and his employees, being devout Islamic practitioners, could not cut her hair as their religion forbids them to touch women who are not members of their family.  In response, Ms. McGregor is going to the human rights tribunal, claiming they are unfairly discriminating against her because she is a woman.

Now I am not a religious person, nor do I agree with overly devout beliefs, but the fact is, people have every right to believe what they want to believe and to act in accordance with those beliefs, so long as their actions do not conflict with the beliefs and more importantly rights of others.

At the same time, it seems reasonable that one should not be able to discriminate against patrons on the basis of their gender.  (Women’s fitness clubs, I’m looking at you!)

Naturally, when two sets of rights are at odds there is going to be conflict, and ultimately there will have to be some compromising, though this does not mean that either right will be disregarded or even crossed.

As usual, the main perspective your writer will take is that of an economist.  Generally, the economic analysis of law relies on Coasian bargaining, a very old but very effective ‘rule’ that says that given limited transaction costs and impediments to bargaining an efficient outcome will result.  Generally this implies that both parties at least as well of as had the bargaining not taken place.  (OK, so that last bit is a bit of a Pareto efficiency  spin, but it keeps it tidy.)

Well, let’s consider what the parties want:

Ms. McGregor wants specific performance; she feels that she should be able to walk into any business that offers a service she could want and be able to receive it.  She seems to feel this is justified on the following grounds: since she wanted a “man’s” haircut, she should be able to go to a barber salon that only serves men’s haircuts.

On the other hand, Mr. Sadeen and his employees want to adhere to their religion and run his barber shop.

To give Ms. McGregor the benefit of the doubt, let’s assume she doesn’t expect Mr. Sadeen or his employees to act in contradiction to their religious beliefs.  For Ms. McGregor to get what she wants while respecting Mr. Sadeen’s right to observe his religion, he would have to hire a barber who does not follow Islamic tradition, or at least has no limitation keeping him from working on women.  Assuming Mr. Sadeen is a capable businessman, he’ll have reached a staff size such that there isn’t enough general demand to merit hiring another employee (or he already would have), and he can’t replace an existing staff member simply because his religious beliefs keep him from touching potential female clients.  This is tantamount to Ms. McGregor asking Mr. Sadeen to make a poor business decision to satisfy her personal desires.

Meanwhile, Ms. McGregor probably doesn’t HAVE to go to this salon; seeing as they’ve never cut her hair before, she has obviously gone elsewhere before.  In fact, Ms. McGregor can go to any number of other barber salons – I’m sure there are at least a few others in the vicinity – to find a barber who can provide the service she needs.  Even if the nearest alternative is ten minutes away, the inconvenience to her is almost certainly worth far less than the cost Mr. Sadeen would incur to employ someone else who could cut her hair.  (Again, assuming he’s a good businessman, he’d have sought someone out for this purpose if the female demand for male haircuts was sufficiently large.)

A reasonable economist would say “suck it up Ms. McGregor, this barber shop isn’t keeping you from getting a haircut, they are just saying you can’t get it there.” I feel that any reasonable person would say the same.

Keep in mind that this perspective may not work for other services, but given the abundance of barber salons in Toronto, there is no reasonable argument to be me. In the end, this is a stand on principle that makes Ms. McGregor look ignorant and ridiculous.  She will lose, the right will squawk and the world will move on, but it still bugs me.

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