D’Oyly Carte case that expectant actress could not play a virgin highlights
fine line between common sense and discrimination
On the face of it, a decision by an Employment Tribunal that an actress
cannot be pregnant and play a virgin is a victory for common sense. However,
the writers of the discrimination legislation recognised that there is a very
fine line between common sense and prejudice based on outdated assumptions.
The decision in Halliday v D’Oyly Carte Opera Company (2302240/01) says more
perhaps about the tribunal’s conservative view of what should go on upon the stage
than it says about the current state of the law on sex discrimination.
The Case
Ms Halliday was a professional singer. D’Oyly Carte is an opera company that
produces Gilbert and Sullivan operas.
It proposed to stage a production of The Pirates of Penzance, which features
a band of pirates and a group of girls, who are single daughters of a Major
General and of marriageable age. By convention, all of the daughters are
innocent and virginal maidens.
The company asked Ms Halliday if she was available from April to June 2001.
She confirmed her availability, but added that she was pregnant with a baby due
in July.
The company decided not to use her on the basis that it was not appropriate
in the context of daughters being ‘maidens’ for one of the Major General’s
daughters to be visibly pregnant.
Ms Halliday claimed she had been unlawfully discriminated against on grounds
of her pregnancy. She argued that the company could have adapted the
performance to make reference to her pregnancy, which would have added to the
humour of the production. D’Oyly Carte said it could have done, but that would
be neither right for Gilbert and Sullivan or its intended audience. Was this
discrimination?
The company relied on section seven of the SDA, which provides a defence
where there is a "genuine occupational qualification" for a job
including, in dramatic performances, where the qualification is for reasons of
maintaining authenticity.
This defence applies if the "essential nature of the job would be
materially different if carried out by a woman" – or, on these facts, a
non-pregnant woman.
Although it does not specifically cover discrimination on grounds of
pregnancy, the SDA has been construed by EC law to cover pregnancy.
On that basis, the company argued, section seven covered the situation where
a pregnant woman would be unsuitable for a dramatic role because of being
visibility pregnant. The company also relied on its right to freedom of
expression under the Human Rights Act.
The findings
The tribunal concluded that the essential nature of the opera called for a
woman not noticeably pregnant for reasons of authenticity, and D’Oyly Carte
could, therefore, rely on the defence.
The tribunal had no previous case law on which it could rely in coming to
its decision, and so its decision effectively extends section seven of the SDA,
so that the authenticity exemption can now apply to discrimination between a
pregnant woman and a non-pregnant woman.
In an age where our expectations are frequently challenged in dramatic
performances, this is a surprising decision. D’Oyly Carte Opera Company has a
policy of ‘relative realism’, but this had not prevented the cast of ‘girls’
being up to 48 years old in the past and having a variety of dress sizes.
Before delivering its judgment, the tribunal observed that it should
interpret the law to avoid absurd results and, in its words: "It would be
absurd for a heavily pregnant woman to be playing a virgin". Is a teenage
virgin who is pregnant any more absurd than one who is 48?
Conclusion
– Do not rely on common sense to determine discrimination issues – check the
legislation
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– Looking pregnant may rule an actress out of being a virgin but being black
does not prevent an actress from playing a white woman.
By Jonathan Chamberlain a partner in the Employment team at Wragge
&Co
