No entry without a mask – does this business practice constitute discrimination?
Reports appeared in the media that certain service providers or retailers are requesting their customers to wear protective masks before entering their places of business, with the aim of containing the spread of coronavirus, even though this is not the recommendation of the National Civil Protection Directorate nor the Croatian Public Health Institute (HZJZ). Since masks are currently exceedingly hard to obtain, and in some shops and pharmacies their price is significantly higher than usual, making their usage compulsory could lead to discrimination on the basis of socio-economic ground, unless the service provider or retailer provides protective masks or allows for an alternative, such as covering the mouth and nose with a scarf or a handkerchief or in other manner.
The Croatian Anti-discrimination Act provides exceptions to the prohibition of discrimination, including the one that it shall not be considered discrimination when such conduct is set forth by law with the aim to preserve health and public safety, to maintain law and order, to prevent criminal acts, and to protect the rights and liberties of others, and only when the means used are appropriate and necessary for the aim to be achieved and in such manner that such conduct may not result in the inequality of citizens with respect to race, ethnic origin, colour, gender, national or social origin, sexual orientation or disability.
The obligation to use their own protective masks, with no alternative means of protection allowed, could have a negative impact on citizens with a lower socio-economic status, but also anyone who does not possess a mask, especially as they are practically unobtainable on the market at the moment, while at the same time other more appropriate means exist to achieve the aim of preserving public health.
To conclude, requesting customers to wear a protective mask does not constitute discrimination if it is also allowed to access the business with scarfs or other appropriate means of covering one’s face in order to protect the employees. However, it is important to note that, according to HZJZ, wearing protective masks is obligatory for individuals who suspect they might have coronavirus, as well as those who show respiratory symptoms, considering that the protective masks help prevent further spread of the infection.