Ladies Nights and Specials Being Challenged Across Country as Gender Discrimination

Across the country, men are challenging specials for women at bars,athletic clubs, and other establishments as discrimination based on gender. They have a point and feminists may now be in a tough position: choosing between supporting popularspecials and opposing gender discrimination. Nevertheless, these cases pose some very novel questions.

In Denver last January, a state civil rights agency supported Steve Horner’s claims ofdiscrimination against a Ladies Night special at an athletic club.  For the full story, click here 

Then in New York, New York attorney Roy Den Hollander filed a class action against certain Manhattan nightclubs for “invidious discrimination” against men for such specials. For that story, click here

Now in Nevada, the Las Vegas Athletic Club gym is being challenged by attorney Todd Phillips after his wife was offered a low rate and special privileges due to her gender. For that story, click here

These are only a few examples of such challenges in various states. For the most part, they have been successful despite efforts in states like New Jersey to actually codified the right to discriminate in such offers. Some states like Illinois and Washington have ruled with the clubs as promotional devices.

On one level, it is hard to see how lower prices and greater privileges do not discriminate. If clubs offered whites or Catholics better deals, there would be a torrent of objections. Of course, gender is subject to an intermediate scrutiny under constitutional law. However, imagine if women were charged more and relegated to smaller spaces than men at clubs. The Supreme Court Reed v. Reed, 404 U.S. 71 (1971), did hold that the Equal Protection Clause prohibits state actors from “arbitrarily” favoring one sex over the other. Likewise, in Craig v. Boren, 429 U.S. 190 (1976), where the Supreme Court held unconstitutional an Oklahoma statute that allowed 3.2% beer to be sold to women 18 or older but required that men be 21 or older.

However, there are hurtles. Much depends on the basis of the claim. Equal Protection Clause of the Fourteenth Amendment prohibits discrimination by a “state” under the equal protection clause. Thus, in cases like Mississippi University for Women v. Hogan (1982), the Court held that an all-female state university was unconstitutional but this was clearly a state actor. There has long been a debate as to whether a private party can be subject to the prohibition. Of course, arguing this point undermines the same argument being used to stop discrimination against women under the 14th amendment.

Ultimately, the motive behind discrimination has not been determinative to courts. In International Union, UAW v. Johnson Controls, Inc., the Supreme Court ruled against an employer that implemented a policy of barring non-sterile women from particular jobs at a battery plant due to the possibility of birth defects. The Court still found it to be illegal discrimination.

Most of these cases are proceeding under state anti-discrimination laws that regulate licenses and conditions. In June 2007, the California Supreme Court ruled against “Ladies’ Night” discounts at a Los Angeles club are discriminatory. Angelucci v. Century Supper Club, No. S136154. In Koire v. Metro Car Wash, the California Supreme Court struck down a discount for women at a car wash as discrimination.

Likewise in 2004, a New Jersey board ruled that declared ladies’ nights violated state discrimination laws.

This should be an interesting trend of cases to watch, particularly if it goes to the post-O’Connor Court with the addition of Sam Alito.

5 thoughts on “Ladies Nights and Specials Being Challenged Across Country as Gender Discrimination”

  1. I go out to clubs a lot and personally I wouldn’t mind seeing ladies nights and this sort of behavior at clubs clamped down on. It is discriminatory and frankly I think I see more hurts from it than benefits… even for myself. Why?

    Well I believe that anyone who stands on line, is of age, and is willing to pay the cover charge should be treated equally. There shouldn’t be this some people go to the front of the line for no reason stuff.

    Also, it seems the clubs only think about men wanting to pick up women. News flash. We are also interested in picking up men. I personally don’t appreciate how clubs intentionally create an atmosphere where women outnumber men 2 to 1.

    I don’t have a problem getting a guy, but the problem is I am picky and I don’t want just ANY guy. So I prefer being in situations where the odds are more evenly distributed… and maybe I can land with someone decent instead of a lech who just wants whoever looks the most drunk.

    When men are in a situation where they are outnumbered by women, they tend to act like bigger assholes and have bigger egos. Who needs that? I say let them in. I don’t mind paying the extra 5 bucks or whatever to make the patrons inside the club reflect the reality of the people outside the club.

  2. As a heterosexual male, I don’t mind about ” ladies’ night” because i don’t go out on picking up women there. I rather meet women at school, volunteer events, private parties, etc. I agree with peetyjay, many people might see that as ” harmless”, but it has many cracks that go against the U.S Constitution.

    First of all, there is a fault in its rationale, that is ” to attract (heterosexual) males”. Ok, what about if a patron is a homosexual man? Why he has to pay more than a woman if he is not interested in that? Now, somebody might say ” oh, well, he can just go to a gay bar instead !”. Well, that won’t fly in a court, I’m telling you. Because you’re implying ” sexual-orientation segragation” there. The homosexual male might be there with his sister to celebrate her graduation or something.

    What about lesbian women? if Rossie O’Donnel and Ellen Degeneres are the only women there, you think any heterosexual man would like to pick her up? Yet, is ok for her to get freebies, because she has a vagina after all. What about putting up a sign saying ” heterosexual and bisexual ladies’ night “?
    I’ve lived in Japan for 3 years, they don’t have discounts for women there, and women still go to clubs.

    If you think about it, ” ladies’ night” is a form of ” indirect prostitution” , in which women are used as bait to attract heterosexual males. If Western Society accepts this, then why full blown prostitution is illegal then? If ” ladies’night is harmeless”? what is so harmful about a man just paying straight up with another consenting adult to get sexual gratification, within a regulated,legal environment like found in Europe?

    I bet there are many guys that would rather spend their hard-earned money on a prostitute, which is guaranteed to get sex, rhather than spending it on some bar ” with a good female ratio”,which there is no guarantee of anything. The bar is winning there, not the man.

    Bar/nightclubs are another ” sex-oriented business” , just as strip clubs, phone sexlines, etc.

    Some people bring up the ” senior discount” analogy, ok, this is a ridiculous arguement, mixing apples with oranges, because ” age” transcends ” gender”. If a man is 40, and a woman is 40 also, both can expect to get discounts when they pass 65 years of age.( if neither kill themselves before then) Is like collecting social security. But the man would still have to pay at the nightclub, and the woman wouldn’t, when they both reach 65. Just because he has a penis. So, both, ” age” and ” gender” cannot be compared as ” equal” discrimination here.

  3. Yeah I was going to call myself MaleClubber but then that would imply I would be for torture — er, I mean enhanced interogation techniques. I’m flattered for the response and just recently found your blog.

  4. I can think of no one in a better position to offer expert testimony than someone writing as ClubGoer.

  5. Great article. As a male club goer I can tell you how terrible it is to wait in a 3 hour line at Pure in Las Vegas while countless women go straight to the front and are let in for free.

    The problem is that clubs encourage this behavior because the more beautiful women there are in the club, the more likely men will pay more to enter the club.

    If an unattractive woman approaches the front of the line to enter the club she may embarassingly be turned away.

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