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.