Ladies' night

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A ladies' night is a promotional event, often at a bar or nightclub, where female patrons pay less than male patrons for the cover charge or alcoholic beverages. In the United States, state courts in California, Maryland, Pennsylvania and Wisconsin have ruled that ladies' night discounts are unlawful gender-based price discrimination under state or local statutes. However, courts in Illinois, Minnesota, and Washington have rejected a variety of challenges to such discounts.

Contents

Health concerns

Ladies' nights that promote discounts on alcoholic beverages may lead to increased binge drinking, which can be a safety and health hazard.

Legality in the United States

Federal law

Claims against ladies' nights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution have failed under the state action doctrine. [1] Similar actions have failed under the Civil Rights Act of 1871 (42 U.S.C. § 1983). [2] [3] However, ladies' nights may have federal tax implications. [4] Federal claims were also involved in the unsuccessful challenge in Washington (see below).

California

The California Supreme Court has ruled that ladies' days at a car wash and ladies' nights at a nightclub violate California's Unruh Civil Rights Act in Koire v Metro Car Wash (1985) [5] and Angelucci v. Century Supper Club (2007). [6] The Unruh Act provides: "All persons within the jurisdiction of this state are free and equal, and no matter what their sex [...] are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever [...]." [5] The court considered the statutory defense that the promotions serve "substantial business and social purposes", but concluded that merely being profitable is not a sufficient defense. [5] The court accused the Wisconsin Supreme Court of "sexual stereotyping" for upholding a similar practice. [5]

Koire held that: "Public policy in California strongly supports eradication of discrimination based on sex. The Unruh Act expressly prohibits sex discrimination by business enterprises." [5] Koire concluded:

"The legality of sex-based price discounts cannot depend on the subjective value judgments about which types of sex-based distinctions are important or harmful. The express language of the Unruh Act provides a clear and objective standard by which to determine the legality of the practices at issue. The Legislature has clearly stated that business establishments must provide "equal . . . advantages . . . [and] privileges" to all customers "no matter what their sex." (§ 51.) Strong public policy supports application of the Act in this case. The defendants have advanced no convincing argument that this court should carve out a judicial exception for their sex-based price discounts. The straightforward proscription of the Act should be respected." [5]

Subsequent to the decision, California passed the Gender Tax Repeal Act of 1995, which specifically prohibits differential pricing based solely on a customer's gender. [7] In Angelucci, the California Supreme Court ruled that discrimination victims did not have to ask the offending business to be treated equally in order to have standing to file an Unruh Act or Gender Tax Repeal Act claim.

Courts have not found violations on the Unruh Act with discounts for which any customer could theoretically qualify for. [8] The California Supreme Court opined:

"A multitude of promotional discounts come to mind which are clearly permissible under the Unruh Act. For example, a business establishment might offer reduced rates to all customers on one day each week. Or, a business might offer a discount to any customer who meets a condition which any patron could satisfy (e.g., presenting a coupon, or sporting a certain color shirt or a particular bumper sticker). In addition, nothing prevents a business from offering discounts for purchasing commodities in quantity, or for making advance reservations. The key is that the discounts must be “applicable alike to persons of every sex, color, race, [etc.]” ( § 51), instead of being contingent on some arbitrary, class-based generalization." [5]

The Koire precedent has not been extended to strike down Mother's Day promotions. [9] Koire was one of the precedents cited in the lower court (but not the state Supreme Court) in In re Marriage Cases

Illinois

Ladies' nights in Illinois have been upheld under the anti-discrimination provision of the Dram Shop Act. [10] The court determined that the discount was intended to encourage women to attend the bar in greater numbers, rather than to discourage attendance by males. [11]

Maryland

Montgomery County's human relations law has been interpreted to not only prohibit ladies' nights, but also a "Skirt and Gown Night" where a customer is given a 50% discount for wearing a skirt or gown. [12] The court noted that: "Against this superficially humorous backdrop, we must decide whether this seemingly innocuous business practice constitutes unlawful discrimination within the meaning of a county ordinance." [12] The Montgomery County Code, Human Relations Law, § 27-9, prohibited:

"[...] any distinction with respect to any person based on race, color, sex, marital status, religious creed, ancestry, national origin, handicap, or sexual orientation in connection with admission to, service or sales in, or price, quality or use of any facility or service of any place of public accommodation, resort or amusement in the county." [12]

The Maryland's appellate court's review was far from de novo and the court emphasized that:

"Although we believe the judge's findings to be contradicted by American cultural realities, we need not focus on the circuit court's determination; our review is that of the agency's conclusion based upon facts presented at the hearing. The record is replete with evidence that Skirt and Gown Night was intended to-and did-have the same effect and serve the same function as Ladies' Night, i.e. it provided price discounts to women and, in fact, operated as a mere extension of Ladies' Night." [12]

The court also stressed the peculiarity and strictness of the municipal ordinance it was interpreting:

"We believe the ordinance is unambiguous. Thus, while allowed to do so under the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States, we are not allowed under the Montgomery County Ordinance or the Maryland Constitution to engage in a balancing test." [12]

Minnesota

Attempts by municipal governments to prevent ladies' nights have been struck down as ultra vires . [13] In June 2010 the Minnesota Department of Human Rights said bars are discriminating against males by holding "ladies' night" promotions, but said it will not seek out bars that have a "ladies night." [14]

Nevada

In 2008, the Nevada Equal Rights Commission ruled in favor of a man who claimed a local gym offering free memberships to women was discriminatory. [15] The ruling is thought to have had wide ramifications for ladies' night promotions across the state.

Although the question has not been litigated in Nevada courts, two Nevada attorneys advise: "for the time being, businesses should exercise caution in utilizing gender-based pricing scheme promotions. While the ability of a plaintiff to succeed on such a claim in district court remains unknown, NERC has the ability to pursue such claims on the administrative level. Therefore, businesses should engage in a cost-benefit analysis, keeping in mind that they might have to spend time and resources defending a sex discrimination charge in front of NERC or elsewhere." [7]

New Jersey

In 2004, the director of New Jersey Department of Law and Public Safety Division of Civil rights ruled that ladies' night promotions constituted unlawful discrimination in violation of the state's Law Against Discrimination. [16] [17]

New York

The New York State Human Rights Appeal Board disapproved of a New York Yankees "Ladies Day" promotion, which originated in 1876 as being "in a modern technological society where women and men are to be on equal footing as a matter of public policy." [18] [ clarification needed ]

Pennsylvania

Such promotions violate the Pennsylvania Human Relations Act as unlawful gender discrimination where male patrons are charged an entrance fee or a greater charge for drinks and female patrons are not charged an identical entrance fee or the same charge for drinks as male patrons. In Pennsylvania Liquor Control Board v. Dobrinoff, the Commonwealth Court specifically found that where a female patron was exempt from a cover charge, a go-go bar engaged in unlawful gender discrimination. [19] The Pennsylvania Liquor Control Board has stated as recently as 2009 that it will issue citations against establishments which charge patrons differing amounts based on gender. [20]

Washington

Ladies' nights have been found not to violate state anti-discrimination law, or the federal constitution, by the Washington Supreme Court, even if held at a stadium owned by a city. [21] The Washington Supreme Court concluded that "the respondent has shown no discrimination against men as a class and no damage to himself. As a consequence he has no right of action under the state Law Against Discrimination. " [21] In part, the court emphasized in its ruling evidence presented in the trial court that "women do not manifest the same interest in basketball that men do," and that the discount was only one of many discounts and promotions, the others available regardless of gender. [21] Finally, the majority noted that "to decide important constitutional questions upon a complaint as sterile as this would be apt to erode public respect for the Equal Rights Amendment and deter rather than promote the serious goals for which it was adopted." [21]

The dissenting justices emphasized their broader interpretation of the applicable prohibition and the potential for such promotions to reinforce stereotypes. [21] One dissenting justice proposed that the complainant be allowed no damages, but only that the practice be enjoined. [21] The dissent concluded:

"It may be that application of the Equal Rights Amendment to the “promotional” activity of defendant is not the sort of thing the voters had in mind when they adopted HJR 61. Then again, an equally persuasive argument could be made that ticket price differentials based on sex were indeed one of a number of activities which they hoped to end. It is idle to speculate. No evidence of any kind exists. I see no escape from finding in this case that the plain language of Const. art. 31 proscribes the activity in which the defendants have engaged. Any further clarification of popular intent must come through the process of constitutional amendment, not by the imaginings of this court. Const. art. 23." [21]

Wisconsin

The Wisconsin Supreme Court has held that such promotions violate the state's public accommodation law. [22] The court noted that the text and legislative history of the statute permitted no distinction between sex, race, and other forms of discrimination. [22]

Legality in the United Kingdom

Although ladies' nights are prohibited by the Equality and Human Rights Commission in the United Kingdom as unlawful discrimination, some clubs reportedly flout the ban. [23]

Legality in Hong Kong

Ladies' nights were deemed unlawful by the Hong Kong District Court. [24]

See also

Related Research Articles

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<span class="mw-page-title-main">Civil Rights Act of 1964</span> Landmark U.S. civil rights and labor law

The Civil Rights Act of 1964 is a landmark civil rights and labor law in the United States that outlaws discrimination based on race, color, religion, sex, and national origin. It prohibits unequal application of voter registration requirements, racial segregation in schools and public accommodations, and employment discrimination. The act "remains one of the most significant legislative achievements in American history".

<span class="mw-page-title-main">Equal Pay Act of 1963</span> United States labor law of the New Frontier program

The Equal Pay Act of 1963 is a United States labor law amending the Fair Labor Standards Act, aimed at abolishing wage disparity based on sex. It was signed into law on June 10, 1963, by John F. Kennedy as part of his New Frontier Program. In passing the bill, Congress stated that sex discrimination:

Equal pay for equal work is the concept of labour rights that individuals in the same workplace be given equal pay. It is most commonly used in the context of sexual discrimination, in relation to the gender pay gap. Equal pay relates to the full range of payments and benefits, including basic pay, non-salary payments, bonuses and allowances. Some countries have moved faster than others in addressing equal pay.

<span class="mw-page-title-main">Civil Rights Act of 1991</span>

The Civil Rights Act of 1991 is a United States labor law, passed in response to United States Supreme Court decisions that limited the rights of employees who had sued their employers for discrimination. The Act represented the first effort since the passage of the Civil Rights Act of 1964 to modify some of the basic procedural and substantive rights provided by federal law in employment discrimination cases. It provided the right to trial by jury on discrimination claims and introduced the possibility of emotional distress damages and limited the amount that a jury could award. It added provisions to Title VII of the Civil Rights Act of 1964 protections expanding the rights of women to sue and collect compensatory and punitive damages for sexual discrimination or harassment.

<span class="mw-page-title-main">Cover charge</span> Type of entrance fee

A cover charge is an entrance fee sometimes charged at bars, nightclubs, or restaurants. The American Heritage Dictionary defines it as a "fixed amount added to the bill at a nightclub or restaurant for entertainment or service." In restaurants, cover charges generally do not include the cost of food that is specifically ordered, but in some establishments, they do include the cost of bread, butter, olives and other accompaniments which are provided as a matter of course.

Randall v. Orange County Council, 17 Cal.4th 736, 952 P.2d 261, 72 Cal.Rptr.2d 453 (1998), was a case before the Supreme Court of California that established that groups such as the Boy Scouts of America are not considered "business establishments" as used in the state's Unruh Civil Rights Act and could not be subject to its provisions. Its companion case was Curran v. Mount Diablo Council of the Boy Scouts of America, 17 Cal.4th 670, 952 P.2d 218, 72 Cal.Rptr.2d 410 (1998).

Curran v. Mount Diablo Council of the Boy Scouts of America, 17 Cal.4th 670, 952 P.2d 218, 72 Cal.Rptr.2d 410 (1998), was a landmark case which upheld the right of a private organization in California to not allow new members on the basis of their sexual orientation. Its companion case was Randall v. Orange County Council, 17 Cal.4th 736, 952 P.2d 261, 72 Cal.Rptr.2d 453 (1998).

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United Kingdom employment equality law is a body of law which legislates against prejudice-based actions in the workplace. As an integral part of UK labour law it is unlawful to discriminate against a person because they have one of the "protected characteristics", which are, age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, pregnancy and maternity, and sexual orientation. The primary legislation is the Equality Act 2010, which outlaws discrimination in access to education, public services, private goods and services, transport or premises in addition to employment. This follows three major European Union Directives, and is supplement by other Acts like the Protection from Harassment Act 1997. Furthermore, discrimination on the grounds of work status, as a part-time worker, fixed term employee, agency worker or union membership is banned as a result of a combination of statutory instruments and the Trade Union and Labour Relations (Consolidation) Act 1992, again following European law. Disputes are typically resolved in the workplace in consultation with an employer or trade union, or with advice from a solicitor, ACAS or the Citizens Advice Bureau a claim may be brought in an employment tribunal. The Equality Act 2006 established the Equality and Human Rights Commission, a body designed to strengthen enforcement of equality laws.

The Unruh Civil Rights Act is an expansive 1959 California law that prohibits any business in California from engaging in unlawful discrimination against all persons (consumers) within California's jurisdiction, where the unlawful discrimination is in part based on a person's sex, race, color, religion, ancestry, national origin, age, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status.

North Coast Women's Care Medical Group, Inc. v. San Diego County Superior Court is a case decided before the California Supreme Court on August 18, 2008, ruling that physicians must offer IUI infertility services to gays and lesbians despite religious objections or find a colleague in their office who will do so.

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), was a landmark decision of the US Supreme Court on the issues of prescriptive sex discrimination and employer liability for sex discrimination. The employee, Ann Hopkins, sued her former employer, the accounting firm Price Waterhouse. She argued that the firm denied her partnership because she did not fit the partners' idea of what a female employee should look and act like. The employer failed to prove that it would have denied her partnership anyway, and the Court held that constituted sex discrimination under Title VII of the Civil Rights Act of 1964.

<span class="mw-page-title-main">LGBT employment discrimination in the United States</span>

LGBT employment discrimination in the United States is illegal under Title VII of the Civil Rights Act of 1964; employment discrimination on the basis of sexual orientation or gender identity is encompassed by the law's prohibition of employment discrimination on the basis of sex. Prior to the landmark cases Bostock v. Clayton County and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (2020), employment protections for LGBT people were patchwork; several states and localities explicitly prohibit harassment and bias in employment decisions on the basis of sexual orientation and/or gender identity, although some only cover public employees. Prior to the Bostock decision, the Equal Employment Opportunity Commission (EEOC) interpreted Title VII to cover LGBT employees; the EEOC determined that transgender employees were protected under Title VII in 2012, and extended the protection to encompass sexual orientation in 2015.

Johnson v. Transportation Agency, 480 U.S. 616 (1987), is the only United States Supreme Court case to address a sex-based affirmative action plan in the employment context. The case was brought by Paul Johnson, a male Santa Clara Transportation Agency employee, who was passed over for a promotion in favor of Diane Joyce, a female employee who Johnson argued was less qualified. The Court found that the plan did not violate the protection against discrimination on the basis of sex in Title VII of the Civil Rights Act of 1964.

Gender-based price discrimination is a form of economic discrimination that involves price disparities for identical goods or services based on an individual's gender, and may reinforce negative stereotypes about both women and men in matching markets. Race and class-based price discrimination also exists. Acts of discrimination often have legal ramifications, but whether gendered price disparities prove an intent to discriminate or constitute illegal discrimination can become a legal inquiry. Policies against gender-based price discrimination is not universally approved and enforced in the United States. Gender-based price discrimination is also described as pink tax.

The legal and regulatory history of transgender and transsexual people in the United States begins in the 1960s. Such legislation covers federal, state, municipal, and local levels, as well as military justice. It reflects broader societal attitudes which have shifted significantly over time and have impacted legislative and judicial outcomes.

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Bostock v. Clayton County, 590 U.S. 644 (2020), is a landmark United States Supreme Court civil rights decision in which the Court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of sexuality or gender identity.

<i>Rolon v. Kulwitzky</i> California court case about LGBT discrimination by businesses

Rolon v. Kulwitzky was an unlawful discrimination case filed by Deborah Johnson and Zandra Rolón, a lesbian couple, against a Los Angeles restaurant, Papa Choux, after they were refused seating in a semi-private booth. The lower court denied the plaintiffs a preliminary injunction in their action for unlawful discrimination, but the Court of Appeals reversed the lower court, holding that the restaurant engaged in prohibited discrimination.

References

  1. Hollander v. Swindells-Donovan, 2010 WL 844588 (E.D.N.Y. 2010).
  2. Hollander v. Copacabana Nightclub, 580 F.Supp.2d 335 (S.D.N.Y. 2008).
  3. Comiskey v. JFTJ Corp., 989 F.2d 1007 (8th Cir. 1983).
  4. U.S. v. Covey Gas & Oil, 171 F.2d 213 (10th Cir. 1949).
  5. 1 2 3 4 5 6 7 Koire v Metro Car Wash, 707 P.2d 195 (CA 1985).
  6. Angelucci v. Century Supper Club, 158 P.3d 718 (CA 2007).
  7. 1 2 Eric D. Hone and Franchesca Van Buren, "Is the Death Knell Ringing for Ladies' Nights?" Nevada Lawyer (March 2009).
  8. Starkman v. Mann Theatres Corp., 227 Cal.App.3d 1491 (1991).
  9. Cohn v. Corinthian Colleges, Inc., 169 Cal.App.4th 523 (2008).
  10. Dock Club, Inc. v. Illinois Liquor Control Commission, 404 N.E.2d 1050 (Ill. App. 1980).
  11. John E. Theuman, "Exclusion of one sex from admission to or enjoyment of equal privileges in places of accommodation or entertainment as actionable sex discrimination under state law" 38 A.L.R.4th 339 (1985).
  12. 1 2 3 4 5 Peppin v. Woodside Delicatessen, 506 A.2d 263 (MD App. 1986).
  13. In re On-Sale Liquor License, Class B., 763 N.W.2d 359 (Minn. App. 2009).
  14. "Human rights officials: Ladies' nights discriminatory". Minnesota Public Radio. 2010-06-11. Retrieved 2012-10-02.
  15. Benston, Liz (2008-11-10). "Ruling on gyms to have big effect on nightclubs, too – Las Vegas Sun Newspaper". lasvegassun.com. Retrieved 2019-11-06.
  16. Wickham, DeWayne (7 June 2004). "'Ladies Night' ban in N.J. sends the wrong message". USA Today. Retrieved 3 January 2016.
  17. "Administrative Action Findings, Determination and Order". www.state.nj.us. State of New Jersey Department of Law and Public Safety. Retrieved 3 January 2016.
  18. Abosh v. New York Yankees, Inc. (1972) No. CPS-25284, Appeal No. 1194.
  19. "Pa. Liquor Control Bd. v. DOBRINOFF ET AL., 80 Pa. Commonwealth Ct. 453 – Pa: Commonwealth Court 1984 – Google Scholar".
  20. See Liquor Control Board Advisory Opinion of July 9, 2009 Archived March 24, 2012, at the Wayback Machine
  21. 1 2 3 4 5 6 7 MacLean v. First Northwest Industries of America, Inc., 635 P.2d 683 (WA 1981).
  22. 1 2 Novak v. Madison Motel Associates, 525 N.W.2d 123 (Wis. App. 1994).
  23. Rubenstein, Holly (4 December 2012). "Oh yes it's ladies' night and the feeling's wrong". The Independent. Retrieved 26 January 2015.
  24. "Hong Kong bar operators angry at 'ladies' night' discrimination ruling". South China Morning Post. April 15, 2016.