by Adam Freedman
Today’s topic: Is “Ladies' Night” legal?
My readers never cease to amaze me. Michael writes in to say, “I don’t understand why bars and clubs get away with ‘Ladies' Night’ where females receive discounted admission and drinks based on their gender.” Doesn’t that violate the Constitution, he asks.
The short answer is: Is nothing sacred, Michael? Actually, the answer is that Ladies' Night promotions have been found to violate a number of state laws, but the status of such events under the US Constitution is still unclear.
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Back to the issue.
Is Ladies' Night Legal?
First, let’s look at the constitutionality of Ladies Night promotions. The Fourteenth Amendment to the Constitution guarantees “equal protection of the laws” to each and every citizen. Using this provision--known as the Equal Protection Clause--the Supreme Court has struck down laws that discriminate on the basis of sex. In 1976, for example, the Court ruled that an Oklahoma law establishing a younger drinking age for women than men was unconstitutional.
But the Fourteenth Amendment only prohibits states from discriminating--it usually doesn’t apply to private businesses or individuals. To find a violation of the Fourteenth Amendment, you have to be able to show that the discrimination was perpetrated by a so-called “state actor,” and private bars clearly aren’t state actors.
Is a Bar a “State Actor?”
Or are they? In 1970, a New York district court held that McSorley’s Old Ale House, a bar in downtown Manhattan, was a “state actor” because bars are so heavily regulated by the state. As a result, the Court said that McSorley’s violated the Fourteenth Amendment by refusing to serve women at all.
Relying on the McSorley’s case, a male New York lawyer sued a number of nightclubs in 2007, alleging that the clubs were violating his Fourteenth Amendment rights with their Ladies Night promotions. But the district judge tossed out the case, holding that private bars are not “state actors,” and saying that the McSorley’s case was a special exception. This case is currently on appeal to the Second Circuit court of appeals but – for now at least – no federal court has held Ladies Night to be unconstitutional.
Is Ladies' Night Legal in All States?
But ladies, before you dash off to the tiki lounge for a cheap daiquiri, you might want to check local laws--Ladies' Night could be a no-no in your area.
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Courts and administrative panels in a number of states have held that giving gender-specific discounts for goods or services violates state civil rights legislation. In one California case, a man successfully challenged a local car wash that offered discounts to women. Courts in Iowa, Florida, and Pennsylvania have reached similar conclusions. And New York City even has an ordinance prohibiting hair salons and dry cleaners from charging men and women different prices.
Is Ladies' Night Discrimination Against Men?
The principles of anti-discrimination have been applied to Ladies' Night. In 2004, New Jersey’s Director of Civil Rights issued a ruling that Ladies' Night violated that state’s Law Against Discrimination (or LAD, as it’s known--really!). That decision caused such an uproar--even the Governor denounced it--that the state legislature voted to overturn the ruling and declare Ladies' Night to be legal in the Garden State.
In 2008, the Colorado Civil Rights Commission held that Ladies Night promotions are an “illegal practice,” and urged all public establishments to “cease and desist” such promotions. The specific issue in that case was the discounted admissions for females at Colorado Rockies baseball games, but the Commission’s rationale applies equally to bars and nightclubs.
In some of these cases, business owners have argued that Ladies Night promotions do not reflect any hostility toward men. To the contrary, they say, Ladies Night promotions are meant to attract men with the prospect of mingling with women--for whom they can buy drinks (at discounted prices). But the legal test for discrimination is an objective one; it doesn’t matter whether the perpetrator is motivated by animosity toward the victim.
Businesses have also tried to raise a so-called “de minimis” defense; in other words, they have tried to show that Ladies' Night is too trivial to constitute illegal discrimination. But civil rights laws generally do not contain any de minimis exception, so those arguments haven’t worked either.
How to Have a Legal Ladies' Night
If you’re a business owner, all is not lost. Even in states where Ladies' Night has come under fire, businesses have come up with creative solutions. In Colorado, for example, one club replaced Ladies' Night with “Lipstick Thursdays” where discounts are offered to everyone--male and female--who happens to be wearing lipstick.
If you’re a man, and you feel aggrieved or injured by Ladies' Night promotions, you might want to consider simply picking a different bar to hang out at. Or if you’re the litigious sort, you can consult a civil rights attorney in your state to determine whether you have a valid complaint. But remember, even if you win your lawsuit, you might need to invest in some lipstick to get your discounted drinks. Bottoms up!
Thank you for reading Legal Lad’s Quick and Dirty Tips for a More Lawful Life.
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