Ladies' night
Encyclopedia
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 drinks. State courts in California
, Maryland
, Pennsylvania
and Wisconsin
have ruled that ladies' night discounts are unlawful gender discrimination under state or local statutes. However, courts in Illinois
, Minnesota
, and Washington have rejected a variety of challenges to such discounts.
of the Fourteenth Amendment to the United States Constitution
have failed under the state action doctrine. Similar actions have failed under the Civil Rights Act of 1871
(42 U.S.C. § 1983). Ladies nights' may have federal tax implications, though. Federal claims were also involved in the unsuccessful challenge in Washington (see below).
and ladies' nights at a nightclub
violate California's Unruh Civil Rights Act
in Koire v Metro Car Wash (1985) and Angelucci v. Century Supper Club (2007). 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 [...]." 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. The court accused the Wisconsin Supreme Court of "sexual stereotyping" for upholding a similar practice.
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." Koire concluded:
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. 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 and 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. The California Supreme Court opined:
The Koire precedent has not been extended to strike down Mother's Day
promotions. Koire was one of the precedents cited in the lower court (but not the state Supreme Court) in In re Marriage Cases
which was overturned by California Proposition 8 (2008)
.
The Maryland's appellate court's review was far from de novo
and the court emphasized that:
The court also stressed the peculiarity and strictness of the municipal ordinance it was interpreting:
. 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."
"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."Abosh v. New York Yankees, Inc. (1972) No. CPS-25284, Appeal No. 1194.
, even if held at a stadium owned by a city. 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. " 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. 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."
The dissenting justices emphasized their broader interpretation of the applicable prohibition and the potential for such promotions to reinforce stereotypes. One dissenting justice proposed that the complainant be allowed no damages, but only that the practice be enjoined. The dissent concluded:
has held that such promotions violate the state's public accommodation law. The court noted that the text and legislative history
of the statute permitted no distinction between sex, race, and other forms of discrimination.
Promotion (marketing)
Promotion is one of the four elements of marketing mix . It is the communication link between sellers and buyers for the purpose of influencing, informing, or persuading a potential buyer's purchasing decision....
, often at a bar
Bar (establishment)
A bar is a business establishment that serves alcoholic drinks — beer, wine, liquor, and cocktails — for consumption on the premises.Bars provide stools or chairs that are placed at tables or counters for their patrons. Some bars have entertainment on a stage, such as a live band, comedians, go-go...
or nightclub
Nightclub
A nightclub is an entertainment venue which usually operates late into the night...
, where female patrons pay less than male patrons for the cover charge
Cover charge
At bars and nightclubs, or restaurants with live entertainment a flat fee for entry, sometimes known as a cover charge, is made, in addition to payment for food and drink...
or drinks. State courts in California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
, Maryland
Maryland
Maryland is a U.S. state located in the Mid Atlantic region of the United States, bordering Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware to its east...
, Pennsylvania
Pennsylvania
The Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
and Wisconsin
Wisconsin
Wisconsin is a U.S. state located in the north-central United States and is part of the Midwest. It is bordered by Minnesota to the west, Iowa to the southwest, Illinois to the south, Lake Michigan to the east, Michigan to the northeast, and Lake Superior to the north. Wisconsin's capital is...
have ruled that ladies' night discounts are unlawful gender discrimination under state or local statutes. However, courts in Illinois
Illinois
Illinois is the fifth-most populous state of the United States of America, and is often noted for being a microcosm of the entire country. With Chicago in the northeast, small industrial cities and great agricultural productivity in central and northern Illinois, and natural resources like coal,...
, Minnesota
Minnesota
Minnesota is a U.S. state located in the Midwestern United States. The twelfth largest state of the U.S., it is the twenty-first most populous, with 5.3 million residents. Minnesota was carved out of the eastern half of the Minnesota Territory and admitted to the Union as the thirty-second state...
, and Washington have rejected a variety of challenges to such discounts.
Federal law
Claims against ladies' nights under the Equal Protection ClauseEqual Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...
of the Fourteenth Amendment to the United States Constitution
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
have failed under the state action doctrine. Similar actions have failed under the Civil Rights Act of 1871
Civil Rights Act of 1871
The Civil Rights Act of 1871, , enacted April 20, 1871, is a federal law in force in the United States. The Act was originally enacted a few years after the American Civil War, along with the 1870 Force Act. One of the chief reasons for its passage was to protect southern blacks from the Ku Klux...
(42 U.S.C. § 1983). Ladies nights' may have federal tax implications, though. 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 washCar wash
A car wash or auto wash is a facility used to clean the exterior and, in some cases, the interior of motor vehicles.- Categories :...
and ladies' nights at a nightclub
Nightclub
A nightclub is an entertainment venue which usually operates late into the night...
violate California's Unruh Civil Rights Act
Unruh Civil Rights Act
The Unruh Civil Rights Act is a piece of California legislation that specifically outlaws discrimination based on age, sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation...
in Koire v Metro Car Wash (1985) and Angelucci v. Century Supper Club (2007). 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 [...]." 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. The court accused the Wisconsin Supreme Court of "sexual stereotyping" for upholding a similar practice.
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." 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."
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. 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 and 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. 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."
The Koire precedent has not been extended to strike down Mother's Day
Mother's Day
Mother's Day is a celebration honoring mothers and celebrating motherhood, maternal bonds, and the influence of mothers in society. It is celebrated on various days in many parts of the world, yet most commonly in March, April, or May...
promotions. Koire was one of the precedents cited in the lower court (but not the state Supreme Court) in In re Marriage Cases
In re Marriage Cases
In re Marriage Cases 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384], was a California Supreme Court case with the dual holding that "statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny" and the existing "California legislative and...
which was overturned by California Proposition 8 (2008)
California Proposition 8 (2008)
Proposition 8 was a ballot proposition and constitutional amendment passed in the November 2008 state elections...
.
Illinois
Ladies' nights in Illinois have been upheld under the anti-discrimination provision of the Dram Shop Act. 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.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).Maryland
A Maryland county 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 and gown.Peppin v. Woodside Delicatessen, 506 A.2d 263 (MD App. 1986). 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." 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."
The Maryland's appellate court's review was far from de novo
De novo
In general usage, de novo is a Latin expression meaning "from the beginning," "afresh," "anew," "beginning again." It is used in:* De novo transcriptome assembly, the method of creating a transcriptome without a reference genome...
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."
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."
Minnesota
Attempts by municipal governments to prevent ladies' nights have been struck down as ultra viresUltra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
. 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."
Nevada
Although this question has not been litigated in Nevada, 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."New York
The New York State Human Rights Appeal Board disapproved of a New York YankeesNew York Yankees
The New York Yankees are a professional baseball team based in the The Bronx, New York. They compete in Major League Baseball in the American League's East Division...
"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."Abosh v. New York Yankees, Inc. (1972) No. CPS-25284, Appeal No. 1194.
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. The Pennsylvania Liquor Control Board has stated as recently as 2009 that it will issue citations against establishements which charge patrons differing amounts based on gender.Washington
Ladies' nights have been found not to violate state anti-discrimination law, or the federal constitution, by the Washington Supreme CourtWashington Supreme Court
The Washington Supreme Court is the highest court in the judiciary of the U.S. state of Washington. The Court is composed of a Chief Justice and eight Justices. of the Court are elected to six-year terms...
, even if held at a stadium owned by a city. 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. " 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. 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."
The dissenting justices emphasized their broader interpretation of the applicable prohibition and the potential for such promotions to reinforce stereotypes. One dissenting justice proposed that the complainant be allowed no damages, but only that the practice be enjoined. 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."
Wisconsin
The Wisconsin Supreme CourtWisconsin Supreme Court
The Wisconsin Supreme Court is the highest appellate court in the state of Wisconsin. The Supreme Court has jurisdiction over original actions, appeals from lower courts, and regulation or administration of the practice of law in Wisconsin.-Location:...
has held that such promotions violate the state's public accommodation law. The court noted that the text and legislative history
Legislative history
Legislative history includes any of various materials generated in the course of creating legislation, such as committee reports, analysis by legislative counsel, committee hearings, floor debates, and histories of actions taken...
of the statute permitted no distinction between sex, race, and other forms of discrimination.