The End of "Ladies' Night" in New Jersey:
By JOANNA GROSSMAN
Tuesday, Jun. 15, 2004
Recently, New Jersey's Director of Civil Rights (DCR) issued a ruling on a restaurant's "Ladies' Night"--a night each week when it admitted women free of charge and charged them discounted drink prices. The DCR decided that the practice violated the New Jersey Law Against Discrimination (LAD) because it discriminated against male customers on the basis of sex.
The public reaction to the decision in Gillespie v. Coastline Restaurant was curiously strong. The state's governor, James McGreevey, issued a written statement denouncing it as "bureaucratic nonsense," and an "overreaction that reflects a complete lack of common sense and good judgment." One television commentator began coverage of the story by asking - perhaps partially tongue-in-cheek -- "Is nothing sacred?"
The decision raises an interesting question: Do sex discrimination laws have built-in "de minimis" exceptions -- for practices that, while they differentiate based on gender, seem to do so in a relatively innocuous way? (The expression "de minimis" comes from the saying "De minimis non curat lex" - Latin for "The law does not bother with trifles.")
In addition, the strength of the public reaction alone makes the issue worthy of further inquiry.
Background: Why the Male Plaintiff Sued
The case arose when a man named David Gillespie went to the Coastline, a restaurant and bar in Cherry Hill, New Jersey. There, he was charged five dollars for admission and full-price for drinks. He asked to be charged the reduced price, per the bar's "Ladies' Night" policy, but was refused.
Gillespie sued based on New Jersey's LAD -- a broad-ranging statute banning, among other things, discrimination by places of public accommodation on the basis of sex. (The restaurant and bar at issue was plainly a place of public accommodation, as it was open to the public.)
Prior cases brought under this statute make clear that outright denial of access or service on the basis of a prohibited characteristic is not the only conduct the statute bans. It also includes discrimination in the furnishing of "accommodations, advantages, facilities or privileges."
In short, a proprietor that has opened its doors to the public must not only let in customers in a non-discriminatory fashion, but also, once it has admitted them, must treat them in a non-discriminatory fashion while they are there.
The Restaurant's First Defense: A Legitimate Business Purpose and No Animus
The Coastline's policy of holding a weekly "Ladies' Night" plainly violates this rule. Based solely on his gender, Gillespie was charged more than female customers. And the Coastline does not dispute that.
The Coastline did raise two arguments in its defense, however - but the DCR was unpersuaded.
First, the Coastline argued that its policy did not reflect any animus against men and was justified by its legitimate, non-discriminatory goal to increase patronage and revenue. The conventional "theory" of a ladies' night discount is that more women will come because of the reduced prices, and more men will come because more women will be there. (Although oddly enough, in this case, the owner admitted that 70% of the patrons on an average Ladies' Night were still male, and that they were the main users of the discount, giving women money to buy their drinks.)
It may well be that the Coastline bears no ill will or negative stereotypes toward men - and that, indeed it did want to attract them with "Ladies' Night." But if so, that's irrelevant.
Under standard anti-discrimination doctrine, a formal policy like the rule behind "Ladies' Night" need not be borne of animosity against the disadvantaged group to be illegal. When an entity applies different rules to men and women, it discriminates, regardless of its subjective motive or feelings about either group. And again, whatever its feelings about men, the Coastline plainly did discriminate against men. And that is all that is required.
Consider International Union, UAW v. Johnson Controls, Inc., in which the Supreme Court interpreted Title VII, the main federal anti-discrimination law. There, an employer had a formal policy of refusing to hire non-sterile women into particular jobs at a battery manufacturing plant. The company claimed that it did so to protect any offspring from possible birth defects caused by their mother's exposure to lead.
It claimed that it didn't have any ill-will toward women - it just wanted to protect them (and protect itself from lawsuits that might result if the exposure occurred). And these reasons, it said - rather than any desire to disadvantage women - were the reasons it had its policy.
The Court, however, held that the reasons were irrelevant. The point was that the employer pursued its goal through means that, in fact, did treat men and women differently. And that, if not justified by a statutory defense, is illegal discrimination.
The same reasoning applies here: Motive doesn't matter. The restaurant's policy of charging men and women different prices is invalid because by its own terms, it discriminates based on sex.
The Restaurant's Second Defense: Discrimination Too Trivial to Bother With
Coastline's second argument was that its policy falls within an implicit "de minimis" exception to the statute's ban on sex discrimination.
In support of this argument, it pointed out that men were permitted access to the establishment, and the cover charge was not exactly staggering. And it noted, as well, that the reduced price women paid saved them only $1.50 a drink.
But the statute doesn't mention any such exception. Nor do any cases interpreting the New Jersey law. The DCR thus looked to other jurisdictions. But the most well-known case also refused to carve out such an exception.
The case was Koire v. Metro Car Wash, in which a California man challenged a car wash's ladies' discount, and won. The court recognized that increasing patronage is certainly a legitimate goal for a business, but refused to grant the company license to run afoul of the laws governing public accommodations to achieve that purpose. Without a legitimate governmental or social policy objective that might justify an affirmative-action style discount, an entity simply can't increase patronage in this way.
Cases in other jurisdictions have split. Some -- in Iowa, Florida, and Pennsylvania, for example - have reached the same conclusion as the court in Koire. But others -- in Illinois and Washington, for example - have accepted the legality of sex-specific discounts.
In the end, the New Jersey DCR followed California's approach, concluding that there "is absolutely no basis in the law for asserting a de minimis violation defense to a charge of discrimination under the LAD." It thus remanded the case to the administrative judge to determine what type of remedies might be appropriate for the plaintiff.
What If the Bar Offered Both Ladies' And Men's Nights?
Another type of defense - which might be called "equal opportunity discrimination" - has also been tried in the Ladies' Night context. This defense asks: What if a bar has a ladies' night one day and a men's night the next? Isn't that a kind of equality?
For instance, the defendant in the Gillespie case claimed it has such promotions for men, too, and, therefore, should be absolved of any claim of discrimination. But one act of discrimination does not cancel out another.
Think how absurd the claim would sound if a bar had "Whites' Night" followed by "Blacks' Night." No one would blink an eye before denouncing the harm created by each night.
Of course, race and sex in this context are clearly different, given the history of legally and culturally enforced segregation of the races. But there is a slippery slope in both cases; allowing gender segregation is still pernicious, even if not as historically freighted.
Why the New Jersey DCR was Correct in Strictly Construing the Statute
To be sure, a bar's holding "Ladies' Night" is not the most invidious form of sex discrimination in modern society. Yet, there are several reasons why banning it was appropriate under New Jersey law.
First, statutes, like New Jersey's LAD, that ban all discrimination on the basis of sex should be strictly construed - as it was here -- in order to effectuate the goal of eradicating sex-based discrimination.
The legislature, not a court or administrative agency, should decide whether some forms of admitted discrimination are acceptable. If the legislature chooses to carve out a de minimis exception in the future, it can; until it has, its non-discrimination command ought to be followed in all cases.
Dress Codes Cases Show the Problem with Courts' Discrimination Exceptions
In other contexts, courts have shown themselves blind to their own biases. Consider dress codes.
Title VII prohibits employers from discriminating on the basis of sex. Other than for a very small subset of hiring decisions, the statute contains no defenses to a claim of facial discrimination - that is, discrimination that is pursuant to a policy that expressly differentiates persons based on sex. And it contains no exception for dress codes.
Yet courts, in case after case, have upheld the right of employers to maintain sex-specific dress and grooming codes. Men must wear their hair short; women can wear theirs long. Men must wear business suits; women must wear dresses. Women can have things pierced; men cannot.
The decisions permitting employers to maintain such policies plainly violate Title VII's ban on sex-based employment policies. But courts simply mouth platitudes about the employer's prerogative to run their business as they see fit, or about society's generally accepted principles of grooming, while giving license to these discriminatory policies.
The reason this matters is that sex-specific dress codes reflect societal stereotypes and prejudices about what men and women should look like. These stereotypes punish both men and women who do not happen to fit traditional expectations of masculinity and femininity.
Meanwhile, dress codes also reinforce a gender hierarchy, in which a working woman is evaluated on both appearance and job performance. The requirement that women must wear (typically) leg-revealing business dresses or skirts, for instance, is not innocuous. (Nor is the burden of a working woman's need for a costly, varied wardrobe when a man can get away with a few nearly-identical business suits.)
For dress codes, then, the de minimis exception courts have carved out has served to perpetuate existing gender hierarchies. Based on this comparison, courts should be wary of carving out similar exceptions in the future.
Trivialities are not always trivial to the person who is affected - whether it is a man who expresses his identity through long hair or a pierced ear, or the woman who is annoyed that the pant-suits in which she feels most comfortable are off-limits at work.
Customer Preference Is No Excuse for Discrimination, Under the Law
But what if a company's customers prefer their men (but not women) with short hair and their women (but not men) with earrings?
Another reason to applaud the New Jersey DCR's decision is that courts should be wary of allowing establishments to justify discrimination on the basis of customer preference. The law can and should attack social prejudices and stereotypes. At the very minimum, it can at least try not to perpetuate them.
Are the stereotyping problems inherent in the dress code context also true of ladies' nights? Arguably yes. Maybe they perpetuate views about women's purported economic dependence--that they could only afford to go out drinking if someone gives them a discount. Or maybe they perpetuate male sexual dominance--by luring men to a bar because of an expectation that they will find a bar full of women who might be drinking more than usual because of the reduced price.
The stereotypes inherent in sex-specific discounts are perhaps best revealed by cases in which they have been upheld. The Washington Supreme Court, for example, upheld the Seattle Supersonics Ladies' Night in its decision in MacLean v. First
Northwest Industries of America. It found the lower ticket-price reasonable because women "do not manifest the same interest in basketball as men do," and yet the Sonics offered attractions they might enjoy, such as half-time fashion shows and gifts and souvenirs.
And regardless of stereotypes, it is simply unfair to charge people different prices for the same product because of some immutable characteristic like gender. Most sex-specific prices disadvantage women--dry cleaning and haircuts, to give two examples--but ones that disadvantage men are unfair as well.
Indeed, the public outrage over the Gillespie decision makes the underlying practice all the more suspicious. Why is "ladies' night" such an important practice that the highest-ranking official in the state would deign to comment on its abolition?
At the end of the day, however, the statute, which admits no defenses to facial discrimination, bans the practice regardless of the reasons (or stereotypes) behind it. And so enforcing it, as the New Jersey DCR did, is plainly the right decision: While there are certainly more serious forms of bias that need to be eradicated, there is no reason to simply let this one be.