[ql06] The End of "Ladies' Night" in New Jersey

  • From: "Kenneth Campbell" <2kc16@xxxxxxxxxxxxxxxx>
  • To: <ql06@xxxxxxxxxxxxx>
  • Date: Wed, 16 Jun 2004 07:30:31 -0400

Hi and hope you are all well and, well, appreciating the finer things in
life -- like sitting under trees and listening to water hit the
shoreline. These, our last days before getting sucked into the legal
system and never having a life again.

Great article here -- especially as we are all now so grown up and
understand what de minimis means. Also because the underlying business
practice -- get the gals liquored-up-for-cheap as some gosh-golly
inexplicable inducement to attract guys in to spend at a business
establishment -- seems a bit antiquated, no? I mean, isn't the concept
of males having to "get her drunk" before "getting a shot at her" a sort
of anti-Ewanchuk notion? -- if you really need to get her bombed, guy,
that might not be a wise move. And if the female really needs to get
bombed first, then she probably isn't going to need a $1.50 saving on a
drink to get her to drink one.

Look forward to seeing you all again in the coming year. I miss the
intellectual rigor of law school.


I don't like country music, but I don't mean to
denigrate those who do. And for the people who
like country music, denigrate means "put down."
          -- Bob Newhart


The End of "Ladies' Night" in New Jersey:
A Controversial Ruling Deems the Practice Sex Discrimination Against Men

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

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

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

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

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

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

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.

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  • » [ql06] The End of "Ladies' Night" in New Jersey