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You’ve all heard of Ladies Night, the practice whereby bars let women in for free and offer them reduced priced drinks in the hopes of luring in men in who are required to pay a cover charge and buy full price drinks. The practice stinks for poor college-aged guys, but the lure of women under the the influence of all that cheap booze is just too tempting, so they go anyway. Such is the life of singles trying to meet that special someone, right? Bars taking advantage of overly hormonal guys couldn’t possibly constitute a violation of our constitution, could it?
Well think again. Google “ladies night lawsuits” and you will see page after page of cases from all over the country where “Ladies Night” has been challenged as discriminatory and unconstitutional. The most recent such case occurred right here in NY, where several bars in New York City were sued in federal court over their Ladies Night promotions. Lawyers for the bars argued that the lawsuit was frivolous, that as private entities the bars had the right to charge patrons whatever they choose, that the cover charge for men wasn’t so burdensome as to deprive them of entry, and that men actually benefited from the practice because so many women attend these ladies nights.
Federal Court Judge Miriam Goldman Cedarbaum (a woman) threw out the lawsuit on the grounds that these private bars can charge their patrons whatever they wish, as they are not acting as representatives of the State. So common sense wins out, right? That’s the end of the story? Don’t be so sure. With so many cases from all over the country coming down on all sides of this issue, I wouldn’t be surprised in the least if the Supreme Court considers this issue in the not too distant future.
And now on to the part you have been dying to read: was the Court right? Here’s my take. I agree with the judge’s decision. This is a trivial issue, and the bars should be able to do what they choose. That said, the decision is probably wrong. If the general principal of this case, that bars are allowed to charge different groups different prices for drinks, is allowed the stand, it clears the way for real discrimination. Take out men and women as the two groups involved in the suit and substitute some others. Would any court allow a bar to charge blacks more than whites? How about gays more than straights? What about Muslims more than Christians? No court would allow such blatant homophobia, racism or religious intolerance to stand, but this most recent decision clears the way for just such a practice. Expect this decision to be overturned for that reason.
Don’t get me wrong, I think Ladies Night is harmless fun, and it should be allowed to continue. The problem is that a quagmire lies at the bottom of this particular slippery slope.
Thanks for reading,
Adam M. Gee, Esq.
NY and PA Personal Injury and Malpractice Attorney
The Ziff Law Firm, LLP
303 William Street
Elmira, NY 14901
Phone: (607)733-8866
Fax: (607)732-6062
Email: agee@zifflaw.com
www.zifflaw.com
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Adam, I disagree with your assessment. The difference in the Race and religion argument is the intent of the bar owner and patrons. The bar owner isn’t trying to discriminate per se, he is trying to generate increased revenues by enticing females into his bar then subsequently males. You would not have this advantage by descriminatring based on race or religion. The males are usually willing to pay increased cover charges and drink prices if given a greater chance for a sexual encounter (real or precieved).
The slope you speak of doesn’t exist. I could use your arguement to explain why we should have communal bathrooms.
Richard – in a perfect world, your argument makes perfect sense. Unfortunately, we don’t live in a perfect world.
When courts look at situations like this, they generally don’t consider intent. They look to see whether two groups are being treated differently, and whether there is a legitimate difference for treating them differently. The stronger argument to allow the practice of Ladies Night to continue is exactly what the judge decided; that the bar is not acting as a representative of the state. In a case of true discrimination, though, the Court would likely determine that since the bar is licensed by the state to sell liquor,it must abide by state and federal laws which prohibit discrimination.
I still feel that the Court turned a blind eye to Ladies Night, and I agree with the concept. The problem, again, is that darn slippery slope which I still feel exists.
Thanks for reading, and thanks for your comment!
Adam M. Gee
Great post Adam, I had actually wondered about this before. I agree with you completely, while ladies night is harmless in nature, it is technically discrimination. To be charged more based on my gender does seem a bit ridiculous in hindsight.
I often wondered about higher insurance rates based on gender. Do you think that would also fall into this category? Of sensible (perhaps), but as setting a potentially dangerous precedent?
Great question, Dave. I am surprised that someone hasn’t sued the insurance companies over this issue before. It would certainly be a more productive endeavor than suing over Ladies Night!
Unfortunately, I think the insurance companies have a legitimate reason for charging young men more than they do young women for car insurance. Statistics show that young men are significantly more likely to be involved in collisions than women, which provides the rational basis for treating the two groups differently.
I like your thinking, though!
Thanks for reading, and thanks for your comment!
Adam M. Gee
Interesting article, just wanted to comment on how gender pricing is “harmless fun.” In California, the Unruh Civil Rights Act and Gender Tax Repeal Act make ladies nights (and the practice of charging women more for haircuts/dry cleaning simply because of their sex) unlawful. In passing the GTRA in the mid 1990s, the California legislature found that gender pricing cost California women over $15 billion! This doesn’t even include ladies night pricing.
It’s far from harmless.
Chris – thanks for your comment. California’s GTRA rightfully protects women from discrimination, but Ladies Night promotions aren’t discriminating against women. They are merely a marketing ploy by the bars to increase sales. I wish there was room for laws protecting women from true discrimination while preserving a bar’s night to host a Ladies Night, but that may be too much to ask.
Thanks for reading,
_______________________________
Adam M. Gee, Esq.
NY and PA Personal Injury and Malpractice Attorney
The Ziff Law Firm, LLP
303 William Street
Elmira, NY 14901
Phone: (607)733-8866
Fax: (607)732-6062
Email: agee@zifflaw.com
http://www.zifflaw.com
i dont care if this is harmless fun or not, its discrimination against men and should be stopped.
Hey Adam,
Fun article. This makes me think of this hypothetical:
Let’s say I were to setup my own bar/nightclub and started putting up signs where it said, “Asians and Blacks 1/2 Off Night”, this would be undoubtedly sued and I would probably lose (since Johnny Cochran is dead). The reasoning would be discrimination, but why is discrimination at play in this situation and not in the case here where they are essentially one in the same? It seems like the court is simply saying “if you are a private institution, you can basically do whatever you want as long as it’s not ‘too’ politically incorrect”, and will use whatever legal reason they can to justify their opinion.
In the above hypothetical, I am private institution not acting as a state actor and I can even site this case as past precedent for the legality of my actions. If I were to lose my case (and I’m sure I would), wouldn’t this result in the “Ladies Night Out” case being overturned? I’m sure the decision would say something of similar to “you can’t charge different ppl groups different amounts b/c it’s discrimination”, which is exactly what’s going on here.
Maybe all we need is an idealogical bar owner to volunteer out his bar and take one for the team!
Steve – good post and good question. In a truly private organization where the government has no involvement whatsoever, and where it is not a business operated for profit nor a not for profit organization, people still have the right to freedom of association – the right to hang out with people they want to hang out with. The catch for bars is that they are licensed by the State of NY – they must all have a liquor license, and so they are under the jurisdiction of the State.
As I stated in the post, the practice of ladies night is technically discriminatory – the bar is charging different prices based on gender, with no rational reason for doing so. Ladies Night is socially acceptable, though, so the Court turned a blind eye. You are absolutely correct that race based pricing would result in a different decision, and rightfully so. Such a decision could overrule the case cited above, depending on how broadly it is written – it’s a federal court case, so it would certainly be deserving of some mention.
Thanks for your comment!