Wednesday, September 1, 2010

Ladies' Night is Legal

The Copacabana Night Club in New York City sponsors Ladies' Nights. Many nightclubs do this. It is legal? Let's put it this way: it does not violate the U.S. Constitution.

The case is Hollander v. Copacabana Nightclub, decided on September 1. The Court of Appeals (Pooler, Winter and Mauskopf [D.J]) says that during “Ladies’ Nights,” nightclubs "charge males more for admission than females or give males less time than females to enter the Nightclubs for a reduced price or for free." And what's wrong with this? According to the Second Circuit, "Den Hollander, who was admitted to the Nightclubs under this admission regime, attributes these pernicious 'Ladies’ Nights' to '40 years of lobbying and intimidation, [by] the special interest group called 'Feminism' [which] has succeed in creating a customary practice ... of invidious discrimination of men.” You can tell the Court of Appeals is having fun with this one. It says:

Without action on our part, Den Hollander paints a picture of a bleak future, where “none other than what’s left of the Wall Street Moguls” will be able to afford to attend Nightclubs.

Hollander sues under 42 U.S.C. section 1983, which makes it illegal for "state actors" to violate your civil rights. Section 1983 is the law that enforces the Constitution, which prohibits sex discrimination. The problem for Hollander is that these private nightclubs are not state actors. The state does not own these facilities, and although the state does regulate their liquor licenses, the Supreme Court held many years ago that this connection to the state is not enough to create "state action."

In addition, the reduced admission policies are not "fairly attributable to the state." The Second Circuit has previously held that "it is not enough ... for a
plaintiff to plead state involvement in some activity of the institution alleged to have inflicted injury upon a plaintiff; rather, the plaintiff must allege that the state was involved with the activity that caused the injury giving rise to the action.” However, there is no link between the regulation of an alcohol license and disparate admission prices. The Court of Appeals sums up as follows:

The link Den Hollander suggests is too attenuated to be causal: he argues that the Nightclubs may only charge discriminatory prices because they sell alcohol – without the draw of alcohol, his argument goes, the Nightclubs would not be popular destinations and accordingly, would not be able to charge for admission. Regardless of the veracity of this statement, we cannot agree that the state’s liquor licensing laws have caused the Nightclubs to hold “Ladies’ Nights;” liquor licenses are not directly related to the pricing scheme.


Anonymous said...

Why did plaintiff not bring suit under 'public accommodation' laws? cf sit-ins at public lunch counters in the early civil rights era.

RoS said...

public accommodations law would have been a better approach. there is no crime committed here by the state and not enough strong ground to win. many clubs and promoters host "ladies night" events. interesting case however...

Anonymous said...

Isn't the headline "Ladies Night Is Legal" misleading? It may not violate sec.1983, but it has been--and probably will continue to be--held to violate other laws by effectuating sex discrimination in public accommodations.

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