July 25, 2007 — -- Lawsuits could be putting "Ladies' Nights" at bars and clubs across the country on the rocks.
In about two dozen cases, plaintiffs contend these drink and admission deals for women constitute discrimination against men and should be banned.
Roy Den Hollander is a New York lawyer who says Ladies' Night drinks and admission specials are unconstitutional, and he says he's suffered personally. Hollander is also a graduate of Columbia Business School and seems like a guy who should be able to get into a decent bar and afford the drinks. So what irks him?
"I'm tired of having my rights violated and being treated as a second-class citizen," said Hollander, who is seeking class-action status for his suit in federal court.
Tim Gleason, general manager of the China Club in New York, calls Hollander's complaint "pathetic" and echoes other club owners who argue that the discounts actually help both sexes by balancing out the ratio between men and women. Nevermind that some men are more than happy to pay for inequality in the ratio department.
Over the last 30 years, lawsuits stemming from promotions involving Ladies' Night have enjoyed considerable success in courts across the country where judges have held that single-sex discounts violate state and federal statutes guaranteeing equal protection under the law.
George Washington University law professor John Banzhaf, whose students have brought a Ladies' Night suit, says that these promotions are part of a broader class of gender-based price discrimination tactics like those used by hairdressers and dry cleaners who charge men and women different prices for the same service.
In Washington, D.C., he hopes to pursue what he calls restroom equity or "squatter's rights" in which he will sue public venues whose restroom availability, though seemingly equal for both sexes, has a "disparate impact" on women who must deal with longer lines and wait times.
Nightclub spokespersons and activists express concern that a class-action victory in a Ladies' Night lawsuit based on federal law could open the floodgates to a host of other suits against private businesses.
Hollander seeks to be the lead plaintiff and the representing attorney in a class-action suit against several Manhattan venues including the China Club, Copacabana Nightclub, A.E.R. Nightclub and Sol.
As a patron of these venues, he alleges that Ladies' Night discounts violate the 14th Amendment that guarantees equal protection to "similarly situated" persons. But are men and women really similarly situated in the dating marketplace? The law is one thing, but the mating game has its own set of intrinsic rules.
So where should the line be drawn? Basic Supreme Court case law says a state cannot discriminate unless it is for an important reason like public health and safety. Hollander argues the clubs have no legitimate reason for treating males and females differently in their admission policies.
"This is a constitutional-question suit, which means if I win, in theory any guy in America could bring a similar suit and use this as persuasive precedent," he said.
Legal analysts say Hollander's claim may be difficult to prove. He will have to demonstrate that there is a genuine constitutional issue. In court papers, he cites a 1970 case against a bar called McSorley's Old Ale House. The ruling in the case struck down a policy excluding women, claiming it violated the Constitution's guarantee of equal protection.
Club owners maintain that Ladies' Night is not a policy of exclusion, but rather an economic enticement to increase business and satisfy their customers. They say the marketplace dictates whether the promotions are abandoned, not the courts.
"Ladies' Night benefits the men as much as it benefits the ladies, the clubs and society," said John Juliano, owner of the recently closed Copacabana Nightclub. "And the only loser here is this grouch with a warped point of view."
But, Hollander said these perks do not justify discriminatory prices because the same beneficial end could be achieved by charging men less or equal to the amount women are charged.
"Each guy that walks into that club will have more money to buy her a drink, and the more she drinks, the more fun she and the guys will have," he said.
The recent slew of Ladies' Night lawsuits dates back to a 1972 case against the New York Yankees. A lot fewer women were going to games than men. The Yankees gave discounts on special "Ladies" games. An angry male fan sued and a court ruled the practice was illegal.
The Seattle Sonics basketball team was also sued in 1981 by a man who alleged discrimination because he was forced to pay full price for a ticket while his wife paid half. In that case the court ruled that the purpose of the promotion was "not to exclude anyone but to encourage attendance."
In recent years, Ladies' Night promotions have been the subject of litigation in California, New Jersey and New York, where the state-level courts consistently have ruled against Ladies' Night promotions.