The hospitality industry is no stranger to the rules prohibiting discrimination in accommodations. The average restaurant or hotel operator is aware that the establishment cannot deny service to a patron on the basis of a protected status, such as race or gender. What appears to be less well known is that, at least in California, the same business establishments cannot discriminate by providing extra service to a protected status either. This fact is apparent by the continuing trend to hold “Ladies’ Night” events, or special discounts available only to women, for businesses from restaurants to car washes. These bonuses for female patrons may be useful in boosting business, but if the same businesses refuse service or the same discounts to a male patron, they may be in for a rude awakening when they receive a complaint for statutory penalties for violation of California’s Unruh Act and/or The Gender Tax Repeal Act.
In 1959, California enacted the Unruh Civil Rights Act to set forth what now seems like the basic principle that a business establishment cannot discriminate on the basis of sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation1. As the illustrative list of protected statuses demonstrates, the Act is intended to protect all persons from arbitrary discrimination.
The Act specifically makes any violation of the Americans with Disabilities Act (“ADA”) a violation of the Act. But outside of this strict liability requirement for violations of the ADA, other violations require intentional discrimination. Harris v. Capital Growth Investors XIV, 52 Cal. 3d 1142, 1172; Munson v. Del Taco, Inc., 46 Cal. 4th 661, 671 (2009). A plaintiff must show (1) that he or she was denied equal treatment or was otherwise discriminated against by the business establishment, (2) that a motivating reason for the discrimination was the perception of plaintiff’s protected status, (3) that the plaintiff was harmed, and (4) that the conduct of the business establishment was a substantial factor in causing that harm. Cal. Civ. Code §§ 51, 51.5, 52.
Similarly, the Gender Tax Repeal Act, enacted in 1995, specifically prohibits a business establishment from price discriminating on the basis of a person’s gender. Cal. Civ. Code § 51.6. Some gender-based price differences may be justified (tailors, barbers, dry cleaners), but the pricing in such cases must be clearly posted.
With respect to a “Ladies’ Night” event or car wash discounts given only to women, the elements are often quite clear. If a restaurant or bar owner, for example, holds a “Ladies’ Night” offering discounted beverages or food to its female patrons while charging male patrons the regular amount, it is discriminating against its male patrons on the basis of gender, causing the male patron to pay more because of this conduct. Koire v Metro Car Wash, 40 Cal 3d 24 (1985). The increase in business that such an event might garner will be greatly offset by the penalty: plaintiffs can claim treble damages with a minimum of $4,000 per violation, plus attorneys’ fees for violations of both the Unruh Act and the Gender Tax Repeal Act. Cal. Civ. Code § 52(a). While it is a common perception that a Ladies’ Night-type promotion is not discriminatory because it promotes a historically protected class, the statutory language is clear: no price or service differentials on the basis of a protected status – whether positively or negatively intended – are tolerated.
If holding such events tends to bring in business, then consider utilizing the concept without the discriminatory specials. Call it “Ladies’ Night,” carry out a theme that appeals to women, but when it comes to pricing, service, or swag, give the same deals to all patrons.
1 The text of the statute reads: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. Civ. Code § 51(b).