"Ladies' Night" Promotions Violate California Law

by Davis Wright Tremaine LLP
Contact

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).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Davis Wright Tremaine LLP | Attorney Advertising

Written by:

Davis Wright Tremaine LLP
Contact
more
less

Davis Wright Tremaine LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.