2008-09-30 18:27:50 - Despite misleading headlines proclaiming that a judge has ruled that ladies' nights are legal in New York, the judge ruled only that the U.S. Constitution does not apply to private businesses such as bars, and, under the existing law of New York, ladies' rights remain illegal, says public interest law professor John Banzhaf, who has won over 100 legal actions aimed at gender-based pricing policies, including ladies' nights

New York, like most states, has statutes which prohibit discrimination based upon factors like race or gender.

So with narrow exceptions -- largely involving issues of sexual privacy -- treating one gender differently than another is illegal. The arguments that such a policy may improve business, or that some who are made to pay more may not object, do not

override the clear statutory provision prohibiting gender-based pricing discrimination, says Banzhaf.

New York has found just such price discounts based on gender a form of invidious discrimination in violation of its Human Rights Statute. In 1983 it ruled that price discounts for females in a bar violated the Human Rights Law, even though the bar argued that it improved business.

This followed an even earlier decision that a $1.00 discount for women on Ladies' Day at Yankee Stadium violated the same law, despite arguments that it was designed to attract more women to baseball games because they were generally underrepresented compared to men.

Indeed, virtually all modern decisions involving ladies' nights -- including a recent one in New Jersey -- have found them to illegally violate civil rights statutes prohibiting discrimination based upon gender. The fact that the U.S. Constitution did not itself by itself prohibit such discrimination by private business was irrelevant to these rulings, says Banzhaf.

Even though women who want to get drunk -- and men who are hoping for sex with drunken women -- may approve of ladies' nights, this is not a legal justification for discrimination based solely upon gender.

To justify discrimination based upon gender, a business must ordinarily show that it is necessary to preserve sexual privacy (e.g., having separate rest rooms) or at least that it costs more to provide the same service to one gender than another -- although even this justification in legally invalid in some jurisdictions. Clearly none of these defenses applied to admission to bars or serving drinks.

Bar owners argue that they want to attract more women to their bars since women are less likely than men to seek admission.

But a policy of charging men LESS than women for admission to dog and horse shows, women's basketball or gymnastic events, ballet or operas which may be more attractive to women than to men would clearly be illegal, and no one would dare to make the same nonsensical argument, says Banzhaf.

Bar owners also claim they charge women less than men because women on the average earn less money than men.

But, if that is the justification, one may reasonably ask when they have African American night, Hispanic Night, etc. for other groups which likewise tend to have lower incomes.

"The pleas of drunken women and horny men do not override the clear law of New York," says Banzhaf, who helped eliminate ladies' nights in the District of Columbia at the time, and even forced a newspaper not be feature ads for bars which engage in such sexually discriminatory practices.

PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
FAMRI Dr. William Cahan Distinguished Professor
FELLOW, World Technology Network
2013 H Street, NW, Washington, DC 20006, USA
(202) 659-4312 // (703) 527-8418
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