For the past 15 years, dozens of gender discrimination suits have been filed in California under the Unruh Act and the Gender Tax Repeal Act—but not the kinds that you might think. These suits have generally been filed on behalf of men, concerning discounts, free gifts, or other benefits offered by businesses to female patrons. The majority of these suits have targeted "Ladies' Night" events at restaurants and bars (offering women free admission or drink discounts), or efforts by golf clubs and other sports facilities to attract women (such as free gifts, tickets, lessons, etc.). One news outfit reported that Alfred G. Rava, the lawyer behind many of these suits, has filed well over 100 of these cases.
While these suits might reek of lawyer-driven "gotcha" claims, plaintiffs have had some success in them. See, e.g. Koire v. Metro Car Wash, 40 Cal. 3d 24, 219 Cal. Rptr. 133, 707 P.2d 195 (1985) (car washes could not provide discounts to women on "Ladies' Day" without also providing equal discounts to men); Angelucci v. Century Supper Club, 41 Cal. 4th 160, 158 P.3d 718 (2007) ("Ladies' Night" promotion at a night club could discriminate against men). Likely for that reason, the majority of these suits have settled—sometimes for a hefty price tag. In 2009, for example, the Oakland A's reportedly settled a suit for $510,000 concerning a Mother’s Day promotion that involved giving free hats to women attendees.
Even in the #MeToo era, the "Ladies' Night" litigation is not slowing down. If anything, an increasing number of them have been filed in recent months.
At the same time, a new wave of cases—endorsed by the National Coalition for Men—is beginning to emerge. These suits attack businesses' efforts to promote women's professional advancement. On June 14, 2018, for example, the Financial Services Information Sharing and Analysis Center (FS-ISAC) was sued in San Diego County, CA for offering a "Building Cybersecurity Diversity Scholarship" to only female applicants. The 30-page complaint alleges, among other things, that men are "disproportionately disadvantaged in the workplace compared to females," because, inter alia, women outnumber men in graduate school and men are more likely to be victims of workplace fatalities. The complaint goes so far as to invoke the #MeToo movement, alleging that the "repugnant" scholarship is comparable to offering a scholarship to only Caucasian or heterosexual applicants.
Other suits have targeted women-only networking events, golfing classes (targeted at helping women improve so that they can participate at business meetings held on golf courses), and online classes aimed at helping women start their own businesses. Many of the companies targeted have been startups born out of the #MeToo movement—in order to pay to settle these cases, some of defendants have reportedly had to downsize or even sell their businesses.
How the Unruh Act and the Gender Tax Repeal Act are Used in These Cases
As is often the case, the majority of these gender discrimination suits have been filed in California. The California suits have been brought pursuant to the state's civil rights law, the Unruh Act, and a section of the Act targeting gender discrimination called the Gender Tax Repeal Act.
Enacted in 1959, the Unruh Act provides that "[a]ll 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, sexual orientation, citizenship, primary language, or immigration status 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, subd. (b). The Act, like the common-law principles upon which it was partially based, prohibits "arbitrary, invidious or unreasonable" discrimination in public accommodations, including gender-based distinctions.
More specifically, the Gender Tax Repeal Act provides that "[n]o business establishment of any kind whatsoever may discriminate, with respect to the price charged for services of similar or like kind, against a person because of the person’s gender." Cal. Civ.Code § 51.6, subd. (b).
To further the legislative policy of eliminating improper discrimination by business establishments in California, Cal. Civ.Code § 52 authorizes certain individuals to bring civil actions for violations of the Unruh Act or the Gender Tax Repeal Act. In this regard, it provides "[w]hoever denies, aids or incites a denial, or makes any discrimination or distinction [in violation of the Unruh Act or the Gender Tax Repeal Act], is liable for each and every offense for the actual damages," possible treble damages, and attorney fees suffered "by any person denied the rights provided [therein]." Cal. Civ.Code § 52, subd. (a); see also § 52, subd. (c) (authorizing an "aggrieved" person to sue for injunctive or other preventive relief).
Although the majority of these suits settle, there are several arguments available to defendants in these cases. Retailers and businesses within the hospitality and entertainment sectors not currently enmeshed in this litigation should consider these issues before offering any promotions that may impact men and women differently.
First, to have statutory standing, a plaintiff must actually have been damaged. Again, section 52, subdivision (a) bestows standing to sue only on those persons whose rights under the Unruh Act or the Gender Tax Repeal Act have been "denied." Additionally, cases interpreting the Unruh Act have consistently held that an individual plaintiff has standing to bring claims thereunder only if he or she has been the victim of the defendant's discriminatory act. Thus, in Surrey v. TrueBeginnings, LLC, 168 Cal. App. 4th 414, 420 (Cal. App. 4th Dist. 2008), the Court of Appeal found that the plaintiff lacked standing to sue as to a discount being offered for women, because he did not attempt to subscribe to the defendant’s services.
Second, the Unruh Act permits disparate treatment that is not "arbitrary, invidious or unreasonable"—this has often been applied to consider whether there is a strong public policy behind the promotion in question. This exception has come into play in several cases involving claims of age discrimination. See, e.g. Pizarro v. Lamb’s Players Theatre, 135 Cal. App. 4th 1171 (4th Dist. 2006) (theater did not violate the Act by offering discount prices to "baby-boomers" to attend a musical about that generation, inasmuch as it allowed greater access to the theater); Sargoy v. ADR Tr. Corp., 8 Cal. App. 4th 1039 (Cal. App. 2d Dist. 1992) (age-based preferences are justified by compelling state interests and are consistent with the public policy favoring assistance to the elderly). In Frye v. VH Prop. Corp., B246991, 2014 WL 69126, at *4 (Cal. App. 2d Dist. Jan. 8, 2014), the Court of Appeal in an unpublished decision affirmed the dismissal of gender discrimination claims against a golf course, for its offering of discounts and free gifts during Breast Cancer Awareness Month. The court noted that the public policy of promoting breast cancer awareness was "more compelling" than it was in Pizarro.
Third, courts have rejected claims of gender discrimination where the activity uses gender as a proxy for a different category of people—such as mothers or people at risk of breast cancer. In Cohn v. Corinthian Colleges, Inc., 169 Cal. App. 4th 523, 86 Cal. Rptr. 3d 401 (2008), for example, the court held that the defendant's Mothers' Day promotion, in which female attendees at a baseball game received a free tote bag, did not violate the Unruh Act because "the giveaway was based on motherhood, with gender only a secondary consideration." That is, the intent of the promotion was to not to honor women above men, but mothers against the rest of the population, and giving tote bags to adult females was a practical alternative to taking the time to verify that each woman who received a tote bag was in fact a mother. The court reasoned that because only women can be mothers, the discrimination did not emphasize an irrelevant difference or perpetuate an irrational stereotype.
Notably, the Cohn court appeared to criticize opportunistic plaintiffs filing suits against this type of promotion, explaining:
This important piece of legislation [the Unruh Act] provides a safeguard against the many real harms that so often accompany discrimination. For this reason, it is imperative we not denigrate its power and efficacy by applying it to manufactured injuries such as those alleged by the plaintiff in this case…The instant case does not emphasize an irrelevant difference, nor perpetuate an irrational stereotype. It is a biological fact that only women can be mothers. Neither men nor women are harmed by this, and the Angels did not arbitrarily create this difference.... The tote bag giveaway honors mothers as a group of individuals without promoting any irrational stereotypes, and therefore does not violate the [Unruh] Act.
Similarly, in Frye, 2014 WL 69126, at *4, the Court of Appeal found that the promotion at issue was "based on breast cancer awareness, with gender as a secondary consideration."
Finally, defendants sued for offering free gifts to women, rather than giving them free admissions to events, for example, should argue that the prohibition on gender-based price differentials does not extend to gifts. Cohn, 169 Cal. App. 4th 523, offers helpful guidance on this point. The court there explained that "While price differentials are specifically prohibited by the [Gender Tax Repeal Act], no such prohibition exists for promotional gifts. . . If the intent is for the item to be a gift, rather than an attempt to circumvent the ban on gender based discounts, then such a gift is permissible." The court further noted it saw no reason to prevent the defendant "or any other business" from giving gifts to customers of their choosing— "Individuals are free to give to whomever they like."
Breaking the glass ceiling should not mean breaking the bank in defense costs. Well-intentioned retailers looking to support women-related causes should consult counsel before offering events, discounts, free gifts, or any other benefits to female customers.