N.Y. Lawsuit Calls 'Ladies' Night' Discriminatory
By Brittney PescatoreThe National Law Journal
07-12-2007
Clubs and bars have been luring women to their establishments with lower fees and shorter waits for decades, but a recent lawsuit claims that the practice is unconstitutional.
New York attorney Roy Den Hollander, a solo practitioner for more than 15 years who deals primarily with civil litigation and corporate governance, has filed a class action against certain Manhattan nightclubs for "invidious discrimination" against men in their policies for admitting patrons.
Hollander is seeking a declaratory judgment that would clarify whether nightclubs' policies consist of "state action" due to their regulation by the state's Division of Alcoholic Beverage Control, and consequently are subject to liability pursuant to 42 U.S.C. 1983, which allows civil action for deprivation of rights by persons acting under the color of state law. Hollander v. Copacabana Nightclub, 1:2007 CV 5873. A case management and scheduling conference has been set for Oct. 11.
The attorney alleges that the clubs are violating the 14th Amendment's guarantee of equal protection under the law, and in addition to declaratory relief, he is seeking nominal damages and an injunction to halt the nightclubs' practice of admitting women at a lower price than men.
The nightclubs named in the suit include Copacabana Nightclub, China Club, A.E.R. Nightclub and Sol.
Hollander says he attended each of these venues on nights when they held promotions offering women either free or reduced fees, shorter waiting periods, or longer windows for free or reduced admission that were not available to men.
"It's either more money, more time or more burdensome," said Hollander of the difficulties men face in gaining admittance to nightclubs.
He is looking to the case of Seidenberg and DeCrow v. McSorleys' Old Ale House, Inc., 317 F.Supp 593, as precedent for finding the existence of "state action" by bars and nightclubs. The U.S. District Court for the Southern District of New York, where Hollander has filed his complaint, ruled in 1970 that state action existed when McSorleys' Old Ale House refused to serve two women.
Hollander also foresees an "uphill battle" in classifying the action as invidious discrimination, since he is arguing on behalf of men and not women, whom he says the U.S. Supreme Court has given "preferential treatment for past invidious, economic discrimination."
"Whether this case succeeds or fails," says Hollander, "it will result in a much needed victory for men."
Tim Gleason, general manager of the China Club, said that he found Hollander's grievance "ridiculous."
The China Club does offer promotions, sometimes organized by outside vendors, which offer special admission terms for women, Gleason said. Hollander recognized that many events are organized by hired promoters but maintains that they serve as agents of the clubs.
Counsel for the Copacabana, A.E.R. and Sol nightclubs could not be reached for comment.
Hollander is seeking to be named class representative for all men charged more money or burdened by stricter time restraints than women at these clubs over the last three years. He has as evidence e-mail advertisements for promotions held on the nights he attended these clubs and according to Hollander, these e-mails advertise discriminatory admittance policies for men versus women. The case seeks an injunction to end these policies.
"If I win, then all the other nightclubs have to follow," Hollander said.
Similar cases have come before courts across the nation in recent years. In early June of this year, the California Supreme Court ruled against a Los Angeles nightclub that refused to provide four men the "Ladies' Night" discounts available to women. Angelucci v. Century Supper Club, No. S136154.
In 2004, a New Jersey administrative ruling that declared ladies' nights violated state discrimination laws led New Jersey lawmakers to pass legislation legalizing the practice. Gillespie v. Coastline Restaurant, No. CRT 2579-03.
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