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Is Ladies Night Legal?

Can businesses charge different prices based on gender?

By
Adam Freedman
July 8, 2011

Page 1 of 3

Today’s topic: Is “Ladies' Night” legal?

My readers never cease to amaze me. Michael writes in to say, “I don’t understand why bars and clubs get away with ‘Ladies' Night’ where females receive discounted admission and drinks based on their gender.”  Doesn’t that violate the Constitution, he asks.

The short answer is: Is nothing sacred, Michael? Actually, the answer is that Ladies' Night promotions have been found to violate a number of state laws, but the status of such events under the US Constitution is still unclear.

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Is Ladies' Night Legal?

First, let’s look at the constitutionality of Ladies Night promotions. The Fourteenth Amendment to the Constitution guarantees “equal protection of the laws” to each and every citizen.  Using this provision--known as the Equal Protection Clause--the Supreme Court has struck down laws that discriminate on the basis of sex. In 1976, for example, the Court ruled that an Oklahoma law establishing a younger drinking age for women than men was unconstitutional.

But the Fourteenth Amendment only prohibits states from discriminating--it usually doesn’t apply to private businesses or individuals. To find a violation of the Fourteenth Amendment, you have to be able to show that the discrimination was perpetrated by a so-called “state actor,” and private bars clearly aren’t state actors.

Is a Bar a “State Actor?”

Or are they?  In 1970, a New York district court held that McSorley’s Old Ale House, a bar in downtown Manhattan, was a “state actor” because bars are so heavily regulated by the state. As a result, the Court said that McSorley’s violated the Fourteenth Amendment by refusing to serve women at all.

Relying on the McSorley’s case, a male New York lawyer sued a number of nightclubs in 2007, alleging that the clubs were violating his Fourteenth Amendment rights with their Ladies Night promotions. But the district judge tossed out the case, holding that private bars are not “state actors,” and saying that the McSorley’s case was a special exception. This case is currently on appeal to the Second Circuit court of appeals but – for now at least – no federal court has held Ladies Night to be unconstitutional.

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