Constitutional Dilemma Surrounding Ladies' Night

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I've heard it all now. A man actually filed a lawsuit against some late-night hot spots for promoting ladies' night!

You're probably thinking that most men you know would relish the idea of a club encouraging women to stop by for the evening. It sounds like win-win situation. Ladies receive the little added incentive of a few dollars off the cover or shorter waiting times behind the elusive velvet rope, while men have the assurance of knowing that they'll be in some good company. But one “solo practitioner” vehemently disagrees.

Manhattan attorney Roy Den Hollander says that by offering ladies' night enticements, the clubs violate the 14th Amendment's guarantee of equal protection under the law. His class action suit accuses several New York City clubs of “invidious discrimination” against men in their policies for admitting patrons. Among the defendants are some of the Big Apple's trendiest establishments like the Copacabana Nightclub, A.E.R Nightclub, Sol and the China Club (whose guest list includes the likes of Derek Jeter and Bruce Springsteen).

The legal eagle decided to fight this time honored tradition after he visited each of these venues on “ladies' night” and wasn't extended the same reduced fee or shorter waiting period as the females. In other words, he felt these clubs were violating his constitutional guarantees and felt discriminated against because he was a guy hoping to gain easier entrance. Don't get me wrong, as a woman and an attorney I feel that it's always (well, almost always) reprehensible when one group of people (in this case, men) are treated less fairly than another group of people (in this case, ladies). After all, I spent the past few years of my life researching this topic for my book. Now, I haven't been to a club in a while, so in my quest to write this column, I did some outside surveying. I asked several male and female friends what they thought and also went online to find out what others had to say on the issue.

One of my male friends said it posed an interesting dilemma. But ultimately, his love of ladies overcame his concern for equality. He said (heterosexual) men aren't going to places where the women aren't (unless it's football, baseball or basketball season) and getting rid of ladies' night imposes on his ability to meet, well, the ladies. On line, one man asked why anyone would want to take away his “God given right” to go into his favorite bar — which is usually filled with the same guys (he called them losers) and not encourage females (who under the right circumstances) would actually talk to him and his friends.

My favorite response from another friend said the main question should be “Why aren't all nights ladies' night?” My female friends just laughed and said that after all we've been through as women, they had no problem with some additional benefits. However, one lone friend did stand up for the lawyer. He said if women want to complain about equality, they should be joining the complainant in this suit. By accepting the discounts — clearly based on looks or sexuality — it's acceptance of inequality.

So, does Hollander actually have a case? Well, maybe. The Equal Protection Clause of the 14th Amendment says that a “state” may not “deny to any person within its jurisdiction the equal protection of the laws.” However, the amendment does not ban discrimination by private parties. Over the years, courts have sometimes ruled that private racial or sex discrimination can be imputed where the private actor is an agent of the government. Hollander claims that the nightclub owners who institute ladies' night are state actors merely because they're regulated and licensed by the government. The Supreme Court specifically rejected this theory in the Civil Rights Cases of 1883, which held that the 14th Amendment did not give Congress the power to regulate common carriers, “places of public accommodation” despite the fact that most businesses were often required to have government licenses.

Hollander recently filed his suit in Manhattan federal court and cites the case of Seidenberg and Decrow v. McSorley's Old Ale House, Inc. as precedent. In McSorley's, the court ruled that state action existed when the Ale House refused to serve two women. The New York lawyer admits that he faces an “uphill battle,” acknowledging that the Supreme Court has given “preferential treatment” to women when it comes to economic discrimination, but says, “If I win, then all other nightclubs have to follow.”

Tim Gleason, general manager of the China Club, called this suit “ridiculous.” I must agree, and I don't think Hollander will win any popularity contests if the verdict comes back in his favor. However, as “ridiculous” as this case may seem, Mr. Sensitive isn't the first to bring this kind of lawsuit. Last month, California ruled against a Los Angeles nightclub that refused to give four men the same ladies' night discounts as the women. Additionally, in 2004, New Jersey battled over the same issue. The New Jersey Division of Civil Rights ruling declared that ladies' night violated state discrimination law. But the Garden State didn't take the ruling without a fight. In fact, the state then passed a law legalizing the practice!

So fear not party lovers of both genders — hopefully the Manhattan Federal court will realize that bars rivaling a Star Trek convention aren't fun for anyone and will leave ladies' and their nights alone! And, for men with a sore spot for long lines or cover charges, this may be a battle that you'll one day, in hindsight, thank yourself for not fighting.


N.Y. Lawsuit Calls 'Ladies' Night' Discriminatory

Kiss Ladies Night Goodbye

Suit vs. Ladies’ Nights

The End of "Ladies' Night" in New Jersey

Are Ladies’ Nights Illegal?

Ladies' Night Should Rule

Civil Rights Cases

Ladies’ Night and the 14th Amendment

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Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. She is currently a professor of law at the New York Law School. Wiehl received her undergraduate degree from Barnard College in 1983 and received her Master of Arts in Literature from the University of Queensland in 1985. In addition, she earned her Juris Doctor from Harvard Law School in 1987. Lis is also the author of The 51% Minority — How Women Still Are Not Equal and What You Can Do About It. (Watch the Video) To read the rest of Lis's bio, click here.