By Dr. Gary L. Deel, Ph.D., J.D.
Faculty Director, Wallace E. Boston School of Business
This is the second of two articles on sex/gender discrimination against nightclub patrons in Nevada.
In the first part of this series, we discussed how nightclubs commonly engage in gender-discriminatory practices — including admissions quotas and special pricing promotions — as part of their routine business operations. However, the question of whether and why these practices are legal is complicated.
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The Legality of Discrimination Depends upon Context
First, the legality of discrimination depends on the context. And to understand why, we need to look briefly at the history and design of the 1964 Civil Rights Act.
The Civil Rights Act includes several “titles” or parts, but most relevant to this discussion are:
- Title II, which covers prohibitions on discrimination against patrons of places of public accommodation (hotels, restaurants, movie theaters, nightclubs, and the like), and
- Title VII, which covers prohibitions on discrimination against workers in employment.
Now, getting the Civil Rights Act passed in 1964 was an uphill battle. Much of the United States at the time resented the idea that the government should attempt to control the behavior of private citizens and businesses on issues like racism and prejudice.
A popular view was that people should be able to think what they want to think and, more to the point, hate if they want to hate. And so the authors of the Act had to engage in strenuous negotiations with their fellow legislators to get the bill passed and signed into law by President Lyndon Johnson.
The original version of the bill addressed prohibitions against discrimination based on race, color, religion and national origin. But it was noticeably silent on the issue of sex/gender (along with other classes like age and disability which would be added in subsequent amendments).
However, in order to garner the necessary support for passage, a deal was struck during the legislative review to add sex/gender to the list of protected classes under Title VII. But it was still conspicuously absent from Title II.
Is It Legal to Discriminate on the Basis of Sex/Gender in Employment?
So, is it legal to discriminate on the basis of sex/gender in employment? The answer here is unequivocally no. Title VII of the Civil Rights Act is quite unambiguous about that.
But in our nightclub context, we’re not talking about employees. We’re talking about customers. So then, is it legal to discriminate against patrons on the basis of sex/gender — for example with admissions quotas or drink pricing specials? That’s a bit less clear.
Some argue that, although the legislators who negotiated the Civil Rights Act did not explicitly include sex/gender in Title II, it was their intention that it be protected in the same way as it is enumerated in Title VII. However, this argument has so far not been persuasive before courts of law, which have been reluctant to read into the law an intent that is not clearly evident. As such, nightclubs are generally free to engage in these practices under federal law.
But that last qualifier, “under federal law,” brings up another important point. Although federal law is the supreme law of the land, it isn’t the only law that businesses need to follow. Pursuant to the supremacy clause under the U.S. Constitution, states are free to create their own laws for their citizens provided that such laws do not conflict with federal law — where they do, federal law takes precedence.
That said, although federal law does not specifically prohibit sex/gender discrimination against patrons in places of public accommodation, states are free to do so if they wish because this additional restriction does not conflict with any of the existing restrictions at the federal level. And many states have done so.
In fact, every state in the Ninth Circuit — which covers the entire western United States including the Pacific coast, Alaska, and Hawaii — has enacted some type of state-level legislation that limits or prohibits these kinds of practices by nightclubs. Every state, that is, except for Nevada.
It shouldn’t really be a surprise that Nevada is resistant to abolishing “Ladies’ Night.” Las Vegas is the economic backbone of the state, and it carries a certain risqué sex appeal and sex promotion that embodies these kinds of virtues.
Efforts Have Been Made to Stop Gender Discrimination
Some have attempted to challenge the status quo and lobby the state government to update their stances, but these efforts have been unsuccessful. In 2011, the legislature addressed this issue on record, saying “It is not unlawful … for any place of public accommodation to offer differential pricing or special offers based on sex to promote or market the place of public accommodation.”
But times are changing and societies are evolving … mostly for the better. Currently, a minority of states still cling to these kinds of anachronistic notions that suggest it’s OK to discriminate on the basis of gender so long as it’s in the interest of business promotion and not overtly connected to some obviously evil agenda.
But these states — including Nevada — need to get with the program. They need to recognize and acknowledge that gender discrimination — absent a compelling reason like a bona fide occupational qualification — is wrong notwithstanding its contexts. And if we ever want to arrive at a place in our society where all people are treated fairly, then these seemingly-benign relics of a less-enlightened time need to go.