State courts in California, Maryland, Pennsylvania and Wisconsin have ruled that ladies’ night discounts are unlawfulgender discrimination under state or local statutes. However, courts in Illinois, Minnesota, and Washington have rejected a variety of challenges to such discounts.
The California Supreme Court has ruled that ladies’ days at a car wash and ladies’ nights at a nightclub violate California’s Unruh Civil Rights Act in Koire v Metro Car Wash (1985) and Angelucci v. Century Supper Club (2007). The Unruh Act provides: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex [...] are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever [...].” The court considered the statutory defense that the promotions serve “substantial business and social purposes”, but concluded that merely being profitable is not a sufficient defense. The court accused the Wisconsin Supreme Court of “sexual stereotyping” for upholding a similar practice.
Koire held that: “Public policy in California strongly supports eradication of discrimination based on sex. The Unruh Act expressly prohibits sex discrimination by business enterprises.” Koire concluded:
“The legality of sex-based price discounts cannot depend on the subjective value judgments about which types of sex-based distinctions are important or harmful. The express language of the Unruh Act provides a clear and objective standard by which to determine the legality of the practices at issue. The Legislature has clearly stated that business establishments must provide “equal . . . advantages . . . [and] privileges” to all customers “no matter what their sex.” (§ 51.) Strong public policy supports application of the Act in this case. The defendants have advanced no convincing argument that this court should carve out a judicial exception for their sex-based price discounts. The straightforward proscription of the Act should be respected.”
Subsequent to the decision, California passed the Gender Tax Repeal Act of 1995, which specifically prohibits differential pricing based solely on a customer’s gender. In Angelucci, the California Supreme Court ruled that discrimination victims did not have to ask the offending business to be treated equally in order to have standing to file an Unruh Act or Gender Tax Repeal Act claim.
Courts have not found violations on the Unruh Act with discounts for which any customer could theoretically qualify for. The California Supreme Court opined:
“A multitude of promotional discounts come to mind which are clearly permissible under the Unruh Act. For example, a business establishment might offer reduced rates to all customers on one day each week. Or, a business might offer a discount to any customer who meets a condition which any patron could satisfy (e.g., presenting a coupon, or sporting a certain color shirt or a particular bumper sticker). In addition, nothing prevents a business from offering discounts for purchasing commodities in quantity, or for making advance reservations. The key is that the discounts must be “applicable alike to persons of every sex, color, race, [etc.]” ( § 51), instead of being contingent on some arbitrary, class-based generalization.”
The Koire precedent has not been extended to strike down Mother’s Day promotions. Koire was one of the precedents cited in the lower court (but not the state Supreme Court) in In re Marriage Cases which was overturned by California Proposition 8 (2008).
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