The Volokh Conspiracy - Should Ladies' Nights in Bars Be Outlawed Because they Discriminate Against Men?

Columnist Steven Chapman has an interesting column arguing against claims that ladies night's in bars should be banned because they discriminate against men:

When it comes to relations between the sexes, a little common sense goes a long way. It's not sex discrimination to bar men from women's locker rooms. It's not sex discrimination to let only females audition for the role of Juliet. It's not sex discrimination to roughly balance males and females in an entering college class. And it should not be sex discrimination to offer favors to one sex in order to benefit people of both sexes.

Why, after all, would a bar offer discounts to women? Not because the owner harbors a deep-seated hostility toward men, perpetuating centuries of oppression. People who run such establishments understand that a lot of men patronize taverns partly to meet women, and that they will come more often and stay longer if women are abundant than if they are scarce.

Since females are generally less attracted to the bar scene, discounts may be needed to draw them out in respectable numbers. The owner of the Coastline Restaurant and Bar in Cherry Hill, the target of the complaint, said after the ruling came down that his male customers are unhappy "because they're wondering, 'Are the girls going to show up?'" ....

Offering a discount for women, to George Washington University law professor John Banzhaf, is no more defensible than charging whites less than blacks. "Sex discrimination is wrong, no matter whose ox is being gored," he declares.

But context is crucial, and relations between the sexes are different from relations between the races. We don't accept racially segregated restrooms, but we do accept sexually segregated restrooms. All-white colleges would be offensive, but all-female schools are not.

Charging whites less than blacks would suggest a desire to drive away black customers because of racial animus. Charging women less than men suggests nothing comparable.

I blogged about some of the legal issues involved in the ladies' night litigation in this series of posts last year. I argued that ladies' nights don't violate the 14th Amendment and that the anti-ladies' night plaintiffs should not be allowed to proceed with a class action case under which they get to be class representatives for male bar patrons as a group; quite obviously, they would be poor representatives of this class because most male bar patrons actually benefit from ladies' nights and would be harmed by the lawsuits' success. I'm far less certain that ladies' nights are legal under the public accommodations provisions of the Civil Rights Act of 1964. If they are not, however, that is a weakness in the law, not a virtue.

UPDATE: I had foolishly forgotten that Title II of the Civil Rights Act of 1964 only bans discrimination in places of public accommodation on "the ground of race, color, religion, or national origin." It doesn't forbid sex discrimination. Therefore, ladies nights in bars are perfectly legal, at least so far as Title II is concerned.

UPDATE #2: It turns out that Tim Sandefur of the libertarian Pacific Legal Foundation has recently filed an amicus brief in a California ladies' night case making arguments similar to some of those advanced in my posts on the subject. The brief is available here.

UPDATE #3: Some commenters argue that Chapman's argument can also be used to justify affirmative action. To some extent, this is true. However, my view is that private sector affirmative action programs should be legal. Therefore, there is no contradiction between my positions on the two issues.

	[Ilya Somin, September 18, 2008 at 7:46pm] Trackbacks Should Ladies' Nights in Bars Be Outlawed Because they Discriminate Against Men? Columnist Steven Chapman has an interesting column arguing against claims that ladies night's in bars should be banned because they discriminate against men: When it comes to relations between the sexes, a little common sense goes a long way. It's not sex discrimination to bar men from women's locker rooms. It's not sex discrimination to let only females audition for the role of Juliet. It's not sex discrimination to roughly balance males and females in an entering college class. And it should not be sex discrimination to offer favors to one sex in order to benefit people of both sexes. Why, after all, would a bar offer discounts to women? Not because the owner harbors a deep-seated hostility toward men, perpetuating centuries of oppression. People who run such establishments understand that a lot of men patronize taverns partly to meet women, and that they will come more often and stay longer if women are abundant than if they are scarce. Since females are generally less attracted to the bar scene, discounts may be needed to draw them out in respectable numbers. The owner of the Coastline Restaurant and Bar in Cherry Hill, the target of the complaint, said after the ruling came down that his male customers are unhappy "because they're wondering, 'Are the girls going to show up?'" .... Offering a discount for women, to George Washington University law professor John Banzhaf, is no more defensible than charging whites less than blacks. "Sex discrimination is wrong, no matter whose ox is being gored," he declares. But context is crucial, and relations between the sexes are different from relations between the races. We don't accept racially segregated restrooms, but we do accept sexually segregated restrooms. All-white colleges would be offensive, but all-female schools are not. Charging whites less than blacks would suggest a desire to drive away black customers because of racial animus. Charging women less than men suggests nothing comparable. I blogged about some of the legal issues involved in the ladies' night litigation in this series of posts last year. I argued that ladies' nights don't violate the 14th Amendment and that the anti-ladies' night plaintiffs should not be allowed to proceed with a class action case under which they get to be class representatives for male bar patrons as a group; quite obviously, they would be poor representatives of this class because most male bar patrons actually benefit from ladies' nights and would be harmed by the lawsuits' success. I'm far less certain that ladies' nights are legal under the public accommodations provisions of the Civil Rights Act of 1964. If they are not, however, that is a weakness in the law, not a virtue. UPDATE: I had foolishly forgotten that Title II of the Civil Rights Act of 1964 only bans discrimination in places of public accommodation on "the ground of race, color, religion, or national origin." It doesn't forbid sex discrimination. Therefore, ladies nights in bars are perfectly legal, at least so far as Title II is concerned. UPDATE #2: It turns out that Tim Sandefur of the libertarian Pacific Legal Foundation has recently filed an amicus brief in a California ladies' night case making arguments similar to some of those advanced in my posts on the subject. The brief is available here. UPDATE #3: Some commenters argue that Chapman's argument can also be used to justify affirmative action. To some extent, this is true. However, my view is that private sector affirmative action programs should be legal. Therefore, there is no contradiction between my positions on the two issues.