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[David Bernstein, May 31, 2007 at 10:55pm] Trackbacks

Eharmony Sue for Sexual Orientation Discrimination:

Eharmony.com, the most profitable on-line dating service, is being sued under California law for discrimination based on sexual orientation for failing to include "women seeking women" or "men seeking men" categories on its website. Eharmony, for its part, claims that its services are based on research regarding what makes heterosexuals compatible, and because it has no similar research available for homosexuals, it does not provide services to them. Complicating matters is the fact that Eharmony's founder is an evangelical Christian with apparent ties to Focus on the Family.

The media reports I've found don't mention what is the underlying statutory basis for the lawsuit. I would imagine, however, that as an initial matter, the plaintiff will have to prove that this is indeed discrimination based on sexual orientation. Eharmony does not technically prevent gays and lesbians from using its services; rather, it provides services for people looking for partners of the opposite sex. Assumedly, any self-identified homosexual who decided to look for an opposite sex partner would be able to use Eharmony's services. Is this a distinction without a difference? I'm not so sure. I wouldn't think that a strip club featuring nude females could be sued for sexual orientation discrimination simply because few gay men would be interested in utilizing its services. On the other hand, if the club excluded gay men who did wish to ogle nude women (or hang out with men who did), that would clearly be discrimination based on sexual orientation.

If a court held that Eharmony's policy was nevertheless sexual orientation discrimination because in practice Eharmony has chosen to serve only a heterosexual clientele (and this would depend, I should think, on the relevant statutory language and how courts have intepreted it), Eharmony would still have the defense that its dating system (which, I understand, involves detailed questionaires) is based on heterosexual-specific compatibility research.

Finally, notwithstanding the recent Australian decision permitting the establishment of a gays-only bar, I wonder whether a favorable outcome for the Eharmony plaintiff would serve the interests of gays. If a dating site that serves only heterosexuals is guilty of sexual orientatation discrimination, so would a dating site that serves only homosexuals. Minorities, sexual and otherwise, tend to prize services specifically tailored toward them, and it woudl seem counterproductive to force Eharmony to serve people serving same-sex partners if the result was to inhibit or prohibit services specifically geared (perhaps with underlying research on compatibility) to such people.

As as aside, in You Can't Say That!, I discuss an Australian decision forbidding the establishment of a Jewish-only dating service. The decision was later overturned, but only because the owner of the service was able to present expert testimony about the "need" for such a service in a minority community. Of course, my view is that short of prohibiting fraud, the government shouldn't be in the business of regulating dating services, period.

Related Posts (on one page):

Trivializing antidiscrimination law:
Internet Dating Websites and Institutional Diversity:
Eharmony Sue for Sexual Orientation Discrimination:

Comments

[Ilya Somin, June 1, 2007 at 2:50am] Trackbacks

Internet Dating Websites and Institutional Diversity:

David's post about the ill-advised lawsuit against E-Harmony for failing to provide options for same-sex dating is another example of the conflict between diversity within institutions and diversity across institutions. If the plaintiff gets her way, E-Harmony and other dating services will have to cater to both homosexual and heterosexual daters. By the same logic, J-Date will have to cater to gentiles as much as Jews, and so on. And of course gay dating websites would have to work to facilitate heterosexual dating as well.

This result would greatly undercut the advantages of specialization and diversity. It would lead to the homogenization of dating websites, as all would have to cater to all groups equally. No site would be able to specialize in serving the distinctive needs of any one group, whether that group be gays, Jews, or evangelical Christians. Basic economics - and basic common sense - suggest that members of all these groups can benefit from diversity and specialization across dating websites. While many of the individual sites may have a very homogenous clientele that effectively "excludes" various groups, there is enormous diversity in the dating website market as a whole; that diversity is of course partly the result of the homogeneity of individual sites. And for those who do not want to limit their dating to a particular group, there are numerous generalist dating websites, such as Match.com.

If the suit succeeds, dating websites could try to mitigate the harm it causes by providing only pro forma equality to those groups they don't really want to cater too. For example, J-Date allows non-Jews to join on the same formal terms as Jews; but obviously the site is much less useful to those seeking gentile mates than those seeking Jewish ones, and it has many features that cater to the specific interests of Jews (e.g. - allowing participants to indicate which Jewish denomination they belong to, but not providing the same options for adherents of other religions). This kind of approach presumably would not satisfy the E-Harmony plaintiff. After all, E-Harmony already permits gays to join on the same formal terms as heterosexuals. It's just that the service it offers (the opportunity to date members of the opposite sex) has much less value for gays than for heterosexuals.

UPDATE: I should have noted that this case also has an interesting federalism angle. Since the case involves only California antidiscrimination law, not federal, a victory for the plaintiff technically would only affect people in that state. But because of California's obvious importance as a major market, a win for the plaintiff might well compel dating websites to alter the services they provide nationwide. The only alternatives would be to 1) create a separate and more "inclusive" site for California residents alone, or 2) refrain from offering services to California residents entirely. This dilemma is an example of the broader problems caused by states regulating commerce in ways that have major effects outside their own borders. A well-functioning system of federalism must constrain state governments, not just the feds. For a more detailed discussion, see this article.

Related Posts (on one page):

Trivializing antidiscrimination law:
Internet Dating Websites and Institutional Diversity:
Eharmony Sue for Sexual Orientation Discrimination:

Comments

[Dale Carpenter, June 1, 2007 at 5:28pm] Trackbacks

Trivializing antidiscrimination law:

I support antidiscrimination laws that prohibit certain types of group-based discrimination by government, including discrimination based on sexual orientation. I also support extending these principles to the private sphere on important matters like employment and housing, with some limitations and exemptions. On this, I may be less libertarian than some of my co-Conspirators. Nevertheless, I join David and Ilya in questioning the wisdom of the suit against eHarmony. My reasoning is a bit different.

I have no view on whether eHarmony's practice of excluding persons seeking same-sex mates violates any California antidiscrimination law. California courts should apply state antidiscrimination law — if the best construction leads to that conclusion — regardless of whether they think it's good policy under the circumstances.

I have no trouble saying, apart from whether this is right or even relevant as a matter of state antidiscrimination law, that eHarmony is engaged in "sexual orientation" discrimination. Discriminating on the basis of a trait (seeking same-sex mates) that is intimately tied to the status (homosexual) is the sort of discrimination that a sexual-orientation antidiscrimination law is properly concerned about. A policy that forbade yarmulkes, and only yarmulkes, is anti-Jewish even though Jews themselves aren't forbidden. Few policies that disadvantage gays take the form of, "No gays allowed." Even the Texas sodomy law, which applied only to same-sex sodomy, did not prohibit homosexuals from having sex — they simply had to choose opposite-sex partners for the identical activity. Yet I have no hesitation saying that law was anti-gay. Again, sexual orientation discrimination may not be problematic generally, or illegal in a particular case, or as applied to eHarmony's practice, but I think the practice at issue here is sexual-orientation discrimination.

I'm dubious about eHarmony's rationale for its practice: that its questions and answers are based on research tailored to heterosexuals that may not fit well for homosexuals. The dynamics of gay and straight relationships are very similar if not identical: the same sorts of problems arise (e.g., financial, division of labor, differences over child-rearing), the same traits are desired in mates (e.g., honesty), and so on. Given that eHarmony's founder is a Christian evangelical, the real objection is probably that eHarmony does not want to facilitate what it regards as immoral and unbiblical relationships. The business about its heterosexuals-only "research" seems pretextual, crafted to fend off litigation.

Ilya raises an interesting concern about federalism. California is a big market and its policies may, as a practical matter, have effects on interstate businesses. On the other hand, I'm not sure which way federalism cuts here. Federalism allows states to experiment with public policies and they shouldn't generally be required to meet the standard of the lowest-common discriminator, or the state with the most libertarian policies. Within broad limits, California should be able to experiment with forbidding anti-gay discrimination and not be put in a strait-jacket by other states' policies. There are constitutional limits on how far states can go to place burdens on the interstate economy when their policies are outliers, but that case has not been made here and I doubt it could be.

But I do think the suit is a bad idea. Modern antidiscrimination law is expanding in two ways that I think are very unhelpful. First, it is being applied in ways that infringe important liberties outside the commercial context. The Boy Scouts case, involving the exclusion of an openly gay scoutmaster, was an example of this. While the harm and indignity done to the gay scoutmaster, who'd been an eagle scout, was not trivial, requiring that the Boy Scouts let him lead troops violated the Scouts' associational and speech interests in very important ways.

Second, antidiscrimination law is increasingly being applied to trivial and/or pretty harmless discrimination that goes well beyond core concerns about things like employment and housing. The exclusion of Catholic Charities from offering adoptions in Massachusetts was unjustified because it was difficult to show how the group's anti-gay policy actually hurt gay couples seeking to adopt.

The eHarmony suit is an example of the trivialization of antidiscrimination law. It doesn't involve a core concern like employment or housing or even a traditional public accommodation. It's also very hard to see how any gay person is really harmed by the policy. Gays aren't lacking for match-making sites, either general ones or those tailored just to same-sex pairs. And personally, I wouldn't give my money to eHarmony regardless of what policy they adopt at this point.

The suit allows some opponents of antidiscrimination law to point, with some justification, to excesses as evidence that the underlying idea is bad. The claim against eHarmony, and a state law that sanctioned it, forgets the four most important words in public policy: up to a point. That point is passed when we make trivial and harmless discrimination, however dumb or prejudiced it is, a matter of legal concern.