Velvet Rope Discrimination

*Presidential Assistant Professor of Law, University of Pennsylvania Law School. This paper benefitted from feedback and conversations with Regina Austin, Monica Bell, Guy-Uriel Charles, Jessica Clarke, Charlton Copeland, Deborah Dinner, Brittney Farr, Jill Fisch, Thomas Frampton, Trevor Gardner, Jean Galbraith, Sally Gordon, Jasmine Harris, Tanya Hernandez, Dave Hoffman, Osamudia James, Jasmine Johnson, Olati Johnson, Jonathan Klick, Seth Kriemer, Benjamin Levin, Sophia Lee, Tim Lovelace, Reuben Buford May, Serena Mayeri, Jonathan Masur, Darrell Miller, Melissa Murray, Julian Nyarko, Elizabeth Pollman, Christopher Schmidt, Elizabeth Sepper, Fred Smith, Henry Bluestone Smith, Brian Soucek, Ted Ruger, Kendall Thomas, Andrea Wang, Tess Wilkinson-Ryan, Jamillah Bowman Williams, Tobias Barrington Wolff and members of the Department of African American Studies at UC Berkeley. A special thanks to Olivia Bethea and Fatoumata Waggeh for their research assistance as well as Hannah Pugh and Bridget Lavender for their editorial guidance.Show More

Public accommodations are private and public facilities that are held out to and used by the public. Public accommodations were significant battlegrounds for the Civil Rights Movement as protesters and litigators fought for equal access to swimming pools, movie theaters, and lunch counters. These sites were also important for the Women’s Rights Movement, which challenged sexist norms that prohibited their service in bars and restaurants if they were unaccompanied by men. Tragically, public accommodations receive less attention within the civil rights race and gender agenda today. This inattention exists despite media accounts, case law, and empirical data that demonstrate that discrimination based on race and sex thrives in these spaces. This Article focuses on two normalized practices that violate federal and state anti-discrimination laws yet have been undertheorized in the public accommodations context: dress codes and gender-based pricing in bars, restaurants, and nightclubs. It deploys legal history to illustrate how assumptions about race and sex have determined access to these public accommodations for more than a century. Statutory developments—mostly notably Title II of the Civil Rights Act of 1964 and similar state analogs—helped cabin racial and gender discrimination in public accommodations. Yet throughout the late 1960s, “velvet rope discrimination” evolved, which refers to the use of legally protected categories by public accommodations in their determinations of who is granted entry and in their provision of service. This Article examines public accommodations law through the lens of velvet rope discrimination and argues for the legal prohibition of dress codes and gender-based pricing. These policies traffic dangerous stereotypes about racial minorities, women, and the LGBTQ community and preclude their equal enjoyment of these facilities. By offering the first comprehensive account of two overlooked practices, this Article presents a new way of thinking about anti-discrimination law and democratic inclusion.

Introduction

The legal trouble for Gaslamp, a beleaguered Houston-based nightclub, began in 2015. In May of that year, some women of color attempted to gain access into the club but were refused entry. A sympathetic white woman, clearly miffed by the refusal, attempted to intervene to no avail. By chance, someone happened to be recording the incident. “That is so racist,” the white woman exclaimed.¹ 1.Joey Guerra, Video: Gaslamp Employee Says ‘Have a Good Night in the ‘Hood,’ Hous. Chron. (Sept. 28, 2016, 6:16 PM), https://www.chron.com/entertainment/restaurants-bars/article/Video-Gaslamp-employee-says-have-a-good-night-6522262.php [https://perma.cc/VP5K-9FSM].Show More Commenting on what appeared to be textbook discrimination, she added, “I’m white, and I got in for free. They were right behind me, and they charged them 20 bucks. They’re [B]lack.”² 2.Id.Show More One African-American woman added, “He didn’t even look at us. He didn’t even look at our IDs . . . He just said, ‘$20.’”³ 3.Id.Show More The club’s gatekeepers made matters worse. After some laughs, waves, and blown kisses toward the camera, one of the doormen taunted, “How ‘bout this, Yelp it.”⁴ 4.Id.Show More Another teased, “Have a good night in the ‘hood’ . . . Tell Tyrone I said hi.”⁵ 5.Id.Show More In a world where legal remedies for civil rights violations are limited,⁶ 6.See, e.g., Nancy Leong & Aaron Belzer, The New Public Accommodations: Race Discrimination in the Platform Economy, 105 Geo. L.J. 1271, 1275–76 (2017) (discussing the inadequacies of public accommodations anti-discrimination laws in the platform economy business model); Stephen B. Burbank & Sean Farhang, Rights and Retrenchment: The Counterrevolution Against Federal Litigation 3 (2017) (recounting a successful movement beginning in the 1980s to undermine the possibility of the enforcement of individual rights through private litigation); Kate Sablosky Elengold, Consumer Remedies for Civil Rights, 99 B.U. L. Rev. 587, 598–99 (2019) (describing the difficulties in applying anti-discrimination statutes).Show More the incident would seemingly fade away.

In another encounter, three Black men sought entry into Gaslamp but were presented with a $20 entry fee that they declined to pay.⁷ 7.Phaedra Cook, Midtown Nightclub Accused of Discriminatory Practices, Hous. Press (Sept. 14, 2015, 6:00 AM), https://www.houstonpress.com/restaurants/midtown-nightclub-accused-of-discriminatory-practices-7762250 [https://perma.cc/3KCW-X9AX]; Grizzard, Houston Bar Discriminates Against Blacks, Lawyer Tim Sutherland Lies, Says Federal Law Doesn’t Apply, Daily Kos (Sept. 18, 2015, 1:38 PM), https://www.dailykos.com/­stories/2015/9/18/1422605/-Houston-Bar-Discriminates-Against-Blacks-Lawyer-Tim-Sutherland-Lies-Says-Federal-Law-Doesn-t-Apply [https://perma.cc/VL3C-JN3K].Show More When walking by a few minutes later, they saw white men entering Gaslamp without paying the entry fee, while African Americans, Asian Americans, and Latinx people were being asked to pay the entry fee.⁸ 8.Grizzard, supra note 7.Show More Again, suspicions of racial discrimination grew. Interracial corroboration was noteworthy here too. After observing how the club implemented its cover fee, a white ally revealed, “They were letting all white guys in for free and charging minority men a cover fee . . . It never had anything to do with dress code . . . If a minority male showed up with a bunch of women, sometime [sic] they’d let them in.”⁹ 9.Cook, supra note 7.Show More

After these allegations went public, Gaslamp’s lawyer explained that the cover charge was not about race, but about gender and sexuality. “Our club doesn’t allow multiple males with no females, so our policy is to charge a cover for that group,” he explained.¹⁰ 10.Id.Show More He admitted that women’s payment of the cover charge was a discretionary decision made by bouncers and noted that “[s]ometimes the door guy thinks you’re a smokin’ hot babe, and you get in free.”¹¹ 11.Grizzard, supra note 7.Show More The attorney also acknowledged that there was no predetermined ideal ratio of men to women, and recommended, “[Y]ou’d want at least one [woman] for a group of three [men] and a one-to-one ratio is better.”¹² 12.Cook, supra note 7.Show More One of the bouncers who worked the door the night the men were excluded was less diplomatic. He described the three men in a subsequently deleted Facebook post as, “3 old, out of shape, with no girls dorks lol.”¹³ 13.Id.Show More Those three men happened to be lawyers.¹⁴ 14.Id.Show More They filed a lawsuit in federal court under Title II of the Civil Rights Act of 1964,¹⁵ 15.Cara Smith, Houston Lawyers Sue Popular Midtown Bar, Support HERO, Hous. Bus. J. (Nov. 2, 2015, 9:28 AM), https://www.bizjournals.com/houston/morning_call/2015/11/‌houston-lawyers-sue-popular-midtown-bar-support.html [https://perma.cc/YBD7-YX22].Show More which prohibits racial discrimination in public accommodations.¹⁶ 16.42 U.S.C. § 2000a.Show More President Obama’s Department of Justice intervened in 2016 and the agency settled with the club two years later under the Trump Administration.¹⁷ 17.Settlement Agreement, United States v. Ayman Jarrah, No. 4:16-cv-02906 (S.D. Tex. Feb. 1, 2018), https://www.justice.gov/crt/case-document/file/1031751/download [https://perma.cc/L8DG-QET7] (requiring the defendant to cease discriminating, engage in training on the substantive provisions of Title II, publicize a non-discrimination policy in its entrance, and develop a program to monitor compliance with Title II).Show More

At the heart of the Gaslamp fiasco is a constellation of normalized social and legal practices that I refer to as “velvet rope discrimination.” I borrow and adapt this term from sociologist Reuben Buford May, who developed the term “velvet rope racism” to focus specifically on racial discrimination in nightlife.¹⁸ 18.See Reuben A. Buford May, Velvet Rope Racism, Racial Paranoia, and Cultural Scripts: Alleged Dress Code Discrimination in Urban Nightlife, 2000–2014, 17 City & Cmty. 44, 45, 51–52 (2018).Show More The analysis here, which focuses specifically on bars, restaurants, and nightclubs expands the concept to focus on race as well as gender and sexuality. The practices that constitute velvet rope discrimination have gone relatively unnoticed by legal scholars despite ample litigation,¹⁹ 19.See, e.g., supra note 15; infra notes 295–99, 301–02.Show More as well as varying treatments in social sciences, humanities, and journalism.²⁰ 20.See, e.g., Reuben A. Buford May, Urban Nightlife: Entertaining Race, Class, and Culture in Public Space 8–9 (2014); Philip R. Kavanaugh & Tammy L. Anderson, Managing Physical and Sexual Assault Risk in Urban Nightlife: Individual- and Environmental-Level Influences, 30 Deviant Behav. 680, 706 (2009); James G. Fox & James J. Sobol, Drinking Patterns, Social Interaction, and Barroom Behavior: A Routine Activities Approach, 21 Deviant Behav. 429, 440–41 (2000); Emily Heil, A Baltimore Restaurant Group Apologizes to a Black Woman and Son for Unequally Enforcing Its Dress Code, Wash. Post (June 23, 2020, 7:00 PM), https://www.washingtonpost.com/news/voraciously/wp/2020/06/23/a-baltimore-restaurant-group-apologizes-to-a-black-woman-and-son-for-unequally-enforcing-its-dress-code/ [https://perma.cc/F7UC-K8EF]; Emily Suzanne Lever, Man Suing NYC Bar for $50K Claiming They Discriminated Against Men by Hosting Ladies Night (Oct. 15, 2019, 3:41 PM), https://gothamist.com/news/man-sues-bar-ladies-night-discrimination [https://perma. ‌cc/H4KR-BXLB].Show More Far from an isolated set of incidents, the exclusion faced by the men and women at Gaslamp is part of a larger, jagged evolution of anti-discrimination law. Racial, gender, and sexual considerations thrive in public accommodations despite running afoul of a host of federal, state, and local anti-discrimination laws.²¹ 21.See Wash. Rev. Code§ 49.60.215 (2020) (“It shall be an unfair practice for any person . . . to commit an act which directly or indirectly results in any . . . discrimination . . . or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement . . . .”) (emphasis added); Or. Rev. Stat. § 659A.403 (2020) (“[A]ll persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age . . . .”) (emphasis added); Conn. Gen. Stat. § 46a-64 (2017) (“It shall be a discriminatory practice . . . [t]o deny any person within the jurisdiction of this state full and equal accommodations in any place of public accommodation, resort or amusement because of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, intellectual disability, mental disability, physical disability, including, but not limited to, blindness or deafness, or status as a veteran, of the applicant . . . .”) (emphasis added).Show More Notwithstanding Richard Epstein’s assertation a quarter century ago that “the law of public accommodations could be described as ‘ancient history,’”²² 22.Richard A. Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws 128 (1995).Show More available descriptive and empirical accounts indicate that race and sex discrimination flourish in restaurants and nightlife.²³ 23.Lauren A. Rivera, Status Distinctions in Interaction: Social Selection and Exclusion at an Elite Nightclub, 33 Qualitative Socio. 229, 239 (2010); Reuben A. Buford May & Kenneth Sean Chaplin, Cracking the Code: Race, Class, and Access to Nightclubs in Urban America, 31 Qualitative Socio. 57, 58, 60 (2007) (examining racial discrimination in Athens, Georgia through participant observation); David Grazian, Urban Nightlife, Social Capital, and the Public Life of Cities, 24 Socio. F. 908, 915–16 (2009) (offering empirical data about racial and class barriers, the normalization of gender differences, and the lack of inclusiveness in nightlife to argue that nightlife can serve as a bonding mechanism).Show More

This Article fills a gaping hole in statutory anti-discrimination law scholarship. With the exception of Joseph Singer’s work and an important article by Elizabeth Sepper and Deborah Dinner, anti-discrimination law is heavily centered on the veritable problems of housing and employment, with less attention given to public accommodations.²⁴ 24.Most generally, Joseph Singer has shaped recent legal thinking on race and public accommodations, whereas Elizabeth Sepper and Deborah Dinner have recently written about sex discrimination in public accommodations. SeeJoseph William Singer, We Don’t Serve Your Kind Here: Public Accommodations and the Mark of Sodom, 95 B.U. L. Rev. 929, 930, 950 (2015); Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 Nw. L. Rev. 1283, 1286, 1296 (1996); Elizabeth Sepper & Deborah Dinner, Sex in Public, 129 Yale L.J. 78, 83 (2019). This Article is indebted to their work and extends their analyses. There are also some helpful but dated accounts of discrimination in bars and nightclubs in a few student notes. These various insights are all helpful but fail to capture the robustness of contemporary public accommodations discrimination. See, e.g., Lisa Gabrielle Lerman & Annette K. Sanderson, Project, Discrimination in Access to Public Places: A Survey of State and Federal Public Accommodations Laws, 7 N.Y.U. Rev. L. & Soc. Change 215, 250 (1978); Alan J. Hoff, Note, A Proposed Analysis for Gender-Based Practices and State Public Accommodations Laws, 16 U. Mich. J.L. Reform 135, 137 (1982) (arguing that gender-preferential practices are acceptable when applied reasonably); Joyce L. McClements & Cheryl J. Thomas, Comment, Public Accommodations Statutes: Is Ladies’ Night Out?, 37 Mercer L. Rev. 1605, 1605 (1986) (discussing the use of public accommodations laws by men for sex discrimination claims in the 1980s); Heidi C. Paulson, Note, Ladies’ Night Discounts: Should We Bar Them or Promote Them?, 32 B.C. L. Rev. 487, 489 (1991) (exploring “ladies night” events and gender-based pricing in relation to public accommodations laws and sex discrimination between the 1980s and the beginning of the 1990s); Jessica E. Rank, Comment, Is Ladies’ Night Really Sex Discrimination?: Public Accommodation Laws, De Minimis Exceptions, and Stigmatic Injury, 36 Seton Hall L. Rev. 223, 225–28 (2005) (describing the variety of approaches to the issue of “ladies night” sex discrimination around the country). Some particularly instructive insights have been offered by scholars who have addressed these issues in a few pages of what are larger, book-length projects on anti-discrimination law. See Nancy Levit, The Gender Line: Men, Women, and the Law 102–04 (1998) (providing examples of “ladies night” discrimination and examining various state sex discrimination laws); Richard Thompson Ford, Rights Gone Wrong: How Law Corrupts the Struggle for Equality 85–92 (2011) (discussing specific cases of gender discrimination and distinguishing between harmless and harmful gender distinctions); Joanna L. Grossman, Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace 2–3 (2016) (analyzing a “ladies night” case in New Jersey in an exploration of sex discrimination). For helpful takes on housing discrimination, see Lee Anne Fennell, Searching for Fair Housing, 97 B.U. L. Rev. 349, 351–52 (2017) (exploring the underlying racial biases of home seekers as they relate to housing discrimination); Rachel D. Godsil, The Gentrification Trigger: Autonomy, Mobility, and Affirmatively Furthering Fair Housing, 78 Brook. L. Rev. 319, 324 (2013) (conducting a historical analysis of gentrification and offering alternative legal mechanisms for in-place residents facing gentrification); Olatunde Johnson, The Last Plank: Rethinking Public and Private Power to Advance Fair Housing, 13 U. Pa. J. Const. L. 1191, 1193, 1195–96 (2011) (examining the Fair Housing Act’s enforcement regime and its mandate to affirmatively further fair housing). For instructive treatments of employment discrimination, see Tristin K. Green, Racial Emotion in the Workplace, 86 S. Cal. L. Rev. 959, 969 (2013) (arguing that racial emotion is a source of discrimination in the workplace in order to advocate for more comprehensive laws that will better recognize and address this form of discrimination); Serena Mayeri, Intersectionality and Title VII: A Brief (Pre-)History, 95 B.U. L. Rev. 713, 715 (2015) (providing an analysis of the role of intersectionality in the development and execution of Title II of the Civil Rights Act of 1964); Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U. L. Rev. 715, 718 (2014) (analyzing cases on gender stereotyping and sexual orientation claims in the workplace).Show More Alternatively, attention is given to public spaces, but primarily through the lens of disability law or the longstanding public accommodations clash between religion and sexuality.²⁵ 25.For recent examinations of the interface of religion and sexual orientation in these sites, see Pamela S. Karlan, Just Desserts?: Public Accommodations, Religious Accommodations, Racial Equality, and Gay Rights, 2018 Sup. Ct. Rev. 145, 146; Melissa Murray, Inverting Animus: Masterpiece Cakeshop and the New Minorities, 2018 Sup. Ct. Rev. 257, 257–58 (2018); Elizabeth Sepper, The Role of Religion in State Public Accommodations Laws, 60 St. Louis U. L.J. 631, 636–37 (2016) (tracking religious exemptions in public accommodations law). The Americans with Disabilities Act goes further than Title II in that it requires an affirmative duty to remove physical barriers to access to ensure that people are not discriminated against on the basis of disability See 42 U.S.C. § 12181. Some of the most helpful takes on disability and public accommodations include: Samuel R. Bagenstos, The Unrelenting Libertarian Challenge to Public Accommodations Law, 66 Stan. L. Rev. 1205, 1208–09 (2014); Elizabeth F. Emens, Integrating Accommodation, 156 U. Pa. L. Rev. 839, 843 (2008) (identifying certain benefits created for third parties by the Americans with Disabilities Act); Colin Crawford, Cyberplace: Defining A Right to Internet Access Through Public Accommodation Law, 76 Temp. L. Rev. 225, 227–28 (2003) (exploring whether to impose a public accommodations law framework onto cyberspace); Robert L. Burgdorf, Jr., “Equal Members of the Community”: The Public Accommodations Provisions of the Americans with Disabilities Act, 64 Temp. L. Rev. 551, 554 (1991).Show More This Article deploys the gifts of legal history to supplement these lines of inquiry and make the case that discrimination in public accommodations matters in the context of racial, gender, and LGBTQ justice. Two intellectual moves are central to this endeavor.

First, the Article sketches out the terrain of velvet rope discrimination, which I define as the use of legally protected categories by public accommodations in their determinations of who is granted entry and in their provision of service. The legal categories I focus on are race and sex, and the public accommodations of interest in this Article are bars, restaurants, and nightclubs. I pay particular attention to gender-based pricing schemes, the use of dress codes as proxies for race, and the trafficking of stereotypes that come with these forms of vetting. This descriptive endeavor shows how law, in some ways, is well-suited to regulate velvet rope discrimination but in other ways is ill-equipped to satisfy the goal of equal access to public accommodations. Entry into these spaces is often granted or denied based on stereotypes that could be considered socially objectionable and legally impermissible if actually uttered. In ways that hark back to the 1970s critiques of romantic paternalism,²⁶ 26.Frontiero v. Richardson, 411 U.S. 677, 684 (1973) (“Traditionally, [sex] discrimination was rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.”).Show More women are considered ideal customers because their presence ostensibly increases alcohol purchases by men (as gifts, courtship, and/or status displays).²⁷ 27.Rivera, supra note 23, at 239.Show More Dress codes attempt to curate audiences by prohibiting styles associated with racial minorities or maintaining requirements that exclude gender non-conforming individuals. Most generally, the discretionary aspect of admission—which is lightly regulated as a legal matter²⁸ 28.Robert Bork foresaw the enforcement problems with Title II before it was passed.Of what value is a law which compels service to Negroes without close surveillance to make sure the service is on the same terms given to whites? It is not difficult to imagine many ways in which barbers, landlords, lunch counter operators, and the like can nominally comply with the law but effectively discourage Negro patrons. Must federal law enforcement agencies become in effect public utility commissions charged with the supervision of the nation’s business establishments or will the law become an unenforceable symbol of hypocritical righteousness?Robert Bork, Civil Rights – A Challenge, New Republic, Aug. 31, 1963, at 23.Show More—is rife with potential discrimination along a host of categories (e.g., race, gender, sexual orientation, color, national origin).

The second move is normative and unsettles taken-for-granted assumptions about law, public accommodations, and leisure. Here, I argue that in the context of public accommodations, the use of dress codes and gender-based pricing—core features of velvet rope discrimination—should be prohibited. This prescriptive position is rooted in a close analysis of public accommodations jurisprudence and growing statutory developments. Unlike Title VII, which covers employment discrimination and contains a business necessity clause that allows employers to discriminate based on legally protected categories,²⁹ 29.42 U.S.C. § 2000e-2(e).Show More Title II of the Civil Rights Act of 1964 does not contain a business necessity defense³⁰ 30.42 U.S.C. § 2000a.Show More and courts have routinely rejected such arguments in the public accommodations context.³¹ 31.See sources cited infra notes 372–73 (discussing cases).Show More Moreover, jurisdictions are slowly adopting anti-discrimination provisions designed to combat velvet rope discrimination.³² 32.See sources cited infra notes 351, 360–63, 366 (discussing recent legislation designed to curtail velvet rope discrimination).Show More The combination of settled jurisprudence and a budding statutory shift suggests that the Article’s normative position, which may seem initially jarring, actually has bases in settled law.

This Article proceeds in four parts. Part I outlines the development of federal and state statutes that prohibit discrimination in public accommodations. These laws surfaced after the Civil War and became most notable when Congress passed the Civil Rights Act of 1875,³³ 33.Pub. L. No. 43-114, 18 Stat. 335–37, invalidated by Civil Rights Cases, 109 U.S. 3 (1883).Show More which the Court struck down in the 1883 Civil Rights Cases.³⁴ 34.109 U.S. 3, 26 (1883).Show More That decision, along with Plessy v. Ferguson,³⁵ 35.163 U.S. 537, 550–51 (1896).Show More led more states to pass public accommodations statutes. None of these laws prohibited sex-based segregation. Such discrimination was normalized as a reasonable feature of human relations.³⁶ 36.SeeBarbara Y. Welke, When All the Women Were White, and All the Blacks Were Men: Gender, Class, Race, and the Road to Plessy, 1855–1914, 13 L. & Hist. Rev. 261, 271 (1995).Show More Nevertheless, in the first half of the twentieth century, when there was no federally recognized right to equal access to public accommodations, minority leisure-seekers used state laws to contest their exclusion from this realm of social life.³⁷ 37.See e.g., infra notes 83, 103, 111, 118.Show More These cases provided fodder for challenges to recreational segregation after the Court invalidated Jim Crow in Brown v. Board of Education³⁸ 38.347 U.S. 483, 495 (1954).Show More and presaged the passage of Title II of the Civil Rights Act of 1964, which prohibits discrimination in public accommodations based on race, color, religion, or national origin. Gender again would be left out of public accommodations laws’ purview. It would take approximately a decade for a majority of states to include sex in their anti-discrimination statutes.³⁹ 39.Sepper & Dinner, supra note 24, at 104, 111.Show More This federal and state framework buoyed existing local agencies that developed their own municipal prohibitions on public accommodations discrimination.⁴⁰ 40.See Charles S. Rhyne & Brice W. Rhyne, Civil Rights Ordinances 71–89 (1963); Joseph Parker Witherspoon, Administrative Implementation of Civil Rights 531–38 (1968).Show More

The accretion of laws prohibiting public accommodations discrimination should, in theory, regulate discrimination against protected groups in bars, restaurants, and nightclubs. However, Part II suggests otherwise and sketches the contours of velvet rope discrimination. I begin this Part by describing the myriad ways restaurants, bars, and nightclubs promote practices that, at first glance, contravene anti-discrimination laws and, in some instances, actually violate such laws based on determinations by courts and agencies. In the 1960s, some of these entities responded to the new civil rights landscape by mimicking other integration-resistant public accommodations. Some claimed private status or mandated the display of selectively furnished “membership cards.”⁴¹ 41.See, e.g., United States v. Jordan, 302 F. Supp. 370, 374 (E.D. La. 1969); United States v. Nw. La. Rest. Club, 256 F. Supp. 151, 153 (W.D. La. 1966).Show More Other public accommodations rigorously enforced real and unstated dress codes; this emerged as the more economically and socially defensible practice. Dress codes—which were tied to sartorial practices that preceded anti-discrimination law⁴² 42.Ruthann Robson, Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our Shoes, 8–27 (2013) (describing the historical development of laws regulating dress).Show More—became a salient screening mechanism for innocent profit-seekers and bigots alike. Sex integration in public accommodations was also contested as women fought for access to exclusionary bars and restaurants.⁴³ 43.See sources cited infra notes 204–11 (discussing early instances of discrimination in bars and restaurants in the mid-twentieth century).Show More But the socio-legal landscape evolved differently due to patriarchy’s simultaneous degradation and valorization of women. Sex-based anti-discrimination laws surfaced at the closing of the 1960s and the beginning of the 1970s, when the notion of wage-earning women normalized, ideas about adult consensual sex liberalized, and women publicly asserted their independence.⁴⁴ 44.Sepper & Dinner, supra note 24 at 83; see alsoJulia Kirk Blackwelder, Now Hiring: The Feminization of Work in the United States, 1900–1995, 176–204 (1997); Susan Frelich Appleton, The Forgotten Family Law of Eisenstadt v. Baird, 28 Yale J.L. & Feminism 3 (2017) (arguing that the Supreme Court’s 1972 declaration that laws criminalizing contraceptives are unconstitutional made family law “more inclusive, liberatory, sex-positive, and feminist”); Elana Levine, Wallowing in Sex: The New Sexual Culture of 1970s American Television 3 (2007) (explaining how television reflected shifting sexual mores in the 1970s); Daphne Spain, Constructive Feminism, Women’s Spaces and Women’s Rights in the American City 2 (2016) (describing the ways feminists challenged sex segregation in public institutions and thus changed the use of urban space).Show More Owners of public accommodations soon offered gender-based discounts that were in accord with this independence, but these deals would be challenged by men in the 1980s. At this point, state courts had a limited lexicon for gender discrimination and took different approaches to these schemes. Some states upheld gender-based pricing in public accommodations under the problematic logic that these arrangements were innocuous, while some courts invalidated these schemes in ways that troublingly validated men’s weaponization of civil rights laws against women.⁴⁵ 45.See Bethany M. Coston & Michael Kimmel, White Men as the New Victims: Reverse Discrimination Cases and the Men’s Rights Movement, 13 Nev. L.J. 368, 373–74 (2013).Show More Ultimately, Part II describes how the 1970s and 1980s produced a public accommodations regime that was poorly equipped to regulate velvet rope discrimination.

Part III conceptually maps out the contemporary operation of velvet rope discrimination by detailing specific examples. It also explicates public accommodations owners’ business justifications of gender-based pricing and dress codes. The most common explanations for gender-based pricing are profitability, establishments’ desire to attract women to entice men, and chivalry.⁴⁶ 46.See infranotes 368–71 and accompanying text (discussing different views).Show More In public accommodations law, courts have rejected business necessity-like arguments that use profit motives to justify discrimination. In addition to resting on heteronormative assumptions, chivalry-based defenses understand discrimination through the traditional and narrow lens of “hostile” sexism, yet ignore the “benevolent” versions of sexism that legal scholars, feminists, and social scientists have long described.⁴⁷ 47.See sources citedinfra notes 238, 376 (describing prominent accounts of “benevolent” sexism).Show More Meanwhile, dress codes are instituted because of owners’ desire to attract a particular clientele, keep out troublemakers, and/or create a certain ambiance. These are undeniably legitimate business goals, but the noteworthy cases involving alleged discrimination by way of dress codes lead to reasonable inferences that these policies are crafted specifically to exclude minorities. Although men of color attract much of the attention in the discourse on discriminatory dress codes, overly vague dress codes that prohibit “inappropriate attire” allow bouncers to deploy rules to exclude women of color and sexual minorities in ways that also run afoul of various anti-discrimination laws.⁴⁸ 48.See sources cited infra 328–38 and accompanying text (discussing the operation of dress codes at bars and nightclubs).Show More At the same time, considering the reality of recreational segregation, this Part complicates the story by pointing to the various intraracial implications of velvet rope discrimination and discusses the challenges that arise when minorities are excluded from bars and nightclubs that employ, are owned by, and/or predominantly service other minorities. Overall, this Part establishes how the economic and putatively rational logics used to defend dress codes often crumble upon deeper scrutiny yet thrive due to our inadequate anti-discrimination law regime. In this way, the Article joins a group of scholars who describe how entities evade anti-discrimination statutes and offers suggestions about how to think about these laws in the modern world.⁴⁹ 49.See Leong & Belzer,supra note 6, at 1275 (arguing that public accommodations laws must account for discrimination in the “platform economy”); David Brody & Sean Bickford, Discriminatory Denial of Service: Applying State Public Accommodations Laws to Online Commerce 1 (2020) (arguing the same for online commerce); Jonah Gelbach, Jonathan Klick & Lesley Wexler, Passive Discrimination: When Does It Make Sense To Pay Too Little?, 76 U. Chi. L. Rev. 797, 823–40 (2009); Angela Onwuachi-Willig, Volunteer Discrimination, 40 U.C. Davis L. Rev. 1895, 1901 (2007); Lior Jacob Strahilevitz, Exclusionary Amenities in Residential Communities, 92 Va. L. Rev. 437, 439–40 (2006); Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 Colum. L. Rev. 458, 460–61 (2001).Show More

The Conclusion offers some normative thoughts on velvet rope discrimination. It does not purport to solve the aforementioned problems but offers a variety of suggestions that might help reframe public accommodations law. The prescriptions attempt to offer meaningful ways in which federal, state, and local governments can honor the underlying principles of anti-discrimination law.

Two quick points are worth offering before proceeding—one about why dress codes and gender-based pricing should be analyzed in tandem and the other about the significance of velvet rope discrimination. At first blush, gender-based pricing and dress codes may appear to be distinct practices that merit separate analytical treatment. Since the potential harms that flow from these practices are qualitatively different, our normative ideas about regulation might lead to different conclusions. The perceived differences between the two are not negligible. At the most basic level, dress codes seem to be animated by keeping out a particular group of people—people who do not conform to some ideal style guide—whereas gender-based pricing is inspired by attracting a specific group of people—cisgender heterosexual women. This is just one way of looking at such discretion. One could easily understand both practices as good-faith attempts to curate a particular ambiance. They could also be considered crude forms of racial and gender balancing.⁵⁰ 50.Press Release, N.Y. State Off. Att’y Gen., Settlement with Manhattan Nightclub Ends Investigation of Discrimination Allegations (June 3, 2003), https://ag.ny.gov/press-release/2003/settlement-manhattan-nightclub-ends-investigation-discrimination-allegations [https://perma.cc/72JE-82K7] (announcing $10,0000 settlement with a club that refused to admit a group of South Asians, who the doorman told: “It’s my responsibility to blend this club. There has to be a balance, there has to be.”).Show More Herein lies one of the many points of convergence that demonstrate why these practices should not be understood in silos: both are screening mechanisms that determine who has access to what are, in theory, public spaces, which raises weighty legal questions about inclusion.⁵¹ 51.SeeDon Mitchell, The Right to the City: Social Justice and the Fight for Public Space 5 (2003) (outlining the history of inclusion in and exclusion from public space in American cities).Show More These screening mechanisms are generally absent from other types of public accommodations (i.e., movie theaters, amusement parks, transportation services). The average reader would likely bristle at the idea of being subject to a dress code at a post office or gender-based pricing at a public park. These screening mechanisms differently promote the kinds of intimate discrimination that Elizabeth Emens has cautioned against; they can also limit romantic prospects and the possibility of relationship formation for socially marginalized groups such as racial minorities, women, people with disabilities, the LGBTQ community, and people at the intersections of some of these categories, to name a few.⁵² 52.Elizabeth F. Emens, Intimate Discrimination: The State’s Role in the Accidents of Sex and Love, 122 Harv. L. Rev. 1307, 1374–75 (2009) (discussing how people with disabilities have limited opportunities to form intimate relations and how race and gender can “intersect to create . . . subgroups who are relatively excluded in their intimate prospects”); see also Jasmine E. Harris, The Aesthetics of Disability, 119 Colum. L. Rev. 895, 941 (2019) (noting how ideas about aesthetics and appearance can impact access to public accommodations for people with disabilities).Show More Gender-based pricing and dress codes also defy ideas about inclusion and equality that are at the heart of anti-discrimination law but might get lost if they are understood in atomistic terms.

In addition to raising questions about inclusion, dress codes and gender-based pricing contribute to the normalization of ideas about race, class, gender, sexuality, and the intersections of these categories. This normalization can impact the quality of life for marginalized people, as well as groups traditionally understood as privileged. For example, dress codes may be facially neutral, but nightclub litigation, along with a broader literature on fashion, appearance, and employment, demonstrate that such policies also smuggle pernicious ideas about whiteness that can be disadvantageous to racial minorities, as well as whites themselves.⁵³ 53.See Robson, supra note 42, at 119–20 (describing how proscriptions against saggy pants and gang-affiliated colors facilitated profiling against young males, despite their broad popularity in contemporary youth culture); Devon W. Carbado & Mitu Gulati, Acting White?: Rethinking Race in “Post-Racial” America 10–15 (2013) (explaining how President Obama navigated presenting his Black identity so as not to alienate white people uncomfortable with confronting racism and stereotyping); Deborah L. Rhode, The Beauty Bias: The Injustice of Appearance in Life and Law 6–7 (2010) (noting how a preference for white-European features has prompted exponential increases in spending on nonessential cosmetic procedures as well as psychological disorders in the United States).Show More The normalization that flows from dress codes is not just about men of color, who appear to be the subject of their implementation, but men more generally. For various reasons, some men do not conform to the standards that these dress codes demand—and sometimes their nonconformity manifests itself in disgruntlement or sexual violence.⁵⁴ 54.See Michael Kimmel, Angry White Men: American Masculinity at the End of an Era 25–26 (2013) (noting how perceptions of disenfranchisement have led white men to associate with misogynistic and white supremacist movements and militias).Show More Legally questionable dress codes in these public accommodations may also pathologize women’s fashion choices by imposing disturbing norms about how women should dress, act, and behave.⁵⁵ 55.Sahar F. Aziz, Coercing Assimilation: The Case of Muslim Women of Color, 18 J. Gender Race & Just. 389, 398 (2016); Angela Onwuachi-Willig, Another Hair Piece: Exploring New Strands of Analysis Under Title VII, 98 Geo. L.J. 1079, 1106–08 (2010); Jennifer L. Levi, Misapplying Equality Theories: Dress Codes at Work, 19 Yale J.L. & Feminism 353, 364–65 (2008); Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 Duke L.J. 365, 390–93 (1991).Show More

Similar kinds of reification abound in the context of gender-based pricing. As Richard Ford observes, gender-based pricing might be charitably understood as akin to the type of courting practices that have long defined modern urban romance or could be read less generously as extensions of a crude heteronormative hunter-gatherer logic that imagines women as available and present primarily for men’s consumption.⁵⁶ 56.See Ford, supra note 24, at 85. For an instructive examination on the evolution of courting see Elizabeth Alice Clement, Love for Sale: Courting, Treating, and Prostitution in New York City, 1900–1945, at 22–43 (2006).Show More Either framework positions women—some of whom are disinterested in romantic pursuits and go to these spaces simply for platonic sociality and leisure—as sexually available. These assumptions and the larger project of patriarchy provide some explanatory power for the sexual violence that emanates from these spaces.⁵⁷ 57.See sources cited infra notes 384–87 and accompanying text (noting how gender-based pricing in bars and clubs perpetuates stereotypical versions of femininity while facilitating increased levels of sexual violence against their female patrons).Show More But men are straight-jacketed by gender-based pricing too, as this custom can make them unnecessarily competitive and compel them to perform crass versions of masculinity.⁵⁸ 58.See sources cited infra notes 389–92 and accompanying text.Show More Ultimately, assumptions about race, gender, and sexuality become more visible by examining dress codes and gender-based pricing together.

Finally, dress codes and gender-based pricing highlight critical gaps and live controversies within anti-discrimination law. Some of these issues, like dress codes, have been deeply interrogated by scholars of gender and employment and have relevance for public accommodations.⁵⁹ 59.SeeMary Anne Case, Legal Protections for the “Personal Best” of Each Employee: Title VII’s Prohibition on Sex Discrimination, the Legacy of Price Waterhouse v. Hopkins, and the Prospect of ENDA, 66 Stan. L. Rev. 1333, 1354–60 (2014) (exploring how federal courts have struggled to interpret different workplace grooming standards between men and women as a violation of Title VII’s sex stereotyping protections); William R. Corbett, Hotness Discrimination: Appearance Discrimination as a Mirror for Reflecting on the Body of Employment-Discrimination Law, 60 Cath. U. L. Rev. 615, 624–28 (2011) (explaining the inherent difficulty in establishing a legally viable appearance-based employment discrimination claim despite the pervasiveness of this discrimination in the United States); Deborah L. Rhode, The Injustice of Appearance, 61 Stan. L. Rev. 1033, 1067–69 (2009) (noting the popular pragmatic arguments against expanding Title VII protections to include appearance-based discrimination); Ann C. McGinley, Babes and Beefcake: Exclusive Hiring Arrangements and Sexy Dress Codes, 14 Duke J. Gender L. & Pol’y 257, 263 (2007) (exploring gendered hiring and expectations for cocktail servers in casinos); Gowri Ramachandran, Freedom of Dress: State and Private Regulation of Clothing, Hairstyle, Jewelry, Makeup, Tattoos, and Piercing, 66 Md. L. Rev. 11, 55–58 (2006) (arguing that the government should interfere to protect freedom of dress in private workplaces in order to take the power from employers, but remain hands-off in other private settings); David B. Cruz, Making Up Women: Casinos, Cosmetics, and Title VII, 5 Nev. L.J. 240, 243–48 (2004) (analyzing how courts have interpreted Title VII’s BFOQ provision to uphold sex-discriminatory dress and appearance requirements); Katharine T. Bartlett, Only Girls Wear Barrettes: Dress and Appearance Standards, Community Norms, and Workplace Equality, 92 Mich. L. Rev. 2541, 2556–59 (1994) (arguing that courts upholding gendered dress and appearance restrictions reinforces unexamined gender stereotypes and prejudices); Karl E. Klare, Power/Dressing: Regulation of Employee Appearance, 26 New Eng. L. Rev. 1395, 1418–21 (1992) (exploring permissible uses of gender discrimination in the context of gendered dress codes addressing hair length and pants).Show More Most basically, dress codes and gender-based pricing coincide with the kinds of appearance discrimination that are technically not covered by anti-discrimination law but often reliant on ideas about protected categories such as disability, race, gender, and sexual orientation. More specifically, these screening mechanisms highlight bias against transgender individuals.⁶⁰ 60.Heath Fogg Davis, Sex-Classification Policies as Transgender Discrimination: An Intersectional Critique, 12 Persps. on Pol. 45, 45 (2014).Show More This issue is connected to the themes discussed herein and appears where relevant but warrants more in-depth treatment than this Article can offer. Gender-based pricing and dress codes generate the kinds of “administrative violence” Dean Spade has thoroughly detailed.⁶¹ 61.Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law 9–10 (2015).Show More As Heath Fogg Davis similarly explains, “[S]ex-classification policies are unjust because they prompt and authorize administrative agents to use their own subjective gender judgments to target, inspect, and exclude transgender-appearing people from the public accommodations under their watch.”⁶² 62.Davis, supra note 60.Show More But the sparsity of anti-discrimination laws protecting transgender individuals, along with law’s inability to grasp the velvet rope discrimination in this Article, render their treatment in these public accommodations invisible. Accordingly, this Article uses dress codes and gender-based pricing to provide alternative ways of thinking about enduring and new challenges in the anti-discrimination subfield of public accommodations law.

The political and social significance of discrimination is also worth emphasizing before proceeding. In a country where there is deep concern about the future of democracy, police violence toward unpopular groups, tenacious wage disparities, and a host of other maladies (including a pandemic), it is tempting to dismiss velvet rope discrimination as inconsequential. Put another way, it is easy to consider the issues described in this Article as a distraction from more dire issues facing marginalized groups. But this trivialization faces three problems.

As a sociological issue, this kind of diminishment ignores how discrimination in public accommodations can normalize ideas about race, gender, and sexuality for people who actively discriminate, as well as the individuals who are subject to unequal treatment. Throughout history, inequality has been able to thrive due to norms that are legally or socially sanctioned.⁶³ 63.Kate Manne, Down Girl: The Logic of Misogyny 13 (2017) (“Misogyny . . . visit[s] hostile or adverse social consequences on a certain (more or less circumscribed) class of girls or women to enforce and police social norms that are gendered either in theory (i.e., content) or in practice (i.e., norm enforcement mechanisms).”); Ruth Thompson-Miller, Joe R. Feagin & Leslie H. Picca, Jim Crow’s Legacy: The Lasting Impact of Segregation 157, 179 (2015) (noting how “[t]he racial norms of Jim Crow were firmly grounded in African Americans’ knowing ‘their place’ at the bottom of the racial hierarchy” and suggesting that the fragility of racial hierarchy “depends upon everyday individual acts to collectively uphold it”); Roberto Lovato, Juan Crow in Georgia, The Nation (May 8, 2008), https://www.thenation.com/‌article/juan-crow-georgia/ [https://perma.cc/38PH-Y3P9] (describing Juan Crow as “the matrix of laws, social customs, economic institutions and symbolic systems enabling the physical and psychic isolation needed to control and exploit undocumented immigrants”).Show More The velvet rope discrimination described in this Article is part of a doxa that, in many ways, endorses odious social distinctions.

Relatedly, derision toward this form of discrimination loosely resembles historical criticisms—from the left and the right—of mid-twentieth-century civil rights litigants who sought equal access to water fountains, pools, lunch counters, theaters, gyms, and recreational parks.⁶⁴ 64.Dismissals of the fight for public accommodations desegregation came from outside and inside of the Black community. Strom Thurmond famously claimed, “[T]here’s not enough troops in the [A]rmy to force the [S]outhern people to break down segregation and admit the Negro race into our theaters, into our swimming pools, into our homes, and into our churches.” Nadine Cohodas, Strom Thurmond and the Politics of Southern Change 177 (1993). See also Malcolm X Speaks: Selected Speeches and Statements 9 (George Breitman ed., 1965) (“The only revolution in which the goal is loving your enemy is the Negro revolution. It’s the only revolution in which the goal is a desegregated lunch counter, a desegregated theater, a desegregated park, and a desegregated public toilet; you can sit down next to white folks—on the toilet. That’s no revolution.”).Show More The National Association for the Advancement of Colored People (NAACP), which litigated many of the public accommodations disputes that went to the Supreme Court, managed these cases amidst a similar set of concerns around democracy, employment discrimination, police violence, criminal justice inequality, and a host of other issues.⁶⁵ 65.See generally Christopher W. Schmidt, The Sit-Ins: Protest and Legal Change in the Civil Rights Era 57–59 (2018) (describing the role of the NAACP in the sit-in movement).Show More The National Organization for Women (NOW) challenged men’s-only bars amidst concerns about reproductive rights, wage gaps, and sexual violence.⁶⁶ 66.See Sepper & Dinner, supra note 24, at 111–14; Georgina Hickey, Barred from the Barroom: Second Wave Feminists and Public Accommodations in U.S. Cities, 34 Feminist Stud. 382, 385–88 (2008).Show More Trivialization of velvet rope discrimination implies that these organizations mismanaged their priorities in the past or suggests that the concerns these organizations had about public accommodations discrimination are relics of the past. The benefits of historical hindsight suggest that these were not worthless endeavors, but important steps toward attempting to extirpate bias in American society that still exists.⁶⁷ 67.Ella J. Baker, Bigger than a Hamburger, S. Patriot, May 1960, at 4 (“The Student Leadership Conference made it crystal clear that current sit-ins and other demonstrations are concerned with something much bigger than a hamburger or even a giant-sized coke . . . [they] are seeking to rid America of the scourge of racial segregation and discrimination—not only at lunch counters, but in every aspect of life.”); Jack Williams, Lady Lawyer Fights for Women’s Rights, Ithaca J., Feb. 5, 1969, at 4 (“I don’t particularly care if I ever go into a bar—not that I don’t drink—but the issue is one of being treated the same way as a first-class citizen.”).Show More

Finally, as a legal and political issue, such dismissals fail to appreciate the democratic and dignity concerns at the heart of anti-discrimination law.⁶⁸ 68.3 Bruce Ackerman, We the People: The Civil Rights Revolution 127–53 (2014) (describing the anti-humiliation principle that has figured into constitutional law).Show More In his comments to Congress on proposed civil rights legislation, President Kennedy insisted that “no action is more contrary to the spirit of our democracy and Constitution—or more rightfully resented by a Negro citizen who seeks only equal treatment—than the barring of that citizen from restaurants, hotels, theatres, recreational areas and other public accommodations and facilities.”⁶⁹ 69.Daniel v. Paul, 395 U.S. 298, 306 (1969) (quoting Special Message to the Congress on Civil Rights and Job Opportunities, 248 Pub. Papers 483, 485 (June 19, 1963)).Show More When the Senate Commerce Committee discussed the Civil Rights Act of 1964, it noted that “[d]iscrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public.”⁷⁰ 70.S. Rep. No. 88-872, at 16 (1964).Show More Echoing and building on Professor Regina Austin’s unheeded clarion call two decades ago for scholars to pay closer attention to leisure and the law as a civil rights matter,⁷¹ 71.Regina Austin, “Not Just for the Fun of It!”: Governmental Restraints on Black Leisure, Social Inequality, and the Privatization of Public Space, 71 S. Cal. L. Rev. 667, 711–12 (1998).Show More this Article calls attention to the ways discrimination in public accommodations speaks to questions of democratic membership and inclusion.

 

1. * Presidential Assistant Professor of Law, University of Pennsylvania Law School. This paper benefitted from feedback and conversations with Regina Austin, Monica Bell, Guy-Uriel Charles, Jessica Clarke, Charlton Copeland, Deborah Dinner, Brittney Farr, Jill Fisch, Thomas Frampton, Trevor Gardner, Jean Galbraith, Sally Gordon, Jasmine Harris, Tanya Hernandez, Dave Hoffman, Osamudia James, Jasmine Johnson, Olati Johnson, Jonathan Klick, Seth Kriemer, Benjamin Levin, Sophia Lee, Tim Lovelace, Reuben Buford May, Serena Mayeri, Jonathan Masur, Darrell Miller, Melissa Murray, Julian Nyarko, Elizabeth Pollman, Christopher Schmidt, Elizabeth Sepper, Fred Smith, Henry Bluestone Smith, Brian Soucek, Ted Ruger, Kendall Thomas, Andrea Wang, Tess Wilkinson-Ryan, Jamillah Bowman Williams, Tobias Barrington Wolff and members of the Department of African American Studies at UC Berkeley. A special thanks to Olivia Bethea and Fatoumata Waggeh for their research assistance as well as Hannah Pugh and Bridget Lavender for their editorial guidance. ↑

2. Joey Guerra, Video: Gaslamp Employee Says ‘Have a Good Night in the ‘Hood,’ Hous. Chron. (Sept. 28, 2016, 6:16 PM), https://www.chron.com/entertainment/restaurants-bars/article/Video-Gaslamp-employee-says-have-a-good-night-6522262.php [https://perma.cc/VP5K-9FSM]. ↑

3. Id. ↑

4. Id. ↑

5. Id. ↑

6. Id. ↑

7. See, e.g., Nancy Leong & Aaron Belzer, The New Public Accommodations: Race Discrimination in the Platform Economy, 105 Geo. L.J. 1271, 1275–76 (2017) (discussing the inadequacies of public accommodations anti-discrimination laws in the platform economy business model); Stephen B. Burbank & Sean Farhang, Rights and Retrenchment: The Counterrevolution Against Federal Litigation

   3

   (2017) (recounting a successful movement beginning in the 1980s to undermine the possibility of the enforcement of individual rights through private litigation); Kate Sablosky Elengold, Consumer Remedies for Civil Rights, 99 B.U. L. Rev. 587, 598–99 (2019) (describing the difficulties in applying anti-discrimination statutes). ↑

8. Phaedra Cook, Midtown Nightclub Accused of Discriminatory Practices, Hous. Press (Sept. 14, 2015, 6:00 AM), https://www.houstonpress.com/restaurants/midtown-nightclub-accused-of-discriminatory-practices-7762250 [https://perma.cc/3KCW-X9AX]; Grizzard, Houston Bar Discriminates Against Blacks, Lawyer Tim Sutherland Lies, Says Federal Law Doesn’t Apply, Daily Kos (Sept. 18, 2015, 1:38 PM), https://www.dailykos.com/­stories/2015/9/18/1422605/-Houston-Bar-Discriminates-Against-Blacks-Lawyer-Tim-Sutherland-Lies-Says-Federal-Law-Doesn-t-Apply [https://perma.cc/VL3C-JN3K]. ↑

9. Grizzard, supra note 7. ↑

10. Cook, supra note 7. ↑

11. Id. ↑

12. Grizzard, supra note 7. ↑

13. Cook, supra note 7. ↑

14. Id. ↑

15. Id. ↑

16. Cara Smith, Houston Lawyers Sue Popular Midtown Bar, Support HERO, Hous. Bus. J. (Nov. 2, 2015, 9:28 AM), https://www.bizjournals.com/houston/morning_call/2015/11/‌houston-lawyers-sue-popular-midtown-bar-support.html [https://perma.cc/YBD7-YX22]. ↑

17. 42 U.S.C. § 2000a. ↑

18. Settlement Agreement, United States v. Ayman Jarrah, No. 4:16-cv-02906 (S.D. Tex. Feb. 1, 2018), https://www.justice.gov/crt/case-document/file/1031751/download [https://perma.cc/L8DG-QET7] (requiring the defendant to cease discriminating, engage in training on the substantive provisions of Title II, publicize a non-discrimination policy in its entrance, and develop a program to monitor compliance with Title II). ↑

19. See Reuben A. Buford May, Velvet Rope Racism, Racial Paranoia, and Cultural Scripts: Alleged Dress Code Discrimination in Urban Nightlife, 2000–2014, 17 City & Cmty. 44, 45, 51–52 (2018). ↑

20. See, e.g., supra note 15; infra notes 295–99, 301–02. ↑

21. See, e.g., Reuben A. Buford May, Urban Nightlife: Entertaining Race, Class, and Culture in Public Space 8–9 (2014); Philip R. Kavanaugh & Tammy L. Anderson, Managing Physical and Sexual Assault Risk in Urban Nightlife: Individual- and Environmental-Level Influences, 30 Deviant Behav. 680, 706 (2009); James G. Fox & James J. Sobol, Drinking Patterns, Social Interaction, and Barroom Behavior: A Routine Activities Approach, 21 Deviant Behav. 429, 440–41 (2000); Emily Heil, A Baltimore Restaurant Group Apologizes to a Black Woman and Son for Unequally Enforcing Its Dress Code, Wash. Post (June 23, 2020, 7:00 PM), https://www.washingtonpost.com/news/voraciously/wp/2020/06/23/a-baltimore-restaurant-group-apologizes-to-a-black-woman-and-son-for-unequally-enforcing-its-dress-code/ [https://perma.cc/F7UC-K8EF]; Emily Suzanne Lever, Man Suing NYC Bar for $50K Claiming They Discriminated Against Men by Hosting Ladies Night (Oct. 15, 2019, 3:41 PM), https://gothamist.com/news/man-sues-bar-ladies-night-discrimination [https://perma. ‌cc/H4KR-BXLB]. ↑

22. See Wash. Rev. Code

     

    § 49.60.215 (2020) (“It shall be an unfair practice for any person . . . to commit an act which directly or indirectly results in any . . . discrimination . . . or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement . . . .”) (emphasis added); Or. Rev. Stat

    .

    § 659A.403 (2020) (“[A]ll persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age . . . .”) (emphasis added); Conn. Gen. Stat. § 46a-64 (2017) (“It shall be a discriminatory practice . . . [t]o deny any person within the jurisdiction of this state full and equal accommodations in any place of public accommodation, resort or amusement because of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, intellectual disability, mental disability, physical disability, including, but not limited to, blindness or deafness, or status as a veteran, of the applicant . . . .”) (emphasis added). ↑

23. Richard A. Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws 128 (1995). ↑

24. Lauren A. Rivera, Status Distinctions in Interaction: Social Selection and Exclusion at an Elite Nightclub, 33 Qualitative Socio. 229, 239 (2010); Reuben A. Buford May & Kenneth Sean Chaplin, Cracking the Code: Race, Class, and Access to Nightclubs in Urban America, 31 Qualitative Socio. 57, 58, 60 (2007) (examining racial discrimination in Athens, Georgia through participant observation); David Grazian, Urban Nightlife, Social Capital, and the Public Life of Cities

    ,

    24 Socio. F. 908, 915–16 (2009) (offering empirical data about racial and class barriers, the normalization of gender differences, and the lack of inclusiveness in nightlife to argue that nightlife can serve as a bonding mechanism). ↑

25. Most generally, Joseph Singer has shaped recent legal thinking on race and public accommodations, whereas Elizabeth Sepper and Deborah Dinner have recently written about sex discrimination in public accommodations. See Joseph William Singer, We Don’t Serve Your Kind Here: Public Accommodations and the Mark of Sodom, 95 B.U. L. Rev. 929, 930, 950 (2015); Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 Nw. L. Rev. 1283, 1286, 1296 (1996); Elizabeth Sepper & Deborah Dinner, Sex in Public, 129 Yale L.J. 78, 83 (2019). This Article is indebted to their work and extends their analyses. There are also some helpful but dated accounts of discrimination in bars and nightclubs in a few student notes. These various insights are all helpful but fail to capture the robustness of contemporary public accommodations discrimination. See, e.g., Lisa Gabrielle Lerman & Annette K. Sanderson, Project, Discrimination in Access to Public Places: A Survey of State and Federal Public Accommodations Laws, 7 N.Y.U. Rev. L. & Soc. Change 215, 250 (1978); Alan J. Hoff, Note, A Proposed Analysis for Gender-Based Practices and State Public Accommodations Laws, 16 U. Mich. J.L. Reform 135, 137 (1982) (arguing that gender-preferential practices are acceptable when applied reasonably); Joyce L. McClements & Cheryl J. Thomas, Comment, Public Accommodations Statutes: Is Ladies’ Night Out?, 37 Mercer L. Rev. 1605, 1605 (1986) (discussing the use of public accommodations laws by men for sex discrimination claims in the 1980s); Heidi C. Paulson, Note, Ladies’ Night Discounts: Should We Bar Them or Promote Them?, 32 B.C. L. Rev. 487, 489 (1991) (exploring “ladies night” events and gender-based pricing in relation to public accommodations laws and sex discrimination between the 1980s and the beginning of the 1990s); Jessica E. Rank, Comment, Is Ladies’ Night Really Sex Discrimination?: Public Accommodation Laws, De Minimis Exceptions, and Stigmatic Injury, 36 Seton Hall L. Rev. 223, 225–28 (2005) (describing the variety of approaches to the issue of “ladies night” sex discrimination around the country). Some particularly instructive insights have been offered by scholars who have addressed these issues in a few pages of what are larger, book-length projects on anti-discrimination law. See Nancy Levit, The Gender Line: Men, Women, and the Law 102–04 (1998) (providing examples of “ladies night” discrimination and examining various state sex discrimination laws); Richard Thompson Ford, Rights Gone Wrong: How Law Corrupts the Struggle for Equality 85–92 (2011) (discussing specific cases of gender discrimination and distinguishing between harmless and harmful gender distinctions); Joanna L. Grossman, Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace 2–3 (2016) (analyzing a “ladies night” case in New Jersey in an exploration of sex discrimination). For helpful takes on housing discrimination, see Lee Anne Fennell, Searching for Fair Housing, 97 B.U. L. Rev. 349, 351–52 (2017) (exploring the underlying racial biases of home seekers as they relate to housing discrimination); Rachel D. Godsil, The Gentrification Trigger: Autonomy, Mobility, and Affirmatively Furthering Fair Housing, 78 Brook. L. Rev. 319, 324 (2013) (conducting a historical analysis of gentrification and offering alternative legal mechanisms for in-place residents facing gentrification); Olatunde Johnson, The Last Plank: Rethinking Public and Private Power to Advance Fair Housing, 13 U. Pa. J. Const. L. 1191, 1193, 1195–96 (2011) (examining the Fair Housing Act’s enforcement regime and its mandate to affirmatively further fair housing). For instructive treatments of employment discrimination, see Tristin K. Green, Racial Emotion in the Workplace, 86

    S.

    Cal. L. Rev. 959, 969 (2013) (arguing that racial emotion is a source of discrimination in the workplace in order to advocate for more comprehensive laws that will better recognize and address this form of discrimination); Serena Mayeri, Intersectionality and Title VII: A Brief (Pre-)History, 95 B.U. L. Rev. 713, 715 (2015) (providing an analysis of the role of intersectionality in the development and execution of Title II of the Civil Rights Act of 1964); Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U. L. Rev. 715, 718 (2014) (analyzing cases on gender stereotyping and sexual orientation claims in the workplace). ↑

26. For recent examinations of the interface of religion and sexual orientation in these sites, see Pamela S. Karlan, Just Desserts?: Public Accommodations, Religious Accommodations, Racial Equality, and Gay Rights, 2018 Sup. Ct. Rev. 145, 146; Melissa Murray, Inverting Animus: Masterpiece Cakeshop and the New Minorities, 2018 Sup. Ct. Rev. 257, 257–58 (2018); Elizabeth Sepper, The Role of Religion in State Public Accommodations Laws, 60 St. Louis U. L.J. 631, 636–37 (2016) (tracking religious exemptions in public accommodations law). The Americans with Disabilities Act goes further than Title II in that it requires an affirmative duty to remove physical barriers to access to ensure that people are not discriminated against on the basis of disability See 42 U.S.C. § 12181. Some of the most helpful takes on disability and public accommodations include: Samuel R. Bagenstos, The Unrelenting Libertarian Challenge to Public Accommodations Law, 66 Stan. L. Rev. 1205, 1208–09 (2014); Elizabeth F. Emens, Integrating Accommodation, 156 U. Pa. L. Rev. 839, 843 (2008) (identifying certain benefits created for third parties by the Americans with Disabilities Act); Colin Crawford, Cyberplace: Defining A Right to Internet Access Through Public Accommodation Law, 76 Temp. L. Rev. 225, 227–28 (2003) (exploring whether to impose a public accommodations law framework onto cyberspace); Robert L. Burgdorf, Jr., “Equal Members of the Community”: The Public Accommodations Provisions of the Americans with Disabilities Act, 64 Temp. L. Rev. 551, 554 (1991). ↑

27. Frontiero v. Richardson, 411 U.S. 677, 684 (1973) (“Traditionally, [sex] discrimination was rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.”). ↑

28. Rivera, supra note 23, at 239. ↑

29. Robert Bork foresaw the enforcement problems with Title II before it was passed.

    Of what value is a law which compels service to Negroes without close surveillance to make sure the service is on the same terms given to whites? It is not difficult to imagine many ways in which barbers, landlords, lunch counter operators, and the like can nominally comply with the law but effectively discourage Negro patrons. Must federal law enforcement agencies become in effect public utility commissions charged with the supervision of the nation’s business establishments or will the law become an unenforceable symbol of hypocritical righteousness?

    Robert Bork, Civil Rights – A Challenge, New Republic, Aug. 31, 1963, at 23. ↑

30. 42 U.S.C. § 2000e-2(e). ↑

31. 42 U.S.C. § 2000a. ↑

32. See sources cited infra notes 372–73 (discussing cases). ↑

33. See sources cited infra notes 351, 360–63, 366 (discussing recent legislation designed to curtail velvet rope discrimination). ↑

34. Pub. L. No. 43-114, 18 Stat. 335–37, invalidated by Civil Rights Cases, 109 U.S. 3 (1883). ↑

35. 109 U.S. 3, 26 (1883). ↑

36. 163 U.S. 537, 550–51 (1896). ↑

37. See Barbara Y. Welke, When All the Women Were White, and All the Blacks Were Men: Gender, Class, Race, and the Road to Plessy, 1855–1914, 13 L. & Hist. Rev. 261, 271 (1995). ↑

38. See e.g., infra notes 83, 103, 111, 118. ↑

39. 347 U.S. 483, 495 (1954). ↑

40. Sepper & Dinner, supra note 24, at 104, 111. ↑

41. See Charles S. Rhyne & Brice W. Rhyne, Civil Rights Ordinances 71–89 (1963); Joseph Parker Witherspoon, Administrative Implementation of Civil Rights 531–38 (1968). ↑

42. See, e.g., United States v. Jordan, 302 F. Supp. 370, 374 (E.D. La. 1969); United States v. Nw. La. Rest. Club, 256 F. Supp. 151, 153 (W.D. La. 1966). ↑

43. Ruthann Robson, Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our Shoes, 8–27 (2013) (describing the historical development of laws regulating dress). ↑

44. See sources cited infra notes 204–11 (discussing early instances of discrimination in bars and restaurants in the mid-twentieth century). ↑

45. Sepper & Dinner, supra note 24 at 83; see also Julia Kirk Blackwelder, Now Hiring: The Feminization of Work in the United States

    , 1900–1995

    , 176–204 (1997); Susan Frelich Appleton, The Forgotten Family Law of Eisenstadt v. Baird, 28 Yale J.L. & Feminism 3 (2017) (arguing that the Supreme Court’s 1972 declaration that laws criminalizing contraceptives are unconstitutional made family law “more inclusive, liberatory, sex-positive, and feminist”); Elana Levine, Wallowing in Sex: The New Sexual Culture of 1970s American Television 3 (2007) (explaining how television reflected shifting sexual mores in the 1970s); Daphne Spain, Constructive Feminism, Women’s Spaces and Women’s Rights in the American City 2 (2016) (describing the ways feminists challenged sex segregation in public institutions and thus changed the use of urban space). ↑

46. See Bethany M. Coston & Michael Kimmel, White Men as the New Victims: Reverse Discrimination Cases and the Men’s Rights Movement, 13 Nev. L.J

    . 368, 373

    –

    74

    (2013). ↑

47. See infra notes 368–71 and accompanying text (discussing different views). ↑

48. See sources cited infra notes 238, 376 (describing prominent accounts of “benevolent” sexism). ↑

49. See sources cited infra 328–38 and accompanying text (discussing the operation of dress codes at bars and nightclubs). ↑

50. See Leong & Belzer, supra note 6, at 1275 (arguing that public accommodations laws must account for discrimination in the “platform economy”); David Brody & Sean Bickford, Discriminatory Denial of Service: Applying State Public Accommodations Laws to Online Commerce 1 (2020) (arguing the same for online commerce); Jonah Gelbach, Jonathan Klick & Lesley Wexler, Passive Discrimination: When Does It Make Sense To Pay Too Little?, 76 U. Chi. L. Rev. 797, 823–40 (2009); Angela Onwuachi-Willig, Volunteer Discrimination, 40 U.C. Davis L. Rev. 1895, 1901 (2007); Lior Jacob Strahilevitz, Exclusionary Amenities in Residential Communities, 92 Va. L. Rev. 437, 439–40 (2006); Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 Colum. L. Rev. 458, 460–61 (2001). ↑

51. Press Release, N.Y. State Off. Att’y Gen., Settlement with Manhattan Nightclub Ends Investigation of Discrimination Allegations(June 3, 2003), https://ag.ny.gov/press-release/2003/settlement-manhattan-nightclub-ends-investigation-discrimination-allegations [https://perma.cc/72JE-82K7] (announcing $10,0000 settlement with a club that refused to admit a group of South Asians, who the doorman told: “It’s my responsibility to blend this club. There has to be a balance, there has to be.”). ↑

52. See

     

    Don Mitchell, The Right to the City: Social Justice and the Fight for Public Space 5 (2003) (outlining the history of inclusion in and exclusion from public space in American cities). ↑

53. Elizabeth F. Emens, Intimate Discrimination: The State’s Role in the Accidents of Sex and Love, 122 Harv. L. Rev. 1307, 1374–75 (2009) (discussing how people with disabilities have limited opportunities to form intimate relations and how race and gender can “intersect to create . . . subgroups who are relatively excluded in their intimate prospects”); see also Jasmine E. Harris, The Aesthetics of Disability, 119 Colum. L. Rev. 895, 941 (2019) (noting how ideas about aesthetics and appearance can impact access to public accommodations for people with disabilities). ↑

54. See Robson, supra note 42, at 119–20 (describing how proscriptions against saggy pants and gang-affiliated colors facilitated profiling against young males, despite their broad popularity in contemporary youth culture); Devon W. Carbado & Mitu Gulati, Acting White?: Rethinking Race in “Post-Racial” America 10–15 (2013) (explaining how President Obama navigated presenting his Black identity so as not to alienate white people uncomfortable with confronting racism and stereotyping)

    ;

    Deborah L. Rhode, The Beauty Bias: The Injustice of Appearance in Life and Law 6–7 (2010) (noting how a preference for white-European features has prompted exponential increases in spending on nonessential cosmetic procedures as well as psychological disorders in the United States)

    .

    ↑

55. See Michael Kimmel, Angry White Men: American Masculinity at the End of an Era 25–26 (2013) (noting how perceptions of disenfranchisement have led white men to associate with misogynistic and white supremacist movements and militias). ↑

56. Sahar F. Aziz, Coercing Assimilation: The Case of Muslim Women of Color, 18

    J.

    Gender Race & Just. 389, 398 (2016); Angela Onwuachi-Willig, Another Hair Piece: Exploring New Strands of Analysis Under Title VII, 98 Geo. L.J. 1079, 1106–08 (2010); Jennifer L. Levi, Misapplying Equality Theories: Dress Codes at Work, 19 Yale J.L. & Feminism 353, 364–65 (2008); Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 Duke L.J. 365, 390–93 (1991). ↑

57. See Ford, supra note 24, at 85. For an instructive examination on the evolution of courting see Elizabeth Alice Clement, Love for Sale: Courting, Treating, and Prostitution in New York City

    , 1900–1945,

    at 22–43 (2006). ↑

58. See sources cited infra notes 384–87 and accompanying text (noting how gender-based pricing in bars and clubs perpetuates stereotypical versions of femininity while facilitating increased levels of sexual violence against their female patrons). ↑

59. See sources cited infra notes 389–92 and accompanying text. ↑

60. See Mary Anne Case, Legal Protections for the “Personal Best” of Each Employee: Title VII’s Prohibition on Sex Discrimination, the Legacy of Price Waterhouse v. Hopkins, and the Prospect of ENDA, 66 Stan. L. Rev. 1333, 1354–60 (2014) (exploring how federal courts have struggled to interpret different workplace grooming standards between men and women as a violation of Title VII’s sex stereotyping protections); William R. Corbett, Hotness Discrimination: Appearance Discrimination as a Mirror for Reflecting on the Body of Employment-Discrimination Law, 60 Cath. U. L. Rev. 615, 624–28 (2011) (explaining the inherent difficulty in establishing a legally viable appearance-based employment discrimination claim despite the pervasiveness of this discrimination in the United States); Deborah L. Rhode, The Injustice of Appearance, 61 Stan. L. Rev. 1033, 1067–69 (2009) (noting the popular pragmatic arguments against expanding Title VII protections to include appearance-based discrimination); Ann C. McGinley, Babes and Beefcake: Exclusive Hiring Arrangements and Sexy Dress Codes, 14 Duke J. Gender L. & Pol’y 257, 263 (2007) (exploring gendered hiring and expectations for cocktail servers in casinos); Gowri Ramachandran, Freedom of Dress: State and Private Regulation of Clothing, Hairstyle, Jewelry, Makeup, Tattoos, and Piercing, 66 Md. L. Rev. 11, 55–58 (2006) (arguing that the government should interfere to protect freedom of dress in private workplaces in order to take the power from employers, but remain hands-off in other private settings); David B. Cruz, Making Up Women: Casinos, Cosmetics, and Title VII, 5 Nev. L.J. 240, 243–48 (2004) (analyzing how courts have interpreted Title VII’s BFOQ provision to uphold sex-discriminatory dress and appearance requirements); Katharine T. Bartlett, Only Girls Wear Barrettes: Dress and Appearance Standards, Community Norms, and Workplace Equality, 92 Mich. L. Rev. 2541, 2556–59 (1994) (arguing that courts upholding gendered dress and appearance restrictions reinforces unexamined gender stereotypes and prejudices); Karl E. Klare, Power/Dressing: Regulation of Employee Appearance, 26 New Eng. L. Rev. 1395, 1418–21 (1992) (exploring permissible uses of gender discrimination in the context of gendered dress codes addressing hair length and pants). ↑

61. Heath Fogg Davis, Sex-Classification Policies as Transgender Discrimination: An Intersectional Critique, 12 Persps. on Pol. 45, 45 (2014). ↑

62. Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law

    9–10 (2015).

    ↑

63. Davis, supra note 60. ↑

64. Kate Manne, Down Girl: The Logic of Misogyny 13 (2017) (“Misogyny . . . visit[s] hostile or adverse social consequences on a certain (more or less circumscribed) class of girls or women to enforce and police social norms that are gendered either in theory (i.e., content) or in practice (i.e., norm enforcement mechanisms).”); Ruth Thompson-Miller, Joe R. Feagin & Leslie H. Picca, Jim Crow’s Legacy: The Lasting Impact of Segregation 157, 179 (2015) (noting how “[t]he racial norms of Jim Crow were firmly grounded in African Americans’ knowing ‘their place’ at the bottom of the racial hierarchy” and suggesting that the fragility of racial hierarchy “depends upon everyday individual acts to collectively uphold it”); Roberto Lovato, Juan Crow in Georgia, The Nation (May 8, 2008), https://www.thenation.com/‌article/juan-crow-georgia/ [https://perma.cc/38PH-Y3P9] (describing Juan Crow as “the matrix of laws, social customs, economic institutions and symbolic systems enabling the physical and psychic isolation needed to control and exploit undocumented immigrants”). ↑

65. Dismissals of the fight for public accommodations desegregation came from outside and inside of the Black community. Strom Thurmond famously claimed, “[T]here’s not enough troops in the [A]rmy to force the [S]outhern people to break down segregation and admit the Negro race into our theaters, into our swimming pools, into our homes, and into our churches.” Nadine Cohodas, Strom Thurmond and the Politics of Southern Change 177 (1993). See also Malcolm X Speaks: Selected Speeches and Statements 9 (George Breitman ed., 1965) (“The only revolution in which the goal is loving your enemy is the Negro revolution. It’s the only revolution in which the goal is a desegregated lunch counter, a desegregated theater, a desegregated park, and a desegregated public toilet; you can sit down next to white folks—on the toilet. That’s no revolution.”). ↑

66. See generally Christopher W. Schmidt, The Sit-Ins: Protest and Legal Change in the Civil Rights Era 57–59 (2018) (describing the role of the NAACP in the sit-in movement). ↑

67. See Sepper & Dinner, supra note 24, at 111–14; Georgina Hickey, Barred from the Barroom: Second Wave Feminists and Public Accommodations in U.S. Cities, 34 Feminist Stud. 382, 385–88 (2008). ↑

68. Ella J. Baker, Bigger than a Hamburger, S. Patriot, May 1960, at 4 (“The Student Leadership Conference made it crystal clear that current sit-ins and other demonstrations are concerned with something much bigger than a hamburger or even a giant-sized coke . . . [they] are seeking to rid America of the scourge of racial segregation and discrimination—not only at lunch counters, but in every aspect of life.”); Jack Williams, Lady Lawyer Fights for Women’s Rights, Ithaca J., Feb. 5, 1969, at 4 (“I don’t particularly care if I ever go into a bar—not that I don’t drink—but the issue is one of being treated the same way as a first-class citizen.”). ↑

69. 3 Bruce Ackerman, We the People: The Civil Rights Revolution 127–53 (2014) (describing the anti-humiliation principle that has figured into constitutional law). ↑

70. Daniel v. Paul, 395 U.S. 298, 306 (1969) (quoting Special Message to the Congress on Civil Rights and Job Opportunities, 248 Pub. Papers 483, 485 (June 19, 1963)). ↑

71. S. Rep. No. 88-872, at 16 (1964). ↑

72. Regina Austin, “Not Just for the Fun of It!”: Governmental Restraints on Black Leisure, Social Inequality, and the Privatization of Public Space, 71 S. Cal. L. Rev. 667, 711–12 (1998). ↑

73. Act of May 16, 1865, ch. 277, § 1, 1865 Mass. Acts 650, reprinted in Milton R. Konvitz, A Century of Civil Rights 156 (1961); Wallace F. Caldwell, State Public Accommodations Laws, Fundamental Liberties and Enforcement Programs, 40 Wash. L. Rev. 841, 843 (1965); Kazuteru Omori, Race-Neutral Individualism and Resurgence of the Color Line: Massachusetts Civil Rights Legislation, 1855–1895, 22 J. Am. Ethnic Hist. 32, 37 (2002). ↑

74. See Act of Feb. 25, 1873, No. 12, § 3, 1873 Ark. Acts 15, 15–19 (prohibiting discrimination in public accommodations, dating back to 1873); Act of Feb. 27, 1874, ch. 49, § 1, 1874 Kan. Sess. Laws 82, 82–83, noted in Konvitz, supra note 72, at 156; Act of Apr. 9, 1873, ch. 186, § 1, 1873 N.Y. Laws 583–84 (1873), noted in Konvitz, supra note 72, at 156. For more on the history of state public accommodations statutes, see Lerman & Sanderson, supra note 24, at 238–40 (1978). ↑

75. Act of Mar. 1, 1875, ch. 114, 18 Stat. 335 (1875). ↑

76. Id. See also Sauvinet v. Walker, 27 La. Ann. 14, 15 (1875), aff’d, 92 U.S. 90, 90–93 (1876) (describing a $1000 judgment against defendant as a “penalty wholly disproportionate to the offense”). ↑

77. Act of Mar. 1, 1875, ch. 114, 18 Stat. 335 (1875). ↑

78. 109 U.S. 3, 26 (1883). The Civil Rights Act of 1866 and the Fourteenth Amendment provided for equal protection under the law and supplied a basis for public accommodations claims, but nonenforcement and obstruction set the stage for the stronger legislative intervention that came with the 1875 Act. See A.K. Sandoval-Strausz, Travelers, Strangers, and Jim Crow: Law, Public Accommodations, and Civil Rights in America, 23 Law & Hist. Rev. 53, 58–59 (2005). ↑

79. 109 U.S. 3, 4, 25 (1883). ↑

80. 163 U.S. 537, 550–51 (1896). ↑

81. Robert B. McKay, Segregation and Public Recreation, 40 Va. L. Rev. 697, 697–707 (1954). ↑

82. Charles S. Mangum, Jr., The Legal Status of the Negro 28–36 (1940); see Pauli Murray, States’ Laws on Race and Color

    7–9

    (1950). ↑

83. See Act of Feb. 27, 1874, ch. 49, § 1, 1874 Kan. Sess. Laws 82, 82–83; Mangum, supra note 81, at 50–51 (discussing states that did not cover restaurants). ↑

84. 10 F. 4, 6 (S.D.N.Y. 1882). ↑

85. Id. ↑

86. Id. at 6–7. ↑

87. Evan Friss, Blacks, Jews, and Civil Rights Law in New York, 1895–1913, 24 J. Am. Ethnic Hist. 87, 87 (2005). ↑

88. Friss, supra note 86, at 89–91; see also M. Alison Kibler, Censoring Racial Ridicule: Irish, Jewish, and African American Struggles over Race and Representation

    , 1890–1930

    , at 117–20 (2015) (describing the relationship between African Americans and Jews, and their views on the New York public accommodations law). ↑

89. Peter Adams, Politics, Faith, and the Making of American Judaism 5 (2014) (“Jews were subject to discreet—and not so discreet—discrimination in employment and public accommodations.”); Friss, supra note 86, at 83 (“But for Jews, more likely to frequent upstate resorts, advertisements such as ‘No Dogs or Jews Allowed’ and ‘We do not cater to Hebrews or invalids’ had successfully offended Jewish travelers for years.”); John Higham, Social Discrimination Against Jews in America, 1830–1930, 47 Publ’ns Am. Jewish Hist. 1, 12–14 (1957) (describing how, beginning in the late nineteenth century, anti-Semitism “was more acute at resorts than elsewhere, for no other institution combined such indiscriminate social mingling with such ardent social aspirations,” and how discrimination in those establishments, along with “clubs and private schools increased during the years before the First World War”); Chanelle N. Rose, Tourism and the Hispanicization of Race in Jim Crow Miami, 1945–1965, 45 J. Soc. Hist. 735, 745 (2012) (“[D]uring the 1930s and 1940s, racial discrimination was not solely limited to [B]lacks since a number of Miami Beach hotels read: ‘Gentile Only’ or ‘No Jews, No Dogs.’”). ↑

90. Jeffrey Gurock, The 1913 New York State Civil Rights Act, 1 Ass’n Jewish Stud. Rev. 93, 95 (1976). The anti-discrimination norms of public accommodations law would remain elusive:

    Enterprising hotelkeepers, capitalizing on the strict-constructionist attitude of the courts, circumvented the law by inventing several new ‘code words’ for exclusion. Such terms as ‘restricted clientele,’ ‘churches nearby,’ and ‘buses to church’ were added to the advertiser’s vocabulary. These euphemisms, which soon became intelligible to Jew and Gentile alike, stymied public officials and frustrated Jewish leaders in their attempts to have the law enforced.

    Id. at 111. ↑

91. Higham, supra note 88, at 16. ↑

92. Gurock, supra note 89, at 97. ↑

93. Kalyn Oyer, ‘It’s Too Dark in Here’: Black Nightclub DJs in Charleston Speak Up About Discrimination, Post & Courier (June 17, 2020), https://www.postandcourier.com/‌charleston_scene/its-too-dark-in-here-black-nightclub-djs-in-charleston-speak-up-about-discrimination/article_5dfa8cf4-acd8-11ea-a85e-db71746cc171.html [https://perma.cc/HQN6-T96K] (describing the experience of a DJ who contended that that club owners attempt to limit the number of Black people in their venues). ↑

94. Babb v. Elsinger, 147 N.Y.S. 98, 98–99 (N.Y. App. Div. 1914); Court Holds It Unlawful to Draw Color Line in Saloons, N.Y. Age, Apr. 23, 1914, at 1. ↑

95. Johnson v. Auburn & Syracuse Elec. R.R. Co., 222 N.Y. 443, 446–47, (N.Y. 1918); Springer v. McDermott, 173 N.Y.S. 413, 413–14 (N.Y. App. Div. 1919); see also Baer v. Wash. Heights Café, 168 N.Y.S. 567, 567–68 (N.Y. Mun. Ct. 1917) (holding that the rear of a saloon where food and liquor were served was a place of public accommodation). ↑

96. Matthews v. Hotz, 173 N.Y.S. 234, 235 (N.Y. App. Div. 1918). ↑

97. Id. ↑

98. Cohn v. Goldgraben, 170 N.Y.S. 407, 407–08 (N.Y. App. Div. 1918). ↑

99. Ian Haney López, White by Law: The Legal Construction of Race

    151

    (10th ed. 2006). See generally, Karen Brodkin, How Jews Became White Folks and What That Says About Race in America

    26–30 (1998)

    (describing the United States’ history of anti-Semitism at the turn of the twentieth century); Eric L. Goldstein, The Price of Whiteness: Jews, Race, and American Identity 1–2 (2006) (explaining the complicated relationship between Jewishness and whiteness and its development during the twentieth century). ↑

100. Cohn, 170 N.Y.S. at 407. ↑

101. Paul Chevigny, Gigs: Jazz and the Cabaret Laws in New York City 33 (1991); see also Burton W. Peretti, Nightclub City: Politics and Amusement in Manhattan 18 (2007) (describing anti-Semitic understandings of nightlife in New York City). ↑

102. Gibbs v. Arras Bros., Inc., 222 N.Y. 332, 332 (N.Y. 1918). ↑

103. Equal Rights in Places of Public Accommodation, Resort or Amusement, ch. 14, § 40, 1918 N.Y. Laws 61, 61–62 (adding saloons to Civil Rights Law § 40). ↑

104. 74 Minn. 200, 200 (1898); William D. Green, Degrees of Freedom: The Origins of Civil Rights in Minnesota, 1865–1912, at 244 (2015). ↑

105. Green, supra note 103, at 246–47. ↑

106. Id. at 247. ↑

107. Rhone, 74 Minn. at 204–05. ↑

108. Green, supra note 103, at 223, 246. ↑

109. Id. at 245. ↑

110. Id. at 246. ↑

111. Act of Mar. 6, 1899, ch. 41, §1, 1899 Minn. Laws 38, 38–39. ↑

112. Kellar v. Koerber, 61 Ohio St. 388, 389 (1899). ↑

113. Id. at 391. ↑

114. Youngstown Park & Falls St. Ry. Co. v. Tokus, 4 Ohio App. 276, 277 (Ohio Ct. App. 1915). ↑

115. Id. at 276–82. ↑

116. Anderson v. State, 30 Ohio C.C. 510, 511 (Ohio Ct. App. 1918). ↑

117. Id. at 512; see also Leonard Dinnerstein, Antisemitism in America 58 (1994) (“Indeed, the racial components of antisemitic thought in America, always inherent yet mostly hidden, became obvious in the period known as the Progressive era.”). ↑

118. See infra Section I.D. (discussing Title II of the Civil Rights Act of 1964). ↑

119. 27 La. Ann. 14, 14–15 (1875), aff’d, 92 U.S. 90, 90–93 (1876). ↑

120. Justin A. Nystrom, New Orleans After the Civil War: Race, Politics, and a New Birth of Freedom 96–98 (2010). ↑

121. Sauvinet, 27 La. Ann. at 14. ↑

122. Id. ↑

123. Id. at 14–15. ↑

124. Id. at 15 (Wyly, J., dissenting). ↑

125. Id. ↑

126. Walker v. Sauvinet, 92 U.S. 90, 92–93 (1876). ↑

127. Ferguson v. Gies, 46 N.W. 718, 718 (Mich. 1890). ↑

128. Id. ↑

129. See Rayford M. Logan, The Negro in American Life and Thought: The Nadir, 1877–1901, at 52 (1954). ↑

130. Ferguson, 46 N.W. at 719. ↑

131. Id. at 721. ↑

132. Bryan v. Adler, 72 N.W. 368, 368 (Wis. 1897). ↑

133. Id. at 369. ↑

134. Id. ↑

135. Id. ↑

136. Id. ↑

137. Id. at 369–70. ↑

138. See, e.g., Traci Parker, Department Stores and the Black Freedom Movement: Workers, Consumers, and Civil Rights from the 1930s to the 1980s, at 57–71

     (2019)

     (discussing the “Don’t Buy Where You Can’t Work” movement)

     ;

     Wayne A. Wiegand & Shirley A. Wiegand, The Desegregation of Public Libraries in the Jim Crow South: Civil Rights and Local Activism 8

     (2018) (

     explaining that Brown v. Board of Education “functioned as an open invitation to southern [B]lacks to serve as plaintiffs in a series of lawsuits to desegregate public facilities across the South”)

     ;

     David E. Goldberg, The Retreats of Reconstruction: Race, Leisure, and the Politics of Segregation at the New Jersey Shore

     , 1865–1920,

     at 18–21

     (2017) (

     describing how Black protestors successfully integrated recreational venues at the Jersey shore through consumer protests)

     ;

     Victoria W. Wolcott, Race, Riots, and Roller Coasters: The Struggle over Segregated Recreation in America

     88–89 (2012) (

     describing how, after Brown v. Board of Education, “activists became more emboldened to challenge recreational segregation nationally”)

     ;

     Jeff Wiltse, Contested Waters: A Social History of Swimming Pools in America

     157–59 (2007) (

     describing efforts to desegregate pools in the North)

     ;

     George B. Kirsch, Municipal Golf and Civil Rights in the United States, 1910–1965, 92 J. Afr. Am. Hist. 371, 383–86 (2007) (explaining how the Brown v. Board of Education and Dawson v. Mayor & City Council of Baltimore City “decisions opened the door for a series of federal judicial rulings that outlawed racial discrimination on municipal golf courses in several southern cities”). ↑

139. Fuller v. McDermott, 87 N.Y.S. 536, 537 (N.Y. App. Term 1904). But see Hubert v. Jose, 132 N.Y.S. 811, 812 (N.Y. App. Div. 1912) (asserting in dicta that a showing of citizenship is not necessary for protection by the civil rights law without addressing its previous ruling on the issue). ↑

140. Grace v. Moseley, 112 Ill. App. 100, 102 (Ill. App. Ct. 1904). ↑

141. Id. ↑

142. State ex rel. Tax Collector v. Falkenheiner, 49 So. 214, 215 (La. 1909). ↑

143. Kan. Gen. Stat. § 3791 (1915) (repealed 1969). ↑

144. State v. Brown, 212 P. 663, 664 (Kan. 1923). ↑

145. Nance v. Mayflower Tavern, 150 P.2d 773, 774–75 (Utah 1944). ↑

146. Crosswaith v. Bergin, 35 P.2d 848, 848 (Colo. 1934). ↑

147. Ross v. Schade, 7 Conn. Supp. 443, 444–45 (Super. Ct. 1939). ↑

148. 39 N.E.2d 167, 169 (Ohio Ct. App. 1941). ↑

149. Id. at 171. ↑

150. Evans v. Fong Poy, 108 P.2d 942, 942–43 (Cal. Dist. Ct. App. 1941); State Appeals Court Upholds Negro Rights, S.F. Exam’r, Jan. 8, 1941, at B. ↑

151. Suits Ask $80,000 Under Civil Rights, Democrat & Chron. (Rochester), Feb. 18, 1949, at 12. ↑

152. Powell v. Utz, 87 F. Supp. 811, 812–13, 816 (E.D. Wash. 1949). ↑

153. Suit Defendants Ask Bankruptcy, Spokane Daily Chron., Aug. 9, 1950, at 3. ↑

154. Sepper & Dinner, supra note 24, at 83. ↑

155. Ex parte Smith, 38 Cal. 702, 709–12 (1869) (upholding an ordinance prohibiting the presence of women in public drinking saloons after midnight as constitutional). ↑

156. 192 U.S. 108 (1904). ↑

157. Id. at 113. ↑

158. Id. at 114–15. ↑

159. See, e.g., Wilson v. Razzetti, 150 N.Y.S. 145, 145 (N.Y. App. Term 1914) (holding that restaurant owners who refused to serve a Black woman violated the New York Civil Rights Law and that the owners’ defense—that the reason they did not serve the plaintiff was that they were out of food—was “absurd and frivolous”); Amos v. Prom, Inc., 117 F. Supp. 615, 618–19, 630 (N.D. Iowa 1954) (holding that a dance hall, which had refused to admit a Black woman, was a place of amusement under the Iowa Civil Rights Act); Slack v. Atl. White Tower Sys., Inc., 284 F.2d 746, 746 (4th Cir. 1960) (holding that the Interstate Commerce Act did not prohibit a privately owned restaurant from refusing to serve a Black woman). ↑

160. Gastenau v. Commonwealth, 56 S.W. 705, 705 (Ky. 1900). ↑

161. Id. ↑

162. Id. ↑

163. Id. at 705–06. ↑

164. State v. Nelson, 79 P. 79, 82 (Idaho 1905) (emphasis added). ↑

165. Laughlin v. Tillamook City, 147 P. 547, 547 (Or. 1915) (quoting State v. Baker, 92 P. 1076, 1078 (Or. 1907)). ↑

166. Commonwealth v. Price, 94 S.W. 32, 33 (Ky. 1906). ↑

167. Goesaert v. Cleary, 335 U.S. 464, 465–66 (1948) (validating a state law that only allowed men to be bartenders and stating, “The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes, certainly in such matters as the regulation of the liquor traffic”); City of De Ridder v. Mangano, 171 So. 826, 827–28 (La. 1936) (upholding law prohibiting women’s employment in bars); State v. Mayor of Hoboken, 53 A. 693, 693 (N.J. 1902) (upholding a statute that prohibited women’s employment in saloons and stating, “It is difficult to imagine a course of conducting a liquor saloon more deserving of reprobation than the permitting the assembling there of women for the purpose of enticing customers”); Ex parte Felchin, 31 P. 224, 224 (Cal. 1892) (requiring a higher licensing fee for bars and saloons that employed women). ↑

168. In re Farley, 111 N.E. 479, 481 (N.Y. 1916). ↑

169. Sharp v. Bussey, 187 So. 779, 780 (Fla. 1939). ↑

170. Stoumen v. Reilly, 234 P.2d 969, 970 (Cal. 1951). ↑

171. Tom Murray, Preachers, Faggots, Perverts & Palaces, S.F. Sentinel, Mar. 6, 1987, at 4. See generally Nan Alamilla Boyd, Wide-Open Town: A History of Queer San Francisco to 1965 (2003) (discussing the hostile policing of bars and taverns, including harassment and intimidation by local police). ↑

172. Murray, supra note 170. ↑

173. Stoumen, 234 P.2d at 970. ↑

174. Id. at 971. ↑

175. Tynes v. Gogos, 144 A.2d 412, 413–15 (D.C. 1958). ↑

176. 347 U.S. 483, 488, 495 (1954). ↑

177. Cybelle Fox & Thomas A. Guglielmo, Defining America’s Racial Boundaries: Blacks, Mexicans, and European Immigrants, 1890–1945, 118 Am. J. Socio. 327, 358 (2012). ↑

178. Randall Kennedy, The Civil Rights Act’s Unsung Victory and How It Changed the South, Harper’s Mag. (June 2014), https://harpers.org/archive/2014/06/the-civil-rights-acts-unsung-victory/ [https://perma.cc/M6EV-HM48]. ↑

179. Id. ↑

180. Lynne Olson, Freedom’s Daughters: The Unsung Heroines of the Civil Rights Movement from 1830 to 1970, at 19–20 (2001); Flora Bryant Brown, NAACP Sponsored Sit-ins by Howard University Students in Washington, D.C., 1943–1944, 85 J. Negro Hist. 274, 278 (2000). ↑

181. Olson, supra note 179, at 78–79. ↑

182. See, e.g., Bell v. Maryland, 378 U.S. 226 (1964); Barr v. City of Columbia, 378 U.S. 146 (1964), Robinson v. Florida, 378 U.S. 153 (1964); Bouie v. City of Columbia, 378 U.S. 347 (1964). ↑

183. Christopher W. Schmidt, The Sit-Ins: Protest and Legal Change in the Civil Rights Era 182 (2018). ↑

184. Glenn T. Eskew, But for Birmingham: The Local and National Movements in the Civil Rights Struggle 312 (1997). ↑

185. 42 U.S.C. § 2000a. ↑

186. Id. § 2000a(a). ↑

187. See id. § 2000a; discussion infra Section II.A. (describing the work of activists in response to the non-coverage of sex discrimination in the Act). ↑

188. 42 U.S.C. § 2000a(b). ↑

189. See sources cited infra note 195 (detailing the various cases in which the categorization of various bars, taverns, and establishments was disputed). ↑

190. Harry T. Quick, Note, Public Accommodations: A Justification of Title II of the Civil Rights Act of 1964, 16 Case W. Rsrv. L. Rev. 660, 683 (1965). ↑

191. 42 U.S.C. § 2000a(c); Katzenbach v. McClung, 379 U.S. 294, 298, 305 (1964); Heart of Atl. Motel, Inc. v. United States, 379 U.S. 241, 243, 247–48, 261–62 (1964). ↑

192. 42 U.S.C. § 2000a(c). ↑

193. See sources cited infra note 197 (discussing which establishments were deemed to be a place of public accommodation by various courts). ↑

194. 42 U.S.C. § 2000a(e). ↑

195. Senator Magnuson, a key shepherd of the bill, noted:

     As a general rule, establishments of this kind will not come within the scope of the title. But a bar or nightclub physically located in a covered hotel will be covered, if it is open to patrons of the hotel. A nightclub might also be covered . . . if it customarily offers entertainment which moves in interstate commerce.

     110 Cong. Rec. 7,407 (1964). ↑

196. Cuevas v. Sdrales 344 F.2d 1019, 1020, 1023 (10th Cir. 1965), cert. denied, 382 U.S. 1014 (1966); see also Robertson v. Johnston, 249 F. Supp. 618, 620–21 (E.D. La. 1966) (holding that a bar or nightclub that served only drinks was not a “restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises” within the public accommodations provisions of the Civil Rights Act of 1964), rev’d on other grounds, 376 F.2d 43 (5th Cir. 1967); Selden v. Topaz 1-2-3 Lounge, Inc., 447 F.2d 165, 165 (5th Cir. 1971) (holding that a lounge that did not serve food or offer entertainment did not fall under the Civil Rights Act of 1964). But see United States v. DeRosier, 473 F.2d 749, 750–52 (5th Cir. 1973) (ruling that a neighborhood bar-tavern that derived a small portion of its total business from mechanical amusement devices that had moved in interstate commerce was a “place of entertainment” within the meaning of the Civil Rights Act of 1964). ↑

197. See discussion supra Section I.A (discussing the conflicting approaches and disputes regarding interpretation between different courts and jurisdictions). ↑

198. DeRosier, 473 F.2d at 750–52; United States v. Vizena, 342 F. Supp. 553, 554 (W.D. La. 1972) (holding that a bar that provided a juke box and pool table for amusement of its patrons was a “place of entertainment” within the Civil Rights Act); United States v. Deetjen, 356 F. Supp. 688, 689–90 (S.D. Fla. 1973) (finding that a Florida bar was a public accommodation under Title II because the alcoholic beverages, television, piano, and juke box were manufactured out of state and affected commerce); United States v. Purkey, 347 F. Supp. 1286, 1287 (E.D. Tenn. 1971) (concluding that the Civil Rights Act extended to a neighborhood tavern that practiced racial discrimination and contained a “juke box, records, pinball machine and bowling machine which were manufactured out-of-state”); Nanez v. Ritger, 304 F. Supp. 354, 356 (E.D. Wis. 1969) (ruling that a tavern-restaurant is likely a “place of public accommodation” under a civil rights statute); United States by Clark v. Fraley, 282 F. Supp. 948, 952, 954 (M.D.N.C. 1968) (holding that a bar was covered under Title II because it had the characteristics of a restaurant and held itself out as one); Fazzio Real Estate Co. v. Adams, 396 F.2d 146, 149, 150 (5th Cir. 1968) (holding that although bars, per se, are not covered by the Civil Rights Act of 1964, they may be covered where beer is served in conjunction with food). ↑

199. Daniel v. Paul, 395 U.S. 298, 306 (1969). ↑

200. See Paulson, supra note 24, at 491 (citing Barbara Allen Babcock, Ann E. Freedman, Eleanor Holmes Norton & Susan C. Ross, Sex Discrimination and the Law: Causes and Remedies 1037 (1975)) (“One author explained that this omission was due to the low consciousness level of sex bias, and because at the time the Act was passed, most of the exclusions from public accommodations were based on race.”). Other speculative guesses point to civil rights leaders’ privileging of race, the existing state-based frameworks that focused on race, the uncertainty around whether the bill would pass, and fear about what including sex might mean for its passage. See generally Janet Dewart Bell, Lighting the Fires of Freedom: African American Women in the Civil Rights Movement (2018) (discussing the role of Black women in civil rights activism and the interplay between sex and race discrimination); Clay Risen, The Bill of the Century: The Epic Battle for the Civil Rights Act (2014) (explicating issues with the bill that stoked worries and uncertainty about its passing). ↑

201. Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution 106–43 (2011). ↑

202. Sepper & Dinner, supra note 24, at 101; Maryann Barakso, Governing NOW: Grassroots Activism in the National Organization for Women 12, 45 (2004). ↑

203. Faith A. Seidenberg, The Wave of the Future — NOW, 21 Cornell L. F

     .

     2, 2 (1969); see also Grossman, supra note 24, at 3 (“[N]o court would countenance a bar’s offering of ‘whites’ night’ as a legitimate means to entice white customers, nor would any court think that the offering of ‘[B]lacks’ night’ on another day of the week would cure its discriminatory impact. Yet courts have entertained both these possibilities for sex-specific discounts.”). ↑

204. DeCrow v. Hotel Syracuse Corp., 288 F. Supp. 530, 532 (N.D.N.Y. 1968). ↑

205. Seidenberg v. McSorleys’ Old Ale House, 317 F. Supp. 593, 594 (S.D.N.Y. 1970). ↑

206. Id. at 599. ↑

207. Id. at 605. ↑

208. Id. at 606 (footnote omitted). ↑

209. Johnson v. Heinemann Candy Co., 402 F. Supp. 714, 718 (E.D. Wis. 1975); Women’s Liberation Union of Rhode Island v. Israel, 512 F.2d 106, 108–09 (1st Cir. 1975). ↑

210. Bennett v. Dyer’s Chop House, 350 F. Supp. 153, 154–55 (N.D. Ohio 1972) (citing Seidenberg, 317 F. Supp. at 603); see also Sepper & Dinner, supra note 24, at 105–14. ↑

211. Craig v. Boren, 429 U.S. 190, 208 (1976) (citing Seidenberg, 317 F. Supp. 593). ↑

212. White v. Fleming, 522 F.2d 730, 731, 733, 736–37 (7th Cir. 1975) (ruling that a city ordinance that prohibited female employees from sitting with male patrons or standing behind a bar was unconstitutional); Daugherty v. Daley, 370 F. Supp. 338, 340–41 (N.D. Ill. 1974) (striking down an Illinois statute that prohibited female employees from soliciting the purchases of drinks and prohibited anyone from serving female employees drinks purchased by male patrons); Sail’er Inn v. Kirby, 485 P.2d 529, 542–43 (Cal. 1971) (citing Seidenberg, 308 F. Supp. at 1260); Commonwealth, Alcoholic Beverage Control Bd. v. Burke, 481 S.W.2d 52, 54 (Ky. 1972); Paterson Tavern & Grill Owners Ass’n v. Borough of Hawthorne, 270 A.2d 628, 630–31 (N.J. 1970) (citing Seidenberg, 308 F. Supp. at 1260). ↑

213. Sepper & Dinner, supra note 24, at 104; Lerman & Sanderson, supra note 24, at 264–65. ↑

214. See Melissa Murray, Griswold’s Criminal Law, 47 Conn. L. Rev. 1045, 1072 (2015) (noting that the 1965 decision Griswold v. Connecticut is “credited with helping to transform society from one in which the state demanded compliance with majoritarian sexual norms to one in which the state respected some degree of sexual autonomy”); see also Daphne Spain, Constructive Feminism: Women’s Spaces and Women’s Rights in the American City 12–16 (2016) (describing the 1970s development of feminists’ “free spaces” such as bookstores, clinics, and women’s centers, which reinforced feminists’ independence and self-determination); Susan Frelich Appleton, The Forgotten Family Law of Eisenstadt v. Baird, 28 Yale J.L. & Feminism 1, 12–16 (2016) (arguing that the 1972 case Eisenstadt v. Baird challenged ideas about illegitimacy, family planning, and marriage). ↑

215. Julia Kirk Blackwelder, Now Hiring: The Feminization of Work in the United States, 1900–1995, at 177–204 (1997) (describing women’s participation in the workforce in the 1970s). ↑

216. Alice Kessler-Harris, Women Have Always Worked: A Concise History 1–16

     (

     2d ed.

     2018

     ); Vicki L. Ruiz, From Out of the Shadows: Mexican Women in Twentieth-Century America 72–98

     (2008);

     Evelyn Nakano Glenn, Unequal Freedom: How Race and Gender Shaped American Citizenship and Labor 1–3

      

     (

     2002

     ); Tera

      

     W. Hunter, To ’Joy My Freedom: Southern Black Women’s Lives and Labors After the Civil War 44–73

     (1998).

     ↑

217. Sepper & Dinner, supra note 24, at 115 (2019) (noting that “[s]ex equality in public accommodations required independence from attachment to men” and describing how women who protested discrimination in these spaces “demanded legal recognition as individuals without sexual attachment to a man as a physical companion or economic proxy”). ↑

218. Reginald G. Smart, The Happy Hour Experiment in North America, 23 Contemp. Drug Probs. 291, 292–93 (1996) (discussing how in the early 1970s, many bars, taverns, and restaurants “initiated a variety of sales programs to attract more customers and increase profits” and how some these included “[r]eductions in prices or free beverages for a particular type of patron, usually for women” and concluding how “[s]uch reductions may possibly have been based upon the assumption that many women would not go to bars without special inducements”). ↑

219. See sources cited supra notes 10–12 (highlighting the discretion placed with bouncers to charge or not charge women cover to enter a club). ↑

220. Julia Bauer, Despite Law, Bars Still Offer Women Free Booze, Herald, Mar. 8. 1974, at 4 (offering comments from a female patron who observed, “The men probably drink enough to make up for the girls’ free drinks”); Robert Schwartzman, Ladies’ Night Unfair—He Says, Fla. Today, Dec. 16, 1974, at 10C (male employee discussing the subsidization); David Green, Chivalry Lost: All Dinners May Be Created Equal-Cafe Official, Ithaca J., Feb. 7, 1976, at 3. ↑

221. William T. Kong, ‘Ladies Night’ Illegal, Rights Unit Rules, Des Moines Trib., Feb. 18, 1971, at 1. ↑

222. Elaine Viets, He Won’t Drink to Ladies Night, St. Louis Post-Dispatch, Feb. 3, 1980, at 1–121 (emphasis added). ↑

223. Nancy Webb Hatton, Ladies’ Night—No Hassle, Hustle, Mia. Herald, May 13, 1978, at 2D. ↑

224. Id. ↑

225. Bar ‘Ladies Nights’ Illegal, Official Says, Star Trib. (Minn.), Dec. 9, 1972, at 5 (quoting the Deputy Director of the Minneapolis Civil Rights Department claiming that the agency had “many, many, many more important priorities” than to devote much time to ladies specials, but would respond to discrimination as it is called to the agency’s attention); ‘Ladies Night’ Soon May Not Be a Familiar Cry in Idaho’s Bars, Times-News (Twin Falls), Jan. 28, 1980, at 14 (discussing how the Idaho Commission on Rights would use informal means to persuade businesses to eliminate discriminatory practices and how the commission had failed to pursue cases because of “limited staff and funds” and because the damages were lower than other discriminatory activity brought to its attention). ↑

226. Regents Univ. Cal. v. Bakke, 438 U.S. 265, 320 (1978) (holding that since the medical school could not “carry its burden of proving that, but for the existence of its unlawful special admissions program” the white applicant would not have been admitted, the applicant was entitled to admission). ↑

227. Magid v. Oak Park Racquet Club Assocs., 269 N.W.2d 661, 622, 663–64 (Mich. Ct. App. 1978). ↑

228. Tucich v. Dearborn Indoor Racquet Club, 309 N.W.2d 615, 617 (Mich. Ct. App. 1981). ↑

229. Civil Rights in Licensed Premises; Distributor Sales to Non-Licensees, 235 Ill. Comp. Stat. 5/6-17 (1990). ↑

230. Dock Club v. Ill. Liquor Control Comm’n, 428 N.E.2d 735, 738 (Ill. App. Ct. 1981). ↑

231. Id. ↑

232. Id. ↑

233. Id. ↑

234. Id. ↑

235. MacLean v. First Nw. Indus. of Am., Inc., 635 P.2d 683, 686 (Wash. 1981). ↑

236. Id. at 684. ↑

237. Id. at 687. ↑

238. See Dave Zirin, What’s My Name, Fool?: Sports and Resistance in the United States 12 (2005) (noting that Billie Jean King “became a giant protesting the exclusion and second-class citizenship of female athletes”); Susan K. Cahn, Coming on Strong: Gender and Sexuality in Twentieth-Century Women’s Sport 2–3 (1994) (describing the constraints that women athletes and women’s sports have faced in modern American history). ↑

239. Peter Glick & Susan T. Fiske, The Ambivalent Sexism Inventory: Differentiating Hostile and Benevolent Sexism, 70 J. Personality & Soc. Psych. 491, 491 (1996); see also Katharine T. Bartlett, Making Good on Good Intentions: The Critical Role of Motivation in Reducing Implicit Workplace Discrimination, 95 Va. L. Rev. 1893, 1917 (2009) (suggesting that benevolent sexism satisfies “people’s need to think of themselves as egalitarian, while at the same time helping them to rationalize or obscure their more negative or patronizing views”); Matthew D. Hammond, Chris G. Sibley & Nickola C. Overall, The Allure of Sexism: Psychological Entitlement Fosters Women’s Endorsement of Benevolent Sexism over Time, 5 Soc. Psych. & Personality Sci

     .

     422, 423–24 (2013) (arguing that the benefits of benevolent sexism lead women to endorse it). ↑

240. See Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 Harv. L. Rev. 1470, 1534 (2004). ↑

241. Id. at 1472–73. ↑

242. See Murray supra note 25, at 294–96; Bradley A. Areheart, The Anticlassification Turn in Employment Discrimination Law, 63 Ala. L. Rev. 955, 957–58 (2012); Jessica A. Clarke, Protected Class Gatekeeping, 92 N.Y.U. L. Rev. 101, 141–42 (2017); Cary Franklin, The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. Rev. 83, 128 (2010). ↑

243. Pa. Liquor Control Bd. v. Dobrinoff, 471 A.2d 941, 943–44 (Pa. Commw. Ct. 1984). ↑

244. Id. at 943. ↑

245. Id. ↑

246. Id. ↑

247. Id. ↑

248. 707 P.2d 195 (Cal. 1985). ↑

249. Id. at 195–96. ↑

250. Steven Emmons & David Reyes, He Stood Up Like a Man—and Won, L.A. Times, Oct. 18, 1985, at 34. ↑

251. Koire, 707 P.2d at 202. ↑

252. Id. at 198 (“Most often, the nature of the business enterprise or the facilities provided has been asserted as a basis for upholding a discriminatory practice only when there is a strong public policy in favor of such treatment. . . . For example, it is permissible to exclude children from bars or adult bookstores because it is illegal to serve alcoholic beverages or to distribute ‘harmful matter’ to minors.” (citations omitted)). ↑

253. Id. at 199–200 (“However, the ‘social’ policy on which [the nightclub] relies—encouraging men and women to socialize in a bar—is a far cry from the social policies which have justified other exceptions to the [anti-discrimination statute]. For example, the compelling societal interest in ensuring adequate housing for the elderly which justifies differential treatment based on age cannot be compared to the goal of attracting young women to a bar. . . . The need to promote the ‘social policy’ asserted by [the nightclub] is not sufficiently compelling to warrant an exception to the [statute’s] prohibition on sex discrimination by business establishments.”). ↑

254. Id. at 199 (“[T]his court [has] held that the fact that a business enterprise was ‘proceed[ing] from a motive of rational self-interest’ [does] not justify discrimination. . . . It would be no less a violation of the Act for an entrepreneur to charge all homosexuals, or all nonhomosexuals, reduced rates in his or her restaurant or hotel in order to encourage one group’s patronage and, thereby, increase profits. The same reasoning is applicable here, where reduced rates were offered to women and not men.” (second alteration in original)). ↑

255. Id. at 204. ↑

256. Peppin v. Woodside Delicatessen, 506 A.2d 263, 267–68 (Md. Ct. Spec. App. 1986). ↑

257. Id. at 264. ↑

258. Id. at 265. ↑

259. Id. at 264–65. ↑

260. Id.; see also Trends: Skirting the Law, Phila. Inquirer, Apr. 13, 1986, at 3A (reporting on the case outcome and noting that some men showed up wearing skirts when the restaurant initiated its “skirts and gowns” discount). ↑

261. Murray, supra note 25 at 293. ↑

262. See supra note 197. ↑

263. See, e.g., Everett v. Harron, 110 A.2d 383, 385 (Pa. 1955) (noting that the defendant “frankly admit[ed] that a crude attempt to give the enterprise the character of a private club in order to justify a selective admission of applicants was but a device to keep Negroes from the swimming pool”); Commonwealth v. Moore, 32 Pa. D. & C. 630, 635 (1938) (rejecting the argument that the defendant-hotel was a place of public accommodation “which [is] in [its] nature ‘distinctly private’”); Gilmore v. Paris Inn, 51 P.2d 1103, 1103 (Cal. Dist. Ct. App. 1935) (affirming judgment for defendant who argued café was a private club); Norman v. City Island Beach Co., 126 Misc. 335, 336 (N.Y. App. Term 1926) (rejecting defendant’s assertion that pool was private and not subject to state civil rights statute); Bowlin v. Lyon, 25 N.W. 766, 768 (Iowa 1885) (ruling that a skating rink that denied admission to Black person was essentially a private business). ↑

264. United States v. Nw. La. Rest. Club, 256 F. Supp. 151, 152 (W.D. La. 1966); North Louisiana Assn.—Restaurant Club Outlawed, Shreveport J., July 15, 1966, at 2C. ↑

265. “Segregation academies,” which were private schools designed to avoid desegregation, are a prominent example. See Anthony M. Champagne, The Segregation Academy and the Law, 42 J. Negro Educ., 58, 58 (1973). See generally Mary Thornton, A Legacy of Legal Segregation Returns to Haunt a Small Town, Wash. Post, Apr. 21, 1983, at A2 (“In community after community, white officials during the 1960s transferred public property to private organizations as integration loomed. Schools, swimming pools, athletic playing fields, even school books, were given to private owners.”). ↑

266. Nw. La. Rest. Club, 256 F. Supp. at 153. ↑

267. Id. ↑

268. United States v. Jordan, 302 F. Supp. 370, 374, 377 (E.D. La. 1969). ↑

269. Id. at 379–80. ↑

270. 395 U.S. 298, 298, 307–08 (1969). ↑

271. Art Peters, LCB Card: A Way to Discriminate?, Phila. Inquirer, Sept. 6, 1972, at 31. ↑

272. Id. ↑

273. Id. ↑

274. Robert A. Jordan, Cafe Bias Spotlight Spurs Progress, Bos. Globe, Oct. 21, 1976, at 31. ↑

275. Id. ↑

276. Courtland Milloy, Some Doors Closed to Black Faces: Integration and ‘Chic’ in D.C. Clubs, Wash. Post, May 31, 1979, at A1, A13 (quoting a nightclub owner as saying “clubs try to restrict their [B]lack clientele to about 10 to 25 percent”). ↑

277. Id. at A13. ↑

278. Interracial Group Finds Discrimination by Tavern, Balt. Sun, Mar. 28, 1968, at C7; Suit Attacks Discrimination Hearing, Courier-J., June 24, 1967, at 7. ↑

279. Patrick Boyle, Human Relations Report Hails State’s ’67 Gains, Pitt. Press, July 25, 1968 (“Typical of illegal acts stopped by the commission in the area of public accommodations was the case of a Negro charged 95 cents for a pitcher of beer in a Pennsylvania tavern while white patrons paid only 75 cents.”); $25 Fine for a $1 Beer, Ariz. Rep., Jan. 17, 1968, at 55 (noting how a tavern owner was sentenced to pay a $25 fine or spend eight days in a city jail for conviction under the Phoenix public accommodations ordinance for charging a Black person $1 for a 35-cent beer). ↑

280. Cops Who Dance the Night Away, S.F. Exam’r, June 23, 1980, at B9; Dallas Revises Law to Restrict Club Dress Codes, Tyler Courier-Times, Dec. 23, 1979, at 5. ↑

281. Jack Kadden, Results Due in Month in Probe of Nightclub, Hartford Courant, June 9, 1978, at E24; Disco Faces Bias Hearing, Hartford Courant, Jan. 18, 1980, at 42. ↑

282. ABCC Invites Discrimination Complaints, Bos. Globe, Sept. 23, 1976, at 67. ↑

283. Walter V. Robinson, Back Bay Disco Accused of Barring Blacks, Bos. Globe, Sept. 22, 1976, at A1; Walter V. Robinson, Whimseys Closing 4 Days as Discrimination Penalty, Bos. Globe, Jan. 5, 1977, at 3. ↑

284. Viola Osgood, Black Doorman To Be Hired: Whimsey’s Settles Bias Dispute, Bos. Globe, June 11, 1977, at 3. ↑

285. McDaniel v. Cory, 631 P.2d 82, 83 n.5 (Alaska 1981). ↑

286. Id. ↑

287. Id. ↑

288. Andrew Means, Sophisticated Discrimination, Ariz. Republic, Dec. 4, 1983, at H1. ↑

289. Dave Gosch, Club Metro Now Offering Free Memberships to All, Gazette, Aug. 1, 1986, at 5A. ↑

290. Red Onion OKs Discrimination Settlement, Desert Sun, July 30, 1986, at 1; A. Dahleen Glanton, Red Onion Agrees To Pay $390,000 in Racism Suit, L.A. Times, Sept. 3, 1988, at 3. ↑

291. Glanton, supra note 289. ↑

292. Red Onion OKs Discrimination Settlement, supra note 289, at 1. ↑

293. Ray Perez & Heidi Evans, Red Onion Promises to Prevent Discrimination, L.A. Times, May 16, 1986, at Part II. ↑

294. Glanton, supra note 289. ↑

295. Id. ↑

296. United States v. Glass Menagerie, 702 F. Supp. 139, 140 (E.D. Ky. 1988). ↑

297. Id. ↑

298. Russo v. Corbin, No. C.A. 01A-07-001, 2002 WL 88948, at *2–*3 (Del. Super. Ct. Jan. 8, 2002) (finding substantial evidence unlawful denial of service at a restaurant to racial minorities in violation of state law). ↑

299. Consent Decree, United States v. Walker, No. 7:01-0008 (M.D. Ga. June 26, 2001) (Dep’t of Just., Hous. & Civ. Enf’t Cases), https://www.justice.gov/crt/housing-and-civil-enforcement-cases-documents-591 [https://perma.cc/D5JE-VS97] (resolving allegations of racial overcharging in violation of Title II). ↑

300. Consent Decree, United States v. Freeway Club (N.D. Ala. May 13, 2002) (Dep’t of Just., Hous. & Civ. Enf’t Cases), https://www.justice.gov/crt/housing-and-civil-enforcement-cases-documents-421 [https://perma.cc/B93H-S5FG] (resolving allegations that a nightclub discriminated against Black patrons by demanding more forms of ID than from other patrons); Consent Order, United States v. Black Wolf, Inc. (N.D. W.Va. Nov. 20, 2003) (Dep’t of Just., Hous. & Civ. Enf’t Cases), https://www.justice.gov/crt/housing-and-civil-enforcement-cases-documents-303 [https://perma.cc/Q6VY-Y5TQ] (resolving allegations of racial discrimination by bar-restaurant that required Black patrons to show a membership card before being served while not requiring the same from others). ↑

301. See source cited supra note 50 (resolving a nightclub’s admission policies turning away certain patrons to achieve racial “balance”). ↑

302. U.S. Dep’t of Just., News Release, West Virginia Nightclub Agrees Not To Turn Away African American Patrons, Under Agreement with Justice Department (Jan. 27, 1998), https://www.justice.gov/archive/opa/pr/1998/January/028.htm [https://perma.cc/G2ZG-GM47] (resolving claims that club denied entry to Black patrons by telling them there was a private event). ↑

303. Consent Decree, United States v. Candy II, No. 05-C-1358 (E.D. Wis. Mar. 1, 2007) (Dep’t of Just., Hous. & Civ. Enf’t Cases), https://www.justice.gov/crt/housing-and-civil-enforcement-cases-documents-75 [https://perma.cc/JK7M-JWPJ] (decree resolving allegations that club discriminatorily applied dress code); Consent Order, United States v. Badeen (D. Kan. Mar. 8, 2002) (Dep’t of Just., Hous. & Civ. Enf’t Cases), https://www.justice.gov/crt/housing-and-civil-enforcement-cases-documents-321 [https://perma.cc/RAH3-AD9D] (resolving allegations of club’s discriminatory enforcement of dress code against Blacks and Latinx persons); N.Y. State Off. Att’y Gen., A.G. Schneiderman Announces Agreement with Midtown Nightclub Ensuring Equal Access for All Patrons (June 27, 2013), https://ag.ny.gov/press-release/2013/ag-schneiderman-announces-agreement-midtown-nightclub-ensuring-equal-access-all [https://perma.cc/MH89-JCEZ] (addressing $20,000 settlement to state and $500 of restitution to each patron for club’s discriminatory use of dress codes, along with other methods of exclusion); People v. Peter & John’s Pump House, Inc., 914 F. Supp. 809, 809, 811, 814 (N.D.N.Y. 1996) (finding that New York’s allegation that a nightclub imposed a discriminatory dress code gave the state parens patriae standing); Stephen Labaton, Denny’s Restaurants To Pay $54 Million in Race Bias Suits, N.Y. Times, May 25, 1994, at A1 (describing the $54 million settlement involving Denny’s, which was accused of engaging in racial segregation in their restaurants, discriminatorily requiring Black patrons pre-pay, rude treatments toward them, and long waits for service). ↑

304. Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 Colum. L. Rev. 458, 460–61 (2001). ↑

305. See sources cited supra note 137 (demonstrating examples of discrimination at swimming pools, movie theaters, cafes, and amusement parks). ↑

306. Smith v. Bradley Pizza, Inc., 314 F. Supp. 3d 1017, 1020 (D. Minn. 2018) (finding standing for a plaintiff with a disability in a claim of lack of access to restaurant arising from architectural barriers); Whitaker v. Firman, No. 2:12-cv-224, 2013 WL 4498979, at *2, *6, *9, *11 (W.D. Pa. Aug. 20, 2013) (rejecting, on standing grounds, a Title III claim brought by a plaintiff who suffered from a rare joint disease that made it difficult to stand, and alleged that the defendant-nightclub did not allow her to sit on a stool on the dancefloor or sit in the VIP area); Wilson v. Superclub Ibiza, LLC, 931 F. Supp. 2d 61, 62–63 (D.D.C. 2013) (evaluating the admissibility of evidence brought by a patron who alleged a nightclub operator denied her entry in violation of the ADA); Sharp v. Capitol City Brewing Co., LLC, 680 F. Supp. 2d 51, 58–61 (D.D.C. 2010) (rejecting various claims brought by a restaurant patron alleging violations of Title III of the ADA); MacDougal v. Catalyst Nightclub, 58 F. Supp. 2d 1101, 1102, 1103 (N.D. Cal. 1999) (deciding attorney’s fees for plaintiffs who brought two lawsuits against defendant nightclub for failure to provide access to disabled patrons and food service in violation of the ADA); Pinnock v. Int’l House of Pancakes Franchisee, 844 F. Supp. 574, 578 (S.D. Cal. 1993); see also Beth Winegarner, How Some Local Nightclubs Fail Their Disabled Patrons, S.F. Weekly (Oct. 22, 2018, 6:53 AM), https://www.sfweekly.com/music/how-some-local-nightclubs-fail-their-disabled-patrons/ [https://perma.cc/45VB-JLHR]; David Perry, Restaurants Haven’t Lived Up to the Promise of the Americans with Disabilities Act, Eater (May 31, 2017, 9:28 AM), https://www.eater.com/2017/5/31/15701042/american-disabilities-act-restaurants-compliance [https://perma.cc/3QP8-GTPU]. ↑

307. Jessica A. Clarke, Explicit Bias, 113 Nw. U. L. Rev. 505, 510 (2018). ↑

308. Onwuachi-Willig, supra note 49, at 1895 (2007). ↑

309. Id. ↑

310. DeWayne Wickham, Commentary, Dress Codes Restore Pride in Appearance, Ithaca J., July 6, 2004, at 7A. ↑

311. Onwuachi-Willig, supra note 49, at 1898–99. ↑

312. Kenji Yoshino, Covering: The Hidden Assault on Our Civil Rights, at ix, 23–24 (2006). ↑

313. Id. at 21. ↑

314. See sources cited supra notes 55, 59 (describing various situations in which identity performance takes place in the workplace and other social situations); see also Gowri Ramachandran, Intersectionality as “Catch 22”: Why Identity Performance Demands Are Neither Harmless Nor Reasonable, 69 Alb. L. Rev. 299, 300 (2006). ↑

315. Lior Jacob Strahilevitz, Exclusionary Amenities in Residential Communities, 92 Va. L. Rev. 437, 477–78 (2006). ↑

316. Id. (describing amenities strategies of Ave Maria Township, which was described as “America’s first gated Catholic community”). ↑

317. Gelbach, Klick & Wexler, supra note 49, at 818. ↑

318. Id. (citing Peggy D. Dwyer, James H. Gilkeson & John A. List, Gender Differences in Revealed Risk Taking: Evidence from Mutual Fund Investors, 76 Econ. Letters 151, 156 (2002)). ↑

319. David Martin, Kansas City Officials Had Plenty of Warning that the Cordish Co. Would Impose a Discriminatory Dress Code, Pitch (July 3, 2008), https://www.thepitchkc.com/kansas-city-officials-had-plenty-of-warning-that-the-cordish-co-would-impose-a-discriminatory-dress-code/ [https://perma.cc/26N7-63LH] (describing the decade-long accusations of racial discrimination against a real estate company that maintains bars and restaurants and arguing that “what looks like bad publicity on the surface might, in [the company’s] dark way of doing business, be an inexpensive means of letting white suburbanites know that the Power & Light District is sensitive to their fears. Not a fan of hip-hop style? Neither are we. So come on down and take a ride on our mechanical bull.”). ↑

320. See sources cited supra notes 24–25 (outlining the literature on discrimination in public accommodations). ↑

321. In one incident, a nightclub disavowed the comments of a promoter who it claimed did not work for the company. In a captured text conversation with a Latinx patron who wanted entry into the club with an entourage, the promoter told him, “‘If you [have] any of their [Instagram] or pics send cuz they’re strict [at] the door.’ He then added: ‘Gotta be 8/10 no hood [B]lack or fat.’” Mona Holmes, Hollywood Club Promoter Called Out for Racist, Sexist Door Policies, Eater LA (May 3, 2018), https://la.eater.com/2018/5/3/17315890/hollywood-club-promoter-discrimination-the-argyle [https://perma.cc/7FDW-N285]. ↑

322. Marlon Bishop, East Village Bar Accused of Racist Door Policy, WNYC (Jan. 31, 2011), https://www.wnyc.org/story/112317-east-village-bar-accused-racist-door-policy/ [https://perma.cc/4V58-D95E] (describing a complaint leveled by a Black woman who was denied entry into a nightclub by a Black security guard while white women were allowed entry, to which the guard replied, “This is what the owner wants. Do you think I like denying my own people?”); Caroline M. McKay, Boston Club Will Pay Discrimination Fine, Harv. Crimson (May 13, 2011), https://www.thecrimson.com/ article/2011/5/13/club-black-against-cure/ [https://perma.cc/N52T-2FLW] (discussing how a Boston club was forced to pay approximately $28,000 after it discriminated against Black Harvard and Yale graduate students and alumni, Sherif Hashem, the head of security, a person of color, told them there was a concern about “weed smoking brothers from the other side of Massachusetts Avenue who will want to come in if they see beautiful [B]lack women in line, and it will be a problem if we try to turn them away”). This is not new. See Juan Williams, The Discriminating Club, Wash. Post, Nov. 9, 1979, at A21 (describing a Black club in Washington D.C. that tried to “create a discriminating mix”). ↑

323. Tanya Katerí Hernandez, Multiracials and Civil Rights: Mixed-Race Stories of Discrimination 67–74 (2018) (describing the paucity of legally recognized claims involving multiracial discrimination in public accommodations); Kimberly Jade Norwood, “If You Is White, You’s Alright. . . .” Stories About Colorism in America, 14 Wash. U. Global Stud. L. Rev. 585, 605 (2015) (discussing light-skin parties and “battle of the complexions” contests in Black nightclubs across America); Desiree Cooper, Still, Blacks Struggle to Accept Selves, Detroit Free Press, Nov 1. 2007, at 1 (discussing a Detroit promoter’s plan to have a “Light Skin Libra Birthday Bash,” which was intended to let “light skin” Black women into a downtown club for free). ↑

324. The Philadelphia Commission on Human Relations, the local agency responsible for regulating anti-discrimination in the city, found that businesses in Philadelphia’s Gayborhood—a geographical area consisting of bars and nightclubs for the LGBTQ community—“create preferable environments for white, cisgender male patrons” and discriminate against women, racial minorities, and transgender individuals. This discrimination included “ad hoc, inconsistent, and arbitrary treatment of customers related to dress codes, ID policies, bar service, and treatment by staff [that] create[d] a climate of ‘unwelcomeness,’ exclusivity, and hostility” toward these groups. One lesbian commented, “[M]y partner and I, and our friends, have experienced feeling invisible in bars . . . and have watched on multiple occasions men who came up to the bar after us, get served before us.” Philadelphia Commission on Human Relations, Inform, Monitor, Enforce: Addressing Racism and Discrimination in Philadelphia’s LGBTQ Community 8, 10 (2017); see also Patrick Saunders, Atlanta Gay Bar Blake’s Taking Heat over Dress Code Sign, Georgia Voice (July 10, 2015, 11:36 AM), https://thegavoice.com/news/georgia/atlanta-gay-bar-blakes-taking-heat-over-dress-code-sign/ [https://perma.cc/AF5B-EPYG]; Naomi Waxman, Boystown Bar Called Racist for Banning Rap, Eater Chicago (May 30, 2019, 2:55 PM), https://chicago.eater.com/2019/5/30/18645763/progress-bar-boystown-gay-rap-ban-leaked-email-social-media [https://perma.cc/4F97-2JC4]. ↑

325. Combs v. Cordish Companies, 862 F.3d 671, 681 (8th Cir. 2017). ↑

326. Id. ↑

327. Id. at 682. ↑

328. Others include:

     Questioning African American patrons at the entrances to clubs and/or the district in general for the purpose of eliciting “annoyance” or some other response to be identified as “aggression,” all for the purpose of creating a rule violation which would serve as a basis for turning the individual away from the club or district or having him ejected from same;

     Ignoring/failing to serve African Americans at tables, bars and other areas, all for the purpose of giving them an “unwelcome” message;

     Keeping a head count on numbers of African Americans present in any one club or area of the District, so that when the “target” or limit number is reached, additional African Americans will be turned away or caused to leave by virtue of a change in the music genre or some other strategy;

     Telling African Americans who call to reserve tables in a club that the reservations are all sold out for a particular night, when in fact same is not true;

     Telling African Americans who have arrived at a club for their already-booked reservation that there is nothing on the books in their names, or that the computer must have messed up, or tables are double-booked and everyone else has already arrived.

     Original Class Action Complaint at 2–3, Combs v. Lounge KC, L.L.C., No. 4:14-cv-00227, 2014 WL 939699 (W.D. Mo. Mar. 10, 2014). ↑

329. Erin Donnelly, Is this Restaurant’s Ban on Stilettos, Low-Hanging Pants, and Plain White T-Shirts Racist?, Yahoo! (May 17, 2018), https://www.yahoo.com/lifestyle/restaurants-ban-stilettos-low-hanging-pants-plain-white-t-shirts-racist-155438657.html [https://perma.cc/RWZ8-X9BF]. ↑

330. Deepa Lakshmin, 11 Times Hulk Hogan Broke His Own Restaurant’s Dress Code, MTV (Sept. 25, 2014), www.mtv.com/news/1942900/hulk-hogan-broke-dress-code/ [https://perma.cc/YRL8-AN4C]. ↑

331. Id.; Stephen Romano, Long Island Bar Turns Away Man for Wearing Turban, Port Jefferson, NY Patch (May 16, 2019), https://patch.com/new-york/portjefferson/long-island-bar-turns-away-man-wearing-turban [https://perma.cc/KMD7-XM2P]. ↑

332. Emily Heil, Critics Say a New Baltimore Crab House is Targeting Minorities with Its Strict Dress Code, Wash. Post (Sept. 17, 2019), https://www.washingtonpost.com/­news/food/wp/2019/09/17/critics-say-a-new-baltimore-crab-house-is-targeting-minorities-with-its-strict-dress-code/ [https://perma.cc/QY6B-TJTX]. ↑

333. Aimee Green, Black Man Told He Couldn’t Enter Portland Bar Because of His Jewelry; Real Reason Was Racism, Lawsuit Says, Oregonian (Aug. 21, 2019), https://www.oregonlive.com/news/2019/08/black-man-told-he-couldnt-enter-portland-bar-because-of-his-jewelry-real-reason-was-racism-lawsuit-says.html [https://perma.cc/4B53-AC62]; Theresa Braine, New Jersey Restaurant Nixes Uber-Specific Dress Code Sign After Being Accused of Racism, N.Y. Daily News (Jan. 16, 2019), https://www.nydailynews.com­/news/ny-news-ashford-jersey-city-restaurant-dress-code-racist-20190115-story.html [https://perma.cc/637U-B9DQ]. ↑

334. Gene Demby, Dress Codes Are Open to Interpretation — And a Lot of Contention, NPR (July 10, 2014), https://www.npr.org/sections/codeswitch/2014/07/10/330422908/dress-codes-are-open-to-interpretation-and-a-lot-of-contention [https://perma.cc/64SZ-MR5G]. ↑

335. Jelisa Castrodale, Pizzeria Accused of Racism over Ridiculously Restrictive Dress Code, Vice (June 3, 2017), https://www.vice.com/en_us/article/vbgm53/pizzeria-accused-of-racism-over-ridiculously-restrictive-dress-code [https://perma.cc/GXM6-CS7Z]; River North Bar Releases Lengthy Dress Code, CBS Chi. (May 30, 2017), https://chicago.cbslocal.com­/2017/05/30/dress-code-bottled-blonde/ [https://perma.cc/M8JG-7PG5]. ↑

336. Hope Schreiber, Sacramento Bar Under Fire for New Dress Code Which Critics Call a Modern-Day ‘WHITES ONLY’ Sign, Yahoo! (Sept. 4, 2019), https://www.yahoo.com­/lifestyle/sacramento-bar-under-fire-for-new-dress-code-which-critics-call-a-modern-day-whites-only-sign-165735079.html [https://perma.cc/G4N7-WGFK]. ↑

337. Alex Zielinski, Discriminatory Club Policies Are Pushing African Americans Out of Portland’s Nightlife, Portland Mercury (July 4, 2019), https://www.portlandmercury.com­/news/2019/07/04/26745491/discriminatory-club-policies-are-pushing-african-americans-out-of-portlands-nightlife [https://perma.cc/ZK9Q-2ZDH]. ↑

338. See Heil, supra note 331 (discussing Baltimore restaurant’s ban on “inappropriate attire”). ↑

339. Jerod MacDonald-Evoy, Bar with Eyes on Tempe Accused of Racial Discrimination at Texas Location, Ariz. Republic (May 4, 2018), https://www.azcentral.com/story/­news/local/tempe/2018/05/04/bar-coming-tempe-accused-using-dress-code-discriminate-texas/546368002/ [https://perma.cc/BYR4-QJBR]. ↑

340. 42 U.S.C. §§ 2000e-2(k)(1)(A)-(B). ↑

341. See Settlement Agreement, United States v. Ayman Jarrah, supra note 17, at 1–3 (resolving allegations of a bar’s discriminatory use of a cover charge to limit the number of minorities admitted); Consent Decree, United States v. Candy II, supra note 302, at 1 (resolving allegations that club discriminatorily applied dress code); Consent Order, United States v. Badeen, supra note 302, at 1 (resolving allegations of club’s discriminatory enforcement of dress code against Blacks and Latinx persons); see also Williams v. Thant Co., No. 02-1214, 2004 WL 1397554, at *1 (D. Or. June 22, 2004) (denying defendant’s motion for summary judgment arising out of plaintiffs’ allegation that nightclub selectively enforced dress code against them because of their race); Consent Decree at 2, United States v. Routh Guys, L.L.C., No. 3:15-cv-02191 (N.D. Tex. June 30, 2015), https://www.justice.gov/sites/default/files/crt/legacy/2015/07/06/–kungfusettle.pdf [https://perma.cc/C4YH-7XP2] (settling with bar and restaurant that denied African American and American patrons because of discriminatory enforcement of dress code). ↑

342. See May, supra note 18, at 51–53 (discussing how dress codes in nightclubs often prohibit the type of dress typically worn by African Americans); see also, May & Chaplin, supra note 23, at 60 (noting how, in hip-hop culture, “[A]thletic jerseys, baggy jeans, oversized plain white T-shirts, sweat-bands, do-rags (polyester head wraps), ‘wife beaters,’ (‘tank tops’) and thick gold chains are worn as a means of representing one’s identification with that culture. These clothing styles are typically adopted by young, [B]lack males in urban areas”); Tricia Rose, “Fear of a Black Planet”: Rap Music and Black Cultural Politics in the 1990s, 60 J. Negro Educ. 276, 277 (1991) (“Black teenage males sporting sneakers and other Hip Hop gear are perceived as criminal equivalents.”); Marc Gunther, Faith and Fortune: How Compassionate Capitalism Is Transforming American Business 149 (2004) (noting the popularity of Timberland boots in the African American community); Russell K. Robinson, Uncovering Covering, 101 Nw. U. L. Rev. 1809, 1825 (2007) (describing the association of doo-rags with “ghetto culture” and its association with African American men); Pancho McFarland & Leslie Baker Kimmons, Style, in 3 Encyclopedia of Race, Ethnicity, and Society 1125 (Richard T. Schaefer, ed., 2008) (describing how 1990s hip-hop style entailed hooded sweatshirts and Timberlands whereas the turn of the twenty-first century popularized large platinum chains, diamond studs, and doo-rags); D. Wendy Greene, Title VII: What’s Hair (And Other Race-Based Characteristics) Got to Do with It?, 79

     U.

     Colo. L. Rev. 1355, 1383–94 (2008) (noting how doo-rags are “indicative of Blackness in the lay community”); Brian Josephs, Who Criminalized the Durag? GQ (Mar. 2, 2017), https://www.gq.com/story/who-criminalized-the-durag [https://perma.cc/D3DM-2ZAL] (discussing the relationship between doo-rags and Blackness, the NFL’s and NBA’s respective bans in 2001 and 2005, and suggesting that the stigma of this article of clothing is tied to the criminalization of Black expression); Emily Chertoff, The Racial Divide on . . . Sneakers, Atlantic (Aug. 20, 2012), https://www.theatlantic.com/national/archive­/2012/08/the-racial-divide-on-sneakers/261256/ [https://perma.cc/LBA9-WV4C] (“Jordans and Chucks come from the same originary sneaker, a canvas plimsoll from the mid-19th century. . . . How did the first become associated with [B]lack street culture and the second with white-dominated hipsterism?”). ↑

343. See Robert Wilonsky, Yet Again, Allegations Arise that in Some Uptown Bars, ‘Dress Code’ Means No Minorities, Dallas Morning News (June 29, 2017), https://www.dallasnews.com/opinion/commentary/2017/06/29/yet-again-allegations-arise-that-in-some-uptown-bars-dress-code-means-no-minorities/ [https://perma.cc/B47Z-K5MT] (discussing incident where Black women were denied entry into bar for being out of dress code); Morgan Gstalter, Man Wearing Makeup Denied Entry to Texas Nightclub, The Hill (May 12, 2018), https://thehill.com/blogs/blog-briefing-room/news/387438-man-wearing-makeup-denied-entry-to-texas-nightclub [https://perma.cc/557L-55A2] (detailing incident wherein man wearing makeup was denied entry to Texas nightclub); Hollywood Club Accused of Discrimination After Promoter Allegedly Instructs: ‘No Hood Black or Fat’, Fox L.A. (May, 2, 2018), https://www.foxla.com/news/hollywood-club-accused-of-discrimination-after-promoter-allegedly-instructs-no-hood-black-or-fat [https://perma.cc/7HCC-F8RX] (describing Hollywood club accused of denying entry to anyone described as “hood [B]lack”). ↑

344. Complaint at 3, United States v. Davis, No. 2:07cv430 (E.D. Va. Sep. 20, 2007), https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/kokocomp.pdf [https://perma.cc/4MKL-63CK]. ↑

345. Consent Decree at 1–2, United States v. Davis, No. 2:07cv430 (E.D. Va. Mar. 10, 2008); Duane Bourne, Kokoamos Owner To Apologize for Barring Entry to Two Who Sued, Virginian-Pilot (Mar. 12, 2008), https://www.pilotonline.com/news/article_1b7467ce-39f5-51ff-af29-47aefa87e36c.html [https://perma.cc/FGP2-6WSM]. ↑

346. See Gstalter, supra note 342. ↑

347. Id. ↑

348. Id. ↑

349. Elise Solé, ‘You’re a Man in Women’s Clothing’: 22-Year-Old Says He Was Dress Coded for Wearing Makeup and High Heels, Yahoo! (Mar. 27, 2019), https://finance.yahoo.com­/news/nightclub-denies-banning-gay-customer-wearing-stiletto-heels-makeup-000454296.html [https://perma.cc/2D3B-YC3W]. ↑

350. Id. ↑

351. See May, supra note 18, at 57–58 (discussing how owners of nightclubs often justify dress codes as a means of “maintaining a specific kind of atmosphere and clientele”). ↑

352. See Aimee Green, Lawsuit Claiming Portland Nightclubs Turned Away Black Customers Ends in Settlement, Oregonian (June 19, 2019), https://www.oregonlive.com­/news/2019/06/lawsuit-claiming-portland-nightclubs-turned-away-black-customers-ends-in-settlement.html [https://perma.cc/VA9H-MYKU] (recounting incident involving Portland nightclub that turned away Black patron for violating dress code that prohibited “excessive matching”); see also Jennifer Daley, Bandana, in Ethnic Dress in the United States: A Cultural Encyclopedia 17, 19 (Anette Lynch & Mitchell D. Strauss, eds., 2014) (discussing how gang members often wear the same color bandana that corresponds with their gang’s colors as a means of identification). ↑

353. See Kan. City, Mo., Mun. Code §§ 38-113(b), 38-1(a)(26) (2020), https://library.municode.com/mo/kansas_city/codes/code_of_ordinances?nodeId=PTIICOOR_CH38HURE [https://perma.cc/XX5G-V486] (making it an unlawful accommodation practice to use a prohibited dress code to deny anyone accommodations). ↑

354. Id. ↑

355. See Andrea K. Walker, Dress Code Makeover at Cordish Venue in Ky., Balt. Sun (July 2, 2004), https://www.baltimoresun.com/news/bs-xpm-2004-07-02-0407020158-story.html [https://perma.cc/U2JG-URNT] (describing a dress code implemented by Cordish Co. that the ACLU and other local activists say unfairly discriminated against minorities and urban youth). ↑

356. Id. ↑

357. Joseph Gerth, Activists Call 4th Street Live Dress Code Discriminatory, Courier-J., June 26, 2004, at B1. ↑

358. Id. ↑

359. See Cary v. Cordish Co., 731 F. App’x 401, 402–03 (6th Cir. 2018) (lawsuit filed by several African-American men who claim they were denied entry to Cordish-owned 4th Street Live because of their race); Patrick T. Sullivan, Men Allege Race Discrimination at 4th Street Live, Courier-Journal (June 4, 2014), https://www.courier-journal.com/story/news /crime/2014/06/04/men-allege-race-discrimination-th-street-live/9977255/ [https://perma.cc/WCD7-GRP8] (detailing litigation against Cordish Co. related to discriminatory accommodation practices); The Cordish Company Should Address Racial Discrimination Claims Immediately,

     ACLU

     (Jan. 21, 2013), https://www.aclu.org/press-releases/cordish-company-should-address-racial-discrimination-claims-immediately?redirect=racial-justice/cordish-company-should-address-racial-discrimination-claims-immediately [https://perma.cc/38NL-FVHJ]; Amber Duke, Coalition Concerned About Cordish Issues Points of Emphasis for Moving Community Forward,

     ACLU KY

     (Dec. 1, 2015), https://www.aclu-ky.org/en/news/coalition-concerned-about-cordish-issues-points-emphasis-moving-community-forward [https://perma.cc/6VQT-W5E8]. ↑

360. Lynn Horsley, Despite Large Power & Light District Crowds, Taxpayers Are Still on the Hook, K.C. Star (Feb. 7, 2015), https://www.kansascity.com/news/politics-government/article9530081.html [https://perma.cc/3V63-926E]. ↑

361. Sylvia Maria Gross, Nightlife Area’s Dress Code Seen as Discriminatory, NPR (June 25, 2009), https://www.npr.org/templates/story/story.php?storyId=105890577 [https://perma.cc/­RTZ4-RWHL]. ↑

362. Kan. City, Mo., Mun. Code

      

     § 38-113(a) (2020), https://library.municode.com–/mo/kansas_city/codes/code_of_ordinances?nodeId=PTIICOOR_CH38HURE_ARTIIIDIPR [https://perma.cc/2ZW8-W9K4]. ↑

363. Kan. City, Mo., Mun. Code § 38-1(a)(26) (2020), https://library.municode.com/–mo/kansas_city/codes/code_of_ordinances?nodeId=PTIICOOR_CH38HURE_ARTIIIDIPR [https://perma.cc/2ZW8-W9K4] reads:

     Prohibited dress code means a set of rules governing, prohibiting or limiting access to a place or business, or portion thereof, defined herein as a “public accommodation” because of any of the following:

     (a) The wearing of jewelry, the manner in which jewelry is worn or the combination of items of jewelry worn,

     (b) The wearing of a garment or headdress which is generally associated with specific religions, national origins or ancestry,

     (c) The length of the sleeve of a shirt or the leg of a pair of pants or shorts is too long, except that nothing herein shall be construed to prohibit a dress code that requires the wearing of a shirt,

     (d) The style, cut or length of a hair style,

     (e) The colors of the garments,

     (f) In conjunction with a major Kansas City sporting event, the wearing of athletic apparel which displays either a number, a professional or college team name or the name of a player;

     (g) The wearing of tee-shirts, except that nothing herein shall be construed to prohibit a dress code that requires such tee-shirts to have sleeves, or to prohibit a dress code that does not allow undershirts, undergarments, or tee-shirts of an inappropriate length. Designer tee-shirts, which are fitted and neat, cannot be banned. ↑

364. Kan. City, Mo., Mun. Code § 38-113(b)(2) (2020), https://library.municode.com­/mo/kansas_city/codes/code_of_ordinances?nodeId=PTIICOOR_CH38HURE_ARTIIIDIPR [https://perma.cc/2ZW8-W9K4] states it does not prohibit:

     Any owner, agent, operator or employee of a business or facility within a redevelopment area from affirmatively requiring the wearing of specified articles of clothing, which may include collared shirts and ties, sports jackets, business suits, business casual, formal clothing or smart casual clothing in keeping with the ambiance and quality of the particular business or facility and formal footwear, so long as the requirements are enforced with regard to each and every patron, regardless of race, religion, color, ancestry, national origin, sex, marital status, familial status, disability, sexual orientation or gender identity. ↑

365. See sources cited supra notes 328–38. ↑

366. In fact, the history described in this paper suggests that some owners of public accommodations will be determined to find ways to evade anti-discrimination law. Still, one might argue that affirmative dress requirements impose a certain kind of uniformity that makes compliance easier for patrons whereas the status quo—loosely worded prohibitions—allow for more discretionary and arbitrary enforcement. ↑

367. Mariel Padilla, New Jersey Is Third State To Ban Discrimination Based on Hair, N.Y. Times (Dec. 20, 2019), https://www.nytimes.com/2019/12/20/us/nj-hair-discrimination.html [https://perma.cc/M6WE-E5UV]; Aris Folley, New York Bans Discrimination Against Natural Hair, Hill (July 13, 2019), https://thehill.com/homenews/state-watch/452959-new-york-bans-discrimination-against-natural-hair [https://perma.cc/4HNW-E4KP]; Phil Willon & Alexa Díaz, California Becomes First State to Ban Discrimination Based on One’s Natural Hair, L.A. Times (July 3, 2019), https://www.latimes.com/local/lanow/la-pol-ca-natural-hair-discrimination-bill-20190703-story.html [https://perma.cc/664D-FM5B]. ↑

368. See Erynn Masi de Casanova, Buttoned Up: Clothing, Conformity, and White-Collar Masculinity 144–46 (2015). ↑

369. Chris Dixon, The “Ladies’ Night” Strategy, Bus. Insider (Oct. 16, 2010), https://www.businessinsider.com/the-ladies-night-strategy-2011-1 [https://perma.cc/V8NM-S8SQ]. ↑

370. See Koire v. Metro Car Wash, 707 P.2d 195, 199 (Cal. 1985) (recounting argument by defendant that a “Ladies Night” promotion encouraged more women to attend the bar, thus promoting more interaction between men and women); City of Clearwater v. Studebaker’s Dance Club, 516 So. 2d 1106, 1108 (Fla. Dist. Ct. App. 1987) (same). ↑

371. Novak v. Madison Motel Assocs., 525 N.W.2d 123, 124, 127 (Wis. Ct. App. 1994) (rejecting the defendant-bar’s argument that its “ladies drink free” special was designed to increase patronage by all groups and indicating that “intent is not relevant . . . promotions may not involve price differentials or other differential treatment based on the categories covered by the statute, whatever the intent”). ↑

372. Commonwealth Liquor Control Bd. v. Dobrinoff, 471 A.2d 941, 943 (Pa. Commw. Ct. 1984) (highlighting how the trial court identified “chivalry and courtesy to the fair sex” as a purpose for some women’s exemption from a bar’s cover charge). ↑

373. See, e.g., Easebe Enters., Inc. v. Rice, 190 Cal. Rptr. 678, 681 (Ct. App. 1983) (“An entrepreneur’s discriminatory practice based upon ostensible rational economic self-interest still violates public policy.”); Koire, 707 P.2d at 199 (rejecting the defendants’ arguments that gender-based discounts were permissible because they were profitable). ↑

374. Ladd v. Iowa W. Racing Ass’n, 438 N.W.2d 600, 602 (Iowa 1989) (rejecting the defendant’s claim that its ladies’ night promotion was animated by a desire to “stimulate business”). ↑

375. See sources cited supra note 238 and infra note 376 and accompanying text (describing “benevolent sexism” and its documentation in the literature). ↑

376. Hoff, supra note 24, at 141. ↑

377. Kristin J. Anderson, Modern Misogyny: Anti-Feminism in a Post-Feminist Era

      

     108

     (2015). ↑

378. Cf. Tammy L. Anderson, Better to Complicate, Rather than Homogenize, Urban Nightlife: A Response to Grazian, 24 Soc. F. 918, 923 (2009). ↑

379. Id. ↑

380. Id. ↑

381. Id. (“I have seen the harassment of women and their risk for sexual assault increase where clubbing ethos and norms center on hooking up or being on the pull. Women are regularly exploited when clubs use sexual props and gimmicks to sell alcohol or provide entertainment.”). ↑

382. See Anderson, supra note 377, at 923; David Grazian, Urban Nightlife, Social Capital, and the Public Life of Cities, 24 Socio. F. 908, 913 (2009). ↑

383. Grazian, supra note 381, at 913 (“[Y]oung female nightlife patrons are similarly expected to perform hegemonic femininity by adhering to constraining gender norms that include wearing snug designer jeans, low-cut blouses, and stiletto heels.”). ↑

384. Philip R. Kavanaugh, The Continuum of Sexual Violence: Women’s Accounts of Victimization in Urban Nightlife, 8 Feminist Criminology 20, 22 (2013) (canvassing the research in this area). ↑

385. Id. at 21. ↑

386. Id. at 22. ↑

387. See generally Laura Beth Nielsen, License to Harass: Law, Hierarchy, and Offensive Public Speech

     (2004

     ) (cataloguing misogynistic, harassing speech in public spaces)

     ;

     Peggy Reeves Sanday, Fraternity Gang Rape: Sex, Brotherhood, and Privilege on Campus

     (

     2d ed. 2007

     )

     (discussing sexual assault at college fraternity parties)

     ;

     Catharine A. MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination

     (1979)

     (theorizing sexual harassment as sex discrimination and arguing that it is prohibited by Title VII). ↑

388. David Grazian, On the Make: The Hustle of Urban Nightlife 263 n.1 (2008). ↑

389. Philip R. Kavanaugh & Tammy L. Anderson, Managing Physical and Sexual Assault Risk in Urban Nightlife: Individual- and Environmental-level Influences, 30 Deviant Behav. 680, 706 (2009). ↑

390. See sources cited supra note 386 (discussing men’s verbal and physical abuse of women on the street, in the university, and in the workplace). ↑

391. Jennifer S. Hirsch & Shamus Khan, Sexual Citizens: A Landmark Study of Sex, Power, and Assault on Campus 81 (2020) (“The mystery here is not the persistence of drunk sex among students; rather, it is the persistent exoticization, among adults, of students’ recreational drinking and sex, especially considering their own well-accepted practice of drinking to have sex.”). ↑

392. Grazian, supra note 381, at 913 (“Nightclubs, restaurants, and cocktail lounges rely on the physical attractiveness and sexual magnetism of female service staff and the promise of eroticized interaction to recruit customers. Female workers in nightlife settings are often expected to ‘do gender’ by attempting an exaggerated performance of sexualized femininity that includes wearing tight and revealing clothing, and handling obnoxious and suggestive comments from groups of male customers with flirty come-ons and gracious humor.”) (citations omitted). ↑

393. For a different take on how bars and nightclubs shape romantic marketplaces and inform stereotypes about gay men and lesbians, see Russell K. Robinson, Structural Dimensions of Romantic Preferences, 76 Fordham L. Rev. 2787, 2800–02 (2008). ↑

394. See Murray, supra note 25, at 288–92. ↑

395. Id; Matt Pearce, That Time Donald Trump Got Sued by a California Men’s Rights Activist, L.A. Times (Nov. 1. 2016), https://www.latimes.com/politics/la-na-pol-trump-mens-rights-20161027-story.html [https://perma.cc/U6GW-M52A] (discussing a lawsuit brought by a men’s right activist against Trump National Golf Club for a promotion it offered in recognition of breast cancer awareness month). ↑

396. David Harsanyi, Man’s Goal: Lights Out on Ladies Night, Denver Post (Sept. 18, 2006, 5:07 PM), https://www.denverpost.com/2006/09/18/mans-goal-lights-out-on-ladies-night/ [https://perma.cc/RE23-HSHA]. ↑

397. Jessica A. Clarke, Protected Class Gatekeeping, 92 N.Y.U. L. Rev. 101, 105 (2017). As Suzanne Goldberg put it in a recent controversy involving a women’s workspace in New York City, “Anti-discrimination laws don’t only protect groups that have experienced histories of discrimination . . . . These laws protect everyone from discrimination based on specified aspects of their identity.” Karen Matthews, Can a Club for Women Legally Exclude Men? NYC Launches Probe, AP News (Mar. 29, 2018), https://apnews.com/article­/90b8bbab98a24a15a44aef9814210c2c [https://perma.cc/CH2T-59PS] (internal quotation marks omitted). In this same controversy, Katherine Franke added, “We can’t say it’s illegal for the men to keep women out of their clubs and say it’s legal for the women to keep the men out of their clubs.” See Maura Barrett & Jo Ling Kent, Despite Success, Women’s Work Sanctuaries May Break the Law, NBC News (May 21, 2018, 10:12 AM), https://www.nbcnews.com/business/business-news/despite-success-women-s-work-sanctuaries-may-break-law-n875551 [https://perma.cc/GW8Q-F6W2]. ↑

398. Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Miami L. Rev. 9, 14–15 (2003) (“[T]he question whether a practice violates an antisubordination principle depends heavily on factual and historical contexts, and, in particular, on the laws and social mores that prevail in a given society at a given moment in history . . . . Few would characterize the anticlassification principle as similarly flexible.”). ↑

399. See discussion supra Section II.B; Cops Who Dance the Night Away, supra note 279, at B9; Dallas Revises Law to Restrict Club Dress Codes, Tyler Courier-Times, Dec. 23, 1979, at 5. ↑

400. The most noteworthy exception to this point is the New York City Commission on Human Rights, which has been recently active in this area, uniquely organized, and has “one of the broadest and most protective anti-discrimination laws” at its disposal: the New York City Human Rights Law. Gurjot Kaur & Dana Sussman, Unlocking the Power and Possibility of Local Enforcement of Human and Civil Rights: Lessons Learned from the NYC Commission on Human Rights, 51 Colum. Hum. Rts. L. Rev. 582, 598 (2020). For a general discussion on the role of these agencies, see Columbia Law Sch. Human Rights Inst., Columbia Law Sch. & Int’l Ass’n of Official Human Rights Agencies, State and Local Human Rights Agencies: Recommendations for Advancing Opportunity and Equality Through an International Human Rights Framework (2010). ↑

401. Devon W. Carbado, Predatory Policing, 85 UMKC L. Rev. 545, 556–58 (2017) (describing fines and citations as sources of revenue that use police officers as their front-line agents). ↑

402. Bernadette Atuahene & Christopher Berry, Taxed Out: Illegal Property Tax Assessments and the Epidemic of Tax Foreclosures in Detroit, 9 U.C. Irvine L. Rev. 847, 849, 851 (2019) (providing empirical evidence of a systemic and unconstitutional pattern of over-assessment of home values in Detroit, leading to inflated property taxes). ↑

403. Adam Crepelle, Probable Cause to Plunder: Civil Asset Forfeiture and the Problems It Creates, 7 Wake Forest J.L. & Pol’y 315, 315–16 (2017) (describing the poor incentive effects of law enforcement revenue generation from civil asset forfeiture). ↑

404. See generally Alexes Harris, A Pound of Flesh: Monetary Sanctions as Punishment for the Poor (2016) (theorizing court sanctions as a form of social control of the poor). ↑

405. See Nightlife Industry Overview, Am. Nightlife Ass’n, https://www.nightlifeassociation.org/market-overview/ [https://perma.cc/9XPM-PFQ2] (last visited Jan. 18, 2021) (noting that the larger nightlife industry, of which bars and nightclubs are a part of, brings in in roughly $26 billion annually in revenue). ↑

406. See Michael Hunter Schwarz & Jeremiah A. Ho, Curriculum Reforms at Washburn University School of Law, in Reforming Legal Education: Law Schools at the Crossroads 41, 42–43 (David M. Moss & Debra Moss Curtis eds., 2012). ↑

407. For voting rights see Samuel Issacharoff, Pamela S. Karlan & Richard H. Pildes, The Law of Democracy: Legal Structure of the Political Process

     (

     4th ed.

     2012)

     ;

      

     James A. Gardner & ‎Guy-Uriel Charles, Election Law in the American Political System (2d ed. 2018)

     .

     For employment law and discrimination see

      

     Mark Rothstein & Lance Liebman, Employment Law (6th ed. 2007)

     .

     For education law see Michael J. Kaufman & Sherelyn R. Kaufman, Education Law, Policy, and Practice: Cases and Materials (4th ed. 2018); Charles J. Russo, Reutter’s The Law of Public Education (6th ed. 2006). Housing falls within property and/or land use law and casebooks. See Stewart E. Sterk, Eduardo M. Peñalver & Sara C. Bronin, Land Use Regulation (2d ed. 2016); Joseph William Singer, Bethany R. Berger, Nestor M. Davidson & Eduardo Moisés Peñalver, Property Law: Rules, Policies, and Practices (6th ed. 2014). For book-length treatments on housing and discrimination by legal scholars see Richard R. W. Brooks & Carol M. Rose, Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms (2013); Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America (2017). The criminal procedure story is well-told. See Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2004). ↑

408. Austin, supra note 71, at 667. ↑

409. Id. at 670. ↑

410. Id. at 668. See generally John Wilson, Politics and Leisure (1988) (discussing how leisure is treated by differently-structured political states)

     ;

     A Handbook of Leisure Studies (Chris Rojek, Susan M. Shaw & A.J. Veal eds., 2006) (collecting a variety of essays on the origins, nature, and analysis of leisure)

     ;

     Robert A. Stebbins, Serious Leisure, Society, May 2001, at 53 (comparing a light-hearted, simple, and unsatisfying “casual leisure” with a more substantial “serious leisure” which requires time and effort to master and generates more lasting rewards)

     ;

     Sociology of Leisure: A Reader (C. Critcher, P. Bramham & A. Tomlinson eds., 1995). ↑

411. A Handbook of Leisure Studies, supra note 409, at 1–2. ↑

412. See sources cited supra note 137 (describing movements to desegregate American public accommodations); Ricard Gil & Justin Marion, Residential Segregation, Discrimination, and African-American Theater Entry During Jim Crow, 108 J. Urb. Econ. 18, 18–19 (2018). ↑

413. See sources cited supra note 25 (noting recent scholarship on sexual orientation, religion, and disability in the context of public accommodations law). ↑