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.
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