VELVET ROPE DISCRIMINATION

VELVET ROPE DISCRIMINATION

“[P]ublic accommodations are important sites for inclusion into society. The relative paucity of work in this area highlights the limited vocabulary legal scholarship has for thinking about law, recreation, and leisure.”

SHAUN OSSEI-OWUSU LPS’08, Presidential Professor of Law

In “ Velvet Rope Discrimination,” published in the Virginia Law Review, Ossei-Owusu pioneers the legal analysis of race, gender, and sex discrimination that social scientists have demonstrated to be pervasive in bars, nightclubs, and restaurants across the country. While tactics such as dress codes and gender-based pricing schemes have been litigated for decades, legal academics have devoted relatively little scholarly attention to the practices’ civil rights implications.

Regulatory Framework

Throughout the twentieth century, courts wrestled with whether bars, restaurants, and dance halls counted as “public accommodations” for the purposes of civil rights laws. The first half of the century yielded a patchwork of different decisions and statutory approaches in the context of race; in the context of gender, social norms determined much of the country’s discrimination patterns.

In 1964, Title II of the Civil Rights Act explicitly prohibited discrimination on the grounds of race, color, religion, or national origin in the “goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation.”

The Flowering of Velvet Rope Discrimination

Notably, Title II did not prohibit gender-based discrimination. As women gained more economic power, the trend of gender-based pricing began to emerge at discotheques and nightclubs. During “ladies’ nights,” establishments sought to attract more women by offering them free or discounted admission, food, and drinks.

“More often than not, these public accommodations’ economic rationales were based on the heteronormative assumption that inducing women into these establishments would lead to increased presence by men, who would cross-subsidize the discounts,” Ossei-Owusu writes.

Courts were divided over the legality of gender-based pricing. Some saw no issue, reasoning that offering discounts to women did not equate to discouraging men, and thus no discrimination could have taken place; others noted that sex-based classification was constitutionally suspect and struck down “ladies’ night” practices as discriminatory against men.

Following the passing of the Civil Rights Act, bars and nightclubs employed a host of schemes to discriminate against racial minorities. Racial minorities were commonly denied entry, overcharged, required to show excessive identification, or told there was a “private party” using the facilities. In particular, the enforcement of “dress codes” emerged as a highly administrable means of discrimination, empowering nightclub personnel to cite “improper attire” as the reason they turned racial minorities away at the door.

Contemporary Velvet Rope Discrimination

Opinions surrounding contemporary velvet rope discrimination are complex. In some instances, velvet rope discrimination mirrors what Angela Onwuachi-Willig calls “volunteer discrimination,” or, when protected groups agree to perform in accordance with voluntary policies. Ladies’ night makes going out less expensive for women; dress codes allow racial minorities to “perform middle-class identity and prevents them from being stereotyped as part of the riff-raff that public accommodations owners

often seek to exclude.” Nonetheless, other scholars emphasize the downsides of complying with harmful social norms and coerced assimilation.

While some dress codes are vaguely constructed, others specifically ban white t-shirts, doo-rags, baggy clothing, construction boots, excessive jewelry, and high-top sneakers — items that legal scholars, sociologists, and even the Department of Justice have recognized as being overwhelmingly donned by racial minorities.

Establishments have defended their dress codes with varying explanations. Some claim they have dress codes to create a “classy environment”; yet, this excuses falls flat considering the diversity of professionals who may reject traditional notions of “appropriate” attire. Further, other establishments have claimed that bans on “excessive matching” enhance security by keeping gang members at bay — an excuse that Ossei-Owusu writes, “rest[s] on outdated ideas about gang fashion and ignore[s] the fact that gang members could simply conform to the dress code to ensure entry and still be socially disruptive.”

“Dress codes are simply too ripe for abuse,” Ossei-Owusu writes. “Though they are sometimes about taste and cultural capital, dress codes often smuggle discrimination through sartorial requirements.” Most state anti-discrimination laws do not have business-necessity carve-outs allowing public accommodations to argue that genderbased pricing structures are legitimate because they ultimately lead to increases in revenue.

Moreover, some legal scholars have attempted to distinguish “hostile” from “benevolent” discrimination. Though ladies’ night pricing appears to benefit women, its purpose is to uphold patriarchal norms that ultimately diminish women’s agency. For example, in order to benefit from gender-based pricing, a woman must perform her femininity in a way that is deemed acceptable. Second, ladies’ nights tend to shape the behavior of men in nightclubs — the reason public accommodations host these nights is to incentivize women to patronize their club, which in turn entices men to show up, who will supplement the discounts women are enjoying by purchasing more drinks, often as status symbols, to impress women.

“[A] chorus of scholars has shown that men move through the world with a general sense of entitlement,” Ossei-Owusu writes. “They perceive themselves as having entitlement in the home, at work, in school, in public space, in the digital world, and to women’s bodies. . . . In these spaces, which are specifically structured as sexual — from the pricing to the personnel — men may assume that women’s reduced costs constitute barter for their own regularly-priced payments and infer entitlement to women’s bodies.”

Ossei-Owusu suggests that courts must invalidate genderbased pricing in public accommodations, not by relying on anticlassification theories, but rather on anti-subordination principles, as gender-based pricing effectively reinforces sexism and sex stereotypes.

Both regulatory bodies and law schools have a role to play in strengthening civil rights law in the context of public accommodations, he writes. First, regulatory bodies must prioritize velvet rope discrimination. Not only would this help to create a more equitable social world for racial minorities, women, and members of the LGBTQ+ community, but fining wealthy nightclubs could be an impactful revenue generator for regulatory bodies. Further, OsseiOwusu argues, law schools should assist in this fight by focusing clinics on public accommodation discrimination and training students to assist local governments to better understand and address these pervasive social injustices.

Historically, civil rights discussions have centered on activities such as voting, education, criminal justice, housing, and employment; nonetheless, this article’s focus on public accommodations provides vital context on the significance that civil rights have in the social sphere.

“[P]ublic accommodations are important sites for inclusion into society. The relative paucity of work in this area highlights the limited vocabulary legal scholarship has for thinking about law, recreation, and leisure,” Ossei-Owusu writes. “[William A. Schnader Professor of Law, Emeritus] Regina Austin puts it best: it is difficult to imagine a conception of good life that does not entail a fair measure of leisure — much of which occurs in public accommodations.”