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Davis, California

Wednesday, September 22, 2021

Column: Watts legal?

Question: There’s a bar in Sacramento that turns into a nightclub on weekends. They charge cover — which is annoying in itself — but on “ladies’ night,” women get in free before 10 p.m. Guys still have to pay $15. Is this legal? Can I sue them? If so, would I only get $15?
— Brian B., Sacramento

Answer: Ladies’ nights are absolutely illegal in California. And yes, you can sue them — for $4,000 in automatic damages.

Like the federal Civil Rights Act of 1964, most states, including California, have their own civil rights acts. Named after former state legislator Jesse Unruh, the Unruh Civil Rights Act prohibits California’s businesses from discriminating against people on a variety of bases, among them race, sex, disability and national origin. A person who suffers discrimination in violation of the Unruh Act is entitled to $4,000 in statutory minimum damages. These damages are the minimum that a court can award; theoretically, a victim of discrimination could get even more.

While $4,000 might seem excessive for something like a ladies’ night, there’s a good reason for statutory damages. Acts of discrimination often fail to cause any harm that’s easy to calculate in terms of money.

For example, how much actual money does someone lose if they’re banned from a Denny’s because of their race? In most cases, nothing. Getting banned from a Denny’s doesn’t set you back a whole lot of cash.

Another example: How much does a disabled person lose when he’s charged $6 more than an able-bodied person to see a movie? Just $6.

But Californians decided that these acts are so wrong, and such discrimination is so hurtful, that we want to punish those who engage in it and help those affected by it — regardless of whether they suffered any actual monetary damages. The legislature decided that $4,000 is the bare minimum that would compensate someone for an act of discrimination.

Why does this apply to ladies’ nights?

Ladies’ nights are discriminatory if they give discounts to women but not men. A nightclub can advertise a “ladies’ night” all it wants, but if it actually bestows a benefit upon women that is not equally available to men, the nightclub is unlawfully discriminating.

Interestingly enough, while the Unruh Act is many decades old, ladies’ nights have been considered violations of the Unruh Act only since 1985.

In a 1985 decision called Koire v. Metro Car Wash, the California Supreme Court held that the Unruh Act prohibits sex-based price discounts. A guy had sued a bunch of car washes and nightclubs that gave discounts to women. The lower courts all told him to take a hike. The Supreme Court, though, reversed the lower court decisions. The court held that the Unruh Act’s language was pretty clear: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex … are entitled to the full and equal accommodations, advantages, facilities, privileges or services in all business establishments of every kind whatsoever…”

It’s hard to argue with language like that.

The court held that the car washes and nightclubs each had to pay the guy $250 in automatic damages (the amount has since been raised to $4,000). The Unruh Act also allows the court to reimburse a successful plaintiff for his attorney fees.

Why do businesses still offer ladies’ nights if they’re illegal? Because they’re profitable, and they think no one will sue. But profit is not a defense. And for $4,000 plus attorney fees, some people do sue.

In fact, there’s an entire group of professionals who base their livelihood on helping people sue businesses that violate laws.

They’re called lawyers.

Sidenote: I’d be remiss if I neglected to mention that one of the justices on the court in Koire v. Metro Car Wash was Professor Cruz Reynoso, who currently teaches at UC Davis School of Law. He’s a living legend, and we’re lucky to have him.

Daniel is a Sacramento attorney, former Davis City Council candidate and graduate of UC Davis School of Law. He’ll answer questions sent to him at governorwatts@gmail.com or tweeted to @governorwatts.

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