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Excerpted From: Shaun Ossei-Owusu, Velvet Rope Discrimination, 107 Virginia Law Review 683 (June, 2021) (412 Footnotes) (Full Document)


ShaunOssei OwusuThe 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. 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.” One African-American woman added, “He didn't even look at us. He didn't even look at our IDs ... He just said, '$20.”’ 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.” Another teased, “Have a good night in the 'hood’ ... Tell Tyrone I said hi.” In a world where legal remedies for civil rights violations are limited, 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. 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. 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.”

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. 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.” 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.” 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.” Those three men happened to be lawyers. They filed a lawsuit in federal court under Title II of the Civil Rights Act of 1964, which prohibits racial discrimination in public accommodations. President Obama's Department of Justice intervened in 2016 and the agency settled with the club two years later under the Trump Administration.

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. 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, as well as varying treatments in social sciences, humanities, and journalism. 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. Notwithstanding Richard Epstein's assertation a quarter century ago that “the law of public accommodations could be described as 'ancient history,”’ available descriptive and empirical accounts indicate that race and sex discrimination flourish in restaurants and nightlife.

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. 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. 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, women are considered ideal customers because their presence ostensibly increases alcohol purchases by men (as gifts, courtship, and/or status displays). 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 matter 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, Title II of the Civil Rights Act of 1964 does not contain a business necessity defense and courts have routinely rejected such arguments in the public accommodations context. Moreover, jurisdictions are slowly adopting anti-discrimination provisions designed to combat velvet rope discrimination. 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, which the Court struck down in the 1883 Civil Rights Cases. That decision, along with Plessy v. Ferguson 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. 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. These cases provided fodder for challenges to recreational segregation after the Court invalidated Jim Crow in Brown v. Board of Education 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. This federal and state framework buoyed existing local agencies that developed their own municipal prohibitions on public accommodations discrimination.

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.” 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 law 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. 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. 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. 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. 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. 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. 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.

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. 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. 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. 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. 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. 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.

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. 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. 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. 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. 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. 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. 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.” 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. 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. 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. The National Organization for Women (NOW) challenged men's-only bars amidst concerns about reproductive rights, wage gaps, and sexual violence. 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.

Finally, as a legal and political issue, such dismissals fail to appreciate the democratic and dignity concerns at the heart of anti-discrimination law. 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.” 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.” 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, this Article calls attention to the ways discrimination in public accommodations speaks to questions of democratic membership and inclusion.

[. . .]

Although public accommodations served as crucial battlegrounds for the Civil Rights Movement and the Women's Rights Movement, they are overshadowed by other spheres of social life that these campaigns sought to equalize: criminal procedure, housing, education, voting, and employment. These fields maintain a certain kind of significance in civil rights thinking. Many people reasonably understand these areas as more material and urgent legal priorities for marginalized groups. These domains have spawned book-length legal treatments, casebooks, and corresponding law school courses in ways public accommodations law has not. But public 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. 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.

This Article focuses on a limited category of public accommodations (bars, restaurants, and nightclubs) that some people may not frequent. Yet the focus on a specific subset still highlights how these spaces, and public accommodations more generally, have been and continue to be important sites of meaning-making, group formation, and political mobilization. Whether it be nightlife, amusement parks, beaches, swimming pools, movie theaters, or the like, public accommodations are important places people visit for “the purpose of engaging in pleasurable, generally nonwork-related or after-hours pursuits.” Such leisure pursuits are important features of modern living. But as history has shown, public accommodations are not insulated from the vagaries of social identity. And while this Article has focused primarily on race and sex, there are a host of other relevant categories that are important to consider in the public accommodations context, as the enduring battle for disability rights and the thorny questions around religious freedom and sexual orientation teach us. This Article's excavation of velvet rope discrimination supplies a history, analyses, and tangible normative suggestions that might bring us closer to the equality norms embodied in our anti-discrimination laws.

Presidential Assistant Professor of Law, University of Pennsylvania Law School.

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