Fly Away: Why the New York City Human Rights Commission is Right to Investigate The Wing, a Private Club and Workspace that is Just for Women

Posted in: Civil Rights

There are plenty of features of American society that might make women want to retreat to protected spaces. Believe me, there are days when a quick glance at Twitter in the morning is enough to make me want to stay home.

The #MeToo movement has thrown light on the pervasive and damaging problems of sexual harassment and assault. Women are battered in their homes, catcalled on the streets, and the subject of sexual imposition at work. The Trump administration, meanwhile, has taken out a hit on America’s women—attacking them from every conceivable angle. As female staffers clapped by his side, he rolled back Obama-era protections for women in the workplace. He has savaged women’s access to healthcare, especially access to contraception and abortion. And these current challenges are just layered on a society in which women already struggled for equality, dignity, and, in many cases, mere survival.

The Wing was founded against this backdrop. A private social club and communal workspace with three locations, the Wing has over 2,000 members, all of whom are women. Men are not permitted to join, nor to enter the premises as a guest of a member. Membership is costly, and the leadership has raised over $40 million so far. In an interview with the New York Times, Wing co-founder Audrey Gelman stated the premise behind organization simply: “We still believe women deserve spaces of their own.”

Indeed, they do. But they can they have this particular type of space without running afoul of discrimination law? The New York City Commission on Human Rights (NYCCHR) has begun an investigation into the Wing—and found itself on the receiving end of substantial criticism for doing so. As unpopular as its move may be, NYCCHR has the law on its side.

Public Accommodations Law: A Primer

While we talk at length about discrimination in the employment context, it also occurs—and is prohibited—in other settings. Fair housing laws impose restrictions on discrimination by landlords. Title IX prohibits discrimination by most educational institutions. There is also a special set of rules that protect against discrimination by so-called public accommodations.

At the federal level, a public accommodations law bans discrimination on the basis of race, color, religion, or national origin. That law, 42 U.S.C. § 2000a, guarantees equal access by those protected groups to “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation.” It was designed to break down the racial segregation that operated to the continued disadvantage of African Americans, even after the more formal barriers to equality had fallen.

This law, notably, does not treat sex as a protected trait, which means that it cannot be used to challenge businesses that exclude members of one sex or treat them differently in terms of pricing or other policies. Most states, however, have passed their own public accommodations laws, and, typically, they add sex (and sometimes sexual orientation or gender identity) to the list of protected characteristics.

These state laws sometimes vary in scope, but, in general, disallow businesses from excluding members of one sex, charging different prices on the basis of sex, or otherwise differentiating between male and female patrons. These laws do not invite a balancing test that accounts for a particular business’s motive for discriminating, but, rather, strictly disallow the prohibited types of discrimination. There is no “de minimis” exception in these statutes, just a mandate to let everyone in on the same terms. If you’re open for business, you cannot selectively exclude people whose traits have subjected them to a history of disadvantage.

New Jersey’s law was used to invalidate a bar’s “Ladies’ Night,” one night each week when it admitted women free of charge and offered them drinks at a discount. In California, the public accommodations law led to the end of a ladies’ discount at a car wash in Koire v. Metro Car Wash. While the California Supreme Court recognized that increasing patronage was certainly a legitimate goal for a business that is open to the public, the company could not just ignore the state’s ban on sex discrimination without, at a minimum, a legitimate governmental or social policy objective that might justify an affirmative-action style discount. The laws reflect a policy determination by the legislature that discrimination by places of public accommodation do more harm than good.

Beyond pricing cases, public accommodations laws have been used to strike down female-only gyms and male-only golf clubs. Some states have carved out exemptions in the statute for particular types of businesses where privacy concerns might be relevant, such as a health club, bathhouse, or changing rooms. In Massachusetts, a court invalidated the women-only membership policy of a health club in Foster v. Back Bay Spas, and the state’s legislature promptly amended the public accommodations law to make an exemption for fitness centers.

Do Public Accommodations Laws Apply to Private Clubs? Are They Protected by the First Amendment?

The Wing styles itself as a social club. Is it still governed by public accommodations laws? In some states, the law applies only to “places of public accommodation,” often construed to mean only those entities with a fixed location such as a hotel or store. That type of rule might not apply to a private association with a roving meeting place. Others apply more broadly, but exclude at least some private (or, in the words of some statutes “distinctly private”) clubs based on size, mission, selectivity, or other factors.

The Supreme Court has twice considered the constitutionality of male-only membership policies of private clubs. In Roberts v. United States Jaycees (1984), the Court upheld against a First Amendment challenge a Minnesota statute that required the Jaycees to admit women as full voting members. Although the club claimed that it was permitted to exclude women based on First Amendment’s protection for freedom of expressive association, the Court did not find the club’s First Amendment right sufficiently infringed in this situation. The same issue was raised in Board of Directors of Rotary International v. Rotary Club of Duarte (1987), and, again, the Court invalidated the single-sex membership policy. In those cases, the Court proceeded from the premise that public accommodations laws serve a compelling governmental interest in eradicating non-discrimination. The slight infringement on the club mission was insufficient to outweigh that interest. These cases did not produce a bright-line rule. The First Amendment provides greater protection to organizations that are personal and intimate in terms of size, purpose, selectivity, and agenda, especially if they are engaged in a specific, political, social, or religious agenda.

Under California law, the Boys’ Club of Santa Cruz, whose mission was to combat delinquency in boys, was forced to permit girls to join. The court rejected a First Amendment challenge to the law under Roberts and Rotary Club.

The Wing may have a First Amendment argument, but it is not a surefire path to success.

New York Public Accommodations Law

NYCCHR is investigating the Wing’s potential violation of New York City’s accommodations law, but that law mirrors the protections on the state level.

Like most other states, New York prohibits discrimination in public accommodations. New York Executive Law §§ 292 and 296 sweep broadly to eliminate discrimination on the basis of “race, creed, color, national origin, sexual orientation, military status, sex, or disability or marital status.” The law applies to any “place of public accommodation, resort or amusement,” which is defined broadly to include any business where “goods, services, facilities, accommodations, advantages or privileges of any kind are extended, offered, sold, or otherwise made available.” The law provides a long but non-exhaustive list of covered businesses, including everything from hotels and restaurants to skating rinks and bowling alleys.

Section 292 expressly addresses private clubs. It exempts “any institution, club or place of accommodation which proves that it is in its nature distinctly private.” However, statute goes on to say that a club cannot be considered “distinctly private” if “it has more than one hundred members, provides regular meal service and regularly receives payment for dues, fees, use of space, facilities, services, meals or beverages directly or indirectly from or on behalf of a nonmember for the furtherance of trade or business.”

The Wing does not seem to qualify for the exception. It has over 2,000 members; it charges dues of $3,000 per year; it sells merchandise and space to non-members; and it serves food. All of these things make clear it is not “distinctly private.”

On its face, then, the Wing seems to violate New York state’s public accommodations law. On the spectrum of such laws, New York takes a narrow view of what qualifies as a distinctly private club that is exempt from the public accommodations law. In published cases, courts have held that the Kiwanis Club and a “fraternal lodge” were distinctly private—and thus exempt from the ban on sex discrimination—but a country club and a club devoted to boating safety were not. Based on the language of the statute and these rulings, the Wing faces an uphill battle.

Isn’t an Organization that Excludes Men Less Objectionable than One that Excludes Women?

The law provides for the possibility of a public policy exemption (guidelines here) for restrictions based on age or gender, but the Wing does not seem to have applied for such an exemption. There are no judicial interpretations or applications of the public policy exemption, so it is a bit of an unknown. An article in Jezebel quotes a NYCCHR commissioner as saying that only three exemptions have been granted in ten years.

As the investigation by NYCCHR proceeds, the Wing may argue that it has a First Amendment right to remain all female. If successful, this would prevent New York from enforcing its public accommodations law against the organization. But, it does not readily seem to meet the criteria set forth in Roberts and Jaycees, discussed above, so that line of argument is a longshot at best.

If the law prohibits women from establishing a protected space for themselves, is the law wrong? It is certainly understandable why women might gravitate to the Wing, and we might think their reasons perfectly valid, but it’s hard to evaluate one instance of segregation in isolation. One exception also leads to others. Do we trust that each self-segregated group must have a good reason for wanting to associate only with its own kind? Imagine a block that includes a women-only club, a male-only club, a Christians-only club, and a whites-only club. We might have different reactions to these instances of segregation—particularly if we listened to the reasons why each was established—but shouldn’t we worry about the pattern of organizing by race, gender, religion, when those categorical associations have led to a deeply unequal society? Seemingly innocuous exceptions can upend a system that gives us the best chance of bending the arc of history towards justice. The general rule against sex segregation is designed to promote equality—and to overcome a history of exclusion that worked to the systemic disadvantage of women. While that history might not be invoked by a women-only association—indeed, it may be bucked—there is always a cost to reverting to segregation.

Unless the Wing can make its case under the public policy exemption—arguing, for example, that women’s safety and success is compromised by workspaces in which they have to navigate harassment, discrimination, and worse—it should be forced to admit male members. Each instance of segregation reinforces the stereotypes about gender differences that have made it so hard for women to be equal players in public life, in the workforce, and in the family. Stamping out discrimination is always a good use of government resources.

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