April 5, 2011 13

Is Ladies’ Night illegal? Nightclub entry policy and the Equality Act

By Leon Glenister in Equality

Many nightclubs are renowned for their door policy. Door policies can lead to pride (if you meet the standard), worry (will I get in?), or contempt (when you realise you are wearing trainers and are, therefore, deemed the kind of riff-raff the club is trying to steer clear of). It occurred to me today, though, many common door policies may be illegal under the recently passed Equality Act 2010.

In specific, attention is drawn to the gender-based policies. One example is the entry fee that many clubs choose to operate, men having to pay a fee (often £20 or more) whilst women can get in for free. Another common policy is to turn away male-only groups, whereas female-only groups are welcomed.

The mechanisms of the Equality Act are complex, but here is a summary. Under the Equality Act, discrimination is defined as where someone treats another less favourably than they treat others because of a “protected characteristic”, and gender is a “protected characteristic”. A club is deemed a “service provider” under the Act, and it is illegal for a service provider to discriminate as to the terms on which they provide their services. Because the club is directly (as opposed to indirectly) discriminating, because they are discriminating on gender alone, they cannot justify their door policy on any business consideration.

In sum, a club that has an entrance policy that favours females over males discriminates for the purposes of the Equality Act. It seems that any man who bears the burden of such a policy may be able to make a claim against the club.

I write this blog as an observation on the far reaching effects of equality legislation taking hold in UK law, and surprise that discriminating practices under such legislation are still so widespread. I reserve judgment on whether clubs should be able to discriminate on the door; it perhaps is an issue relevant to whether direct discrimination is ever justifiable. But for current purposes, many clubs may find themselves with illegal door policies. Whether their bouncers will care or not is another matter.

13 Responses to “Is Ladies’ Night illegal? Nightclub entry policy and the Equality Act”

  1. Adam F says:

    While it is not just a matter of favouring one gender of consumer over another for a club, as was commented about one well-known brand connected with the gay club scene, there is a myriad of reasons that doorstaff profess not to people in, and a lot of them seem to be catching up with the loopholes. A popular one seems to be the introduction of membership (simply signing up to get a card or something similar) so they can claim to be a private members’ club. Whether that is the actual reason is a different matter, but it’s hard to prove direct discrimination under one of the protected headings, when the reason given doesn’t have anything to do with discrimination under the legislative provisions.

  2. Nathan says:

    I’m surprised there have been no such claims made yet.

    Protected characteristics also include race and sexual orientation, and you can be sure if any club were to discriminate based on those characteristics there would be a public outcry.

    Perhaps by writing this you will light a fire. Here’s hoping.

  3. Sandy says:

    I do think it’s illegal. No one should be treated fairly based upon their gender.

  4. Adam F says:

    @ Nathan

    There was a minor outcry in relation to the club I was discussing before, in that heterosexual customers were turned away in favour of non-heterosexual ones, but it was only a minor story in one national paper. So not much of an outcry at all. I think the problem is that people expect it; exclusivity seems to go hand in hand with clubbing these days, rather than having a good time, but they don’t view it as discrimination.

  5. Bob says:

    @adamF often the private members thing is a licensing loophole and not about discriminatory entrance practices. Private member clubs often have a more relaxed licence requirements than standard nightclubs.

  6. Red says:

    There is definitely a strict breach of the legislation, but I’d be inclinded to agree with the Washington Supreme Court in MacLean v. First Northwest Industries of America, Inc., 635 P.2d 683 (WA 1981):

    “[T]o decide important constitutional questions on a compaint as sterile as this would be apt to erode public respect for the Equal Rights Amendment and deter rather than promote the serious goals for which it was adopted.”

    Although I didn’t agree with the majority of his argument, I imagine this is just the sort of case Lord Hoffman was talking about in his foreword to ‘Bringing Rights Back Home.’ The Prime Minister is looking for any excuse to repeal the HRA and withdraw from the ECHR. Best not to give him one.

    I can’t see anyone actually raising an action in respect of this, but the legislation is there, and such promotions clearly breach it. If it were a criminal statute and it had come across my desk in my prosecuting days, I would have marked it, ‘No Proceedings: Triviality.’

  7. Adam F says:

    @Bob, I don’t disagree with that, but it also allows loopholes like that. Having a selective entry policy for the purposes of licensing regulations can open the doors for selection on other grounds.

  8. Adam F says:

    @Red, indeed, a lot of people on nights out will avoid clubs with known policies because it’s a great truism that people don’t want to be in places that they can’t be themselves in.

  9. Yaaser Vanderman says:

    Could this have unintended consequences? As one Maryland Court has said,

    ‘The record is replete with evidence that Skirt and Gown Night was intended to-and did-have the same effect and serve the same function as Ladies’ Night, i.e. it provided price discounts to women and, in fact, operated as a mere extension of Ladies’ Night.’…

  10. Yaaser Vanderman says:

    …where entrance fee is 50% if you wear a skirt and gown.

  11. Ben says:

    While this case may seem trivial, the impact can be that men end up paying hundreds of pounds more in a year. Something ironically, that women drivers are having to do in the case of car insurance as a result of the ruling that gender cannot be a determining factor when assessing premiums.

    I also think the fact that it is so blatant and widespread is also another reason to take action as this contributes to a culture of discrimination in our society. What effect does it have on the nightclub itself? Does it mean women are slightly more obliged to tolerate the men’s attention more as they did after all get in the club for free? How will it affect men’s perception of women if a club’s marketing strategy is ‘Come ‘ere for the Lasses’?

  12. Michael says:

    Considering that age is a ‘protected characteristic’ under the Act, does this mean that 21-and-over bars bars are operating a directly discriminatory policy?

  13. Leon Glenister says:

    Age is slightly different under the act because it can be justified. Under s13(2),

    “If the protected characteristic is age, A does not discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim.”

    So the club could argue they have a legitimate aim in having a mature clientele and atmosphere, etc.