Leslie A. Farber
Is Sex Discrimination Legal?
The Proud Boys, the far-right group which has become synonymous with political violence in the U.S., has also been at the center of a social media clash that has raised questions about the group’s gender-inclusivity. While the fraternal organization claims to have a large female following, it is known for its misogynistic rhetoric. In December 2020, the establishment of a females-only chapter, Proud Girls USA, drew increased attention to the Proud Boys’ membership policies, which blatantly discriminate against women.
Perhaps more surprising, there are still golf clubs in America that deny memberships to otherwise qualified women on the basis of their sex. Several exclusive clubs continue to only allow men to become members, and they do so legally.
Sexual discrimination is the intentional or unintentional act of excluding one sex to the benefits or opportunities of the other. Despite federal and state anti-discrimination statutes like Title VII of the Civil Rights Act of 1964 and the Equal Pay Act, discrimination on the basis of sex or gender is still legal in the U.S. in certain situations.
The entire United States is covered by the federal Civil Rights Act of 1964, which prohibits discrimination by privately owned places of “public accommodation” on the basis of race, color, religion or national origin. This includes hotels, restaurants, theaters, banks, health clubs and stores.
Although the federal statutory law does not prohibit discrimination based on sexual orientation, about 20 states, including New Jersey, New York, and California, have enacted laws that do. However, if there is no state, federal or local law prohibiting discrimination in public accommodations against a particular group of people, a business can legally refuse to serve that group of people.
In addition to refusing service, denying membership based on sex or gender – as it relates to private clubs and organizations like the Proud Boys – does not break the law. The fact that clubs are private businesses does not, on its own, authorize them to discriminate. In the context of employment, Title VII prohibits discrimination on the basis of sex. It regulates public entities and private businesses and how those private businesses serve customers when they are places of “public accommodation.” Other federal laws, including Title IX in 1972, prohibit discrimination on the basis of sex in education and related fields.
However, these federal laws do not regulate the membership policies of private membership clubs. The Civil Rights Act of 1964 contains an exemption for private clubs in their membership activities, preventing them from discriminating against customers but not against prospective members.
Private membership clubs, which can include social clubs, fraternal clubs and country clubs as well as golf clubs, determine and must provide notice of specific criteria for membership. For example, many private clubs require prospective members to be recommended by an existing member, exhibit certain professional qualities, engage in relevant club experiences and/or be approved by the club’s membership committee.
The First Amendment to the U.S. Constitution also protects private clubs. The First Amendment is often cited in the context of free speech, but it has been interpreted by the courts to safeguard the right of private clubs to engage in “expressive association.” Expressive association protects the right of members to associate with, and to set terms that deny others the right to join, on the basis that they lack certain qualities for membership.
Decisions by private clubs to allow women and other demographic classifications that have been excluded through membership rules are made voluntarily, not because they are required to by law. However, denying women membership can prove to be bad for business, as in the case of Scotland’s venerable Muirfield golf club. In 2019, the club agreed to admit women following an announcement by the British Open’s organizing entity that Muirfield would not host future British Open tournaments as long as it maintained its men-only policy.
In addition, private clubs can face adverse consequences under state and municipal anti-discrimination, tax and licensing laws. For example, some states base eligibility for tax deductions and liquor licenses on factors that include the absence of discriminatory membership policies.
If you believe you have been discriminated against by a private club or organization based on your sex or gender, or you are associated with a private club that is being sued for sexual harassment, a discrimination attorney will be able to help defend your rights. Please contact us at 973-707-3322 or LFarber@LFarberLaw.com.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.