Anti-Discrimination Laws Applicable to Private Clubs or Not?
Meadowlands Country Club of Blue Bell, Pennsylvania, a private/members only club, was recently sued by a former female member, who alleged that the club treated her in a discriminatory manner by giving preferential treatment to men over women. Among her complaints were that the club illegally barred women from a men-only dining facility, refused to grant women club voting rights and forbid women from access to the golf course at certain times. The case settled at the end of September for an undisclosed sum and certain concessions by the club.
The Meadowlands case was the first case of its kind -- a club member claiming that her private club had discriminated against her because of her gender -- to be brought under the Pennsylvania Human Relations Act (the "PHRA"), which is the Pennsylvania equivalent to federal anti-discrimination statutes. The PHRA prohibits discrimination against individuals based on certain protected characteristics including race, color, religious creed and sex.
Cases brought under the PHRA typically involve an employee suing his or her employer for alleged discrimination in the workplace. The PHRA also applies, however, to discriminatory denial of access to "places of public accommodation." The club member, obviously not a Meadowland's employee, would have had to prove that, despite the club's "private" status, it was, in fact, a "place of public accommodation" and that, as such, the club acted in a way that illegally discriminated against her based upon her gender.
The former member argued that the club was a "place of public accommodation" because, among other things, Meadowlands advertised to promote non-member use of its facilities for parties, receptions, fashion shows, and golf and tennis tournaments. Had this argument succeeded, the club would have been found to be a "place of public accommodation" subject to the PHRA's anti-discrimination measures, and the club would have been faced with justifying other allegedly discriminatory practices, such as restricted tee times, voting rights and dining facility access. Because the case settled, a judicial determination of whether the club was in fact a "place of public accommodation" was avoided.
The PHRA defines public accommodation as follows:
The term "public accommodation . . ." means any accommodation . . . which is open to, accepts or solicits the patronage of the general public, including but not limited to inns, taverns, roadhouses, hotels, motels, whether conducted for the entertainment of transient guests or for the accommodation of those seeking health, recreation or rest, or restaurants or eating houses, or any place where food is sold for consumption on the premises, buffets, saloons, barrooms or any store, park or enclosure where spirituous or malt liquors are sold, ice cream parlors, confectioneries, soda fountains and all stores where ice cream, ice and fruit preparations or their derivatives, or where beverages of any kind are retailed for consumption on the premises, . . . bathhouses, swimming pools, barber shops, beauty parlors, retail stores and establishments, . . . gymnasiums, shooting galleries, billiard and pool parlors, . . . but shall not include any accommodations which are in their nature distinctly private.
The "public" versus "distinctly private" accommodation distinction makes critical an understanding of what factors courts will consider to determine if a club is public or private for purposes of the PHRA. Courts interpreting similar statutes have considered the following factors in making that determination:
- the genuine selectivity of the group in the admission of its members;
- the membership's control over the operations of the establishment;
- the history of the organization;
- the use of the facilities by nonmembers;
- the purpose of the club's existence;
- whether the club advertises for members;
- whether the club is profit or nonprofit; and
- the formalities observed by the club (e.g. bylaws, meetings, membership cards, etc.).
Although no one factor controls the determination, the two that have been found most significant are: (1) the club's selectivity with respect to membership, and (2) the use of the club's facilities by nonmembers. If all of the above factors, when considered together, indicate that a club is private in name only, and is really a "place of public accommodation," the anti-discrimination statutes like the PHRA will apply.
Other states have rendered or attempted to render this analysis moot by enacting anti-discrimination laws that specifically apply to private clubs. These states include New Jersey, New York, Maryland, and Connecticut.
Clearly, as highlighted by the Meadowlands case, clubs that consider themselves to be "private" may have statutory discrimination issues of which they are entirely unaware. Statutes and court decisions as applied to club policies and operating facts may render a private club at risk of being a "place of public accommodation." The Saul Ewing LLP Golf Practice Group can assist clubs in interpreting these statutes and case law and provide guidance in addressing the concerns of clubs as they deal with these issues in the context of club rules, regulations and practices. For assistance or more information, contact the Chair of the Golf Practice Group, Michael A. Finio at 717-257-7671 or one of the Vice-Chairs, John C. Snyder at 610-251-5079 or Wendie C. Stabler at 302-421-6865.
This Update was written by Todd Allan Ewan, an attorney in Saul Ewing's Golf Practice Group in its Philadelphia office. For more information, or to contact Mr. Ewan at (215) 972-7823 or by e-mail at email@example.com.