Velvet Rope Discrimination

Public accommodations are private and public facilities that are held out to and used by the public. Public accommodations were significant battlegrounds for the Civil Rights Movement as protesters and litigators fought for equal access to swimming pools, movie theaters, and lunch counters. These sites were also important for the Women’s Rights Movement, which challenged sexist norms that prohibited their service in bars and restaurants if they were unaccompanied by men. Tragically, public accommodation law has fallen off the civil rights race and gender agenda. This inattention exists despite media accounts, case law, and empirical data that demonstrate that discrimination based on race and sex thrives in these spaces. This Article focuses on two normalized practices that violate federal and state anti-discrimination laws yet have been undertheorized by legal scholars: dress codes and gender-based pricing (i.e. ladies’ night) in bars, restaurants, and nightclubs. It deploys legal history to illustrate how access to these public accommodations has been determined by assumptions about race and sex for more than a century. Statutory developments — mostly notably Title II of the Civil Rights Act of 1964 and similar state-analogs — helped cabin racial and gender discrimination in public accommodations. Yet throughout the late 1960s, “velvet rope discrimination” evolved, which refers to the use of legally protected categories by public accommodations in their determinations of who is granted entry and in their provision of service. This Article examines public accommodations law through the lens of velvet rope discrimination and argues for the legal prohibition of dress codes and gender-based pricing. These policies traffic dangerous stereotypes about racial minorities, women, and the LGBTQ community and precludes their equal enjoyment of these facilities. By offering a comprehensive legal account of two overlooked practices, this Article presents a new way of thinking about anti-discrimination law and democratic inclusion