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Velvet Rope Discrimination

January 12, 2023

Presidential Prof. Shaun Ossei-Owusu LPS’08 explores the civil rights’ implications of pervasive race, gender, and sex discrimination in bars, nightclubs, and restaurants.

Ossei-Owusu’s article is featured in Advances in Research, the University of Pennsylvania Carey Law School’s annual premier publication that highlights outstanding faculty research and scholarship.

In an article published in the Virginia Law Review, Shaun Ossei-Owusu LPS’08, Presidential Professor of Law, pioneers the legal analysis of race, gender, and sex discrimination that social scientists have demonstrated to be pervasive in bars, nightclubs, and restaurants across the country. While tactics such as dress codes and gender-based pricing schemes have been litigated for decades, legal academics have devoted relatively little scholarly attention to the practices’ civil rights implications as Ossei-Owusu has done in “Velvet Rope Discrimination.”

Ossei-Owusu is an interdisciplinary legal scholar with expertise in legal history, criminal law and procedure, civil rights, and the legal profession.

His work sits at the intersection of law, history, and sociology and focuses on how governments meet their legal obligations to provide protections and benefits to poor people and racial minorities. He also works on stratification in legal education and the legal profession.

From Advances in Research:

Regulatory Framework

Throughout the twentieth century, courts wrestled with whether bars, restaurants, and dance halls counted as “public accommodations” for the purposes of civil rights laws. The first half of the century yielded a patchwork of different decisions and statutory approaches in the context of race; in the context of gender, social norms determined much of the country’s discrimination patterns.

In 1964, Title II of the Civil Rights Act explicitly prohibited discrimination on the grounds of race, color, religion, or national origin in the “goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation.”

The Flowering of Velvet Rope Discrimination

Notably, Title II did not prohibit gender-based discrimination. As women gained more economic power, the trend of gender-based pricing began to emerge at discotheques and nightclubs. During “ladies’ nights,” establishments sought to attract more women by offering them free or discounted admission, food, and drinks.

“More often than not, these public accommodations’ economic rationales were based on the heteronormative assumption that inducing women into these establishments would lead to increased presence by men, who would cross-subsidize the discounts,” Ossei-Owusu writes.

Courts were divided over the legality of gender-based pricing. Some saw no issue, reasoning that offering discounts to women did not equate to discouraging men, and thus no discrimination could have taken place; others noted that sex-based classification was constitutionally suspect and struck down “ladies’ night” practices as discriminatory against men.

Following the passing of the Civil Rights Act, bars and nightclubs employed a host of schemes to discriminate against racial minorities. Racial minorities were commonly denied entry, overcharged, required to show excessive identification, or told there was a “private party” using the facilities. In particular, the enforcement of “dress codes” emerged as a highly administrable means of discrimination, empowering nightclub personnel to cite “improper attire” as the reason they turned racial minorities away at the door.

Explore the rest of this piece on Ossei-Owusu’s article and more outstanding faculty research and scholarship in the 2022 edition of Advances in Research.