28 April, 2016
It is quite a norm in Hong Kong for bars or night clubs to have ladies night, offering special discount or free drinks to female customers. Yet, this arrangement has become a hot topic after the District Court’s ruling that it is against the Sex Discrimination Ordinance (“SDO”).
A male customer complained that he was charged a much higher entrance fee than females for the same service at the club concerned, Legends Club. The Equal Opportunities Commission (“EOC”) filed the case at the District Court on behalf of the male complainant accusing the club of breaching the SDO.
Under the SDO, it is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public to discriminate against a man or a woman who seeks to obtain or use those goods, facilities or services by refusing or deliberately omitting to provide him/her with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in his case in relation to male members or female members of the public.
The claimant had given up his claim for a declaration and request of the club to change its policy and instead, he sought damages only for injury to feelings.
The judge accepted the EOC’s application for a judgement against the respondent after the respondent had failed to appear before the court and to give a notice of opposition before the deadline. Whilst the practical reference value of this case might be less significant as the ruling was reached without the case being fully argued by both parties, this case has aroused huge concern for bars and nightclubs operators.
The bars and nightclubs operators pointed out that ladies nights had been a common practice worldwide for a long time, and it was held for commercial purpose to increase business on a slow night. Ladies night was arranged to attract female customers for the purpose of bringing in more male customers. The vice-chairman of the Bar and Club Association even said that if bars and clubs were prohibited from holding ladies’ nights, their takings would likely go down by 50 percent.
Whilst this is the first case in Hong Kong to discuss whether the arrangement of ladies night is discriminatory, there are quite a number of cases on this issue in other jurisdictions, though the rulings are diverse.
In the United States, the courts in California, Maryland and Wisconsin have ruled ladies nights unlawful, whilst the courts in Washington and Illionis have ruled such practice lawful.
In any event, since the Legends Club case has remained a binding court case, although the Hong Kong Bar and Club Association has expressed anger of the ruling, it has announced plans to offer “men’s night” promotions on days with fewer customers in order to avoid accusations of discrimination and for the sake of balance, though the Association does not anticipate any positive response from men for the men’s night arrangement.
For further information, please contact:
Elsie Chan, Deacons
elsie.chan@deacons.com.hk
