I was amused to find that Marc Angelucci—the attorney who sued a small business owner for thousands of dollars for minor and unintentional ADA violations while his restaurant was under construction—posted a response to my recent post about California Senator Leland Yee’s new language discrimination bill. Mr. Angelucci purported to correct me by pointing out that he has “not done ADA or Unruh Act lawsuits in a long time.” Good! But I never suggested otherwise. Mr. Angelucci also purported to admonish me for
fail[ing] to mention that even though the ADA has been around for many years scores of businesses still don’t use ramps and fail to remove their barriers, and that the AG does virtually nothing about that. And, of couse, he never mentions that it took these ADA plaintiffs to force serious changes, as thousands of businesses suddenly start removing their barriers after they hear about the lawsuits in the media and elsewhere.
Fine, but I never talked about “ramps” or “barriers,” either. And importantly, in his famous case of Gunther v. Lin, neither did Mr. Angelucci.
Instead, he sued for hyper-technical—and admittedly unintentional—infractions of the ADA and Unruh Act. Because Mr. Angelucci—who the California Supreme Court, Court of Appeal, and Superior Court suspect of being one of this state’s cottage industry of “professional plaintiffs who ‘shake down’ business entities on the basis of assertedly technical violations of civil rights laws” (Angelucci v. Century Supper Club, 41 Cal. 4th 160, 178 (2007))—apparently forgot the facts of his own case, I quoted from the opinion to refresh his recollection:
Plaintiff David Gunther uses a wheelchair. He entered the restroom in a Jack-in-the-Box restaurant owned by defendant John Lin at a time just before the completion of remodeling. The toilet was accessible and otherwise in compliance with the ADAAGs, but he found (a) a lack of insulation underneath the sink, and (b) a mirror that was too high. Gunther brought this action, seeking at least $8,000 in automatic penalties under section 52 for the two alleged ADAAG violations.
There is also no question that defendant Lin never intended to violate the ADA. In his answer to Gunther’s complaint Lin claimed that Gunther had entered the restroom “before our handyman had finished his work” of wrapping insulation around the pipe under the sink. Moreover, normally the restroom never has mirrors for anybody (because the mirror was subject to vandalism); an employee simply hung one by mistake.
Here’s more analysis of the Gunther case and the Munson v. Del Taco California Supreme Court decision overturning it, which furthered California’s litigation-rife anti-business climate by holding that even unintentional hyper-technical violations must be assessed against California’s small businesses to the tune of $4,000 each.
In addition to using the Unruh Act to persecute small businesses for ADA infractions, Mr. Angelucci also used the Act to end “Ladies’ Day” and “Ladies’ Night” discounts in California. In Angelucci v. Century Supper Club, the Century Supper Club offered a discount to women on certain occasions when Mr. Angelucci visited the Club. According to a previous California Supreme Court decision written by Jerry Brown appointee Chief Justice Rose Bird, Koire v. Metro Car Wash, California does not allow its businesses to offer discounts on the basis of sex—even though for a non-arbitrary, legitimate business purpose, with no invidious intent, and with no resulting injury to any person, and even though the Unruh Act otherwise prohibits only arbitrary discrimination, not all differences in treatment. See Pizarro v. Lamb’s Players Theatre, 135 Cal. App. 4th 1171, 1174 (2006).
Interestingly, the Koire decision chided the Washington Supreme Court for not reaching the same conclusion in banning “ladies’ nights” in that state:
With all due respect, the Washington Supreme Court also succumbed to sexual stereotyping in upholding the Seattle Supersonics’ “Ladies’ Night.” (MacLean v. First North. Industries of America, supra, 635 P.2d at p. 684.) The court found that the discount was reasonable because, inter alia, “women do not manifest the same interest in basketball that men do.”
This sort of class-based generalization as a justification for differential treatment is precisely the type of practice prohibited by the Unruh Act. . . . These sex-based discounts impermissibly perpetuate sexual stereotypes.
It hardly seems persuasive that the reason for civil rights legislation was to prevent business owners from acknowledging empirically observable realities—say, that men attend Seattle Supersonics games more frequently than women—and offering enticements tailored to make the Sonics more enticing to the latter. As Tim Sandefur explains:
“The civil rights laws were passed with the important intent to eliminate invidious discrimination against oppressed minorities, and instead they’re being for commercial gain when the conduct is not something that harms anybody. Ladies’ Nights are not a form of oppression against women.”
(Emphasis mine. See also Deborah La Fetra and Tim Sandefur’s amicus brief filed in the Angelucci case.)
Mr. Angelucci sought to take the Koire decision one step further and permit plaintiffs to recover the $4,000-per-infraction statutory damages—and a shot at attorneys’ fees—without first having to make any request or demand to the business owner for the same discount. Predictably, the Court of Appeal rejected Mr. Angelucci’s claim, reasoning that he was not “denied” his rights because he did not suffer refusal of an express demand that the club accord him equal treatment. The panel also noted that requiring Mr. Angelucci and his co-plaintiffs to demand equal treatment would ensure they are using the law to punish genuine misconduct rather than exploit businesses for financial gain. That is, the Court of Appeal wanted to prevent Mr. Angelucci and his cohorts from continuing their practice of filing “shake down” suits.
Unfortunately, the California Supreme Court disagreed. The Court’s rationale is bizarre in many instances, but none so much as in this observation:
If businesses are held not to violate the Act or inflict injury unless they are challenged by a patron, their ordinary practice may revert to discrimination, with special exceptions being made for individuals who happen to challenge the practice.
It is this same curious sentiment that was expressed in a comment to my previous post:
Does Mr. Kowal somehow think such sex-based disparate pricing is okay? If so, someone ought to see what he charges his male and female clients.
Both of these statements prompt the question: Where is the flood of latent invidious discriminatory tendencies that the California Supreme Court’s over-expansive reading of the Unruh Act is alone holding back? Where is the evidence that a torrent of noxious gender-based pricing practices would, if not for “professional plaintiffs” like Mr. Angelucci, have been loosed upon us? And why does a commenter on this blog think that, if not for the Unruh Act, I personally would suddenly be overcome by the urge to charge my male clients more or less than my female clients? For its part, the Court could not point to a single instance in our history in which a discount had been offered to women—or men for that matter—for an invidious purpose. Instead, the Court focused on examples of racial discrimination, citing to the notorious example of segregated drinking fountains, apparently without noticing the irony of the wholly uncontroversial reality of male and female segregated restrooms and changing rooms. There seems to be a general phobia that every business owner is chafing to be free of legal constraints that prevent them from acting contrary to their own economic self-interest, and to instead oppress and offend their customers. (This is similar to the phobia the Iowa Supreme Court exhibited when, even though acknowledging the state’s legislature “demonstrate[d] a legislative recognition of the need to remedy historical sexual-orientation based discrimination,” the Court nonetheless feared the legislature wouldn’t get to the desired result on the same-sex marriage issue as quickly as the Court liked.) This phobia apparently possesses the California Supreme Court.
Most Americans are reflexively in favor of the concept of “equality,” and reflexively against the concept of “discrimination,” because the words are so commonly coupled in political and historical discourse with “racial,” or “religious,” or “political.” Those campaigns for equality and against discrimination sometimes concern egregious historical abuses concerning the most fundamental of rights, which abuses were extinguished only at great cost. It is good and right that we exalt such concepts as overarching symbols of the American political order; such symbols serve as a means of expressing our hard-fought fundamental values as a people, and of forefending threats that might still be lodged against them.
Beyond a few relatively narrow areas, however, “equality” and “anti-discrimination” as political symbols bear little application to “equality” or “anti-discrimination” as legal standards. No one seriously believes, for example, that doctors and janitors are entitled to equal pay, that Best Buy and Radio Shack are entitled to equal market share, or that the Yankees and the Red Sox are entitled to an equal number of World Series championships. Similarly, few people other than the National Coalition for Men actually believe that “Ladies’ Nights” represent a continuation of the invidious past practices of separating blacks and whites or denying women suffrage. Thus, we now expect and demand protection of unequal results corresponding to the input of unequal talents and efforts, and the enforcement of practices based on non-arbitrary legitimate distinctions based on gender.
Similarly, we demand inequality on a wide array of other questions—e.g., who is qualified for employment as a police officer or a fire fighter; who is allowed to drink alcohol; whether gardeners and nuclear power plant operators should be equally regulated. When it comes to such questions concerning the public health and welfare, the equality principle is significantly circumscribed.
Equality and discrimination, then, are strange concepts, as they at once guarantee and threaten liberty depending on the subject matter. There is no doubt that liberty cannot endure when, for example, racial minorities are arbitrarily deprived of protection of fundamental rights. But neither can there be any serious doubt that liberty cannot endure when everyone is deprived of protection of fundamental rights so that an equal menu of positive rights can be offered up in exchange. Thus, the way in which some individuals are deprived of personal, political, economic, and property rights in order to promote social and economic equality poses a substantial threat to classical liberty generally. Similarly, it cannot be seriously doubted that the state cannot serve its necessary function to protect the public health and safety if it must yield in all cases to a mandate of absolute equality. Equality as a legal concept is a lancet, not a sledgehammer.
Getting back to Mr. Angelucci, even the California Supreme Court shared the trial court and the Court of Appeal’s concern that he and his co-plaintiffs were suspected “shake down” artists who exploit technical violations of California’s civil rights laws in order to make a living:
The trial court’s and the Court of Appeal’s interpretation of section 52(a) reflects in part defendant’s assertion that Angelucci and the other men involved in the present case are professional plaintiffs who “shake down” business entities on the basis of assertedly technical violations of civil rights laws and similar enactments, and that they and their attorneys engage in this practice simply to make a living—unmotivated by any desire to eliminate discrimination or to redress any actual injury. Defendant claims that plaintiffs made repeated unannounced visits to defendant’s business establishment in order to increase the statutory damages they could seek for multiple violations of the Act, and defendant accuses plaintiffs and their attorneys of being “bounty hunters” who have been involved in numerous similar lawsuits. Defendant also contends that meritless, abusive litigation of this type is proliferating in California and generally results in the extortion of a settlement on the basis of the plaintiff’s unsupported factual allegations.
Thus, a “courageous” “advocate for equal treatment” and “social justice” are not the words I would use to describe Mr. Angelucci.
For another example, see Paula Tejeda’s “Chile Lindo” restaurant. A wheelchair-bound patron could not access the interior of the restaurant due to the architecture of the location (San Francisco is notorious for having buildings which are physically incapable of being ADA compliant.) Tejeda had worked out an arrangement where the customer would call her and place his order, and she’d bring it out to him on the sidewalk. This seemed to work fine right up until the point he sued her for ADA violation.
Somewhat amusingly, he went back after the lawsuit was filed and couldn’t understand why she wouldn’t sell him any food.
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The issue is whether ad hoc accomodation is compliant with the ADA. The attitude put forth by most ADA advocates is that there should be no ‘accomodation’ of the disabled–that any business activity or service should be completely identical, that the exact same process be used, that the exact same options be offered, regardless of the physical capacities of the customer.
Most business owners are entirely willing to go an extra mile to serve a disabled customer, but the ADA says that this attitude isn’t acceptable.
And the thing is, I can’t really find it in my heart to disagree. Would you really like to have to ask for someone to get soda for you because the machine’s too high, to come out from the counter and get ketchup for your fries because the bin’s too far back, to do everything except maybe put the food in your mouth?
But then…being disabled sucks. There’s not really a way for it to not suck. If you find a place that’s not set up to accomodate you, and the owner refuses to act assist you, that’s what the ADA is for.
I agree with you, actually. Disabilities are tough, and it’s perfectly appropriate that we, as a society, impose reasonable requirements that allow people with disabilities to engage in regular activities. There is no inconsistency in acknowledging this and at the same time recognizing and condemning the improvidence and abuse of some of the laws we’ve enacted to this end.
My criticism here, then, is that the court of appeal construed the law in a reasonable way that complied with both the letter and spirit of the law, that curbed abuse while allowing the law to do its good work. The Supreme Court’s rule, in my view, mostly benefits career plaintiffs and does very little to advance the good policy objectives underlying the law.
The issue, I think, is in trying to create a “hands off” law, that’s purely mechanical and doesn’t require any judgement or negotiation about what the terms mean.
Unfortunately, you can’t write a law to cover every situation, and it seems to me that insisting on “automatic fine for technical violation of statute” is about the worst way to do it–particularly when the decision *also* insists that there’s no way to get a “certified review” that establishes your space is compliant regardless of independent measurement, and that the standards can change at any time without prior notice and you’re immediately responsible for meeting the new ones.
I’d think that the ADA would do better with a regulatory review board; that, or even just a “compliance certification” process (with a grandfather clause for spaces which comply when built but are rendered noncompliant by later statutes.)
I don’t know why Kowal et al think it’s a “technical violation” to have exposed pipes under the sink that people in wheelchairs can be burned on, or to have the toilet seat covers or mirror too high. I don’t find that technical. And the law has been around for decades. We have asked the AG to enforce the law more, but they don’t. I don’t disagree about having a regulatory review board or compliance certification process. That would be a good thing if it were well organized. But until there is, the problem remains there, and the only think bringing about serious changes have been the ADA lawsuits and the publicity that they bring. They bring publicity because of the furor and anger they generate, anger at the “professional plaintiffs” and their greedy bounty hunter lawyers. The negative publicity is key to making the changes happen. That’s what happened in Eagle Rock and Orange County, and hopefully what will happen all over.
Aww, Tim, how sweet of you to be thinking of me so much! You just wrote about me a few days ago and now again! I’m so flattered that I’m on our mind that much! I’m gonna make me some Lady Finger cupcakes just treat myself! I’m even going to call all those who oppose Ladies’ Discounts and tell them to knock it off! After all, Tim doesn’t like it!
And he thinks about me all the time!
I’m going to tell them they’re wrong and that nobody really cares about Ladies’ Nights discounts! Tim Kowal said so!
I’ll start with Tom Leykis, who spoke out against Ladies’ Nights discounts on his show. Then I’ll tell those men who opposed Ladies’ Nights discounts in Colorado, Florida, Hawaii, Missouri, Washington, D.C., Wisconsin, Illinois, New Jersey and other states. (‘Ladies’ Night, R.I.P.; The Curious Campaign Against Free Booze for Girls,’ http://www.chiprowe.com/articles/ladies-night-rip.html )
I’m sure none of *them* think about me as much as you do, Tim!
I’ll call Findlaw’s legal commentator Joanna Grossman, who supported the fight against sex-based discounts for women in her article, ‘The End of Ladies’ Night in N.J.,” Findlaw Legal Commentary, June 15, 2004, http://writ.news.findlaw.com/grossman/20040615.html.
She didn’t even mention me in her story!
I’ll call San Diego blogger Robert Babbitt who said: “The issue is important and it is unfair to men, especially men who are not making all that much money, that is the men we do not like to consider much. . . . This type of discrimination would have died years ago had it been discrimination against women in American bars, and the world would have heard a good deal of greasy wheel about it and would have cheered the proceedings.’ (‘Kiss Ladies Night Goodbye: Not the Poor Boys,’ Robert Babbitt, 10/24/03, San Diego Indymedia.)
I’ll call the author of this law review article, which I didn’t know about until Sue posted it in your prior article about me: “Girls Get in Free; A Legal Analysis of the Gender-Based Door Entry Policies,” 19 S. Cal. Rev. L., Social Justice, University of Southern California Southern California, Review of Law and Social Justice, Summer, 2010.
Even *that* article failed to mention me… oh the nerve!
I’ll even call the National Coalition For Men is there, since they’re the oldest and largest men’s rights organization in the world and they opposed female discounts among many other issues they address.
I’ll tell them all to STOP opposing Ladies’ Nights, ok?
But secretly, I still oppose them. That’s because, as a men’s rights activist for over 10 years now, I find them to be a double standard just as Tom Leykis says, and I also think they feed into larger forms of anti-male discrimination in areas such as child custody, criminal sentencing, public benefits, domestic violence policies, military conscription, etc.
I think they spread the stereotype that men are supposed to subsidize and pay for women because men ‘earn more,’ a myth that is based on average yearly salaries but that ignores how men work far more overtime and have much more dangerous jobs with longer commutes and less flexibility than women on average. The U.S. Department of Labor refuted the “pay gap” myth at http://www.consad.com/content/reports/Gender%20Wage%20Gap%20Final%20Report.pdf .”
But that will be our secret, ok? Please, don’t stop thinking of me just because of that ok? It means the world to me! And your writing about me like sweet poetry, Timmy! My God I’m ready for my cupcakes now!
Mmmmmmmmmmmm!
While I don’t know that I agree entirely with everything Tim wrote in the original post (particularly with regard to the Iowa Supreme Court), the above reply is such a forensic shambles it beggars belief.
Point for Team Kowal.
Friends don’t let friends post drunk. Particularly when they are PROFESSIONAL LAWYERS USING THEIR REAL NAME ON AN OPEN FORUM THAT TRACKS THEIR IP ADDRESS.
Over your head I suppose. Not my problem. And I’m not the least worried about it the IP addresses. I’ve faced plenty of reactionary idiots. Bring it on. Makes it all even more fun.
“Similarly, few people other than the National Coalition for Men actually believe that “Ladies’ Nights” represent a continuation of the invidious past practices of separating blacks and whites or denying women suffrage.”
Why don’t you mention the widespread discrimination against men? We don’t need to compare it to discrimination against women when MEN have been historically discriminated against in numerous areas (child custody, military conscription, criminal sentencing, etc.) and these female-only disounts feed right into the larger forms of it.
I’m cutting and pasting from my other post on your other article you wrote about the same thing:
Fathers have historically been denied equal parenting rights with mothers. As late as 1971, the Minnesota State Bar Association’s handbook advised lawyers and judges not to give custody to fathers. Today fathers ask for 50% custody while mothers ask for and get 80% custody, and fathers become visitors and wallets. The European Court of Human Rights recently intervened on behalf of unmarried dads in Germany who are given no custody rights. Similar laws exist in Japan, Ireland and elsewhere.
And no gender oppression is comparable in magnitude to the deaths of males in war, which includes forced conscription in to wars started by the elite and that both men and women supported at about the same rate. Over 20 million male soldiers died in WWII alone, about 500,000 of them U.S. soldiers. Historically, a large percentage of men were drafted before they were old enough to even vote. The Vietnam Memorial has 58,000 male names and 8 female names. Males throughout the world are still forced to fight wars, even at ages as young as 6 in some countries. In the U.S. males must still register for the draft by age 18, including “only sons” and even disabled men if they can move about.
76% of women and 86% of men supported the U.S. Gulf War invasion. http://articles.latimes.com/1991-01-19/news/mn-171_1_times-poll
For years, the Forced Labour Convention of 1930 exempted “able-bodied males” between ages 18 and 45 from the ban on slavery and forced labor. Article 11. Although the exemption was eventually eliminated, Article 2 still exempts prisoners and soldiers (90+% male).
Male slaves are frequently ignored by human rights laws and policies.
Male slaves in China have had trouble getting their slavemasters prosecuted because only women were protected from slavery.
For years men have been in a silent health crisis. The CA Dept of Health Services recommended a men’s health office, but it never formed. There are numerous federal offices of women’s health and similar offices at every level of government, but virtually no offices of men’s health. Meanwhile, breast cancer is known as a “horde” of cancer funds. The National Cancer Institute spent about four times more on breast cancer research than prostate cancer research for decades. Men get higher penalties than women when all other factors are equal. The gender of the victim matters too. Drunk drivers receive an average of a 3-year higher sentence for killing a female than for killing a male (compared to a 2-year higher sentence for killing a white instead of a black). (“Unconventional Wisdom,” Washington Post, Sept. 7, 2000.)
And I don’t agree that there is no connection to female-only discounts. Men have long been conditioned to accept it when they’re discriminated against. That one of the reasons men don’t complain. And when they constantly see women get discounts at car washes, hotels, night clubs, etc. it sends the message that discrimination against men is ok, that the double standards are ok, that even the larger forms of it are ok, and that men should be just manning up and accepting it, which is exactly how they get men to fight wars. It’s the tip of the iceberg and it’s all part of male disposability. So yes, I fight it all the way.
The California Supreme Court in Koire v. Metro Car Wash agreed that it’s wrong, both the conservative and liberal judges did, unanimously. They said it is harmful “per se” and correctly held:
“Men and women alike suffer from the stereotypes perpetrated by sex-based differential treatment. (See Kanowitz, “Benign” Sex Discrimination: Its Troubles and Their Cure (1980) 31 Hastings L.J. 1379, 1394; Comment, Equal Rights Provisions: The Experience Under State Constitutions (1977) 65 Cal.L.Rev. 1086, 1106-1107.) When the law “emphasizes irrelevant differences between men and women[,] [it] cannot help influencing the content and the tone of the social, as well as the legal, relations between the sexes. … As long as organized legal systems, at once the most respected [40 Cal.3d 35] and most feared of social institutions, continue to differentiate sharply, in treatment or in words, between men and women on the basis of irrelevant and artificially created distinctions, the likelihood of men and women coming to regard one another primarily as fellow human beings and only secondarily as representatives of another sex will continue to be remote. When men and women are prevented from recognizing one another’s essential humanity by sexual prejudices, nourished by legal as well as social institutions, society as a whole remains less than it could otherwise become.” (Kanowitz, Women and the Law (1969) p. 4.)”
“Male slaves in China have had trouble getting their slavemasters prosecuted because only women were protected from slavery. ”
Objection; relevance.
The relevance, your honor, is that in some posts Mr. Kowal argued that anti-male discrimination has not been a significant problem or at least incomparable to discrimination against women. So male slaves being denied equal treatment because of their gender is certainly relevant as part of a response to Mr. Kowal’s argument.
Objection overruled.
Still not sure what male slaves in China have to do with mirrors in the bathroom of a California restaurant.
But this discussion isn’t just about the ADA is it? It’s also about female-only discounts, and in another post Tim underplayed the significance of historical anti-male discrimination. I didn’t see you object to his post as irrelevant. So he opened the door to my response about discrimination against men, including male slaves in China and elsewhere, along with fathers, conscripts, etc.
I agree with Marc slavery is alive and well when you are a man and society only protects women. Look at how many men are forced into work by child support and then are cut at the legs for earning an income because their driver’s license is suspended. The federal prisons mandate that men do labor but female prisoners are above this because they give to society by being a mom. Additionally, female prisoners have a right to mate and have children.
Tim for being a man you supremacist thinking lacks compassionate for the average working man because you parents bought you a JD so that you would not have to struggle.
By deleting and censoring you posts demonstrates to me that you do not respect others freedom of speech as well. If you don’t protect and treat men and women as equals than stand by for the discompassinate women that will put you and son out of work in the future because you no longer have value because in this society today, only women have value and that is why they are protected…
Mr. Collins,
I do not delete any comments from this blog, and I have only ever once found it necessary to redact the profanity out of a comment from another thread. I have fished a couple of comments to this and the previous post out of the spam folder. The automatic filters assume hit-and-run comments that accuse “racism,” “sexism,” and “white supremacy” are likely to be garbage. That assumption was correct. That’s the sort of crowd that comes to the defense of Mr. Angelucci and his views, and I’m content to let that endorsement speak for itself.
Discrimination against men in pricing and services is the tip of the iceberg of discrimination against men in the State of California. Winking (saying its okay) at those discriminations against men is the beginning of a long line of discriminations against men and indeed sets precedents that discrimination against men is okay. The radical feminist hate movement is entrenched in our schools, colleges, and universities, and yes in our government – big time. They’re propaganda spews forth in Sociology, Women’s Studies, and other Liberal Arts curriculum. Misandry is a abundant in TV commercials, news, entertainment, and other media. No wonder men find such a hard time, any time they’re in need of the services of the courts in California, especially in the area of family law. Thank God for the hard work of Marc Angelucci and others like him. God knows the radical feminist, hate movement and its toadies, that are arrayed against men in California is pervasive and entrenched – and that certainly includes all of mass media. But what do I know? I’m only a journalism graduate? I pray we have not seen the last of Mr. Angelucci’s lawsuits against scofflaw businesses in the state of CA.
“DensityDuck May 6, 2011 at 10:19 pm Still not sure what male slaves in China have to do with mirrors in the bathroom of a California restaurant.”
The Unruh Act addresses many discriminations, among them sex. There were certainly allusions to sex discrimination in the harangue (in my opinion) against Mr. Angelucci. Case law was cited in these articles against Mr. Angelucci, where sex discrimination was the only issue. (Angelucci v. Century Supper Club, 41 Cal. 4th 160, 178 (2007) and Koire v. Metro Car Wash.
Still not sure what male slaves in China have to do with mirrors in the bathroom of a California restaurant.
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