MacLean v. First Northwest Industries of America, Inc.

635 P.2d 683, 96 Wash. 2d 338

• Court: Washington Supreme Court
• Decided: November 25, 1981
• Docket: 46735
• Status: Published

Opinions

Rosellini, J.

The respondent brought this suit to obtain an injunction and damages for alleged sex discrimination practiced against him by the owners of the Seattle Sonics basketball team. He alleged that he had attended a game at the Seattle Coliseum, taking with him as his guests his wife and two friends, who were also husband and wife. On that night, women were being admitted for one-half the regular ticket price. He chose seats for which the regular price was $5 and asked the ticket attendant to sell him tickets for himself and his male friend, as well as for the two women, at half price. This she refused to do. Choosing to attend the game nevertheless, he paid $15 for the four tickets, $5 each for the men and $2.50 each for the women.

The complaint alleged that the special prices for women violated RCW 49.60.030(1) and was therefore an unfair practice under RCW 19.86.020. It was alleged that the City had condoned and encouraged the practice.

While the petitioner allegedly represented a class of men in the same position as he, the Superior Court did not reach the question whether a class action could be maintained. It dismissed the suit on motion for summary judgment. The motion was made on the pleadings and affidavits submitted by the defendants, with none of the facts contained in the affidavits having been controverted, except with respect to the role of the City of Seattle in the alleged discriminatory practice. The Superior Court concluded that the practice complained of was not within the intended scope of the statutory prohibition.

After the judge ruled on the motion, the respondent moved to amend his complaint to allege a violation of Const, art. 31, § 1 (amendment 61), the Equal Rights Amendment. This motion was denied. The Court of Appeals took the constitutional question under consideration and held that it had merit. One judge was also of the opinion that the statute was violated. MacLean v. First Northwest Indus, of America, Inc., 24 Wn. App. 161, 600 P.2d 1027 (1979).

Our review of this suit leads us to the conclusion that the disposition made by the trial court was correct, inasmuch as the respondent has shown no discrimination against men as a class and no damage to himself. As a consequence he has no right of action under the state Law Against Discrimination. Further, the court did not abuse its discretion in refusing to allow an amendment of the pleadings to claim a violation of the Equal Rights Amendment.

I

The affidavit of the vice-president of the organization owning the Sonics was uncontroverted, and he reveals that "ladies' night", as it is sometimes called, is but one of a number of programs employed by the owners to attract more spectators. Admission prices are lower than the regular price for senior citizens, members of the military forces, students, citizens with low incomes, and groups of 30 or more. Occasionally prices are lowered for college students and charities. The half-price admission for women applies only to games played on Sundays.

There can be perceived in this scheme no intent to discriminate against men. They are included in every favored category except for "ladies' night", and undoubtedly predominate in the military category.

The men who are charged the regular prices for their tickets are those who do not fall into any of the special categories. Thus it will be seen that the respondent is not subjected to a classification based solely on sex. If this fact alone is not sufficient to dispel the stigma of sexual bias forbidden by the Law Against Discrimination and the Equal Rights Amendment, examination of the purpose and effects of the special prices charged women on ladies' night (those women, that is, who are not already entitled to a more favorable discount under some other category) leads to the conclusion that the classification is valid.

According to the affidavit, women do not manifest the same interest in basketball that men do. They constituted only about 35 percent of the gate before special programs, such as ladies' nights, were inaugurated to attract them in larger numbers. The Sunday night discount is not the only attraction offered them. Others include performances by the Seattle Symphony before the game and at half time, women's fashion shows at half time, gifts and souvenirs, and women's hoop shooting at half time.

There is no contention that the regular prices charged for seats at the Sonics games are unreasonable or unfair. It appears that the greater the attendance, the lower the rates that can be charged those who pay the regular price. The high cost of hiring professional basketball teams is well publicized, and we think it safe to assume that to basketball fans, the purchase of the most capable players is money well spent. It is easy to appreciate that large audiences are needed, both to stimulate the players and to raise the money to pay them.

The respondent has been unable to demonstrate that he suffered any damage as a result of this special discount for women. There being no allegation to the contrary, the money which he used to purchase these tickets belonged to the community. All property acquired by either spouse during coverture is presumptively community property and the burden is on a party contending otherwise to prove its separate status.¹ Rustad v. Rustad, 61 Wn.2d 176, 377 P.2d 414 (1963). Thus, any reduction in price to one of the members of the community inured equally to the benefit of both. The respondent and his wife, as a community, paid $15 for the four tickets which they purchased, whereas had there been no discount, they would have paid $20. One of the obvious purposes of the discount is to make family attendance cheaper, and that end was achieved here. Thus, not harmed by the price reduction, the respondent enjoyed one of the benefits it was designed to confer. Had he purchased the tickets with his separate funds, the result would not be different. He would still be enjoying a benefit conferred by the reduction in price; and had he taken only himself to the game, the benefit would nevertheless have been available to him to enjoy at his option, had he chosen to take a female friend or relative as his guest.

The practice complained of here is not objectionable under the act. RCW 49.60.030(1)(b) recognizes a right to be free from discrimination because of sex, in the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement. RCW 49.60.040 defines "full enjoyment" as follows:

"Full enjoyment of" includes the right to purchase any service, commodity, or article of personal property offered or sold on, or by, any establishment to the public, and the admission of any person to accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement, without acts directly or indirectly causing persons of any particular race, creed, color, or with any sensory, mental, or physical handicap, or a blind or deaf person using a trained dog guide, to be treated as not welcome, accepted, desired, or solicited;

Inasmuch as this is the only definition of "full enjoyment" contained in the statute, and since RCW 49.60.030(1)(b) gives the right to full enjoyment of places of public assemblage or amusement, without discrimination on account of sex, we assume that the omission of any reference to sex in the definition of full enjoyment was inadvertent. The language of this section reveals the legislature's concern that no person should be treated as "not welcome, accepted, desired, or solicited." This provision reflects a perception of the evil which characterizes discrimination in places of public accommodation. The United States Supreme Court in Burton v. Wilmington Parking Auth., 365 U.S. 715, 724, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961), in holding unconstitutional a policy of refusing service to black customers in a restaurant situated on property leased from the parking authority, had this to say of the discrimination practiced there, a discrimination which it later termed invidious:²

It is irony amounting to grave injustice that in one part of a single building, erected and maintained with public funds by an agency of the State to serve a public purpose, all persons have equal rights, while in another portion, also serving the public, a Negro is a second-class citizen, offensive because of his race, without rights and unentitled to service, . . .

The discount on ticket prices for women was not calculated to nor is it contended that it did cause the respondent to feel unwelcome, unaccepted, undesired or unsolicited.

It is true that, as the respondent points out, the use of the word "includes" indicates that the term "full enjoyment" may include forms of discrimination which do not cause a person to feel unwelcome. Still, the statute read as a whole contemplates that forbidden discrimination be damaging in its effect, and as we have shown, there was no damage.

In support of his claim of discrimination, the respondent cites Anderson v. Pantages Theatre Co., 114 Wash. 24, 194 P. 813 (1921). There a black man who had purchased tickets for box seats in a theater was denied access to those seats and was told that he must sit in the balcony. This court found such treatment to be in violation of a statute imposing a criminal penalty upon anyone denying to a person, because of his race, the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, holding that the statute was also intended to provide a civil remedy. The case is distinguishable not only in that the plaintiff there was denied access to the seat which he had purchased, but also in that he was indeed unwelcome and was made to feel so.

We conclude that the discount of ticket prices for women did not violate RCW 49.60.

II

Did the trial court err when it refused to allow an amendment of the complaint after the summary judgment had been granted?

CR 15 permits the amendment of a complaint only by leave of court or by written consent of the adverse party, where a responsive pleading has been filed. It provides that leave shall be freely given "when justice so requires". Since the respondent suffered no damage but rather derived a benefit from the sale of tickets at reduced prices, the trial court was amply warranted in finding that justice would not be served by allowing an amendment of the pleadings to allege not different facts but a different legal theory of recovery.

The actual incentive for this lawsuit appears to be objection on the part of the respondent's attorney that promotional devices such as "ladies' night" tend to stereotype women. She cites in her brief an interview, reported in 65 A.B.A. J. 1619 (1979), wherein she states:

"The major concern has always been male and female stereotypes, which have the effect of perpetuating sex discrimination." The promotion, she charges, "is a come-on just to make money, because women are viewed as sex objects. It wasn't just to be nice to the ladies."

Whatever merit there may be in that objection, it is not at issue here and involves no injustice to the male plaintiff in this action.

Not only has the respondent shown no damage to himself, he has cited no judicial authority holding a comparable practice discriminatory.³

If this case has any substance, it must rest upon a showing that there is discrimination against men in a citadel of masculine dominance — the men's professional basketball arena.

The respondent has offered no reason why the owners of the team would be motivated to single out their own sex for discrimination, when that sex comprises their most dependable customers. To state the proposition is sufficient to establish its improbability.

In the absence of some showing that the prices charged were unreasonable or forbidden by statute, we perceive no reason for judicial intervention in ticket-pricing policies which are designed not to exclude anyone but to encourage attendance. It is not denied that the pricing policies at the Sonics games have furthered that purpose. Nor is there the slightest evidence offered that the respondent's disgruntlement is shared by any sizable number of fans. What evidence there is in the record shows the contrary.

According to the affidavit of the vice-president, a sizable majority of fans have indicated their approval of promotional programs such as "ladies' night". Perhaps the time will soon arrive when most will shun them. When that occurs, we would expect that the demands of the marketplace will dictate that the programs be abandoned.

It is the prevailing rule that one who seeks to challenge the constitutionality of a law or other governmental action, either on behalf of himself or a class which he represents, must show that the particular action complained of has operated to his prejudice. State v. Rowe, 60 Wn.2d 797, 376 P.2d 446 (1962); State v. Kent, 87 Wn.2d 103, 549 P.2d 721 (1976); Standow v. Spokane, 88 Wn.2d 624, 564 P.2d 1145 (1977); State v. McCarter, 91 Wn.2d 249, 588 P.2d 745 (1978); 16 Am. Jur. 2d Constitutional Law § 192 (1979); 16 C.J.S. Constitutional Law § 76 (1956). Such a showing has not been made here.

It is agreed by the parties that in order to maintain an action under the Equal Rights Amendment, Const, art. 31, § 1 (amendment 61), where the alleged discrimination has been effected by a private agency, it is necessary to show that some "state action" is involved. See Darrin v. Gould, 85 Wn.2d 859, 874, 540 P.2d 882 (1975). Inasmuch as we find that no cognizable discrimination was practiced against the respondent, we need not consider the question whether the City's involvement, as lessor, was sufficient to justify invocation of the constitutional provision.⁴

To decide important constitutional questions upon a complaint as sterile as this would be apt to erode public respect for the Equal Rights Amendment and deter rather than promote the serious goals for which it was adopted.

The action of the Court of Appeals (MacLean v. First Northwest Indus, of America, Inc., 24 Wn. App. 161, 600 P.2d 1027 (1979)) is reversed and the judgment of the trial court reinstated.

Hicks and Williams, JJ., concur.

Brachtenbach, C.J., and Stafford, J., concur in the result.

1 The respondent has stated that paying less for his wife's ticket made him feel "like her keeper". This is a surprising reaction on the part of one in the respondent's position, bringing a sex discrimination suit. Disregarding the community property laws of this state, and without alleging that he used separate property to make the purchase, the respondent has treated the transaction as though the tickets were bought with funds which belonged exclusively to him.

2 See Moose Lodge 107 v. Irvis, 407 U.S. 163, 172-75, 32 L. Ed. 2d 627, 92 S. Ct. 1965 (1972).

3 The respondent has cited an administrative decision of the New York State Human Rights Appeal Board, dated July 19, 1972, in the case of Abosh v. New York Yankees, Inc., which was an application for an exemption under a local antidiscrimination code. The appeal board rather peremptorily sustained the decision of the New York City Commission on Human Rights denying the exemption. It declared that the promotional device did not accomplish its avowed purpose of encouraging women to attend; that it did not promote family bonds because large numbers of women have no husbands; and that "no woman who really cherishes her hard fought rights of equality under the Human Rights Law would accept preferential treatment at the expense of her male counterpart."

The factors considered by the New York Board indicate that it was more concerned with the efficacy of the program as an inducement to women than with its discriminatory effect on men. Having concluded that the program did not promote family bonds or stimulate female attendance, the Board denied the exemption. For aught that appears in the opinion, the exemption was denied because the program was unsuccessful. No attempt was made to construe the code provision. There is little in the reasoning to aid this court in resolving the question here. The decision is published in a text, B. Babcock, A. Freedman, E. Norton & S. Ross, Sex Discrimination and the Law 1069 (1975). The text writers, like the respondent's attorney, view the practice as disparaging to women. They quote a sociologist, Professor S. M. Miller (whose credentials are not revealed), who testified at the New York Commission hearing:

Miss Meyers: What is your estimate as a sociologist of the effect on women of having a Ladies' Day at ball parks? Do you think they are significantly damaged by it?

Mr. Miller: I don't know if it is damaging. I think it reinforces stereotypes.

Commissioner Norton: What is the stereotype being reinforced here?

Mr. Miller: Unathletic. Improvident. And also the notion of silly. Ladies' Day is a silly day. You expect to have silliness going on with a lot of shrieking and silliness because "that is the way women behave on public occasions."

For aught that is revealed here, the witness was testifying to his personal reactions, rather than with reference to some empirical study. This testimony suggests that at least a part of the objection to "ladies' night" is attributable to the use of the term "ladies" in an inappropriate setting. Judging from its alleged success at the Sonics Sunday night games, not all women have found that type of inducement offensive.

Noticeably missing from the quoted testimony of the sociologist is any assertion that this promotional device has an adverse effect on men.

4 We note, however, that the claim of City involvement is dubious. There is no dispute that the City, under the lease, had no voice in the setting of admission prices and in fact did not participate in that process. It retained the right to provide ticket takers, but they had no discretion with respect to prices to be charged. The lease expressly required compliance with laws against discrimination. This circumstance, among others, significantly distinguishes this case from Burton v. Wilmington Parking Auth., 365 U.S. 715, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961), much relied upon by the respondent. The fact that the City had not protested the practice of charging special prices on ladies' night does not establish that it condoned discrimination. Nothing that is alleged in this lawsuit indicates that, before it was brought, there was reason for city officials or anyone else to believe that the practice of charging special prices to certain groups was a forbidden type of discrimination, these pricing policies having the obvious purpose of encouraging attendance.