In an Oct. 7 editorial, "Another Kind of Privacy Right," The Post attacked the New York City ordinance prohibiting discrimination in clubs that are not, as the law says, "distinctly private." The Supreme Court has agreed to review this ordinance, on which a recently enacted D.C. Council law is based.
As, respectively, the drafter and a leading proponent of the New York ordinance, we first want to point out that in describing that legislation The Post has omitted the heart of the law. The Post describes the law as affecting "organizations that have 400 members, serve meals regularly and provide some services, through members, to nonmembers." What the law actually says is: "An institution, club or place of public accommodation shall not be considered in its nature distinctly private if it has more than four hundred members, provides regular meal service and regularly receives payment for dues, fees, use of space, facilities, services, meals or beverages directly or indirectly from or on behalf of nonmembers in furtherance of business or trade." (Emphasis supplied.)
The law was narrowly drawn to differentiate between those truly private clubs and those that are centers of business activity. Extensive legislative hearings established what club goers long have known: clubs with a great many members, which regularly serve meals at which business networking takes place and where expenses are paid by businesses for business activity to entertain nonmembers, are important centers of business and professional activity. Here are a few of the facts.
In 1980, the president of the University Club in New York caused an audit to be made of the prior year's receipts to determine their source. In a letter to his membership he advised them that 40 percent of checks received for dues, fees and other payments were drawn directly on business accounts and that the club had taken in $1,102,000 from the provision of rooms, food and beverages for business events. A 1986 study of executive perquisites by Executive Compensation Services, Inc., revealed that substantial percentages of the seven industry groups studied pay luncheon and supper club dues for one or more management levels. Of course, companies pay these expenses for business purposes. What other reason would they have?
The legislative record and evidence developed in proceedings under the New York law have demonstrated hundreds of instances of business activity by law firms, advertising agencies, banks, stockbrokers, fashion designers, bar associations and so forth regularly being conducted at these clubs.
Women and minorities came to understand the level of business activity at "private" clubs through a process of exclusion and then inclusion. Muriel Siebert, the first woman to own her own seat on the New York Stock Exchange, early in her career in Wall Street realized she was excluded from many important meetings. Her superiors told her the meetings were at clubs that would not permit women on the premises. As she became someone who had to be invited, the clubs let her come in, but not through the front door. What women like Muriel Siebert have learned is that the level of business activity at these "private" clubs is extensive and that it is humiliating to be required by business necessity to attend a meeting at a club where your sex makes you not good enough to be a member, bars you from many areas of the club and results in incidents such as being asked to leave when you unknowingly go into the wrong room to confer with male colleagues.
Clubs easily can escape the law's coverage by "going private," i.e., genuinely prohibiting business activity (not merely the nominal "no papers on the table" rule or requiring payment of bills by members only, even though later reimbursed by their firms). But more than a thousand members of the University Club opposed going private because they wanted to continue being reimbursed. At the Century, going private was opposed on the ground that the club needs the money. The University has just ceased discriminating against women. Other New York clubs also have complied. The Century has voted to cease discriminating if the law is upheld.
The Post editorial concludes that legislation is not the way to open these clubs, that instead we should rely on "pressure from within organizations." We agree with The Post that those clubs that are truly private should be left alone. But those clubs that serve as extensions of the board room and the business office, as the vast majority of city men's clubs do, must be recognized for and treated as the centers of business activity that they are.
Jack Greenberg is professor of law and vice dean at the Columbia University School of Law and former director-counsel of the NAACP Legal Defense and Educational Fund. Lynn Hecht Schafran is an attorney with the NOW Legal Defense and Education Fund and special counsel to the New York City Commission on the Status of Women.