Better Life Lab is a partnership of Slate and New America

The rise of women-focused organizations promoting co-working, workplace savviness, and old-fashioned networking is confronting a new backlash: lawsuits from men who say they are being unfairly excluded.

Yale University and the University of Southern California are under investigation by the Department of Education for programs and scholarships for women. An organization to get more women on the golf course—long a bastion of male power and a frequent locale for business deals—was sold and shut down after settling with a plaintiff for holding women-only events. The head of Chic CEO, an organization that hosted online resources for women starting their own businesses, downsized her company after settling a lawsuit alleging the group excluded men from networking events. And the Wing, an exclusive all-women co-working and social space, is under investigation by the New York City Commission on Human Rights for gender discrimination.

The most recent women’s empowerment organization to go public about getting hit with a gender-discrimination lawsuit is Ladies Get Paid, a for-profit organization that holds networking events and classes on negotiating salaries and raises, managing money, and building confidence. After two men were denied entry to two women-only Ladies Get Paid events in August and September 2017 in San Diego and Los Angeles, respectively, they filed two lawsuits under the California’s Unruh Civil Rights Act, which prohibits discrimination on the basis of sex, race, color, religion, and other protected characteristics.

Claire Wasserman, the director and founder of Ladies Get Paid, believes it was the “cheeky” language and smiley face she used on the Eventbrite invitation to their August event that attracted the ire of the plaintiffs. The invite said: “Bring friends—the more the merrier :) Female-identifying, non-binary folks are welcome. Sorry, guys!” Alfred Rava, the attorney in both suits, said it was Rich Allison, one of the plaintiffs, who brought the advertisement to him, along with his sex discrimination claim. “It definitely caught my eye that a supposedly pro-diversity business such as LGP would be so stupid, in the 21st century in the progressive state of California, to actually kick men out of this event just like LGP promised or threatened to do in its advertisement,” Rava wrote in an email to Slate.

Targeting women’s empowerment events is an abuse of the law and part of the larger attack on the civil rights of vulnerable people that the Unruh Act was designed to protect, said Elizabeth Kristen, director of Gender Equity and LGBT Rights Program at Legal Aid at Work and an expert on gender discrimination. “They are using the Unruh Act as a sword.” And Kristen says not all of these lawsuits are the same.

Kristen sees a strong distinction between businesses running gender-specific promotions as a way to drum up business (like a ladies’ night drink special) and the women-focused business, networking, and empowerment events and programs, where there is a legitimate policy, rather than commercial, interest in excluding men. She argues that had Ladies Get Paid and similar women business and networking events had the resources to go to trial, they’d have California case law on their side to win.

Specifically: In a decision upholding a Mother’s Day special, a California appeals court declared discrimination under Unruh is present only where the policy or action “emphasizes irrelevant differences between men and women or perpetuates stereotypes.”

This raises the question of what those “relevant” differences between men and women might be.

This raises the question of what those “relevant” differences between men and women might be.

In a decision upholding the Trump National Golf Course discount for women during Breast Cancer Awareness Month, the court held that the golf course was within its right to do so: The “objective of the [Unruh] Act is to prohibit businesses from engaging in unreasonable, arbitrary or invidious discrimination.” As Kristen notes, the law doesn’t prohibit businesses from “drawing distinctions” among different people—as long as those distinctions are “reasonable” rather than arbitrary. For a women’s-only breast cancer promotion, the court found the golf course “offered undisputed evidence to show that the vast majority of breast cancer sufferers are women, with men comprising less than one percent of those annually diagnosed with breast cancer.” In other words, the reason for distinguishing between men and women in this case was supported by evidence and was nonarbitrary. It also refers to other court of appeals cases that find such practices are “nonarbitrary” where a “strong public policy exists” to support it—in that case, a policy of raising breast cancer awareness.

Here’s how this case law could help not only Ladies Get Paid, but other organizations, whether for-profit or nonprofit, looking to support women in overcoming demonstrable disadvantages: There are myriad reasons to conduct events just for women about work, wages, business and negotiation, giving credence to the “strong public policy” requirement in California case law. Women are more likely to invest in each other’s ventures, and more likely to succeed when backed by other women. Women get paid more at work when surrounded by other women. Women are more likely to speak up and less likely to be interrupted in women-only situations.

By suing organizations that purport to close the wage gap or increase women’s representation at the top ranks of businesses—two areas where research and real-time data show women lag behind—such efforts would likely widen, rather than decrease, gender inequality. “Ladies’ night” specials are rooted in stereotypes; by contrast, women-only networking is rooted in empirical reality about the benefits of women-only workplaces.

Such efforts would likely widen, rather than decrease, gender inequality.

Chris Dolan, owner of the Dolan Law Firm in San Francisco, and a well-known civil rights attorney who has brought hundreds of cases regarding gender discrimination including violations of the Unruh Act, agrees the Unruh Act was designed to end barriers and discrimination that disadvantaged individuals because of “immutable characteristics”—i.e., race, sex, national origin, age, disability. Dolan says the relevant distinction when it comes to such lawsuits is between using the Unruh Act to disrupt women’s empowerment organizations and using it to “interdict businesses” which advantage women while excluding men. However, Dolan noted that LGP’s case would be even stronger as an association or not-for-profit group rather than a for-profit organization. This would strengthen their case that their purpose in having policies that treat men and women differently is women’s empowerment and closing the wage gap, not collecting profits.

While it’s impossible to say for certain what the outcome of a trial would have been, it was likely too costly for LGP to risk making their case. “If you are a young company, you are not going to test the merits. You are going to wind up paying the plaintiff to go away,” says Megan Cesare-Eastman, the lawyer who represented Ladies Get Paid. California has a one-sided fee provision for prevailing plaintiffs in civil litigation: Had Ladies Get Paid gone to court and lost, the group would’ve had to pay all associated legal fees. That bill could have run into the six figures—which likely would have sunk an organization with just two full-time employees. And as a for-profit organization, Wasserman says it was difficult to find pro bono representation.

“I get that women’s organizations with limited resources can’t risk taking these cases to court,” said Kristen. “But if there isn’t anyone willing to stand up to these bullies, it is going to undermine our ability to enhance and protect civil rights in these states.”

In the future, Kristen hopes feminist organizers targeted by men or men’s rights organizations will band together before settling. “Women have not had the resources to stand and fight,” said Kristen. “If women could find some way to get lawyers to represent them to expand and explain this law further, we could establish that these kind of women’s empowerment events in particular do not violate the Unruh Act.”

Ladies Get Paid has crowdsourced the money to defray legal costs associated with the settlement, and they’ve raised over $100,000 from nearly 2,000 individual donors. If future groups choose to fight back, there’s reason to believe they’ll find plenty of support, financial and otherwise.