old eharmony lawsuit, how was this not laughed out of court?

http://articles.washingtonpost.com/2...

What? I mean, how? He's not an employee. What? What?
Did I miss the day when businesses became required to serve every member of the general public?

In many places, it is illegal to provide a service to the public and then refuse to provide it to some people based on membership in a protected class. In the case of New Jersey:

The New Jersey Law Against Discrimination (LAD) prohibits an owner, manager, or employee of any place that offers goods, services and facilities to the general public, such as a restaurant, hotel, doctor's office, camp, or theater, from directly or indirectly denying or withholding any accommodation, service, benefit, or privilege to an individual because of that individual's race, creed, color, national origin, nationality, ancestry, marital status, domestic partnership or civil union status, sex, affectional or sexual orientation, gender identity or expression, or disability. Further, individuals accompanied by a guide or service dog are entitled to full and equal access to all places of public accommodation.

Hence it is illegal for eHarmony to operate in New Jersey if they refuse to accept homosexual customers.

Thanks. The libertarian in me sometimes forgets what kind of assholes people are and why these laws exist.

OTOH, they don't serve the general public.
edit: And what about a claim that they're matching system only support straight people? Then they would be in a situation where they are physically unable to serve absolutely everyone.

RolandofGilead wrote:

OTOH, they don't serve the general public.
edit: And what about a claim that they're matching system only support straight people? Then they would be in a situation where they are physically unable to serve absolutely everyone.

I'm a little curious about this myself. Specifically, how do dating sites like Christian Mingle deal with that? Is it just a situation where they dont ask and only pair men and women and figure that'll filter out the people they don't want but but don't state that specifically? The whole thing is odd.

RolandofGilead wrote:

OTOH, they don't serve the general public.
edit: And what about a claim that they're matching system only support straight people? Then they would be in a situation where they are physically unable to serve absolutely everyone.

That excuse is precisely what eHarmony has used in the past. That the data was only gathered from hetero couples.

RolandofGilead wrote:

OTOH, they don't serve the general public.

How so?

RolandOfGilead wrote:

The libertarian in me sometimes forgets what kind of assholes people are and why these laws exist.

The most succinct summation of the central problem of libertarianism I've yet seen.

Robear wrote:
RolandOfGilead wrote:

The libertarian in me sometimes forgets what kind of assholes people are and why these laws exist.

The most succinct summation of the central problem of libertarianism I've yet seen. :-)

True dat.

Bloo Driver wrote:
RolandofGilead wrote:

OTOH, they don't serve the general public.
edit: And what about a claim that they're matching system only support straight people? Then they would be in a situation where they are physically unable to serve absolutely everyone.

I'm a little curious about this myself. Specifically, how do dating sites like Christian Mingle deal with that? Is it just a situation where they dont ask and only pair men and women and figure that'll filter out the people they don't want but but don't state that specifically? The whole thing is odd.

These kinds of questions are why the legal system works the way it does. I'm sure most of us can think of a number of reasons that can be given both to motivate this kind of thing, and to explain why it ought to be allowed under the law. The law also contains complexities. For one thing, the quote above isn't from the law itself. For another, there are pieces of that explanation regarding religious and private club exceptions that I didn't include.

Looking at the explanation, it's also not immediately clear whether it should apply to services provided online. (And I suspect most of us can see reasonable arguments both for and against: For would be that the intent is to prevent discrimination in providing services, whether or not those services involve visiting a physical location. Against could be that the law appears to (from this summary, anyway) talk only about exclusion from physical spaces.)

Because of all of these sorts of things, it's possible for different people to interpret the law in different ways in different contexts. And, the way our legal system works is that when different people interpret the law in conflicting ways, they take the conflict to a court of law to decide how it should be interpreted in that situation. That interpretation establishes a precedent, in which it is made clear how this law (and more broadly, this kind of law) is expected to be applied.

In this specific case it appears that no precedent was set, because this was a settlement rather than an actual finding by the courts or by the NJ Division on Civil Rights. There was a Finding of a Probable Cause that the DoCR issues (basically saying "yes, we believe that there are ground to take this to court"), but I am unable to find the details. (I don't know whether that finding goes away since they settled or if it's just that nobody commented on it so I can't find it.) I wouldn't be surprised if eHarmony argued that the law didn't apply to them because of the lack of physical locations in NJ, and once the DoCR determined that it did, eHarmony decided that they didn't want the PR hit of going to court and defending the idea that their system doesn't work for non-hetero people.

It could also depend a bit on exactly *how* people were excluded.

For Christian Mingle? Well, it could be that it just hasn't been tested yet because nobody cares. It could be that if it is tested they'll be required to change. And it could be that they don't exclude non-Christians, it's just that they advertise as a service for Christians looking for Christians to date, and keep their demographics that way. (Although I do notice that they appear to only allow M4W and W4M options). I suspect that if the eHarmony case hadn't been settled, Christian Mingle would have felt the need to change that, but since it didn't establish precedent and nobody has sued them yet, they're continuing on their merry way. (This is one reason that out of court settlements for civil rights cases annoy the hell out of me. On the one hand: This kind of process is encouraged by most civil rights laws--and I believe that's to more easily handle small complaints without bankrupting people. The goal, after all, is simply to prevent unfair discrimination against protected classes. On the other hand, when large actors are involved, it can be a little disheartening when no fault is admitted and no clear precedent is set.)

In short: The legal system exists to establish how the law should be interpreted when the details come into it, but it doesn't make judgements until somebody brings a conflict of interpretation to the courts.

Robear wrote:
RolandofGilead wrote:

OTOH, they don't serve the general public.

How so?

Tsk tsk, are you doing the un-PC thing of assuming that heteronormative people are basically the only people?
In serious, they didn't have an option for gay and lesbian or trans, so they implicitly only took on heterosexuals as customers,
plus, you have to be single to join the site (at least IIRC the ToS to which I agreed).

MrDeVil909 wrote:
Robear wrote:
RolandOfGilead wrote:

The libertarian in me sometimes forgets what kind of assholes people are and why these laws exist.

The most succinct summation of the central problem of libertarianism I've yet seen. :-)

True dat.

:) I'm really just libertarian on the social side of things, economically I'm Green or some variation of strong consumer rights, strong environmental standards, with an overall goal of moving to sustainable development.

and Thank you Hypatian for the good summary, although on settling cases, hmmm, I'm under the impression that hypothetically, if every company in the past that has ever settled would have gone forward, they would have won a significant percentage of cases.

You mean jdate won't help me find a second and third wife? That's it, I'm suing!

RolandofGilead wrote:

and Thank you Hypatian for the good summary, although on settling cases, hmmm, I'm under the impression that hypothetically, if every company in the past that has ever settled would have gone forward, they would have won a significant percentage of cases.

Quite possibly. There are a lot of trade-offs involved. In any case, the way things works is usually pretty sufficient, and rulings about how cases should be adjudicated can have a big impact. (Take the EEOC's decision last May decision that employment discrimination against transgender people falls under Title VII's sex discrimination protections, for example.)

CannibalCrowley wrote:

You mean jdate won't help me find a second and third wife? That's it, I'm suing!

Well, yeah, but according to the customer service representative that emailed me, gentiles can join at least.
So single Jewish ladies in the NOVA/DC/MD area, PM me, we'll have coffee.

RolandofGilead wrote:

Tsk tsk, are you doing the un-PC thing of assuming that heteronormative people are basically the only people?
In serious, they didn't have an option for gay and lesbian or trans, so they implicitly only took on heterosexuals as customers,
plus, you have to be single to join the site (at least IIRC the ToS to which I agreed).

Okay, I'm reading you wrong. Hypatian said, it would seem to be illegal for them not to serve everyone, and you responded, well, they *don't* serve everyone. You appeared to be attempting to cite the problem as the reason it's not a problem - "They don't have to serve homosexuals because they are not part of the target consumers for the service".

That of course is nonsense. As is the idea that homosexuals can't be single...

Wait, I'm not sure I'm following what's being said here. Are we saying that you cannot target only a segment of the population now? I mean, the example in hypatian's post for Christian mingles only providing a m4w and w4m search options seems reasonable to me. They're not stopping people from registering, (though I understand they stated in the T&C that they didn't allow gay people - which is why I would think this case should have turned out the way it did) just not providing all the tools to search? I mean, this is gwj - we have several specific forums, can someone complain because there's no specific forum for discussing science?

Further, I'll have to check with my gay friends but I'd be very surprised if gay dating sites provided tools to find hetero singles on them...

I used eHarmony for about one year about 6 years ago, back when it was all about compatibility based on the test you took when you signed up. I had no luck with it, mostly because at that point you could only contact people you were matched as compatible with you, and if you live in lower population density area (such as Iowa), you ran out of local matches pretty quickly. I wasn't about to make multiple trips to Chicago or Madison just to get to know someone.

I remember that at that point it wasn't just gay people who could be turned away, a number of hetero customers were too, because of their results on the test. Not that their test results revealed anything negative, but that they just couldn't be matched for whatever reason. I suspect that this factor was part of eHarmony's defense as well.

What I liked about eHarmony's marketing at that point was that they were there for long-term relationship matching. But in reality, the pool of people was pretty similar to those using other services like match.com, based on my experience at least. I think a lot of people sign up for all the services they can afford if they want to meet someone.

Anyway, I think you can filter through all the members now. And from what I understand, it's much more difficult to cancel your payments to them.

Duoae wrote:

Are we saying that you cannot target only a segment of the population now?

Not at all, but I think you have to *tell* people you are doing it. As long as you offer the service to the general public, you have to support *the general public*. You can't have a gas station that only serves Christians, for example, but you can have a "Christian Club" that has a private gas pump.

I've never seen any eHarmony advertising where they *say* they will not match same-sex couples, but I've heard for years that they refuse to do that. What if they were doing it with blacks?

Robear wrote:

Not at all, but I think you have to *tell* people you are doing it. As long as you offer the service to the general public, you have to support *the general public*. You can't have a gas station that only serves Christians, for example, but you can have a "Christian Club" that has a private gas pump.

Yeah, I have no problem with that scenario. That's what I thought was reasonable but then Hypatian's post seemed to say something else...

Although I guess her get out of "It could also depend a bit on exactly *how* people were excluded." gives a bit of wiggle room - I think there's a clear difference between "excluding" and "not catering to" when talking about:

it's just that they advertise as a service for Christians looking for Christians to date, and keep their demographics that way. (Although I do notice that they appear to only allow M4W and W4M options). I suspect that if the eHarmony case hadn't been settled, Christian Mingle would have felt the need to change that,

I just wanted to clarify what people were saying here.

I understand, I just didn't want you to misunderstand what I was saying. I get accused of enough weird stuff that I felt it was worth clarifying.

Robear wrote:

I understand, I just didn't want you to misunderstand what I was saying. I get accused of enough weird stuff that I felt it was worth clarifying.

No worries! These are sensitive issues!

It also depends a lot on the details of the laws in question, how they're interpreted by the agencies that enforce them, and how they're interpreted by the courts. For example, let's look at the details of the Allegheny County Non-Discrimination Ordinance (PDF) (mainly because I'm reasonably familiar with its provisions):

Allegheny County Non-Discrimination Ordinance (Definitions) wrote:

W. Public accommodation resort or amusement means any place which is open to, accepts or solicits the patronage of the general public or offers goods or services to the general public, including loans, or is listed in the Pennsylvania Human Relations Act, Section 4l, but shall not include any personal or professional services which are in their nature distinctly private, personal or confidential.

Pennsylvania Human Relations Act, Section 4l wrote:

(l) The term "public accommodation, resort or amusement" means any accommodation, resort or amusement which is open to, accepts or solicits the patronage of the general public, including but not limited to inns, taverns, roadhouses, hotels, motels, whether conducted for the entertainment of transient guests or for the accommodation of those seeking health, recreation or rest, or restaurants or eating houses, or any place where food is sold for consumption on the premises, buffets, saloons, barrooms or any store, park or enclosure where spirituous or malt liquors are sold, ice cream parlors, confectioneries, soda fountains and all stores where ice cream, ice and fruit preparations or their derivatives, or where beverages of any kind are retailed for consumption on the premises, drug stores, dispensaries, clinics, hospitals, bathhouses, swimming pools, barber shops, beauty parlors, retail stores and establishments, theaters, motion picture houses, airdromes, roof gardens, music halls, race courses, skating rinks, amusement and recreation parks, fairs, bowling alleys, gymnasiums, shooting galleries, billiard and pool parlors, public libraries, kindergartens, primary and secondary schools, high schools, academies, colleges and universities, extension courses and all educational institutions under the supervision of this Commonwealth, nonsectarian cemeteries, garages and all public conveyances operated on land or water or in the air as well as the stations, terminals and airports thereof, financial institutions and all Commonwealth facilities and services, including such facilities and services of all political subdivisions thereof, but shall not include any accommodations which are in their nature distinctly private.

Allegheny Non-Discrimination Ordinance wrote:

§215-35. Unlawful Public Accommodations Practices.

It shall be an unlawful public accommodation practice for any person being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement because of race, color, religion, national origin, ancestry or place of birth, sex, gender identity or expression, sexual orientation, disability, marital status, familial status, age or use of a guide or support animal because of blindness or the training of such animal, deafness or physical disability of any individual or independent contractor or because of the disability of an individual with whom the person is known to have an association to:

A. Refuse, withhold from or deny to any person because of protected class, either directly or indirectly, any of the accommodations, advantages, facilities, services or privileges of such place of public accommodation, resort or amusement.
B. Publish, circulate, issue, display, post or mail, either directly or indirectly, any written or printed communication notice or advertisement to the effect that any of the accommodations, advantages, facilities and privileges of any such place shall be refused, withheld or denied to any person on account of protected class objectionable or not acceptable, desired or solicited.
C. Obstruct any person from enjoyment of his rights under this Article relating to public accommodations.
D. Construct, operate or otherwise make available such place of public accommodation, resort or amusement which is not accessible.

Now, this is just a part of this law, which also covers housing and employment discrimination, and the details of how the law is to be enforced and how complaints are to be adjudicated. But you can see just from this that there's a lot going on. There's a call-out to Pennsylvania law (HTML) which has a pretty long explicit list of things that are considered "places of public accommodation resort or amusement", but including the provision that the law is not limited to the listed examples. PA law lists "accommodations which are in their nature distinctly private" as an exception, while Allegheny county law lists "personal or professional services which are in their nature distinctly private, personal or confidential."

I can't remember where I got this idea, but it may perhaps be something I stumbled across when researching things before that I haven't found this time: I believe the provision in Allegheny County may allow such diverse things as massage parlors and lawyers to be exempt. (The former on the grounds that it is distinctly personal, the latter on the grounds that it is distinctly confidential.)

The reason there's a separate law for Allegheny County is in part that the Pennsylvania law has a smaller set of protected classes (race, color, religious creed, ancestry, age or national origin) than Allegheny County law (race, color, religion, national origin or ancestry, sex, gender identity or expression, sexual orientation, disability, marital status, familial status, age or use of a guide or support animal because of blindness, deafness or physical disability of any individual or independent contractor or because of the disability of an individual with whom the person is known to have an association).

And all of these bits and pieces of law can be done in different ways, as well. For example, Pittsburgh city law's (PDF) definition of public accommodation resort or amusement is short and sweet:

Pittsburgh City Non-Discrimination Code wrote:

PUBLIC ACCOMMODATION, RESORT, RECREATION OR AMUSEMENT. Includes any place, business or activity which is open to, accepts or solicits the patronage of the general public or offers goods, services or recreation to the general public. (Ord. 29-1980, eff. 12-31-80; Am. Ord. 4-1997, eff. 2-7-97)

(And Pittsburgh has yet another set of protected classes: "race, color, religion, ancestry, national origin, place of birth, sex, sexual orientation, familial status, age, handicap or disability, or use of support animals". But note: "SEX. The gender of a person, as perceived, presumed or assumed by others, including those who are changing or have changed their gender identification.")

So... yeah. These laws can be quite complicated, and very open to interpretation. And the laws change over time--the protections for gender non-conformity in Allegheny County and the definition of sex discrimination to include discrimination against transgender people in Pittsburgh are both quite recent (I want to say 1997 for Pittsburgh and 2001 for Allegheny?)

They are also pretty clear in their intent, however. All three of the laws I've quote above starts with an explanation of why the law was enacted--what discrimination is, why it is undesirable, and what the law is intended to do. (I'll spare you the details of those declarations!) And yeah, the goal is to prevent discrimination against people who are known to be discriminated against, for housing, employment, and public accommodations. This includes forbidding the advertisement of "no Xs allowed!", telling people "we don't serve Xs here" once they walk in, and mysteriously discovering that the apartment was already leased, the hotel room was already rented, the job was already filled, etc. after the status of the applicant is discovered. Of course, some of these violations are easier to prove than others. (And systematic abuses like just happening to never call people back if they have a "foreign" sounding name or the like or only showing crappy properties to "undesirables" can be very difficult indeed and require a lot of evidence.)

So there's a balance between peoples' right to choose who to associate with (which is why private clubs are generally exempted) and attempts to use that right in order to discriminate against people. If you offer a service to members of a "private club" and then offer membership to people when they walk in the door... except for people from some protected class... well, that's not going to fly. But there's always going to be a bit of middle ground where people do things that don't seem quite right, but which are not blatantly wrong enough that you can do much about it.

(And yes, this sort of thing is among the reasons that "country clubs" get the side-eye from a lot of people.)

And that really is interesting, Hypatian. It may be why eHarmony has made it this far without being sued back to the First Great Revival...