Recent trends in anti-discrimination lawsuits against private golf clubs.

The exclusive membership policies of certain private golf clubs have long been the target of public outcry and social pressure. President Kennedy was once famously challenged by future Supreme Court Justice Arthur Goldberg, then Kennedy's Secretary of Labor, over his membership in the Links Country Club because the club excluded Jews from membership. Reportedly, President Kennedy replied with a chuckle, "Hell, Arthur, they don't even allow Catholics."

In 1990, discrimination at private clubs rose to the forefront of public consciousness when Hall Thompson, founder of Shoal Creek, at that time an all-white club in Birmingham, AL and the site of the 1990 PGA Championship, declared that his club would not be pressured into accepting African-American members. "This is our home, and we pick and choose who we want," Mr. Thompson told the Birmingham Post Herald. "We have the right to associate or not associate with whomever we choose." Shoal Creek's purported stand for freedom of association proved to be short-lived. Nine days prior to the PGA Championship, Shoal Creek agreed to integrate its membership after African-American organizations threatened to picket the club and sponsors pulled approximately $2 million worth of commercials from ABC and ESPN.

More recently, in 2003, the exclusivity of Augusta National Golf Club, home of the Masters, became a topic of national debate when Martha Burke, head of the National Council of Women's Organizations, demanded that the club allow women to become members. Hootie Johnson, then chairman of Augusta National, responded that, "There may well come a day when women will be invited to join our membership, but that timetable will be ours and not at the point of a bayonet." Mr. Johnson circumvented Ms. Burke's attempts to exert pressure on the sponsors of the Masters by televising the tournament without commercials. Today, Augusta National retains its men-only membership policy.

While instances of blatant discrimination such as the outright exclusion of certain groups from membership found at Shoal Creek and Augusta National often receive frenzied coverage from the national media, such examples are relatively infrequent among private clubs. According to a USA Today survey conducted in 2003, most private golf clubs have even enacted written non-discrimination policies regarding membership.

A less-publicized and more common form of discrimination involves the disparate treatment of club members based on gender or sexual-preference. Three typical examples of this type of treatment are preferential tee-times for male members, men-only restaurant facilities, and the availability of playing privileges for members' spouses without similar privileges for domestic partners. These issues may not garner front page headlines like the membership controversies surrounding Shoal Creek and Augusta National, but in recent years they increasingly have been the target of judicial scrutiny.

Typically, disgruntled members challenge allegedly discriminatory club policies under state anti-discrimination laws. The anti-discrimination laws of most states are based on Title II of the Civil Rights Act of 1964. Accordingly, these statutes are relatively similar from state to state.

The basic purpose of anti-discrimination laws is to prohibit discrimination in public places. In the language of the statutes, public places are referred to as "places of public accommodation." Lawsuits involving a member suing a private golf club for its discriminatory policies often turn on whether the club is truly "private," because many states provide a broad definition of "place of public accommodation" but carve out an exception for private clubs. Consequently, a country club that is truly private is not subject to its state's anti-discrimination laws. The question of whether a club is or is not private is usually left for courts to decide, although the anti-discrimination laws of a few states state that any location holding a liquor license is a place of public accommodation, and some states go so far as specifically listing private clubs as places of public accommodation. That said, when the issue of the whether a country club qualifies as private is left to the courts, judges generally analyze the question based on the following factors:

1. The selectiveness of the club in the admission of new members. This factor is generally the central theme of a court's analysis. In particular, courts will consider the percentage of applicants the club rejects. In addition, courts will consider the following indicia of selectivity:

a. The existence of formal membership procedures. Formal membership procedures such as requiring a set number of current members to vouch for the applicant's moral and financial character and having a membership committee interview applicants are indicative of the selectivity of a private club.

b. The history of the club. The club's history may indicate whether the club was designed to be selective in its membership.

c. Whether the organization advertises. Advertising to the general public in order to increase membership is inconsistent with the requisite exclusivity of a truly private club.

2. The use of club facilities by nonmembers. The fact that a club's pro shop is open to the public, that the club rents its facilities to be used for weddings and banquets, or even that the club allows a local high school golf team to practice on the golf facilities weighs against the club being considered distinctly private. In examining this factor, some courts consider the percentage of the club's revenue that is generated by non-members.

3. The predominance of a profit motive. Courts have been more willing to consider a club to be distinctly private where the club's purpose is fraternal or social and exclusivity is related to that purpose. On the other hand, if the purpose of the club is profit driven and/or members join the club for business opportunities, courts are unlikely to consider the club distinctly private.

As demonstrated by the forthcoming discussion of recent lawsuits where members challenged the allegedly discriminatory policies of their club, today courts appear more likely to rule that private clubs are subject to the anti-discrimination laws of their state. In fact, in several recent lawsuits where clubs appealed the trial court's ruling that their club policies were discriminatory, they did not even challenge the court's ruling that the club was not a place of public accommodation.

Over the past decade, the preferential availability of weekend tee-times for male members has been a frequent source of litigation, perhaps in part because the practice is relatively common. For example, in 1998, five female members of Bear Hill Golf Club, located in Stoneham, MA, sued the club over its practice of conducting men's tournaments on weekends, while the club held women's tournaments exclusively on weekdays. Plaintiffs, who worked during the week, were unable to participate in the women's tournaments. The court held that Bear Hill was a place of public accommodation under the Massachusetts anti-discrimination law. In reaching this decision, the court noted that the club was not selective in its admission of new members as demonstrated by the fact it had not rejected a single applicant from 1991 to 1994; Bear Hill allowed non-members to use its facilities such as the local high school golf team, the Rotary Club, and it even held public tournaments; and the club advertised the availability of its banquet service to the fee-paying public. Since it was a place of public accommodation, the court ruled that the club was liable to plaintiffs for gender-based discrimination with respect to golf course availability.

The recent dispute between Mary Murray and Framingham Country Club provides another example of a lawsuit regarding weekend tee-times. In 2003, Murray, who was on Framingham's membership waiting list, sued the club alleging the club's rules favored men on the club's waiting list, and, therefore, were contrary to Massachusetts' anti-discrimination law. Framingham's rules dictated that a person who was on the wait list for golf membership could play golf once per calendar month, Monday through Friday. However, the club also allowed these individuals to play in tournaments. Murray argued that because the club held men's tournaments on weekends and women's tournaments on weekdays, Framingham's rules gave men on the wait list preferential treatment. In June of 2005, the court decided that Murray's complaint stated a claim sufficient to send to a jury, and rejected Framingham's motion to dismiss the case. In deciding to leave the question of whether the club was a place of public accommodation up to the jury, the court emphasized that only two applicants had been rejected for membership over the past ten years, the club's website solicited memberships from the public and advertised tournaments that are open to the public, and the club occasionally allowed public functions to be held on its property. Murray and Framingham settled the case on April 19, 2006, the day before trial was scheduled, for $262,000.

Men's-only dining facilities, an amenity found in many private golf clubs, have also sparked litigation in recent years. In 2004, the Louisiana Supreme Court considered the issue of whether Southern Trace Country Club was in contravention of Louisiana's anti-discrimination law by virtue of having a men's-only grill. Southern Trace's clubhouse featured a general dining area known as the "Azalea Grill," a men's-only eating area adjacent to but separated by a hall from the men's locker room known as the "Men's Grille," and a smaller food service area adjacent to but separate from the women's locker room known as the "Ladies' Card Room." The Men's Grille was the only restaurant facility open on Sundays.

On April 11, 2000, four female members of Southern Trace filed suit against the club after one of the plaintiffs and a female guest were denied service by the Men's Grille on a Sunday afternoon. The trial court rejected Southern Trace's contention that, as a private club, it was not subject to Louisiana's anti-discrimination law, noting that the club was owned and managed by for-profit corporations, the history of the club was simply an effort to provide a desired product for a fee to make a profit, and the club facilities were routinely used by non-members. However, the trial court also held that having separate dining facilities for men and women in the vicinity of locker rooms did not constitute discrimination. Rather, these amenities were simply the product of "economic and competitive market factors."

The only issue on appeal was whether Southern Trace committed gender-based discrimination by refusing to serve women in the Men's Grille, because Southern Trace did not contest that it was a place of public accommodation. The court of appeals reversed the trial court, stating that "male preference in a public club can never be an appropriate objective by which to justify discrimination." The Supreme Court finally put the matter to rest when it affirmed the court of appeals decision, reasoning that gender-based segregation in a place of public accommodation was, by definition, a discriminatory practice. The Supreme Court summarized this reasoning by stating: "Louisiana women work side by side with men in the courtrooms, operating rooms, and boardrooms. There is no reason.... they should still be excluded from country club dining rooms that are deemed to be public accommodations."

Sexual Orientation-Based Suits

The newest basis for discrimination litigation between members and their clubs involves the availability of playing privileges for heterosexual members' spouses, but not for homosexual members' domestic partners. In 2001, Birgit Koebke and Kendall French, a lesbian couple registered as domestic partners under the California Domestic Partner Rights and Responsibilities Act of 2003, sued Bernardo Heights Country Club alleging, among other causes of action, that the club discriminated against them on the basis of sexual orientation. Pursuant to its bylaws, the club's membership privileges were extended to members' spouses and children, but not to members' registered domestic partners. Ms. Koebke, a regular member since 1988, filed suit after the club's board of directors denied her repeated requests to designate Ms. French as her "significant other" to enable them to golf together on the same basis as married couples. Plaintiffs' lawsuit was dismissed by the trial court judge, and the California Court of Appeals affirmed that decision. However, in 2005, the California Supreme Court overruled the lower courts, concluding that since, under California law, registered domestic partners have rights equivalent to legal spouses, the question of whether the club's practice of granting playing privileges to members' spouses but not to members' registered domestic partners constituted unlawful discrimination under California's anti-discrimination law must be left to a jury decide.

A similar dispute is unfolding in Atlanta, GA between two homosexual couples and Druid Hills Golf Club. Druid Hills offers playing privileges to members' spouses and to members' "designated guests," provided that person is of the opposite sex, but not to members' domestic partners. Unlike California, Georgia does not have a statewide domestic partnership law, nor does it even have an anti-discrimination law that applies to public places. However, the city of Atlanta allows same-sex couples to register as domestic partners, and it has a city ordinance that bars businesses from discriminating against gay families. Lee Kyser and Lawrie Demorest, and Randy New and Russell Tippins, sought to create a category of privileges applicable to domestic partners through traditional channels, but their efforts failed to produce results. Consequently, on July 15, 2003, the two couples filed a complaint with Atlanta's Human Relations Commission. The commission ruled unanimously against Druid Hills in January 2004, finding that the club was a "business" that had denied "a significant and valuable privilege" based on sexual orientation and marital status. When Druid Hills refused to cooperate with the commission's ruling, the mayor of Atlanta imposed a $500 per day fine for up to a maximum of 180 days. Rather than pay the potentially $90,000 fine, Druid Hills sued the city of Atlanta. The dispute remains unresolved.

Southern Dunes Golf Club, a private club located between Tucson and Phoenix, was formed with the specific purpose of being a men-only club. In order to avoid the application of Arizona's anti-discrimination law, Southern Dunes has few amenities to stress that members join the club solely for recreational reasons and not for business opportunities. For example, Southern Dunes has no clubhouse, no tennis courts, and no swimming pool. In addition, members are prohibited from carrying cell phones or pagers on club grounds. However, in light of the foregoing summary of recent court cases, anti-discrimination laws and discrimination litigation are not solely the concerns of exclusionary clubs such as Southern Dunes. In recent years, judges have shown an increasing willingness to scrutinize the policies of private golf clubs under anti-discrimination laws. This means certain established and traditional practices--such as the preferential availability of weekend tee-times for men, men-only restaurant facilities, and playing privileges for members' spouses but not for members' domestic partners--represent potential sources of liability. Accordingly, clubs would be well-served by reviewing their bylaws and policies to ensure that all members are treated in an equitable manner.

By Benjamin Leedy, Esq.

Benjamin Leedy is an attorney in the Portland, OR office of Holland & Knight LLP. He frequently advises private golf clubs on various legal matters and can be reached at benjamin.leedy@hklaw. com.