Good Question: Why Can Some Clubs Discriminate?

MINNEAPOLIS (WCCO) - For a decade, Augusta National Golf Club has faced nagging questions - not about its challenging 10th hole - but about the lack of women as members.

Those questions came to an end when the club, for the first time, announced that two women had accepted an invitation to become members.

Even though most of us think of gender discrimination as against the law, when is it legal for private clubs to discriminate? Why are same-gender clubs legal?

Marcy Frost, an employment attorney at Moss & Barnett, says it all depends on the word "private".

"If you are truly a private club, and not open to the public, the answer is generally, yes, you're allowed to discriminate," said Frost.

Why?

"On the theory we have a Constitutional right of freedom of association," she said.

The courts have struggled with the issue, trying to figure out which clubs are truly private and which are essentially public.

The Supreme Court forced the Boys Clubs to admit girls, now they're known as the Boys & Girls Clubs. They ruled that since the Boys Club accepted all boys, it was essentially public, except for girls.

"The more restrictions put on a membership, the more likely it is a truly private club," said Frost.

Nancy Vollertsen, an employment lawyer with Lindquist & Vennum, says the "public" designation is covered by laws.

"Generally the discrimination laws prevent discrimination in the workplace or in places of 'public accommodation.' Private golf clubs are not open to the public, so it is not covered under the law," said Vollertsen.

"Several states, including MN, do have laws to make such discrimination tougher. For example, Minnesota denies property tax breaks to private golf clubs that discrimination," she added.

Minnesota's tax laws limit the number of dates golf clubs can have "men only" tournaments, as well. A property tax break is a big deal for such a large piece of property as a golf course.

"It doesn't prevent them from existing. It doesn't prevent them from having the discriminatory rules. It just prevents them from having a tax exemption," said Frost.

"As a golfer, I never understood why some clubs have 'men's day' – I don't think they play golf naked or anything!" laughed Vollertsen.

Minnesota played a key role in ending the men-only culture of many of America's civic organizations. The women of St. Paul's Jaycees won a victory in the US Supreme Court, forcing the national U.S. Jaycees to allow them to admit women.

Again, the ruling emphasized that the First Amendment Freedom of Assembly does allow private groups to pick their members, but the state is also allowed to fight gender discrimination.

The court ruled that the Jaycees behaved more like a public organization, because it was accepting so many people. The Rotary, Kiwanis, and Lions clubs were also forced to admit women by the U.S. Supreme Court.

The Woman's Club of Minneapolis accepts male members. Still, gender only social clubs do exist in Minnesota: the St. Paul Mens Club, and Curves for Women - a gym that only has female members in most of its locations.

Many states have passed laws to specifically allow women-only gyms, citing safety concerns. Case law is still developing, but typically the courts have found those to be legal private clubs.

Of course, it's not always the legal obstacle that forces change. Augusta had pressure because one of the key sponsors of The Masters is IBM, and IBM's CEO has always been invited to become a member, until this past year, because the CEO is a woman.

Frost said in many cases public pressure can force quicker change than lawsuits.