Houston nightclub Gaslamp got caught doing what many bars in Houston and other cities do - discriminating against black people, brown people, and other minority people through covert front door policies. The formerly popular Houston bar has been called to the carpet because it discriminated against a pair of black lawyers. The lawyers dressed themselves well, went out for a standard night in Houston's Midtown district, and approached the front door at Gaslamp. They were told that they must be pay a $20 cover charge to enter, and like rational adults, they chose to patronize the bar next door instead.
When the men walked back by a few minutes later, they noticed something odd. People were being admitted to the bar without paying a cover. Those people were white. Other blacks, Latinos, and even folks of Asian descent were asked to pay a cover. The two lawyers observed for a while, talked to some of the discarded minority patrons, and then posted their story to Facebook. Needless to say, it has generated tremendous buzz and brought us to where we are now.
There exists a second side to every discrimination claim. The stories from black bar-goers have been loud and forceful, with many coming to the aid of Houston lawyer Brandon Ball in claiming that they, too, were victims of discrimination. But is a cover charge discriminatory in itself? It's only discrimination if the only people being charged a cover are of a certain race.
That's where more white folks of good conscience can step in. As a young white guy who frequents Houston bars, I can definitively say that I've twice been to Gaslamp during prime hours and not been charged anything. I can say that Gaslamp attorney Tim Sutherland is lying through his teeth in the disastrous seven-minute response that he and the nightclub posted to Facebook today.
See the video here.
In that video, Sutherland says:
"We charge white girls and groups of white guys, too. But that's not good enough, and that's not a defense if even one black person is asked or is ever asked for a cover charge simply because they're trying to go out drinking while black."
Sutherland is lying. And he betrays the game played by Gaslamp in the totality of his statement. Sutherland claims that some white people might have gotten into the bar without a cover charge because of the myriad exceptions that "swallow the rule" set at the bar's door. Just for posterity's sake, I want to assess those stated exceptions to see whether I qualify:
"We have VIP passes and those people don't pay or wait in line."
"We have people who buy bottle service. Those people don't pay or wait in line, and they get a group of people of eight in with them. And we don't care what they wear."
"Sometimes people know the door guy, the management, or the owners, and they get in free."
"Sometimes the door guy thinks you're a smokin' hot babe, and you get in free."
I came to Gaslamp on a nice, 80-degree Saturday night in May. I arrived with one male friend, also white, at around 11PM, when the bar was at its busiest and the line stretched a few hundred feet down the block. We waited in that line. We possessed no VIP pass, we did not order bottle service, and were most assuredly not "smokin' hot babe[s]."
The only person who works at the bar who I have the misfortune of knowing is Sutherland, and I didn't mention that to the man working the door. We were waived in with no cover charge.
As we entered, we even encountered what I believe to be selective enforcement of the arbitrary dress code rules. I had on a hat, turned backward, as I often do. The door man told me to "turn my hat around forward" as I entered the bar, and that I could turn it around backward once I got through the door. I can reasonably infer from this that Gaslamp, having been accused of racial discrimination through its dress code policy before, wanted to put on a good show for its cameras at the front, showing that they "enforce" the dress code against everyone. The door man's advisement that I could turn my hat back around once inside the bar betrays this little game for the cameras and for the observing public outside.
Sutherland's statement smacks of the sort of anti-minority bigotry that's come to characterize the dog whistle community of late. His statement uses phrases like "property rights," recalling the 1950s Civil Rights Act debates in which business owners claimed that their property rights gave them the ability to discriminate in public places. He constantly harps on the concept of people being "offended" and takes a stand against what he sees as "political correctness" run amok. He says, in effect, that his bar has the ability to discriminate because of what he calls "freedom of association."
Then he drops the ultimate bombshell, which should get him slapped with a lawsuit of his own for professional negligence in legal representation.
"Federal discrimination law does not apply to nightclubs."
In fact, it does. Title II of the Civil Rights Act specifically applies to places of public accommodation, such as bars, restaurants, and hotels. Sutherland may be confusing this portion of a fifty-year old law with the idea that
private night clubs can discriminate in any way they wish. But Gaslamp is not a private night club, and it is very much bound by the contours of Title II.
Sutherland should know better. Earlier this year, the US Department of Justice settled a case in which another Houston bar - Kung Fu Saloon - discriminated against black and other minority patrons. In that case, the DOJ announced:
"he Justice Department’s complaint alleges that the defendants – Routh Guys LLC doing business as Kung Fu Saloon; Washington Guys LLC doing business as Kung Fu Saloon; and Grand Guys LLC doing business as Kung Fu Saloon – violated Title II of the Civil Rights Act of 1964 by engaging in a pattern or practice of discrimination against African-American and Asian-American patrons because of their race, color and national origin. Specifically, the suit alleges that in dozens of instances, the defendants denied African-American patrons entry into Kung Fu Saloon locations based on a dress code when similarly dressed white patrons were permitted to enter. The complaint also alleged that the defendants engaged in other practices to limit the number of African-American and Asian-American patrons at Kung Fu Saloon’s locations."
The DOJ went on to explain:
“Places of public accommodations, such as bars and restaurants like Kung Fu Saloon, should be open to all persons, regardless of race or national origin,” said Principal Deputy Assistant Attorney General Vanita Gupta of the Justice Department’s Civil Rights Division. “The Justice Department will continue to work vigorously to protect the rights of persons of all races and national origins to be free from discrimination in public accommodations across the country.”
Sutherland's song and dance won't work, as he reveals in this video and other statements the intent behind the bar's latent discrimination. Bars around this country utilize arbitrary cover charges and dress codes in order to exclude black people. These bars operate much like Sutherland in their stereotypes and assumptions that black people will either not buy drinks or not tip. As Sutherland says in his his video, in what appears to be a direct shot at the black lawyers who tried to enter his bar:
"If you're too cheap to pay a cover, you're not going to buy any drinks."
Sutherland's video is an excellent example of what not to do when accused of racial discrimination. In it, he's admitted that his bar discriminates, admitted why, and stated (wrongly) that his bar is not bound by federal law. He's living in a pre-1960s fantasy world where business owners can exclude black people, then flick them the middle finger under the auspices of "public property rights." Unfortunately Sutherland was far too busy doing ... whatever else ... to listen on the day in our law school when he should have learned that only clubs with private membership policies are outside of the bounds of Title II.
Sutherland does do us some service in this video, though. When he's not making sexist, racist, or intentionally inflammatory comments, he provides an excellent argument for why Houston must pass its Houston Equal Rights Ordinance (HERO). As Sutherland explains:
"The fact is that federal discrimination law doesn't cover night clubs. You need a local ordinance or a state law that will stop it and give people a way to make a claim, like every other big city in the United States. The public assumes that there is some magical overlap between what is morally wrong and what is illegal. That the laws in place today have dealt with the problems of yesterday. So for those of you who are outraged, there is something you can do. Because it's not illegal until you, the voter, make it illegal. Do your job, get educated, and make it so there's common ground between your beliefs and the world you live in."
Great idea, Tim. The Houston Equal Rights Ordinance (HERO) is a law that would protect black people from discrimination at bars like yours. It would also protect LGBTQ+ people from various forms of discrimination. And as Mayor Annise Parker noted this week, your case is another example of why HERO is necessary.
But it's not "we," the uninformed public that needs to "do our job" or "get educated." It's you. In this video, which appears intentionally designed to cost your clients a lot of money, you've misunderstood federal law, made various admissions of fact, and making yourself a fact witness, disqualified yourself from even representing Gaslamp should this case go to trial.
Of course we need a local law that would make it easier for people to make claims of discrimination. But the handy thing about federal law is that it also works in cases like this. Even if you live in a pre-1960s mindset where you can white-splain to the rest of us why it's alright for your racist, sexist policy to exist, federal law has passed you by. It's a shame that you, as a lawyer, fail to recognize that.
But we sure are glad you put out this horrid video, so that the victims of your bar's discrimination can have justice.
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Some of Sutherland's choice quotes included below in transcript form:
Gaslamp has a door policy that is race-blind. We have a dress code as well. We charge covers to groups of guys. We charge cover for the top two floors. We do not allow our customers to dictate the terms of who we let in and who we do not. We know that people are going to complain. We know they're going to go on Yelp. We are not willing to be a business that's too timid to speak, that's too eager to accommodate for fear of offending someone, and too willing to throw out our private property rights and freedom of association so that everyone has it their way. We are willing to hurt your feelings by telling you that you don't fit the dress code.
"If Gaslamp has made any mistake at all, it is a failure to take the time to consider what the customer is coming to the door with. Some customers may bring with them a lifetime of race-based issues they have experienced. We certainly understand that when someone believes that they have received poor treatment at a nightclub, it can be perceived, at its worst as racism, or even at its best, as us being insensitive."
"What we do know is that even if we win this case in court, we have already lost. Our business has been forever branded as racist. Our employees have been threatened and harassed. We have been extorted and had to press criminal charges against a former employee. And by then, none of you will probably care anyways. Because this isn't the first time this has happened in our city. We aren't the only bar even this year to be accused of being racist. But still, it's business as usual. People keep coming out, they talk about it for a week, but nothing changes. And that's a damn shame."