Aug. 13, 2008

Weirdest Grudge Match Ever: ACLU v NERC

By STEVE FRIESS

Gary Peck is a little bit ticked off with me.

Earlier today on the New York Times Web site, I broke the story that the Nevada Equal Rights Commission had declared gender-based prices violate Nevada law. The five-page ruling has some wacky stuff in it and has the potential to fundamentally change how many Las Vegas Strip resorts do business, both of which I'll get to shortly.

But perhaps the weirdest part of the whole endeavor is that Peck, the executive director of the ACLU, believes the decision is meaningless and toothless and that NERC's administrator, Dennis Perea, is misled if he thinks NERC has any power to enforce it. And the fact that I, as a journalist, have chosen to give Perea voice despite what Peck believes is an obvious misunderstanding of the law was irritating to the usually, ahem, mild-mannered Peck.

Yes, folks. It's as weird as it sounds. A civil rights panel has found that someone has violated someone else's civil rights and the ACLU is questioning the panel director's competence and legitimacy.

But let's back up for a second. The ruling, handed down on Monday, found that the Las Vegas Athletic Club discriminates against men by offering cheaper enrollment fees to women. NERC, which took a full year to rule on something Phillips filed on Aug. 4, 2007, cited NRS 233.010.2 in saying that gender-based pricing discrimination is not permissible.

Except that NRS 233 is a section that states public policies and gives NERC its authority to investigate claims and make findings. It does not, the ACLU believes, allow them to force anyone to do anything or take anyone to court.

This is where it gets screwy. NRS 655.070 is, according to Peck, the actual law. The list of groups who are protected from discrimination and can do something about it if NERC finds that is shorter. NRS 233 includes gender, sexual orientation and age. NRS 655 doesn't. Peck says NRS 655 is enforceable and NRS 233 isn't.

Perea sees it differently. He believes that NERC can now force LVAC to the negotiating table with the guy who filed the complaint, Todd Phillips. If negotiations fail, Perea said he can convene a public hearing on the matter at which NERC could issue a cease-and-desist order against LVAC. If LVAC ignores it, Perea said NERC can go to court to get it enforced.

This made Peck and ACLU attorney Lee Rowland laugh. Well, sardonically, anyhow. They've been at the Legislature year after year trying to get state lawmakers to add sex, sexual orientation and age to section 655 precisely so that NERC can enforce it. And, Peck said, the Legislature has refused to do so, which goes to legislative intent.

"It pains me to say this," Peck said, not really sounding all that agonized, "but we believe this is exactly what is wrong with the law. [Perea's] chances of prevailing at the end of the day are zero. We at the ACLU fought very hard to empower NERC to do exactly what it is that NERC is suggesting it can do. Clearly, the agency seems to be misreading the law which doesn't inspire confidence."

Where Peck sees clarity, Perea sees ambiguity: "This particular issue is completely untested waters. I am certain whether through the judicial side or legislative side, we will have a lot more clarity in the near future."

Except that, too, could be a problem because if upheld as Perea forsees, it would mean Vegas resorts would no longer be allowed to hold ladies' nights and Moorea Beach Club, a topless pool that is also the subject of a similar complaint for charging guys $40 more than women for admission, would have to stop that, too.

So the resorts won't be happy. The ruling has riled the never-sleeping giant, MGM Mirage, which lambasted it and will certainly be siccing its lobbyists on this matter in the Legislature if a judge decides that the public policy section is actually also enforceable law.

MGM Mirage veep Alan Feldman sent me a statement insisting this is a business-tactics issue and not a matter of civil rights. "The state's public accommodation statute does not prohibit different cover charges on the basis of gender, and never intended to prohibit such practices as 'ladies nights.' "

"Taken to its logical conclusion, NERC's decision calls into question such practices as charging different prices for seniors or children at movies or attractions such as museums or amusement parks. It might also apply to charges for services such as haircuts and dry cleaning," Feldman wrote.

When MGM Mirage and its cohorts get to work on all this, they might want to try a better defense than the bizarre one LVAC tried. The gym ought to be able to charge men more, they claimed, because men are more likely not to pay their bills and that costs the club more in collections.

NERC wasn't buying. "While this may be true, this reason is not persuasive," the ruling stated.

Maybe it wasn't persuasive, many might say, because it was dishonest. The reason women get price breaks for gyms and nightclubs and pools is because they're loss leaders. Get the babes in there and the guys will follow. It's all about sex and sexuality. It's the same reason most guys, save Phillips and a few others, don't mind paying more. They know that's what it takes.

LVAC won in another part of the case. NERC decided the athletic club had the right to create a women's-only exercise section without providing one for men. The club argued that it should be permitted to do so because state law allows for sex-specific facilities "where body parts might be exposed."

On that one, Phillips had a great comeback: "It's utterly ridiculous. If you can conclude that there's enough of a privacy consideration for women, you should have an accompanying men's one. I've got body parts. What if my body parts fall out?"

Oddly, the whole mess could end up hurting the cause of gay rights, too. Uh, how? Well, the ACLU and lobbyists for the Nevada Resort Association have been trying to get sexual orientation into section 655, the law part, for several sessions.

No less than R&R Partners CEO Billy Vassiliadis, speaking on behalf of the NRA, worried that if barring discrimination based on gender meant that the Legislature would be meddling in the marketing tactics of casino-resorts, support for any of it could unravel.

"I don't even know that we've actually given it that much thought," Vassiliadis said. "I don't know that some guy getting pissed off because he has to pay more for a drink shares the social significance of you can't stay in this hotel room because you're gay or old."

The ACLU's Peck wasn't willing to agree but he was willing to concede that Vassiliadis may have a point tactically in terms of how to get the law passed in 2009.

And that leaves folks like me, the gay guy, in an odd place. The most powerful people on the side of banning discrimination are saying my rights are more important and more pressing than Russin's.

What parallel universe did we all fall into when the Las Vegas casino industry is far more amenable to protecting the rights of gays than that of straight men? As ol' Dino might've crooned back in an era when such a flip would've been unthinkable, ain't that a kick in the head?

I hope Gary Peck isn't still ticked at me. I've done my best to explain it all here, where I have double the space I did in the Times. But the fact is that Peck believes that this ruling is essentially inconsequential, a nice public statement but in point of fact worthless.

Except that it's not. It has shoved a complicated set of befuddling state statutes into the light. As Perea said, some clarity is useful. And that clarity is coming. But more than likely, whether the courts say so or the Legislature rewords the law, the odds are fairly high that the clarity will come in a direction neither the ACLU nor NERC would favor.

###