A Stitch in Haste

While I was not surprised to learn that the online dating site eHarmony would eventually be compelled to cease its policy of not accepting gays as clients, I was surprised to learn that the compulsion would come from New Jersey:

Under terms of the settlement between Eric McKinley, a gay match-seeker from New Jersey, and eHarmony, Inc., the relationship Web site agrees to provide a new service for match-seekers identifying themselves as “male seeking a male” or “female seeking a female” by March 31, 2009.

The company also agrees to ensure that same-sex users are matched via the same or equivalent technology as that used for heterosexual match-seekers, agrees to charge same-sex users the same fees, and agrees to offer the same service quality and terms of service as heterosexuals.

I was not aware of the New Jersey litigation, but was fully expecting a similar outcome in a similar lawsuit filed in California under that state’s extremist “Unruh Act.” I blogged about that lawsuit back in June 2007:

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In February 2007, I wrote the following regarding eHarmony’s bigoted policy excluding gays:

Of course, private businesses do (or at least should) have the right to discriminate as they see fit. It is, after all, a “free” market.

Now that eHarmony is being sued for sexual orientation discrimination, like-minded folk are saying pretty much the same thing. And that’s fine.

Just one pesky detail: The lawsuit was filed in California, apparently under that state’s over-reaching Unruh Civil Rights Act:

51.5. No business establishment of any kind whatsoever shall discriminate against, boycott or blacklist, or refuse to buy from, contract with, sell to, or trade with any person in this state on account of any characteristic listed or defined[.]

California’s Civil Rights Act of 2005 added sexual orientation to the list of protected classes.

So, as I tried to explain in this post about another widely lambasted Unruh lawsuit, it is all-important to distinguish between insisting that the eHarmony litigation is “silly,” “misguided,” “petty” or any similar word (which may well be the case), and claiming that it is “frivolous” (which is simply not the case). Under the plain language of California law, this is obviously not a frivolous lawsuit. If anything, it is the Unruh Act that is frivolous.

That’s the first part of the analysis; here’s the second part:

Whoever denies, aids or incites a denial, or makes any discrimination or distinction … is liable for each and every offense for the actual damages … up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars[.]

Under normal circumstances, a gay excluded from eHarmony would, at best, be entitled to actual damages — which would be what exactly? A pat on the back and some Kleenex?

But this is California, which has announced to the whole world: “Come to California, find any incident of discrimination, no matter how minuscule or inconsequential, and you win at least $4,000!”

With that kind of incentive system, of course men are going to sue bars for having (discriminatory) “Ladies Nights” — $4,000 of ka-ching! (per plaintiff!). Of course someone is going to sue the California Angels for a (discriminatory) Mother’s Day giveaway — $4,000 of ka-ching! (per plaintiff!). And of course some inventive gay is going to figure out that eHarmony can be sued under Unruh — $4,000 of ka-ching! I’m mad that I didn’t think of it myself! (Note also that the eHarmony lawsuit is seeking class action status — $4,000 x how-many + punitives = mega-ching!

Incidentally:

…four thousand dollars, and any attorney’s fees that may be determined by the court in addition thereto…

Is it any wonder that there are California law firms that specialize exclusively in representing Unruh plaintiffs?

It’s quite simple really: When the government subsidizes something, you get more of it. The State of California has enabled and actively encourages people to sue for the smallest incidents of discrimination, even when there are no real damages.

Be indignant over the eHarmony lawsuit all you want. But don’t be surprised by it, and don’t damn the plaintiff for doing exactly what the State of California has relentlessly encouraged her to do.

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Note that nothing in this post should be construed as revising my position regarding adding sexual orientation to already existing anti-discrimination laws such as ENDA and the federal hate crimes law. I continue to posit that it is perfectly consistent with libertarian principles to insist that, if you are going to have, as a fait accompli, protected classes such as race, gender and disability, then that list of protected classes should be rationally and fairly compiled — and that requires that sexual orientation be included. Even if “one level of protection for all” is the asymptotic libertarian ideal, it is nevertheless also a libertarian ideal to support going from three levels of protection to two (i.e., by adding gays to the protected class). That is not a step backwards.

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The case is McKinley v. eHarmony.com (PDF – 4 pages). The relevant portion of New Jersey’s “Law Against Discrimination” here.

Previously:
–eHarmony, eCommerce and eBigotry

Filed under: Activist Legislators & Nanny Statists, Freedom of Contract, Gay Rights and Issues, Law, Society, Religion, Culture Wars, Updates