Three Black Lawyers Don't Walk Into A Bar: Allegations Of Racism At A Houston Nightclub
Whether or not the club and its employees discriminate because they are a bunch of racist a-holes lies at the heart of the three black attorneys’ allegations.
Three lawyers walk into a bar . . . .
Wait.
No, three lawyers don’t walk into a bar, but the story only begins there.
Navigating Financial Success by Avoiding Common Pitfalls and Maximizing Firm Performance
Attorneys Brandon Ball, Dan Scarborough, and Ken Piggee allege that bouncers manning the door of the Gaslamp nightclub in Houston discriminated against them based on their race. Ball, Scarborough, and Piggee are black. They claim that the bouncers insisted that the trio each pay a $20 cover charge to enter, though the men say they observed white patrons entering for free.
The three recently shared their experience on social media and with the press. The story gained traction with local media, before drawing attention from national outlets like the Daily Beast.
Tim Sutherland, lawyer for the Gaslamp, denied that race played a role in the bouncers’ choice to charge a cover to Ball, Scarborough, and Piggee. Sutherland posted a video on YouTube, where he appeared to give the Gaslamp’s side of the story. Joe Patrice discussed that video this morning. Here’s my take.
(Full disclosure before I scrutinize the video: I went to law school with the three men who brought this story to the public’s attention, so I won’t pretend to be wholly unbiased. I trust ATL readers to form their own opinions about what follows.)
Sponsored
Early Adopters Of Legal AI Gaining Competitive Edge In Marketplace
Is The Future Of Law Distributed? Lessons From The Tech Adoption Curve
The Business Case For AI At Your Law Firm
Early Adopters Of Legal AI Gaining Competitive Edge In Marketplace
How Many Laws Does It Take To Screw In A Lightbulb A Nightclub?
Sutherland makes some strange claims in the video, starting with his picture of civil rights laws.
Sutherland claims, around 2:44 in the video, “The fact is that federal discrimination law doesn’t cover nightclubs.”
The U.S. Department of Justice tends to disagree.
Owners of the Kung Fu Saloon chain may disagree too, even if they aren’t happy about it. Earlier this summer in Texas, the Kung Fu Saloon submitted to a consent decree by the U.S. Department of Justice in a case alleging that the clubs engaged in a pattern or practice of impermissible race-based discrimination. The complaint in the Kung Fu case claims, “In dozens of instances since at least May 2011, Defendants have denied African American patrons entry into Kung Fu Saloons based on dress code when similarly dressed white patrons were permitted to enter.”
Sponsored
Legal AI: 3 Steps Law Firms Should Take Now
Navigating Financial Success by Avoiding Common Pitfalls and Maximizing Firm Performance
Sutherland’s legal analysis is wishful thinking for a nightclub accused of practices that run afoul of Title II of the Civil Rights Act of 1964, a very federal, very binding law that prohibits discrimination on the basis of race by public accommodations.
True, Title II makes an exception for bona fide private membership clubs. But Courts nationwide have resisted exempting bars and restaurants that don’t meet strict criteria, including formal membership procedures. The U.S. Court of Appeals for the Fifth Circuit, into which Houston and the Gaslamp fall, has long suspected that some establishments would use the private club exception to evade civil rights law governing public accommodations.
What’s The Difference Between Lack of Competence And Lack of Diligence? I Don’t Know And I Don’t Care.
If I owned a nightclub, I would not want to be represented by an attorney who thinks that nightclubs obviously fall into the private club exemption of Title II because he is not familiar enough with anti-discrimination law to know better. Neither would I want to be represented by an attorney who knows that nightclubs do not obviously qualify for the exemption, but is eager for a test case to re-litigate Katzenbach v. McClung or Heart of Atlanta Motel v. United States. Few nightclub owners expect to be token plaintiffs in a long-shot Commerce Clause challenge.
But it gets worse.
Right after Sutherland tells viewers that federal discrimination law doesn’t cover nightclubs, around 2:44, he says of discrimination:
“You need a local ordinance or a state law to stop it and give people a way to make a claim like in every other big city in the United States. The public assumes that there’s some magical overlap between what is morally wrong and what is it legal. That the laws in place today have dealt with the problems of yesterday, and that’s not true. So for those of you who are outraged I say there is something that you can do because it’s not illegal til 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 that you live in.”
Deflecting responsibility from the Gaslamp to Houston voters is an unorthodox strategy. Is Sutherland saying that it’s everybody else’s fault that his clients are, at least in their lawyer’s view, free to discriminate?
Sutherland’s clumsy, graceless blame-shifting suffers from a fatal flaw: Article IV, Section 17-51 of the Houston Municipal Code already prohibits race-based discrimination in places of public accommodation.
In admonishing the rest of us to start doing “our jobs,” Sutherland looks to be alluding to the Houston Equal Rights Ordinance (“HERO”), now awaiting voters’ approval. HERO is significant for the city because it would ban discrimination based on sexual orientation or gender identity, classifications which are not currently covered by the municipal equal rights ordinance or federal anti-discrimination law. But HERO need not be passed in order to find the Gaslamp’s alleged practices unlawful, whether Sutherland acknowledges it or not.
If there’s someone in Houston who needs to “do his job” and “get educated,’ it may be Sutherland himself.
Knock-knock. Who’s There? A Bunch of Assholes.
When I discussed the Gaslamp story on the radio last week, I called the culture of nightclubs “morally impoverished,” and warned people that going to nightclubs known for their shallow, objectifying door policies would “make your soul dirty.”
My tendency to avoid understatement probably killed my chances of getting free drinks any time soon.
In his video statement, Tim Sutherland lends support to my bleak view of clubs like the Gaslamp. I like being right and all, but this can’t be a wise public relations strategy for Sutherland’s clients.
Around 1:07, Sutherland says:
“We are willing to hurt your feelings by telling you that you don’t fit the dress code. We will tell you that you need some girls and that this isn’t a bro’s night out, because we don’t want you creeping out the girls that we already have inside. We will tell you that you’re too cheap for our nightclub if you don’t want to pay a cover. Because we know that if you won’t pay a cover, you’re probably not going to buy any drinks.”
In the video around 4:30, Sutherland tells viewers that the Gaslamp prefers to discriminate in its door policies simply because they “are a bunch of assholes.”
Whether or not the club and its employees discriminate because they are a bunch of racist assholes lies at the heart of the three black attorneys’ allegations. Either way, Tim Sutherland’s video gives the impression that the Gaslamp does, indeed, have the “asshole” part covered.
Earlier: Nightclub Lawyer Issues Embarrassing, Damning Video Statement
Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.
