The New York Human Rights Commission Is Investigating The Wing [Updated]

Murray believes The Wing will survive a legal challenge, and pointed to a provision of the city’s human rights law that allows businesses to apply for an exemption based on “bona fide considerations of public policy.” This term is not defined in the law itself, but the commission has published guidelines that explain how such requests are evaluated: “Exemptions will only be granted in narrow circumstances where ‘bona fide considerations of public policy’ are clearly identified; requests rooted in discomfort, intolerance, or perpetuating prejudice or division will not qualify for the exemption.”

“These exemptions are very rare,” said Hoy, the spokesperson for the Commission on Human Rights. “In the last 10 years, CCHR has granted only three exemptions.” One of them was issued in 2016, to a public pool in Brooklyn that had been running women-only swimming hours to allow observant Hasidic Jews to swim without violating religious prohibitions against mixed bathing. The New York Times brought the arrangement to the public’s attention when the paper’s editorial board criticized the women-only swimming hours. After briefly suspending the hours, the pool obtained an exemption from the Commission on Human Rights and re-opened them.

“it’s patently absurd for New York’s human rights commission to be focusing on The Wing when we’ve had, over the last six months, numerous complaints about workplaces being absolutely hostile to women.”

While The Wing has not yet asked for such an exemption, there is a consensus among lawyers and legal scholars that the company does not comply with the city’s human rights laws as they’re currently written. “I think that the legal question is pretty easy,” said Sylvia A. Law, a professor of law at N.Y.U. who wrote an influential paper about sex equality under the U.S. Constitution. “This violates the public accommodations law. The more interesting questions are whether it is socially wise, and whether either the city or an individual man will want to challenge it.”

Samuel Estreicher, an N.Y.U. professor who oversees the school’s Center for Labor and Employment Law, agreed: “They’re a place of public accommodation. New York has a very narrow definition of a ‘distinctly private’ club.”

In New York City, a “place or provider of public accommodation” is any business where “goods, services, facilities, accommodations, advantages or privileges of any kind are extended, offered, sold, or otherwise made available.” The similarly expansive state law lists dozens of business categories, including ice cream parlors and roof gardens, that meet the same definition. Businesses that meet the definition can’t discriminate against potential customers based on their age, race, religion, sexual orientation, or gender. Other protected categories include military status, partnership status, and nationality.

There are exceptions for private clubs. To avoid the law applying to it, a club must be “distinctly private,” which means it has fewer than 400 members (under state law, the threshold is even lower), does not serve regular meals, and does not receive payments from non-members. The Wing has at least 1,500 members, serves food, and accepts payments and fees from non-members for meals, branded merchandise, and use of its facilities, so it doesn’t seem to meet the definition of a “distinctly private club.”

“Public accommodation laws were designed to prevent places of business from excluding people based on race and other aspects of identity,” said Suzanne Goldberg, a professor of law at Columbia University. As those laws have matured, she continued, “It has come to be understood that if a place holds itself out to the public as open for business, then it has to take all comers.” Ilann Margalit Maazel, a prominent civil rights litigator in New York City, was more definitive about The Wing’s vulnerability: “I think I’m comfortable saying that it’s likely illegal. And it would certainly make for an interesting lawsuit.”

To be clear: It’s uncertain whether the Commission on Human Rights would ever bring a lawsuit against The Wing. At this stage, the agency is evaluating the company’s practices to ensure that it’s following the law. The Commission is empowered to sue individuals and companies in the absence of a third-party complaint, but that decision will hinge on the outcome of its own inquiry, which hasn’t yet finished. And there are several steps between the inquiry’s completion, including the agency’s final determination and a mediation process, and a potential lawsuit.

“The more interesting questions are whether it is socially wise, and whether either the city or an individual man will want to challenge it.”

If such a lawsuit were filed, The Wing would have a deep well of case law to support its right to exclude men from membership privileges. Murray, the Berkeley professor teaching at N.Y.U., pointed to the Supreme Court’s decision in United States v. Virginia, which stemmed from a lawsuit the federal government brought against the Commonwealth of Virginia over the male-only admissions policy of the Virginia Military Institute, a state-funded undergraduate college in Lexington. Although the justices deemed the policy unconstitutional, Murray said, “the court is very clear that the Equal Protection Clause’s mandate against sex discrimination does not necessarily preclude benign preferences for gender so long as they’re not based on stereotypes about the inferiority of women.”

The Wing could also plausibly argue that the Human Rights Law was never intended to apply to organizations that seek to empower women and racial minorities. This theory is based on the 1984 amendment that banned private clubs from discriminating against members because of their gender. The purpose of the amendment, according to the legislative declaration that accompanied the text of the law, was to remedy the reality that “women and minority group members have not attained equal opportunity in business and the professions.” The lawmakers who drafted the amendment viewed private all-male social clubs as centers of power and influence, and believed women and other disadvantaged populations would benefit from belonging to them.

“The City Council was really clear, when they passed the law, that it was to get rid of barriers to the advancement of women and minorities in the business and professional life of the city,” said Julie C. Suk, a professor at Yeshiva University’s Cardozo School of Law. Suk, who studies anti-discrimination laws in the United States and Europe, is skeptical of the law’s applicability to The Wing. “It doesn’t seem to be the kind of club that the law was targeted at,” she said.

This nuance is captured in a passage from a third Supreme Court decision, New York Club Association v. City of New York, which unanimously affirmed the statutory authority of New York City to forbid private social clubs that met the definition of a “public accommodation” from practicing gender discrimination. The 1987 opinion notes: “It is conceivable, of course, that an association might be able to show that it is organized for specific expressive purposes, and that it will not be able to advocate its desired viewpoints nearly as effectively if it cannot confine its membership to those who share the same sex, for example, or the same religion.”

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So why would the Human Rights Commission even bother with The Wing? What problem is it creating? And what problem is it trying to solve? The answer to that last one seems to be evolving. Audrey Gelman, who co-founded The Wing with Lauren Kassan, conceived of it as a pit-stop for highly mobile women who were tired of changing outfits in the bathrooms of chain coffee shops and freeloading Wi-Fi from hotel lobbies. Inspired by the proliferation of women’s clubs in the early 20th century, Gelman and Kassan realized that such a space could offer more than changing rooms and Internet access. “We saw the potential for not only convenience and making women’s daily lives easier,” she told Fast Company last year, “but also having it be a hub for community and connection between women.”

After Donald Trump defeated Hillary Clinton, The Wing’s ethos began to evolve:

“We had the expectation that we would have the first women president and it would be the golden age of feminism and women get to have rooms like these as a result of that momentum,” Ms. Gelman said. “Very quickly overnight it went to feeling a little protective.”

Ms. Kassan and Ms. Gelman said they began hearing from their members that along with previously planned offerings like lessons in flower arrangement, breakfasts themed to signs of the zodiac and panels on news topics, they were interested in programming and events that focused on women’s rights and politics.

It evolved even further amid the explosion of sexual assault and harassment allegations against powerful men last year. In a recent interview with Adweek, Gelman compared The Wing to larger movements led by women:

It’s been a huge year for watching what happens when large groups of women gather together and the kind of impact they can make, [just look at] the Women’s March, Time’s Up, the Me Too movement. Communities of women can be powerful forces in culture and politics. The Wing is a permanent space for women where community building activities are happening every single day and friendships are being made. It’s an example of what it looks like when you dedicate and create real space for women to build community.

The Wing put Jezebel in touch with some of its happy customers. Interviews with current members of The Wing reflect this change, and the different ways its members view the company.

Nabiha Syed, Vice President and Associate General Counsel at BuzzFeed, has been a member since The Wing was founded. She told Jezebel that she sees it as a space for women from diverse backgrounds to organize and network, one that complements other institutions by giving women the room to build themselves up so that they can more fully engage the outside world.

“How do you give people the tools, and the network, and the confidence they need to engage in this big space?” Syed asked. “The Wing is trying to answer that question—not for everybody in the whole world, but for a specific slice of it, which is people who identify as women and who also have certain community values. I do think that being a woman is at the heart of it, because there are particular experiences in society that are focused around gender, and focused around perceptions of their gender.”

Atima Lui, the proprietor of the tech startup Nudest, joined The Wing in October 2017. She said The Wing’s membership policy enabled experiences that would be impossible in the presence of men, citing a recent presentation by CNN’s Christiane Amanpour about her miniseries, Sex & Love Around the World, which documents how women experience sex and love in different cultures. “The conversation that we were able to have about the victimization of women—particularly in the country that she was exploring in this event, which was in India—was a conversation that I wouldn’t have felt comfortable having if men were present,” she said.

Lui also emphasized how The Wing’s membership policy virtually eliminates the potential for harassment of women by men. “One of the things I deal with on a daily basis, living in New York and being a woman, is street harassment, and harassment in coffee shops where I used to work before I came to The Wing,” she told Jezebel. Later, she added: “Being able to go to work in a harassment-free zone, where I’ll know that I’m not going to be catcalled, where I can actually get my work done—like, literally, on my way to work at The Wing, I’ll be harassed, and then I go through those doors, and I’m safe—is really special and important and worth protecting.”

“I do think that being a woman is at the heart of it.”

Craig Gurian, the executive director of the Anti-Discrimination Center in New York, offered a blunt (and perhaps obdurate) defense of New York City’s public accommodations law: “To the extent that there are workplaces or public accommodations that have inappropriate behavior, the solution is to fix those workplaces or public accommodations. Separate is not equal. We were supposed to learn that a very long time ago.”

Between 1988 and 1992, Gurian served as the legal director, and later the chief counsel, for the law enforcement bureau at the New York City Commission on Human Rights. He was intimately involved in drafting a significant revision of the city’s Human Rights Law in 1991, and drove the bureau, according to his résumé, to enforce the law much more aggressively. (He is currently suing the City of New York over its affordable housing program’s controversial “community preference” policy, which privileges applicants who already live in the neighborhood where affordable units are built. In 2009, his non-profit came under scrutiny for how it used a $10 million settlement it won from Westchester County, over the government’s handling of federal grants designed to build low-income housing.)

He continued: “This is exactly the opposite of what we should be doing, which is saying: We need to be looking at every place and making sure that there is no reason to feel uncomfortable. That we just have to all deal with one another. That that’s the direction that we’re moving towards. We have a long way to go, but we need all to deal with one another, in every way possible.”

Suzanne Goldberg, the law professor at Columbia, gave a more nuanced acknowledgment of the difficulty of squaring the desire to police men’s harassment of women with the societal interest in gender integration. “Creating exceptions to civil rights laws is tricky business,” she said. “It’s tricky and risky. At the same time, it is essential to think about the reality that sexual harassment is pervasive in many settings.”

Murray, the Berkeley professor teaching at N.Y.U., harshly criticized the notion that New York City laws could prevent The Wing from excluding men: “The idea that a law that was meant to provide access to women would prevent them from having access to each other and the capital that they’ve built as women seems ludicrous.”

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Update — 3 p.m., March 27

The morning after this post was published, The Wing sent the following message to its members:

Wing Women,

On the first day of Women’s History Month, the NYC Commission for Human Rights reached out to The Wing. All that has happened so far is that we have agreed to sit down and talk with them.

Because of the history of women in this country — and even more so in this time we live in — we believe it is important to protect and foster the work of The Wing and similar places that give women a positive and safe space to thrive.

If you want to support The Wing and make your voice heard, you can tweet them at @NYCHHR and @NYCMayorsOffice and let them know you are a proud member of The Wing and believe women deserve safe spaces.

Yours,
Audrey, Lauren & The Wing Women

Dozens of Wing members subsequently tweeted at the Office of the Mayor and the Commission on Human Rights. One of them, Hari Nef, wrote:

Later, the commission responded:

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