Avis Sued for Sexual Orientation Discrimination Over its Rental Rates

Eugene Volokh notes that the lawsuit Evenchik v. Avis Rent a Car Systems is moving forward.

The plaintiff claims that Avis charged her more to rent a car because she isn’t gay.

According to the Complaint, Plaintiff rented a car from AVIS in July 2011, in the County of San Diego, California. She was charged $311.36. According to the Complaint, at that time AVIS gave large price discounts to members of two groups: the International Gay and Lesbian Travel Association and the National Gay and Lesbian Chamber of Commerce. Plaintiff is not a member of either group. The Complaint further alleges that AVIS did not give her the gay and lesbian group member price discount. Plaintiff alleges that California’s Unruh Civil Rights Act … prohibits a business from discriminating between its customers on the basis of sexual orientation…

Avis says that the Civil Rights Act is meant to protect disadvantaged classes, and not in this case heterosexuals. But the Court rules that’s not obviously the case, and that it bars all discimination.

Avis further argues that the plaintiff could have joined the organizations which provided the discounts in question, but the Court says Avis didn’t actually demonstrate that membership in these organization would have been open to the plaintiff. It will be interesting to see, as the case progresses, whether or not the ability to join the organization regardless of one’s sexual orientation will be a valid defense against the discrimination claims being made.

Perhaps more importantly — but one understands why Avis can’t actually make this claim in court — Avis offers discounts to a variety of organizations. Like AAA and Costco members. And with the exception of some government rates and Avis employee rates, there’s no proof of membership that’s generally enforced — you just enter the discount code and receive the discount. (You can also add coupon codes to your reservation.)

The point here being that the plaintiff could have simply used the relevant discount code instead of suing.

Not to mention of course that they could have chosen to rent from a competing company, which may well have been cheaper still. Though I have no idea whether or not that would be a valid defense against an Unruh Civil Rights Act claim under California law, not being familiar with the particulars. Although it does seem like it should be, as a matter of common sense if not of law.

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Comments

  1. this case opens a can of worms. In my opinion, Avis did not discriminate on sexual orientation, but membership in a club (which may discriminate, but not Avis’s responsibility to monitor).

    All companies price discriminate, and most travel companies do it on a variety of factors–have an Amex card? work for a company with a corporate contract? Belong to AAA?….

    Also, to what extent did the couple ask for the discount?

  2. A crazy frivolous law suit without any merit from what I understand. As a business professional I would like to use IBMs rate codes, senior rates for 62 and over and a whole range of codes I can’t.Not that it stops some
    I have been present when I am paying 250.00 dollars a night for a hotel room and some government employee is paying 92.00.Now if they were a member of this organization gay or straight they should be entitled to use the group rate code. However this individual is clearly trying to twist the law to their advantage/financial gain.
    I hope the judge will take this case and throw it out the window and not look back so tax payers don’t have to suffer clogging up our courts with such crap.Now if you really want to go after Avis I think there are number of legitimate complaints, concerns evil doings they are guilty of.
    However if the complainant can really demonstrate that this case has any validity at all which clearly looks like a not it could be obviously financially rewarding. I do know some years ago Avis was accused of doing such a thing over race however at the time I believe in some locations it had some real merit.I see no proof that discrimination even reasonably took place in any shape or form no matter what your personal preference is in life 🙂

  3. I’d be interested to know whether the groups condition membership according to sexual orientation. I’m 43 and an AARP member so I cannot claim age discrimination when an AARP rate is available at a hotel/car rental agency, etc. But Avis, and similarly situated companies would be well advised to police membership requirements of organizations whose members enjoy discounts.

  4. @DH – I’m not familiar with the California law, but your comments are relevant only if being “non-IBM” or “non-Government” places one in a protected class as contemplated by the pertinent law. I’m not convinced that this plaintiff is actually barred from membership from the groups who have arranged discounts, and if her non-membership arises from her mere disagreement with those groups’ activities, that is likely, from a legal prospective, her problem. But Avis and similarly situated companies should be wary about adopting any other organizations’ possibly discriminatory practices as their own.

  5. “Not to mention of course that they could have chosen to rent from a competing company, which may well have been cheaper still. Though I have no idea whether or not that would be a valid defense against an Unruh Civil Rights Act claim under California law, not being familiar with the particulars. Although it does seem like it should be, as a matter of common sense if not of law.”

    Not true. My ability go to a restaurant down the street doesn’t allow another one to discriminate against me. (Even if its only price discrimination.

    And you know better than me that there are many other factors besides price that can make one settle for a particular car rental company.

  6. @ Ben, I think you are generally correct, but the ability to find more favorable rates elsewhere may very well be relevant to damages – that is, the plaintiff cannot permit Avis to gouge her if she had the opportunity to “mitigate” damages by renting from someone else under favorable terms.

  7. OK, I’ve read the complaint available at http://ia600809.us.archive.org/34/items/gov.uscourts.casd.373518/gov.uscourts.casd.373518.19.0.pdf. I am a bit troubled that the court apparently assumed that the groups limits membership according to sexual orientation. This opinion is a denial of a motion to dismiss, which enjoys a generous standard of review – whether the plaintiff states a “plausible” case. But if the plaintiff failed simply to allege (proof not being required at this stage) that it was impossible for heterosexuals to gain access to the pertinent organizations, the Court should not have assumed it to be so.

  8. The Unruh Act allows for a mandatory fine of 3 times actual damages or $4k which ever is higher plus attorneys fees. You don’t have to prove any damages as the act of discrimination is enough proof to win a case.

  9. I read this and thought…hey, I wonder what I need to do to become a member, because I love a great discount.

    I sense the plaintiff has an axe to grind that has nothing to do with rental car discounts.

  10. IGLTA membership is open to “travel agents, tour operators and wholesalers, hoteliers, travel suppliers like airlines, car rentals, publishing firms, attractions, booking services, concierge services, cruise lines, CVB/tourism offices, gaming/casinos, ground transportation, meeting planners, associations, insurance, internet services, and marketing companies.” It is a group for those who want to market to LGBT travelers, not necessarily for LGBT members.

    The NGLCC is for businesses that are first members of their local Chamber of Commerce, and are majority (but not 100%) LGBT owned.

    I do not think Plaintiff has a legitime Unruh complaint.

  11. @Tori, and others who are interested,

    If NGLCC’s membership requirements indeed include some consideration of whether one is LGBT or not, (and you indicate it can be a factor, as a heterosexual sole proprietor would theoretically be excluded on account of membership in a protected class), the plaintiff’s argument would likely be as follows:

    (1) NGLCC’s eligibility is based, in part, on membership in some class as recognized by the Unruh Act;

    (2) Avis has accorded NGLCC’s members more favorable pricing; and

    (3) As Plaintiff is not a member of the protected class and therefore ineligible for NGLCC membership, Avis offered favorable pricing unavailable to plaintiff, and such unavailability turned on membership in protected class.

    Avis and others should take care, affirmatively, to avoid offering more favorable terms or conditions to organizations whose membership policies may exclude those in protected classes. And its not that I like it that way. It is just a sound practice.

  12. You may claim that “there’s no proof of membership that’s generally enforced”, yet lying about one’s membership to another group and getting away with it against Avis’ rules is not a mitigating circumstance!

    My kid is studying MLK in school, and to see this type of discrimination in this day and age, and some of the approaches/responses is, to say the least, interesting.

  13. To me this is simple. Avis discriminated against her. Should not have done it.
    Another example, if you follow Avis’ logic: It should be okay to discriminate against whites because historically only blacks were discriminated against. Discrimination is wrong, either direction. Avis was stupid and needs to pay. I can promise you that the plaintiff tried to work it out with Avis, but the lawyers said: Sue us. So she did. Bravo.

  14. @DH
    YOu state this is a frivolous lawsuit without merit. It seems like you are imposing your views or preferences into the case. Avis offers a special rates to gays, but not to straight people. CA law prohibits discrimination based on sexual orientation. What do you not see??

  15. Is it not OBVIOUS that this is frivolous? Avis offers discounts to a variety of groups, and the fact that this woman was not a member of the groups involved is not discrimination. I’m not a member of many many groups that get discounts from Avis and I don’t feel discriminated against. If the rate was really great, she should have tried to apply to one of those groups. It is not up to Avis to check who can be members of those groups.

    Read the act. It bans discimination based on sexual orientation, not on membership in groups for certain sexual orientations.

  16. @jfhscott – Actually from reading further, I misunderstood. The majority owner issue is only for Certification of a business, not membership. So membership appears to be based on being a member of a partner local Chamber of Commerce organization, and while I did not go look at all possible partnered organization, the couple I looked at do not base membership requirements on the sexual orientation of owners.

  17. @Tori – aha. And I think we are in agreement – when membership in an advocacy group does not require that one be a member of the advocated-for group, the Unruh Act does not limit Avis’s prerogative to offer discounts to members of such a group.

    So, for example, AARP took my money and I am a member, but not technically of interested age for their advocacy. It has not barred my membership, and extending an AARP discount therefore does not constitute age discrimination, to whatever extent age discrimination might be illegal.

  18. @steve – when you do not have access to some group’s rates, you are “discriminated” against. But the “discrimination” or disparity in treatment is generally unactionable. And you are right – anyone who resents that AAA members get a discount should pony up the cash for a membership.

    But when it comes to membership in a protected class, Avis and similarly situated providers should proceed with caution. Offering preferable terms to members of a group which limits membership and excludes members of a protected class effectively permits Avis or a similarly situated company to do an end run around the Unruh Act, and it appears the court appreciated it for just that.

  19. The problem with the lawsuit is simple. Companies like Avis offer discounts to various groups all the time. The fact is that the plaintiff could have got the same, or better, discount by joining another group (USAA or AAA come to mind as easy examples).

    My take – as long as the discount was no better than any discount the person could have got if they had gone to the effort of joining said group, there is no case to answer.

  20. Interesting story. Thanks to JFHScott for the analysis – you’ve done enough work here that I think I should get CLE credit for reading this thread. 😉

  21. Without commenting on the merits of the lawsuit, I doubt that they existence of a flaw in the discounting process (that you can generally get a discount you’re not entitled to by just using the code when booking) would constitute an effective defense for Avis.

    That’s tantamount to saying that you can’t enforce any law regarding failure to office a good or service to someone since they always have the option of stealing the good or service from you.

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