The New York City Commission on Human Rights has commenced a “commission-initiated investigation” against The Wing, a club and co-working space for people who identify and live as women, based on the club’s potentially discriminatory practices. The commission’s decision to investigate The Wing has surprised some in its apparent contrast with the #MeToo movement, and the nature and focus of recent public dialogue on discrimination. The #MeToo movement has fixed attention on discrimination and harassment against women, and The Wing’s mission is rooted in advancing women and providing them safe spaces from such discrimination and harassment. The commission, though, is charged with protecting against all forms of gender discrimination, including discrimination against men.

The Wing, which has three locations in New York City and recently announced that it is expanding to six other cities, has a clear policy providing that men cannot become members or visit as guests. The New York Times reported that Audrey Gelman, co-founder and CEO, stated that The Wing does employ men but did not specify how many or in what capacity. The marked distinction as compared to other gender-specific clubs, according to the New York Times, is that The Wing even excludes men as guests.

The New York City Human Rights Law (NYCHRL) makes it unlawful for an employer to discriminate on the basis of gender. In addition, it also prohibits a public accommodation from refusing, withholding, or denying full and equal enjoyment to a person on the basis of gender. While the NYCHRL does provide an exception for a public accommodation that is a club that is distinctly private in nature, it specifically excludes from this exception clubs with more than 400 members; clubs that provide regular meal service; and clubs that regularly receive payments for dues, fees, use of space, facilities, services, meals, or beverages from non-members. The Wing boasts over 1,500 members, serves food, and accepts payment and fees from non-members for food, merchandise, and the use of its facilities. As such, the commission is investigating the extent to which The Wing discriminates against men in its employment practices and whether The Wing may lawfully exclude men, even as guests.

As part of the ongoing dialogue surrounding the #MeToo movement and its spotlight on high-profile workplace discrimination and harassment cases, celebrities, scholars, politicians, and public figures have questioned whether The Wing is an appropriate target given the commission’s limited resources. For example, according to the New York Times, New York City Comptroller Scott M. Stringer vocalized his support for The Wing and questioned whether this investigation should be a priority for the commission. While the investigation is in its early stages and may conclude without either noteworthy findings or an enforcement action, the investigation serves as a reminder that all forms of discrimination against individuals based on protected categories — regardless of whether the individuals are part of historically marginalized groups — are prohibited. Businesses and organizations must continue to be vigilant in examining their policies and practices to ensure they comply with local, state, and federal anti-discrimination laws. In addition, it may be worthwhile to provide employees with additional training to identify and address discrimination and harassment in the multitude of ways it can manifest itself.

To discuss your company’s compliance with anti-discrimination laws, please contact:

• Hilary A. Dinkelspiel
• Caroline J. Berdzik
• Or any member of the Employment and Labor Practice Group