Female Golfer’s Discrimination Claim Can Continue

Jan 12, 2006

A Massachusetts trial court has denied in part a motion for summary judgment, extending the viability of a gender discrimination and retaliation claim brought by a female golfer, who sought unsuccessfully to become a member at a country club.
On June 26, 2000, plaintiff Mary E. Murray submitted her application to become a member of the Club. Shortly thereafter, the Board approved her application, and her name was placed on the wait list. Murray had been on the wait list for almost two years when she learned that the club had granted membership to a male, who did not have to go on the waitlist. He had allegedly been advanced over her because he was a close friend of a former president of the Board. Murray complained to the Board.
The next incident occurred when Murray was approached by a male member of the club, who told her that he could get her name moved to the top of the waiting list in exchange for sexual favors. Murray thought the man to be an officer of the Club, when actually he was only the Chairman of the Rules Committee. The Board ultimately placed a letter in the man’s file.
On August 6, 2002, the Board voted to deny Murray membership to the Club because they found her statement, that an officer of the Club had sexually harassed her, was false and slanderous. The Board also thought that some of her behavior at social functions had been inappropriate.
Four months later, Murray filed a complaint, alleging that the Club “gave preferential treatment to male applicants, enforced golf rules that prevented women from golfing during preferred tee times, and denied her membership to the Club because she challenged its discriminatory practices.”
The court first examined whether the Club was a place of public accommodation and subject to the discrimination law cited by Murray in her complaint. It noted a wide range of conclusions in the lower courts.
In particular, the court in Soltys v. Wellesley Country Club, 2002 Mass. Super. LEXIS 550, 2002 WL 31998398 *1 (Mass.Super. 2002) (15 Mass. L. Rptr. 650), held that “while selectivity of membership was the most important consideration in determining public accommodation status, other factors that could be considered included: (1) membership control; (2) history of the organization; (3) use of the facility by non-members; (4) the extent of revenues from non-members; (5) whether the facility advertised to the public; and (6) the formality observed by the club.
“It is clear that selectivity of membership is critical to the determination of whether a private club is a place of public accommodation. Here, an application for membership must be signed by two members of the Club, but there is no requirement that the members know the applicant. While the Bylaws require that seven out of nine Board members approve an applicant’s membership, only two applicants, including the plaintiff, have been rejected over the past ten years. In addition, the Club’s website solicits membership from the public and advertises tournaments that are open to the public.
“Furthermore, the Club hosts various public functions, including golf tournaments for fund-raisers and allows local golf groups to use the facilities. Although the income it receives from the public is less than one percent of its overall revenue, the Club relied on such income to pay for improvements to the Club’s facilities and to avoid budget short falls.”
Thus, the court held that “there are genuine issues of material fact as to the Club’s selectivity of the membership, its availability and marketing to the public, and its reliance on funding from the public,” meaning that whether the Club is a place of public accommodation “is a question best left for a jury.”
Turning next to whether the golf rules have a disparate impact on women on the waiting list, the court noted that the Club’s rules state that “an individual who is on the wait list for golf membership may play golf once per calendar month, Monday through Friday only. However, it is the Club’s practice to also allow these individuals to play in tournaments. The Club’s golf rules also state that women cannot play in men’s tournaments and men are not allowed to play in women’s tournaments. When these two rules are applied together, there is a potential for a disparate impact for women on the waiting list. Because the men’s group usually holds tournaments on weekends, and the women’s group holds tournaments on weekdays, it would seem that women on the waiting list would be deprived the opportunity to play on weekends, while men on the waiting list could play in numerous weekend tournaments, giving men on the wait list more preferential playing time.”
Again, the court suggested that a more finite determination would better be left to a jury.
The Club did get summary judgment with regard to the plaintiff’s claim that the Club engaged in discrimination based on sex in its membership application process. The defendants “have presented undisputed evidence that while the Club does have a practice of taking applicants on the waiting list out of order, the majority of these instances have been female applicants being advanced over male applicants. … The plaintiff has failed to present any evidence of a discriminatory reason (or impact) for (the male golfer’s) advanced membership.”
Finally, the court examined whether the Club voted to deny the plaintiff membership and access to Club property in retaliation against her for challenging its application procedures.
The Club argued that it did not deny Murray membership to the Club because of her complaint about the application procedures, but rather that the allegation that an officer had sexually harassed her was slanderous and her behavior at social functions was inappropriate. “The record reveals genuine issues of material fact concerning Murray’s reasonableness in believing the Club’s application process was discriminatory, and the Club’s reasons for denying her application.” Thus, the court denied summary judgment on that claim as well.
Mary E. Murray v. Framingham Country Club; Super.Ct.Mass. at Middlesex; Opinion No.: 89481, Docket Number: 03-5164 ; 6/20/05


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