Sally Marcoux v. Franklin Lodge of Elks #128O BPOElks

PAS 6079-97

Terry Bergeron-Hoyt v. Franklin Lodge of Elks #128O BPOElks

PAS 6OSO-97

Renee LaBonte v. Franklin Lodge of Elks #128O BPOElks

PAS 6O84-97

JoAnn LaBonte v. Franklin Lodge of Elks #128O BPOElks

PAS 6O83-97

DECISION OF THE COMMISSION

These four charges of discrimination on the basis of sex by a public accommodation were joined for public hearing after the investigating commissioner found probable cause to credit the allegations in the complaints. A public hearing was held on April 26, 199 before the Commission, which examined documentary evidence and heard the testimony of eleven witnesses.

I. Factual Background

Franklin Lodge of Elks is a local chapter ["subordinate lodge"] of a nation-wide organization of over 2OOO lodges, with a total membership of approximately 1,2OO,OOO. Subordinate lodges must be located in a community of at least 5O00, and have at least 25 members. Total membership in the Franklin lodge is about 622 individuals. Approximate population of Franklin is 830O. Approximate population of the Franklin areas, from which the lodge draws its membership, including Pranklin, Tilton, Northfield, Sanbornton, and Andover, is 20,O00.

The Elks is a benevolent organization, which raises money to donate to various charities. In addition to their charitable activities, Elks lodges sponsor a full calendar of social and fundraising activities. The Franklin lodge operates a bar and grill ["club"] in the lodge, where members can purchase food and alcoholic beverages for themselves and their guests.

The Elks hold a liquor license from the State of New Hampshire, with a supplemental license for 18-25 events per year. The respondent rents its lodge to members for private functions, such as wedding receptions. The respondent also rents its lodge to other organizations for special events.

In 1996, income from the respondent's club amounted to approximately $43,000. The respondent sponsors weekly Bingo games, which are open to the public. In 1996 Bingo generated $17,000 for the lodge, while costing approximately $6,893. Membership dues brought in just under $30,000 in 1996. The respondent's budget indicates that its fixed expenses (insurance, taxes, etc.), administrative expenses, and expenses for maintenance and upkeep total approximately $148,000. Without revenue brought in from commercial enterprises such as Bingo, Lucky-7, and its club, the respondent would not be able to maintain the lodge.

Elks has in the past sponsored the Emblem Club, an organization for non-members. Because membership in the Elks had been limited to males, the Emblem Club consisted of the female spouses of members. Emblem Club members support the work of the Elks by volunteering their time and work effort to the organization's activities and fundraising.

The qualifications for membership in the Elks are U.S. citizenship, 21 years of age or over, belief in God, good character and not being a Communist.

Elks membership used to be restricted to white males with the above qualifications. However, when challenged by a black male, the national organization began the process of changing its membership. In 1995, the gender requirement was removed from the Elks constitution .

The Elks maintain a home page on the internet, giving information about the organization and telling interested persons how they can locate a lodge near them and apply for membership.

When someone applies for membership in the Elks, an investigating committee looks at the application and interviews the applicant to determine if the committee will recommend an applicant for membership. Personal reasons are not valid reasons for voting against a qualified applicant.

Five females, including the four complainants, filed written applications for membership with the Franklin Lodge of Elks 91280 in the spring of 1997 and were approved by the investigating committee. To be approved for membership, the applicants.must receive a two-thirds majority vote.

Renee LaBonte had been a member of the Emblem Club for sixteen years, and was president for three terms.

JoAnn LaBonte had been a member of the Emblem Club since 1983 and volunteered in support of the Elks for many years.

Terry Bergeron-Hoyt had been a member of the Emblem Club for five years, and served as an officer. She donated many hours of volunteer time to the Franklin Lodge activities.

At the time she applied for membership, Sally Marcoux had been a member of the Emblem Club for eight years. She served as president in 1996 and 1997, and spent many hours volunteering in support of Elks' activities.

The applications of the four complainants, the other female applicant, and five male applicants were voted on as a whole by the membership on April 9, 1997. The membership rejected the prospective members by one vote. Individual ballots were run on each applicant. The five male applicants were approved and the five females were rejected, some by one vote.

Dale Parris, the Exalted Ruler, called for another ballot for the five females who had been rejected. The ballot was held on April 23, 1997 and again the five women were rejected by the membership .

The Elks leadership informed the women that they could apply to the Grand Lodge for a waiver so they would not have to wait six months to reapply. None of the complainants requested a waiver.

II. Legal Standards - Jurisdiction

RSA 354-A:2,XIV defines "places of public accommodation" to include any inn, tavern or hotel, whether conducted for entertainment, the housing or lodging of transient guests, or for the benefit, use or accommodations of those seeking health, recreation or rest, any restaurant, eating house, public conveyance on land or water, bathhouse, barbershop, theater, golf course, sports arena, health care provider, and music or other public hall, store or other establishment which caters or offers its services or facilities or goods to the general pubic. The definition excludes "any institution or club which is in its nature distinctly private."

RSA 354-A:2,XV defines "unlawful discriminatory practice" to include practices prohibited by the federal Civil Rights Act of 1964, as amended. Thus, it is appropriate to look at federal case law in interpreting similar provisions of state law.

Title II of the Civil Rights Act of 1964 (42 U.S.C. §2000a) prohibits discrimination in public accommodations on the basis of race, color, national origin and religion. Title II contains exemptions for religious organizations and private clubs or other establishments "not in fact open to the public."

The burden of proof rests on the respondent to substaantiate its claim that it is an institution or club which is, in its nature, distinctly private. See: Nesmith v. Young Men's Christian Association of Raleigh, North Carolina, 397 F.2d 96 (4th Cir. 1968).

In making the determination whether groups are in fact "private clubs" within the meaning of Title II of the Civil Rights Act, courts have identified a number of factors that may be relevant:

a) the selectiveness of the group in the admission process;

b) the degree of membership control over internal governance;

c) whether the organization advertises to attract members;

d) whether the organization made insubstantial changes in its prior operation in order to avoid the impact of civil rights legislation;

e) the use of club facilities by non-members;

f) the extent of commercial activity by the club; and

g) the purpose of the organization.

Not all of the above factors have to be present in order for it to be determined that a club or institution is not in fact "private." Extremely important to the determination is any evidence having a bearing on whether the membership is genuinely selective on some reasonable basis. Nesmith v. Young Men's Christian Association of Raleigh, N.C., 397 F.2d (4th Cir. 1968). See also: 8 ALR Fed 634, "Construction and Application of §201(e) of the Civil Rights Act of 1964 (42 U.S.C. §2000a(e)), Excluding from the Act's Coverage Private Clubs and Other Establishments Not in Fact Open to the Public."

III Analysis

The evidence shows that the Elks is not genuinely selective in its choice of members. The lodge has a large number of members and is part of an even larger national organization which advertises on the Internet for members, facts which argue against selectivity of association.

Several witnesses testified that the lodge facility and its property on South Main Street were used by non-members. Members may bring guests for socializing. Regular lodge events such as bingo are open to the public. The lodge facilities are rented for private parties and group functions. Although only members may actually rent the facility for functions, these events are usually attended by a majority of non-members.

The lodge engages in commercial activities to a large extent, such as frontier day, circuses, haunted houses and golf tournaments, which are open to the public. Often during community fundraisers, the public is admitted to the grille to purchase food and drink. The funds from commercial activities such as these are necessary to support the lodge itself, because member dues alone will not suffice.

The lodge's purpose is not one with which the admission of women would intefere. Women have been an integral part of the Elks' activities for many years, often providing much of the volunteer labor needed for social, charitable and fundraising activities. Witnesses state that approximately 90% of the Emblem Club's activities are directly related to the Elks.

Respondent's defense is that the lodge is a private club, limited to members only, which raises money for charity and does not provide a service of goods to the public. The evidence indicates only lofge members may hold office, attend meetings, vote and enter the lodge via a membership card. There was a wide range of opinion from witnesses as to the extent non-members have access to the lodge facilities on a regular basis. As a whole, the evidence indicates overwhelmingly that the public has frequent access to the lodge for varioous lodge activities and fundraising. Witness testimony also indicates the lodge collected funds from commercial activities and services offered to the public, such as selling foods at their club and the rental of their hall. Therefore, the evidence does not support respondent's defense that the Elks does not provide a service or goods to the public.

Based on the evidence, the Commission finds that the Elks is a public accommodation, not an "institution or club which is in its nature distinctly private."

IV. Legal Standard - Discrimination

RSA 354-A:17 provides that "it shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, because of the ... sex... of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof;"

V. Analysis

The complainants allege they were rejected for membership into the Franklin Elks Lodge because of their gender and that they were harassed by members because they were women who had applied for membership.

The four female complainants, one other female, and five males were approved by the Elk's investigating committee for membership. The females were rejected after three separate ballots, a practice that is not customary. The male applicants were approved for membership by an individualized ballot. Witness, David Maloof, the Elks' Esquire at the time, recalls only 3-4 males had been rejected for membership in the prior four years.

JoAnne LaBonte and Terry Bergeron-Hoyt testified they were told that members were attempting to "stack" the vote by calling members who seldom attend meetings to be present for the vote on the female applicants. Dale Parris, the Exalted Ruler at the time, testified that although normally about 40 members attend the regular Elks meetings, approximately 76 members were present at the meeting to vote on the complainants' application for membership.

Several witnesses testified that various male members had made derogatory comments about females becoming members or personal remarks about the individual complainants, around the time of the vote on the complainants' applications.

David Maloof and Gloria Seal Collins, who was employed as a bartender for the Elks, heard member Buddy Miller state after the first vote: "The women can get in if they give us blow jobs." Maloof also testified that Elks member Alby Morang stated there were two reasons women wanted to become Elks: "They are either cunts or assholes."

Complainant Renee LaBonte states that after she applied for membership, her cousin, David Marceau, asked her fiance who wore the pants in the family and told him he was "pussy-whipped."

On April 28, 1997, Renee LaBonte wrote a letter to Dale Parris, Exalted Ruler, informing him that Buddy Beyer, an Elk member who was also employed as a bartender, was harassing her regarding her denial of membership. LaBonte states nothing was done about her complaint.

Complainant JoAnne LaBonte testified that several male members told her that she had been rejected for membership because she is female and that women should not be Elks. Buddy Miller told her she would be blackballed because she is female and she should stay in the Emblem club. Clark Fuller asked her husband why he couldn't control his "little woman." She also states Elkt member Marcoux asked her who put her up to applying for membership and when she replied no one, Marcoux called her a "f_____ bitch."

Complainant Terry Bergeron-Hoyt states after the vote members told her she had been rejected because she was female. She said she was told that members were called to attend so that they could vote against her.

Complainant Sally Marcoux testified that J.J. Jalbert said, "As long as I'm an Elk member, women won't be members."

Dale Parris, Exalted Ruler at the time of the votes, states he also heard comments from members that they didn't care what the Grand Lodge did, they weren't going to let women in. In the Elks' newsletter, the "Big E News", dated May 1, 1997, Parris wrote: "Finally, we held balloting for the ten candidates. The newspapers are full of it, but for the record, all males were accepted, and all females rejected. Grand Lodge Statute 14.030 gives me the privilege of calling for another ballot if I feel there was discrimination. I have done so." Parris testified that there was no reason the complainants were rejected other than their gender.

In letters to the Human Rights Commission in response to the charges of discrimination, Parris made the following statements:

" ... all candidates are treated the same way. We usually ballot once on the males (before females were permitted to make application) and he either makes it or not. But because a change was involved and a female candidate was to be balloted on, we ran three unsuccessful ballots. Change is hard to accept - and those that did not accept candidate LaBonte are guilty of not keeping an open mind. But there was no discrimination. Some people cannot get used to change. Personally I feel that in time female candidates will be accepted."

"I sincerely regret that candidate Renee Labonte was rejected for membership. She is a good worker and the Lodge needs members of her calibre. I do not feel that there was any discrimination. Change is hard to accept and some of our members have not accepted the change. This problem will be addressed at our next grand lodge session in July. Until then I have no choice but to accept the ballot after 3 tries."

Samanto Quain, secretary for the Elks, wrote in the "Big E News" dated July 1, 1997: "The Lodge, as of this writing, is experiencing a financial shortfall. This can be attributed to our stand in regard to females in our Lodge." He also writes in the October 1. 1997 newsletter: "I have withheld my thoughts on our rejection of female candidates. This is a mystery because we feel comfortable when they are in the lounge and we have given them all the privileges except membership. On the other hand I cannot understand the rejected female candidates' action in view of the many hours they served the Lodge and they still serve. The circus, the Summerfest committee, the socials would be impossible without their support. The mystery is why they would want to destroy the things that they have built up."

Van Hill, lodge member and Exalted Ruler as of March 27, 1999, testified members made it known that they were against the female applicants by making comments such as the women wanted to take control and "run the lodge."

Helen Gallant, the other female applicant in April 1997, testified that she believed she was rejected solely because of her gender. She applied four times before her application for membership was accepted by the lodge. She states there were no changes in her application from the beginning. She states the 4th vote was a success because the one man who objected to her membership didn't come to vote. "They knew it was time for women to be admitted."

Respondent does not dispute that some members made inappropriate comments about the female applicants and their applications for membership. Respondent's defense is that the Elks did not discriminate against the complainants, and an organization of over 600 members cannot be held liable for the comments of a few members. Respondent offers in support of its position that none of the inappropriate remarks were made by any officer of the Elks. Respondent also submits as evidence to support their claim that the Elks members do not discriminate against women, the fact that females were eventually admitted to the lodge. Respondent states members were angry that the complainants were aggressive about seeking membership into the Elks and that they filed complaints of discrimination instead of repeating the application process until they were admitted.

VI. Conclusion

The Commission concludes from the evidence that all four complainants were rejected for membership into the Franklin Elks Lodge on the grounds of their gender. Although the vote is conducted by secret ballot, several witnesses, including the exalted ruler at the time of the vote, testified to their "valid assumptions" that the women were denied membership solely because of their gender. There was also evidence that showed because they applied for membership, the four complainants were subjected to ongoing verbal and sexual harassment from several Elks members. Although it is respondent's position that the Elks should not be liable for acts of individual members, evidence indicates Elk officials were aware of the harassment toward the female applicants, yet failed to take any action to stop it. There is also evidence the Elks' secretary wrote in the Elks' newsletter that the "women's actions might destroy the lodge.

The commission finds that the Franklin Lodge of Elks is responsible for statements made by members about the complainants because the statements were made by the members in their capacities as members. The fact that women were eventually admitted to the lodge as members does not erase the discrimination that occurred toward these four complainants.

Based upon the foregoing, the Commission finds that the Franklin Elks Lodge #1280 BPOElks discriminated against Terry Bergeron-Hoyt, Sally Marcoux, Renee LaBonte and JoAnn LaBonte based upon their gender in violation of RSA 354-A:17.

VII. Award of Damages

Having determined that the respondent has engaged in an unlawful practice, the commission is authorized to order the respondent to pay damages to the complainants. These damages include compensatory damages and attorney's fees. RSA 354-A:21,II(d); E.D.Swett, Inc. v. New Hampshire Commission for Human Rights and Leonard Briscoe, 124 N.H. 404 (1983). The Commission is also authorized to order the respondent to pay an administrative fine in order to vindicate the public interest. RSA 354-A:21,II(d).

A. Compensatory Damages

The Commission finds that Terry Bergeron-Hoyt, Sally Marcoux, Renee LaBonte and JoAnn LaBonte suffered emotional harm, stress, embarrassment and humiliation as a result of unlawful discrimination by respondent. The complainants testified that despite their history of volunteer work with the Emblem Club, several members made derogatory and anti-female comments to them and about them to other members. Some of the complainants testified that people in the community also approached them in public places, such as the grocery store, and made remarks against the female applicants and their decision to apply for membership. Some of the complainants testified about instances of members making harassing remarks to their husbands or friends about "controlling their women." The complainants testified that the members' harassing comments were humiliating, degrading and caused them stress, tension, loss of sleep and headaches. The complainants also found it difficult to continue to socialize at Elks-sponsored functions because of the harassment. The commission finds especially egregious, the evidence that a member suggested the females offer sexual favors to the male members in exchange for membership approval. Accordingly, the commission finds that the four complainants were severely affected by the discrimination and orders the respondent to pay the sum of $10,000 to each complainant to compensate them for emotional harm.

B. In determining whether to levy an administrative fine and what the amount should be, the commission has considered the following factors: the nature and circumstances of the violation, degree of culpability, any history of prior violations, and the goal of deterrence. The commission recognizes and appreciates the good work the Franklin Elks Lodge and other Elks Lodges do for their communities. The commission also understands an administrative fine may have an impact on the Elk's charitable functions. However, the commission cannot ignore the preponderance of evidence in these four particular cases that shows the Franklin lodge discriminated against the four complainants based upon their gender. The commission orders the respondent to pay an administrative fine to the State of New Hampshire in the amount of $6,000 for the discriminatory practices in each complaint, for a total of $24,000.

C. Attorneys' Fees and Costs

The commission orders the respondent to pay the complainants, reasonable and necessary attorney's fees and costs. Complainants' counsel is ordered to submit a detailed, itemized statement of fees and costs within 20 days of this order. Respondent is granted 10 days from the filing of the statement to object. The commission will then enter a final order.

F. Total Damages

Respondent is ordered to pay each complainant the sum of $10,000, for a total of $40,000 plus attorneys' fees to compensate them for emotional harm as a result of respondent's discriminatory practices.

Respondent is also ordered to pay $24,000.00 to the State of New Hampshire.

So ordered.

Commissioner John J. Coughlin, Esquire
6/15/99

Commissioner Elizabeth D. Lown
6/21/99