The hospitality industry is no stranger to the rules prohibiting discrimination in accommodations. The average restaurant or hotel operator is fully aware that he cannot deny goods, facilities or services to a customer on the basis of gender. What appears to be less well known is that, at least in Hong Kong, the same business establishments cannot discriminate by providing extra service to a protected status either. This fact is apparent by the continuing trend to hold “Ladies’ Night” events, or special discounts available only to women, for restaurant, bar and club businesses. These bonuses for female customers may be useful in boosting business, but if those businesses refuse service or the same discounts to a male customer, they may be in for a rude awakening when they receive a complaint for violation of the Sex Discrimination Ordinance (Chapter 480 of the Laws of Hong Kong) (the “SDO”).

The SDO is an anti-discrimination law passed in 1995. Discrimination on the basis of sex, marital status and pregnancy, and sexual harassment are made unlawful under this law. The law is intended to protect both males and females from arbitrary discrimination in the areas (among others) of employment and provision of goods, facilities or services.

With respect to the lawfulness of a “Ladies’ Night” offer made only to women, the answer remains unclear in Hong Kong despite a recent legal case. In April the Equal Opportunities Commission secured a provisional judgment against the Club Legend, a karaoke and disco venue in Mong Kok, over gender-based discounts offered at its “Ladies’ Night” events. The Club charged men a flat HK$300 for entry while women were charged just HK$120 between 9.30pm and 4.30am from Sunday to Friday. The Commission argued that such a sex-based pricing policy was unlawful under the SDO and the Court agreed.

That said, this ruling still has question marks over its real significance. Despite the binding effect of the decision on the Club concerned, the precedent value of the case may be limited as the ruling was reached without the Club contesting it, apparently on the basis that it would be cheaper to lose and pay damages than to pay lawyers to defend it and probably lose anyway. The complainant was looking for injury-to-feelings compensation only, and that will inevitably be fairly marginal for the sake of a price gap of just £16, US$23 or €20.

Local public opinion has been sharply divided – at one level it is clear unequal treatment on gender grounds but on another, it is very common and long-established practice for sound commercial (rather than gender) reasons. About 10% of Hong Kong’s clubs and restaurants do something similar. The HK Bar and Club Association intends to pool funds to allow it to fight the point on principle when it next arises.

Can the “Ladies’ Night” be justified on those commercial grounds? That we reduce the rate to bring in women because that in turn brings in men and it is they who spend the money we need to stay in business? The Bar and Club Association has said that abolishing such events could reduce takings by up to 50% – this seems very high, but even if it were true, the high cost of not discriminating seems unlikely to justify doing so. As a minimum the business would have to show that it had tried non-discriminatory approaches, for example reducing prices for men on quiet nights and/or holding “Gentlemen’s Nights” (though that has its own risk in terms of male-oriented entertainment, of course, and is unlikely to attract paying women in the same way as the reverse).