ARTICLES FROM THE ARCHIVES ‘‘


THE COURT OF APPEALS MADE CLEAR THAT SELECTIVE MEMBERSHIP PRACTICES ARE THE ESSENCE OF PRIVATE CLUB STATUS AND THE CHICAGO CLUB’S PRACTICES WERE CLEARLY SUFFICIENTLY SELECTIVE.


As even the casual reader may no doubt


detect, we are astounded by EEOC’s decision to pursue this lawsuit in the face of the overwhelm- ing evidence of the club’s selective membership admission and restricted guest practices. In the face of the undisputed facts, we are also


amazed by EEOC’s adamant refusal to acknowl- edge at oral argument that it may have over- reached in this case. In the hopes of altering the playing field for all


private clubs under Title VII, EEOC decided to go after the biggest fish in the pond. In the process, it has diminished its reputation and needlessly squandered both its own resources and those of the federal courts.


THE FUTURE OF THE “PRIVATE CLUB” ISSUE Because of the appellate court’s strong and unequiv-


ocal language, this case represents more than a victo- ry for The Chicago Club; it is a significant precedent for all private clubs. In light of the fact that this is the only Court of Appeals decision to deal with the priva- cy issue under Title VII in a case involving a private club (the Fifth Circuit Ouijano case involves a credit union), the following language at the end of the court’s decision is particularly significant:


One further point is appropriate because of


the EEOC’s approach in this litigation. We emphasize that by no stretch of the imagination should the practices of the [Chicago] Club out- lined above be considered the minimum neces- sary to qualify as a bona fide private membership club under § 2000e(b) Title VII. To the contrary, it is clear that less stringent membership policies and guest arrangements than those employed by the club would easily meet § 2000e(b)’s bona fide private membership club requirements.


It can reasonably be predicted that the EEOC is unlikely to file suit against a private club in the future without first concluding a thorough investiga- tion, whether or not a discrimination charge is filed. Nonetheless, one must be careful not to conclude from the court’s decision that any club, regardless of


30 CLUB DIRECTOR ’’


its membership and guest practices, will be found to be excluded from the employer definition contained in Title VII. Even though the Seventh Circuit reject- ed the EEOC’s attempt to expand its policy state- ment, the court did not reject the EEOC’s original standard and it will probably be used as the measur- ing rod in future cases. Moreover, the University Club District Court deci-


sion (which was never appealed), was neither over- ruled nor criticized, but rather distinguished from The Chicago Club situation, at least with respect to its membership practices. Lines may be drawn in the future, but precisely where they might be drawn is one of those questions that will await future litiga- tion, even though considerable guidance is contained in The Chicago Club decision. Other interesting questions are also left to the


future. What impact will The Chicago Club decision have on the interpretation of other statutes, ordi- nances, rules or regulations which contain language relating to private membership clubs, whether such laws relate to employment, membership, access, taxes or whatever? An even more interesting ques- tion relates to the possible impact of The Chicago Club decision, if any, on the development or modifi- cation of legislation relating in any manner to pri- vate clubs at the federal, state and local levels? What is clear is that, thanks to The Chicago Club,


the exemption for bona fide private membership clubs under Title VII is alive and well. The passage of time will surely result in future chapters to be written in this story. 


Editor’s Note: The preceding article is not a comprehensive treat- ment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.


Michael Rosenblum was lead counsel on behalf of the Chicago Club throughout the litigation. Rosenblum was a partner at Mayer, Brown & Platt, specializing in labor and employment law. He has since retired. Assisting Rosenblum in the litigation were Jeri Lindahl-Garcia, Jeffrey M. Carey, and Jeffrey Fowler, all of whom still practice law in the Chicago area.


WINTER 2011


THE BEST OF CLUB DIRECTOR


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