“The Wing” Under Human Rights Law Investigation

By | April 4th, 2018

The New York City Commission on Human Rights has opened what it calls a “commission-initiated investigation” into how the female-only co-working space in New York City operates. The company currently has three locations, collects dues from more than 1,500 members, and has drawn more than $40 million in venture capital.

The Wing, a female-only co-working space founded in New York City in 2016, is known for millennial pinksun-dappled interiors, and a high-profile membership list. Spurred by media coverage of the company, the New York City Commission on Human Rights has opened what they call a “commission-initiated investigation” into how it operates, Jezebel reported.

Representatives from The Wing will soon meet with the commission to discuss it. “We are looking forward to working with The Wing to ensure that they are in compliance with the law,” said Seth Hoy, a spokesperson for the agency.

The company currently operates three locations, collects dues from more than 1,500 members, and has drawn more than $40 million in venture capital, including $32 million from the co-working giant WeWork, Jezebel reported.

The Wing disputes the accuracy of the term “investigation,” despite the fact that that’s what the commission is calling it. Instead, the company described the inquiry as a collaborative process. “All that’s happened is that The Wing and the Commission have agreed, mutually, to sit down and have a conversation,” said Karen Dunn of Boies Schiller Flexner LLP, who is representing the company in the matter.

Hoy couldn’t say much about the commission’s examination of The Wing, citing its policy of not commenting on cases before their conclusion. But the club’s membership policy is clear: Men cannot become members or visit as guests. And the commission’s mandate is to investigate potential violations of the city’s Human Rights Law, which forbids businesses that furnish public accommodations, including most private clubs (though not all), from discriminating against customers because of their gender, Jezebel reported.

The same law mirrors federal and state prohibitions against gender-based employment discrimination. It is implemented by the commission’s law enforcement bureau, which can investigate and prosecute alleged violators without waiting for a third party to file a complaint, Jezebel reported.

How exactly the city’s laws would affect The Wing is a matter of some debate among legal experts who study anti-discrimination law. Melissa Murray, a professor of law at U.C. Berkeley who is currently teaching at New York University, criticized the commission’s interest in The Wing, Jezebel reported.

“I think it’s patently absurd for New York’s human rights commission to be focusing on The Wing when we’ve had, over the last six months, numerous complaints about workplaces being absolutely hostile to women in terms of pervasive and endemic sexual harassment,” she said.

“Leaving aside the fact that so many workplaces seem to be rife with incidents of sexual harassment, now, after #MeToo, I think there are a lot of men in positions of authority who are going to be really skeptical and afraid to mentor women and that might make a space like this even more necessary,” Murray said.

Murray believes The Wing will survive a legal challenge, and pointed to a provision of the city’s human rights law that allows businesses to apply for an exemption based on “bona fide considerations of public policy.” This term is not defined in the law itself, but the commission has published guidelines that explain how such requests are evaluated: “Exemptions will only be granted in narrow circumstances where ‘bona fide considerations of public policy’ are clearly identified; requests rooted in discomfort, intolerance, or perpetuating prejudice or division will not qualify for the exemption.”

“These exemptions are very rare,” said Hoy, the spokesperson for the Commission on Human Rights. “In the last 10 years, CCHR has granted only three exemptions.”

One of them was issued in 2016, to a public pool in Brooklyn that had been running women-only swimming hours to allow observant Hasidic Jews to swim without violating religious prohibitions against mixed bathing. The New York Times brought the exemption to the public’s attention when the paper’s editorial board criticized the women-only swimming hours. After briefly suspending the hours, the pool obtained an exemption from the Commission on Human Rights and re-opened them, Jezebel reported.

While The Wing has not yet asked for such an exemption, there is a consensus among lawyers and legal scholars that the company does not comply with the city’s human rights laws as they’re currently written, Jezebel reported.

“I think that the legal question is pretty easy,” said Sylvia A. Law, a professor of law at N.Y.U. “This violates the public accommodations law. The more interesting questions are whether it is socially wise, and whether either the city or an individual man will want to challenge it.”

Samuel Estreicher, an N.Y.U. professor who oversees the school’s Center for Labor and Employment Law, agreed: “They’re a place of public accommodation. New York has a very narrow definition of a ‘distinctly private’ club.”

In New York City, a “place or provider of public accommodation” is any business where “goods, services, facilities, accommodations, advantages or privileges of any kind are extended, offered, sold, or otherwise made available.” The similarly expansive state law lists dozens of business categories, including ice cream parlors and roof gardens, that meet the same definition. Businesses that meet the definition can’t discriminate against potential customers based on their age, race, religion, sexual orientation, or gender. Other protected categories include military status, partnership status, and nationality, Jezebel reported.

There are exceptions for private clubs. To avoid the law applying to it, a club must be “distinctly private,” which means it has fewer than 400 members (under state law, the threshold is even lower), does not serve regular meals, and does not receive payments from non-members. The Wing has at least 1,500 members, serves food, and accepts payments and fees from non-members for meals, branded merchandise, and use of its facilities, so it doesn’t seem to meet the definition of a “distinctly private club,” Jezebel reported.

“Public accommodation laws were designed to prevent places of business from excluding people based on race and other aspects of identity,” said Suzanne Goldberg, a professor of law at Columbia University. “It has come to be understood that if a place holds itself out to the public as open for business, then it has to take all comers.” 

Ilann Margalit Maazel, a prominent civil rights litigator in New York City, was more definitive about The Wing’s vulnerability: “I think I’m comfortable saying that it’s likely illegal. And it would certainly make for an interesting lawsuit.”

It’s uncertain whether the Commission on Human Rights would ever bring a lawsuit against The Wing. At this stage, the agency is evaluating the company’s practices to ensure that it’s following the law. The Commission is empowered to sue individuals and companies in the absence of a third-party complaint, but that decision will hinge on the outcome of its own inquiry, which hasn’t yet finished. And there are several steps between the inquiry’s completion, including the agency’s final determination and a mediation process, and a potential lawsuit, Jezebel reported.

Audrey Gelman, who co-founded The Wing with Lauren Kassan, conceived of it as a pit-stop for highly mobile women who were tired of changing outfits in the bathrooms of chain coffee shops and freeloading Wi-Fi from hotel lobbies. Inspired by the proliferation of women’s clubs in the early 20th century, Gelman and Kassan realized that such a space could offer more than changing rooms and Internet access.

“We saw the potential for not only convenience and making women’s daily lives easier,” Gelman told Fast Company last year, “but also having it be a hub for community and connection between women.”

After Donald Trump defeated Hillary Clinton, The Wing’s ethos began to evolve: “We had the expectation that we would have the first women president and it would be the golden age of feminism and women get to have rooms like these as a result of that momentum,” Gelman said. “Very quickly overnight it went to feeling a little protective.”

Kassan and Gelman said they began hearing from their members that along with previously planned offerings like lessons in flower arrangement, breakfasts themed to signs of the zodiac and panels on news topics, they were interested in programming and events that focused on women’s rights and politics. It evolved even further amid the explosion of sexual assault and harassment allegations against powerful men last year, Jezebel reported.

“It’s been a huge year for watching what happens when large groups of women gather together and the kind of impact they can make, [just look at] the Women’s March, Time’s Up, the Me Too movement,” said Gelman to Adweek. “Communities of women can be powerful forces in culture and politics. The Wing is a permanent space for women where community building activities are happening every single day and friendships are being made. It’s an example of what it looks like when you dedicate and create real space for women to build community.”

Craig Gurian, the executive director of the Anti-Discrimination Center in New York, offered a blunt defense of New York City’s public accommodations law: “To the extent that there are workplaces or public accommodations that have inappropriate behavior, the solution is to fix those workplaces or public accommodations. Separate is not equal. We were supposed to learn that a very long time ago.”

On March 27, The Wing sent the following message to its members:
Wing Women,

On the first day of Women’s History Month, the NYC Commission for Human Rights reached out to The Wing. All that has happened so far is that we have agreed to sit down and talk with them.

Because of the history of women in this country—and even more so in this time we live in—we believe it is important to protect and foster the work of The Wing and similar places that give women a positive and safe space to thrive.

If you want to support The Wing and make your voice heard, you can tweet them at @NYCHHR and @NYCMayorsOffice and let them know you are a proud member of The Wing and believe women deserve safe spaces.

Yours,
Audrey, Lauren & The Wing Women

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