United States Jaycees v. Massachusetts Commission Against Discrimination

Abrams, J.

(concurring in part and dissenting in part, with whom Hennessey, C.J., and Liacos, J., join). The court correctly states that the MCAD’s unappealed determination that the Massachusetts Jaycees and local Jaycees chapters are places of public accommodation within G. L. c. 272, § 98, ante at 608-609, subjects The United States Jaycees to the statute’s prohibition against aiding or inciting any distinction, discrimination, or restriction in the treatment of women at meetings of the State and local chapters. I concur in that conclusion. The court remands the case to the MCAD for “further consideration” whether an order that The United States Jaycees cease and desist from engaging in such prohibited conduct should be entered. The MCAD’s findings, however, establish that The United States Jaycees organization has threatened with charter revocation those local chapters disposed to grant women full membership privileges on a par with men. Such threats clearly put pressure on State and local Jaycees chapters to disqualify women from voting, holding office, and receiving awards at their meetings, and thus constitute incitement of discriminatory treatment at places of public accommodation.

Because the complaints filed with the MCAD allege violations of G. L. c. 272, § 98, and because, as the court acknowledges, G. L. c. 272, § 98, encompasses a prohibition against incitement, it is apparent that the complaints validly challenge The United States Jaycees’ conduct in inciting discrimination against women by State or local Jaycees organizations. Rather than occasion further delay in the availability of relief to the class of women before the MCAD, I would remand to the MCAD and direct it to reissue that portion of the original *611cease-and-desist order that requires The United States Jaycees to “cease and desist from revoking the Charter of any Jaycee[s] Local Organization Member (local chapter) or State Organization Member (the Massachusetts Jaycees), within the Commonwealth of Massachusetts, or denying any privilege or right of membership, or otherwise discriminating in any manner against a Local or State Organization Member within the Commonwealth of Massachusetts because either extends to women all the rights and privileges of individual or regular membership. ”1

I dissent from that portion of the court’s opinion rejecting the MCAD’s determination that The United States Jaycees is a “place of public accommodation” within the meaning of G. L. c. 272, §§ 92A and 98. Because the status of State and local Jaycees as “placets] of public accommodation” is not disputed, the MCAD’s decision that the national organization is also a “place of public accommodation” is essential only to that portion of the appealed cease-and-desist order that precludes The United States Jaycees from discriminating on the basis of sex against members or applicants for membership in the national organization who are citizens of Massachusetts. I believe that G. L. c. 272, § 98, reaches such discriminatory conduct.

The court bases its decision that The United States Jaycees organization is insulated from our public accommodation statute on the conclusion that the national organization does not meet the “place” element of the G. L. c. 272, § 92A, definition. The word “place” in G. L. c. 272, § 92A, is properly viewed as “a term of convenience, not of limitation.” See National Org. for Women v. Little League Baseball, Inc., 127 N.J. Super. 522, aff’d mem., 67 N.J. 320 (1974). In effectuating the Legislature’s goal that “public accommodation” be available to citizens of this Commonwealth on a nondiscriminatory *612basis, we have emphasized that G. L. c. 272, § 92A, should be given “a broad, inclusive interpretation.” Local Fin. Co. v. MCAD, 355 Mass. 10, 14 (1968). So interpreted, the statutory “place” requirement is satisfied if the entity dispensing a “public accommodation” has a physical presence in this Commonwealth. The technical assistance, advice, and training provided by the national organization to its State and local chapters, as well as its joint sponsorship of programs and activities in this Commonwealth, create a sufficiently strong nexus between the local, State, and national organizations to validate the MCAD’s conclusion that The United States Jaycees is physically present in Massachusetts.2 See United States Jaycees v. McClure, 305 N.W.2d 764, 772 (Minn. 1981)3 (The United States Jaycees organization is a “place of public accommodation” within Minnesota statute; “place” requirement satisfied by “oft-shifted sites at which the affiliated local chapters hold meetings”).4

*613I also find correct the MCAD ’ s determination that The United States Jaycees, because of its nonselective membership policy, is “public,” as well as its conclusion that the opportunities for personal development and participation in community affairs the Jaycees offers constitute an “accommodation.” See United States Jaycees v. McClure, supra at 774 (“Leadership skills are ‘goods’ [and] business contacts and employment promotions are ‘privileges’ and ‘advantages’ . . .”). The G. L. c. 272, § 92A, definition of “[a] place of public accommodation” expressly incorporates an “establishment. . . dispensing personal services.” To the extent that the court suggests that the Legislature did not intend to include membership organizations within the prohibitions of G. L. c. 272, §§ 92A and 98, it ignores contrary legislative history. In 1978, the Legislature specifically exempted “any corporation or entity authorized, created, or chartered by federal law for the express purpose of promoting the health, social, educational, vocational, and character development of a single sex.” St. 1978, c. 331. This exemption would be unnecessary unless the Legislature contemplated that certain membership organizations, such as the Boy Scouts of America, 36 U.S.C. §§ 21-29 (1976) or the Boys’ Clubs of America, 36 U.S.C. §§ 691-707 (1976), were otherwise subject to the statutory proscriptions.5

Because I believe that the MCAD’s determination that The United States Jaycees constitutes a “place of public accommodation” is consistent with both the spirit and the letter of G. L. c. 272, §§ 92A and 98,1 would affirm the MCAD’s decision.

Our public accommodation statute would be totally circumvented by a conclusion that an organization like The United States Jaycees is not a place of public accommodation within the Commonwealth, and therefore not subject to our law, yet may, without penalty, cause its agents, the State and local Jaycees, places of public accommodation within the Commonwealth, to discriminate against women in violation of the statute.

In the event the national organization conducts a meeting in Massachusetts under its own aegis, the “place” requirement is clearly satisfied. It is evident, therefore, that G. L. c. 272, § 98, precludes The United States Jaycees from discriminating against women during national conventions held in Massachusetts.

As indicated by the majority, note 8, supra, the Minnesota public accommodation statute, construed by the highest court of that State as applicable to The United States Jaycees, was invalidated by a panel of the Eighth Circuit Court of Appeals on the grounds that it unduly interfered with associational rights and was unconstitutionally vague. United States Jaycees v. McClure, 709 F.2d 1560, 1578 (8th Cir. 1983), prob. juris, noted sub nom. Gomez-Bethke v. United States Jaycees, 464 U.S. 1037 (1984). Beyond noting the existence of persuasive arguments to the contrary, see id. at 1579 (Lay, C.J., dissenting), I do not think it appropriate, given the majority’s resolution of the statutory issue, to address in dissent the merits of the Jaycees’ constitutional claims.

The majority purport to distinguish two cases relied on by the MCAD, National Org. for Women v. Little League Baseball, Inc., 127 N.J. Super. 522, aff’d mem., 67 N.J. 320 (1974), and United States v. Slidell Youth Football Ass’n, 387 F. Supp. 474 (E.D. La. 1974), in which membership organizations were held subject to the prohibitions of public accommodation statutes. The majority state that “[i]t is important to distinguish the case of a discriminatory membership policy (which the U.S. Jaycees concededly practices) from circumstances where the denial of membership is used as a method for denying access to a particular place. . . . Whatever the *613wisdom of the U.S. Jaycees’ decision to maintain a discriminatory membership policy, the policy is not used as a means to deny women access to Jaycees-sponsored events or activities.” Ante at 608. I fail to see the relevance of this distinction under G. L. c. 272, § 98, which prohibits not only sex discrimination in “the admission of any person to . . . any place of public accommodation,” but also sex discrimination with regard to “treatment in any place of public accommodation.”

The majority attempt to reconcile the explicit statutory exemption of two membership organizations with their conclusion that the Legislature did not intend G. L. c. 272, § 92A, to apply to membership organizations such as the Jaycees, by noting that “the single gender emphasis of the Boys Clubs’ and Boy Scouts’ activities clearly far exceeds that of the Jaycees.” Note 4 ante. I think it unlikely that the Legislature, as the majority appear to suggest, meant the application of our public accommodation statute to membership organizations to depend on degrees of discriminatory treatment.