The Wall Street Journal
Copyright (c) 2001, Dow Jones & Company, Inc.

Wednesday, May 30, 2001

Casey Martin Ruling Is Par for the Course
By David E. Bernstein

Yesterday, the Supreme Court ruled that disabled golfer Casey Martin has a right under the Americans with Disabilities Act to use a golf cart. The court dismissed the PGA Tour's defense that golf is a game of endurance as well as skill, and that all golfers should face the same obligation to walk to each hole. The mind boggles at how far the law has come -- and how far it is likely to go.

Mr. Martin is not the only one who thinks that his chosen profession has adopted improper, discriminatory standards. Krissy Keefer is suing the San Francisco Ballet for weight and height discrimination -- which are illegal 
under local law -- for refusing to accept her daughter Frederika into its pre- professional program because she does not have the right body style. Frederika is of average height and weight, while modern ballet's aesthetic standards insist that dancers be tall and lithe. The elder Keefer argues that ballet's body standards are "a feminist issue. In order to have access to the economy of dance, as a woman, you have to have an unhealthy relationship to your body." Ms. Keefer directs a company, Dance Brigade, that produces political dance, such as "Dance of the Endangered Species," and apparently wants to impose her political views on other dance companies.

Other activists are also trying to use antidiscrimination law to make artistic expression more politically correct. A group of women artists calling itself the Title IX Task Force filed a complaint with the National Endowment of the Arts against three of New York's leading museums -- the Museum of Modern Art, the Guggenheim, and the Whitney -- alleging they do not display enough paintings or sculptures by women.

Hollywood has also felt the brunt of antidiscrimination laws. Actress Hunter Tylo was hired to play bimbo Taylor McBride on the steamy evening soap opera "Melrose Place." Ms. Tylo became pregnant before the new season started shooting. The producers fired her, noting that her contract included a clause 
forbidding any "material change" in her appearance, and stating they didn't want a bed-hopping vixen to be played by an obviously pregnant woman. In one pivotal scene, Ms. Tylo, who gained 47 pounds during her pregnancy, was to be filmed cavorting poolside in a thong bikini.

Ms. Tylo sued for employment discrimination based on sex and pregnancy. The producers of the show responded that her pre-pregnancy weight and appearance were a bona fide occupational qualification, and therefore she could not claim the protection of antidiscrimination law. The producers also claimed a First Amendment right to cast the part as they saw fit. The producers conceded they had accommodated star Heather Locklear's pregnancy, concealing her expanding girth with "a picnic basket, tabletops, and a waiter." But unlike Ms. Locklear's character, Taylor McBride was a new character -- suitable for any one of a dozen actresses. The judge refused to throw out the case on First Amendment grounds, and the jury found in Ms. Tylo's favor. After the verdict, the case was settled.

Even period themes in restaurants are endangered by antidiscrimination laws. Cock of the Walk, a Southern seafood chain, tried to provide an atmosphere in keeping with an 1800s riverboat. The waiters, dressed in period costume, represented the legendary fighters who brawled for the privilege of steering 
the riverboats, which netted them the best-of-the-best title: Cock of the Walk. Mike Fink Corp., the owner of the chain, said it hired men as waiters because women did not work on riverboat crews in the 1800s.

Susan Mathis secretly taped a restaurant manager turning her down for a restaurant server job. At Ms. Mathis's behest, the Equal Employment Opportunity Commission sued the Mike Fink Corp. for sex discrimination. A federal jury found the restaurant liable for discrimination.

Following the verdict, the company agreed to pay a $70,000 settlement. The company also agreed to hire women for server positions and allow the agency to monitor its hiring practices for the next five years. This led one frustrated commentator to ask, "What's the next logical target for discrimination clean- up? . . . How about a guy in the Dallas Cowboys cheerleaders? How about featuring a guy in the Sports Illustrated annual swimsuit issue?"

And let's not forget the infamous Hooters litigation. The EEOC sued Hooters, which is known for its sexy, busty waitresses, for refusing to hire male waiters, and also for having a double entendre name that suggested that only women could work there. Hooters claimed that since it provides vicarious sexual recreation, female sexuality was a bona fide occupational qualification. 
Following a clever public-relations campaign by Hooters, featuring a hairy, ugly "Hooters guy," the EEOC backed off, but not before extorting a $3.75 million settlement from Hooters, and requiring Hooters to create new gender- neutral positions.

In yesterday's ruling, Justice John Paul Stevens wrote that allowing Casey Martin to use a cart was a "reasonable modification" that would not "fundamentally alter" professional golf. This begs the question of why nine justices, or even 535 senators and representatives, should get to decide what is or is not fundamental to the game of golf. Sports have aesthetic components, a flow and feel, and deserve deference, and perhaps even First Amendment protection, from governmental authorities in determining their rules.

In not granting the PGA Tour discretion to handle such matters, the justices (aside from Antonin Scalia and Clarence Thomas, who dissented) showed an unseemly lack of modesty. Yet it's not entirely their fault. Congress, by passing the incredibly broad and vague ADA, put the court in the position of having to decide all sorts of complex issues involving sporting events, arts and other endeavors. Congress can fix this problem by exempting such activities from ADA requirements -- and it had better act soon before some judge decides to give a disabled baseball player four strikes before he's out.