107: None of Your Business:
The Right of (Dis)Association

Stella Case No. 107, Originally Published: 17 May 2006

“No Shirt, No Shoes, No Service” reads a classic restaurant sign. Other businesses proclaim the “right to refuse service to anyone.” Beyond discrimination, why shouldn’t businesses be able to say who they will do business with?

John Claassen, 36, of Emeryville, Calif., was looking for a date, and logged on to the online dating service eHarmony to find a match. “After taking two hours to fill out their online profile,” he said, “a message popped up at the end saying they would not find me a match.”

Why not? Because Claassen is married, and eHarmony restricts its dating services to single people. A customer service rep told Claassen that’s their rule, and they’d welcome him as a customer once his divorce is final.

Quality matches, but maybe not for quite everyone. The site’s logo in 2007, the current logo, and some current stats.

“If I had my druthers, I’d be divorced by now,” Claassen said. “I’m emotionally in a different state than I am legally.”

But isn’t his legal status the point? One is either married or not, and Claassen was married when he entered his profile — he even admitted it there, which is how eHarmony knew about it in the first place. But he spent two hours carefully writing his profile!

And oh: did Claassen mention he’s a lawyer? Uh oh: what happens when a lawyer feels like someone has wasted two whole hours of his time, which left him “miffed”? He sues, of course.

Citing a California law which prohibits discrimination based on marital status, Claassen sued eHarmony in Alameda County Superior Court, demanding $12,000 in damages.

“I just think I’ve got a right as an individual trying to recover from something that wasn’t the high point of my life,” Claassen said. “If that includes dating now, why can’t I?”

He can: there are all sorts of places that welcome legally separated people looking for a date, including online sites. But eHarmony isn’t one of them. As “an individual” he can go to bars, to church groups, to singles meetings. But “individual” help isn’t what he’s asking by taking this to the people’s courts: he’s demanding that a business change their way of doing things to accommodate him outside of their established rules. That’s not their problem; it’s his.

Dating sites need to be careful: they don’t know whether one of their clients is a crazed stalker, and it has a right to put in procedures, suggestions, and rules to make the experience fit the market segment they’re trying to attract. eHarmony is clearly in the business of helping single people meet up, and it’s reasonable to prohibit married people from swimming in their singles dating pool. To demand that the courts jump in and change the rules rather than simply go do business somewhere else is a petty abuse of the system. Claassen seems to have a fool for a client.

Sources

  • “Married Man Sues eHarmony Over Rejection”, San Jose Mercury News, 27 March 2006.
  • “Married Lawyer Sues eHarmony for Refusing to Help Him Find Love”, Associated Press, 27 March 2006.

Case Status

Despite searches, I found no updates whatever.

Even today, the same prohibition applies at eHarmony (though I don’t know if the specific language has changed since 2006):

1. Eligibility
b. Marital Status. By registering to use or using the Singles Service, you represent and warrant that you are single or (if legally married) separated. If you are married and not separated, you may not register to use or use the Singles Service.

But then, maybe the “or (if legally married) separated” exclusion was added due to a settlement.

My 2022 Thoughts on the Case

Well, if we’re talking discrimination, how about same-sex couples? In a 2004 interview with the conservative Christian group Focus on the Family, eHarmony co-founder Neil Clark Warren, a clinical psychologist who also has a Master’s degree in Divinity from Princeton Theological Seminary, claimed that “cities like San Francisco, Chicago or New York… they could shut [eHarmony] down so fast. We don’t want to make enemies out of them. But at the same time, I take a real strong stand against same-sex marriage, anywhere that I can comment on it.”

Do you think notoriously gay-friendly San Francisco would “shut [eHarmony] down so fast” for offering same-sex dating matches, even in 2004? Neither do I.

And naturally, there have been lawsuits claiming that eHarmony violated laws prohibiting discrimination on the basis of sexual orientation. As part of the settlement of a New Jersey case, eHarmony launched a website called Compatible Partners providing match-making “for men and women looking for a serious same-sex relationship.”

Times change, and who knows: maybe Claassen started the dominos toppling.

Letters

Last week’s editorial about “Stella-like” cases in the United Kingdom brought some interesting mail.

Several readers theorized that the reason the paper didn’t run the essay was that it talked too much about U.S. cases, or my book, or that I didn’t “properly review” Cherie Blair’s book.

The piece wasn’t a book review; one can hardly receive a 944-page book, and carefully read through its legalese, and review it, in a matter of a couple of days. Rather, they gave me a basic outline to follow; they wanted me to establish very clearly what was happening in the U.S. (which means briefly recounting a number of cases; they even specified a few of their favorites from my TSA book), then talk about a couple of U.K. cases that run parallel, and then extrapolate what impact a textbook on how to sue public agencies might have.

In other words, they got exactly what they asked for; they didn’t spike it because it wasn’t what they were expecting.

Nor did they kill it, as several others suggested, because I was too hard on Cherie Booth Blair. Their entire premise was they specifically wanted me, as the author of the True Stella Awards, to discuss the parallel with frivolous cases in the U.S.

David in the U.K. reports the reason the essay was bumped was to make room for coverage of “Linda Smith, a brilliant and hilariously funny comedian who participated in a lot of panel games, including ‘The News Quiz’ — sort of the U.K.’s version of ‘Wait, wait, don’t tell me’. Her death was unexpected because she’d kept very quiet about the fact that she was battling cancer, such that nobody in the general public/audience knew. Incidentally, the Telegraph is often nicknamed the ‘Torygraph’ since it’s very pro-Conservative and anti-Labour, so any story bashing Cherie Booth (and therefore Tony Blair by association) would be welcome on their pages.”

Glad to know the reason! On to other letters:

Peter in the U.K.: “Claims for things like pavement trips rarely result in large individual payments. I’m guessing that they rarely exceed one or two thousand pounds. This little windfall could pay for a decent family holiday or any number of things that would benefit the plaintiff — ample reward for the time it takes a private individual to write a letter, even if he pays a solicitor to do it for him.

“By contrast, the cost to a council or other corporate body (usually insurance companies) of defending each claim would very quickly exceed the sum that might be awarded. In the U.K. the loser pays the court costs of the winner (as well as his own) so, in principle, a confident defendant could just say ‘See you in court.’ In practice however, it would probably cost a corporate defendant more to establish whether or not it had a defence than to pay a small claim. So, to minimise their losses, they pay small claims almost without demur.

“You don’t need me to catalogue the consequences of this ‘perfectly reasonable’ approach. Mr Blair’s government has said that suggestions of a compensation culture are wide of the mark. They cite caseloads of the courts and say that there has been no dramatic increase over the years. If that’s true, it ignores the myriad cases that are settled before the courts ever get wind of them. Yes, I believe the U.K. does have a compensation culture. In the first place I would like to see enshrined in our law a presumption that all individuals are responsible for respecting the property of others. This would straightaway debar suits where people suffered loss whilst trespassing — or worse.”

Peter refers to one of the U.K. cases I discussed in my essay, where a trespasser at a warehouse and fell through the roof. He was awarded 567,000 pounds (US$1.06 million), which he said he’d spend on a “flash car” and “a big house so I have a place to live with me mum when she gets out of jail.”

Neil in the U.K.: “I notice that you mentioned the Sophie Amor case in your latest TSA. I couldn’t help being surprised, however, that you didn’t mention to me what was to me the most striking feature of the case. I don’t know the rights and wrongs of what she went through. What convinced me that she was wrong, however, was that she said that her suit was about justice rather than compensation, and that ‘I just don’t want other kids to go through what I did.’ This sounds noble, until you realise that she settled out of court, something which ensures she gets compensation whilst allowing the authorities to continue to deny responsibility. Either she’s a hypocrite or she has a rather strange idea of what constitutes ‘justice’.”

I had fewer than 100 words to summarize that case in an already-too-long essay, so no: I didn’t cover it all. But your insight is indeed a good one.

John in Michigan: “In a recent True Stella, you posted a comment from an Australian man which offered that the lawsuit culture of America is probably preventing foreign investment in the U.S. economy. I think it is safe to say he is not the only one to notice, and that this issue as a motivating factor for tort reform is getting more public attention. While I am not a lawyer, I work for the Law School at Michigan State University. I am proud to say our educators are working to bring more attention to this issue, both in the classroom to educate the next generation of lawyers, and by public debate of the issues [in March]. There is hope for reform, as long as efforts like yours continue to bring attention to the issues of tort reform.”

The bottom line: silence is consent. Only by getting a chorus of people to speak out will something happen. Kudos to MSU for hosting a debate; no matter how it came out, that there was a debate at all is great cause for hope.

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2 Comments on “107: None of Your Business:
The Right of (Dis)Association

  1. What does “single or (if legally married) separated.” mean? Is “separated” a legal term?

    “Married” has a clear definition, and is recognized in law — you have a marriage license (or equivalent in other countries), and have certain legal rights.

    Is “Separated” a recognized term? If someone’s wife goes on a 2 week vacation, could he claim that they are separated as she is out of town and he isn’t?

    If a couple have an “open marriage”, could they claim that they are considered “separated” on weekends?

    If there is no legal or accepted definition of the word “separated”, than including it as an option in the Terms and Conditions is basically saying that they do not care whether you are married or not.

    “Separation” does have legal definitions which probably vary from state to state, but your questions illustrate the slippery slope that results in a lot of litigation. -rc

    Reply
  2. It seems like deal breaker things like being married could be front loaded in the profile creation process and set to auto reject at that point in time. Unlike free form questions like “describe your perfect date”, the deal breakers are (presumably) few in number, can be individually queried (solving the “wall of legal text” that most terms of service agreements end up as), and are binary (for most cases — one could be in one of those weird corner cases like not being legally married any longer but still considered married by one’s religion).

    This resolves the problem fairly cleanly and with negligible impact to the company and process — the person doesn’t spend time filling out the time consuming parts because they got rejected early on. It doesn’t preclude lawsuits, but it does knock out one part of this one’s justification, namely the two hour time investment.

    Reply

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