Vermont Supreme Court Upholds Fraternal Club Sex Bias Ruling

March 27, 2008

The Vermont Supreme Court has denied an appeal by an Elks lodge found to have discriminated against women, saying it failed to show any “reversible errors” in a 2005 trial.

In an entry order received by the parties last week, the court rejected the appeal by Elks Lodge No. 1541 of Hartford, which had sought a new trial over rulings by Judge Christina Reiss.

“All I have to say is thank God it’s finally over,” said Marilyn McMillan, 74, of Hartford, one of the seven women involved. “I didn’t think I’d live to see it.”

The case began in 1996, when seven women who applied for membership to the lodge — then all-male — and were rejected.

A year earlier, the national Elks organization had abolished its all-male requirement, which restricted membership to men 21 or older.

But the Hartford Lodge said the women were denied for reasons other than gender. Four of them — joined by the Vermont Human Rights Commission — sued under the state’s public accommodations act.

In the April 2005 trial, a jury found the lodge had violated state law by discriminating against the women because of their gender, awarding each $5,000 in punitive damages and $1 in compensatory damages and ordering the lodge to pay $5,000 to the Human Rights Commission.

The lodge’s lawyer, Norman Watts, told justices in oral arguments Nov. 28 that the rulings led to a “miscarriage of justice” that left the lodge unfairly branded as anti-women.

Watts said an accountant who testified about the lodge’s finances wasn’t represented as an expert witness and that evidence supporting the lodge’s contention that it harbored no animosity toward women was wrongly barred from the jury.

“We find no merit to these claims and therefore affirm the jury’s verdict and the superior court’s judgment against defendant,” the justices said.

Ethan Shaw, a lawyer who represented two of the women, said the ruling was an important one — for the women involved and for clubs that would exclude people.

“It sends the message that these fraternal organizations cannot continue to exclude people on the basis of gender or race,” he said.

Theodore Hobson, who represented two other women, also welcomed it. “Discrimination is not acceptable in this day and age,” he said.

Watts was disappointed.

“There was a political battle surrounding the en masse attempt of the women to enter the lodge, and it had nothing to do with their gender,” he said Thursday. “In the testimony of all the witnesses, there was one or maybe two who said they’d rather not admit women. At the time, there were 1,200 members. Two people can’t speak for the whole membership, and yet that’s what happened.”

Robert Appel, executive director of the state Human Rights Commission, said Watts’ characterization didn’t square with the trial testimony or the lodge’s legal actions.

“If the majority of the membership truly embraced the notion of the four women becoming members, why then has the Lodge been engaged in litigation contesting their admission since July of 1998, especially when the National (Elks organization) decided to resolve the claims made against it by these four women and the Human Rights Commission back in 2004?” he said.

The commission joined the suit because it focused on the state Public Accommodations Act.

“From the commission’s perspective, we’re pleased the court has ruled that the Public Accommodations Act can apply broadly, and to clubs that may view themselves as private but provide services and opportunities to the public at large, and that they can’t discriminate,” Appel said.

For her part, McMillan — who’s now a member — figures it may be time to get involved at the Elks lodge.

“I haven’t been for a while, because I didn’t think I’d feel comfortable and thought some others might not either. I thought if it were ever settled, I’d go back.

“I would like to be able to help with the charitable work they do, and so forth,” McMillan said.

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