WSJ: November 19, 2008, 11:53 am

eHarmony Settles With NJ AG; Will Offer Matching Service for Gays

Posted by Nathan Koppel

eHarmony, Inc., which runs an online dating service for heterosexual couples, must now cater to a gay clientele. That is the upshot of a settlement the California company reached today with the New Jersey Attorney General’s Office.

In what seems like a novel claim to our ears, the Garden State asserted that eHarmony violated the state’s Law Against Discrimination by not offering a same-sex matching service. New Jersey got involved following a complaint by Eric McKinley, a gay match-seeker in the state.

eHarmony has denied violating the law, claiming that its business model has been based on its expertise to date. The company says it has researched thousands of opposite-sex marriages to understand what makes opposite-sex couples compatible.

But, as a result of the settlement, eHarmony next year will launch a same sex matching service called Compatible Partners, which will be marketed in gay and lesbian media outlets, according to a [1] FAQ that the company released today. The document makes clear that users of eHarmony.com will not be matched with users of the new site, compatiblepartners.net.

“I applaud the decision of eHarmony to settle this case and extend its matching services to those seeking same-sex relationships,” said J. Frank Vespa-Papaleo, director of the New Jersey AG’s Division on Civil Rights.

[2] Here’s a statement from the AG’s office and [3] here’s a copy of the settlement.

eHarmony faces a similar discrimination claim in California. It’s unclear how this settlement will affect that case. “Now that we’re entering the same-sex matching market, we fail to see what the [California] plaintiffs could achieve through further litigation,” says Antone Johnson, a vice president of legal affairs at eHarmony.

(Permalink: http://blogs.wsj.com/law/2008/11/19/eharmony-settles-with-nj-ag-will-offer-matching-service-for-gays/) 

 

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Comments

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I am all for equal rights and the rights of all people to express themselves however they want (as long as it doesnt get on me), but this is outrageous. The effect of this decision is that companies now have to create businesses where they have no expertise and could be forced to lose their money. eHarmony should look for better lawyers.

Comment by What else can i say…. - November 19, 2008 at [12] 12:17 pm

Nathan: interesting that eHarmony was represented by Ted Olson, according to their press release. [13] www.eharmony.com/press/release

Comment by ConLaw - November 19, 2008 at [14] 12:29 pm

A similar happening occurred in New Mexico. A photographer refused to photograph a lesbian civil ceremony due to religious reasons (slightly distiguishable from eharmony’s business reason). The NM human rights commission fined the photographers and I believe enjoined them from refusing a same sex ceremony.

It is cases like these that lend credence to the Yes on Prop 8 and anti-hate crime movements.

Comment by J Doc - November 19, 2008 at [15] 12:33 pm

I love dogs.

Comment by Tart Reform - November 19, 2008 at [16] 12:45 pm

let me get this straight. NJ twisted eHarmony’s arm into incrasing their customer base, thereby making more money?

Comment by para - November 19, 2008 at [17] 12:52 pm

Finally. Hopefully this will pave the way for hate-brands like Wonderbra start male product lines.

Comment by Unbelievable - November 19, 2008 at [18] 12:54 pm

Yes, but do we call it the Wonderbro or the Wondermansiere?

Comment by To Unbelievable - November 19, 2008 at [19] 12:59 pm

I’m a gay liberal Dem and think this is just outrageous! If a private company wants to discriminate, it should be free to do so. Forcing companies like eharmony to provide services to gays only lends credence to the ridiculous arguments Christianists make that they can be sued for their religious beliefs. Eharmony is a private organization and should be able to provide services to whomever it chooses. Just outrageous.

Comment by Gay liberal Dem - November 19, 2008 at [20] 1:02 pm

So does this mean that all of the gay dating sites must now cater to straight couples?

Comment by Fairness Doctrine extended - November 19, 2008 at [21] 1:24 pm

Will psychologists with practices specializing in marriage counseling now be forced to counsel same-sex couples?

Comment by MSW - November 19, 2008 at [22] 1:28 pm

I’m suing gay.com for discriminating against heterosexuals. Then Ebony Magazine because I want Hispanic articles. NOW should be made to form a men’s rights group (NOM). And, for Pete’s sake, it’s discrimination when a hairdresser charges more for a woman’s cut!

Comment by Fire Up the Lawsuit Machine - November 19, 2008 at [23] 1:30 pm

gay liberal democrat — does your view on private discrimination extend to jobs, housing, insurance, etc., etc., etc. fortunately for you and other discriminated against minorities, that is not the law.

Comment by if it’s so outrageous, why did they settle? - November 19, 2008 at [24] 1:34 pm

So when will a heterosexual person file suit against Manhunter.com to start offering opposite-sex pairings? This is ridiculous, and I can barely believe the U.S. attorney wasted its precious resources on the case.

Comment by Joey - November 19, 2008 at [25] 1:36 pm

And big law firms specializing in divorce.
Now required to offer their services to same sex couples?

Even though the firm may not want to invest in the training and education needed to provide this service?

Comment by JD - November 19, 2008 at [26] 1:38 pm

1:24 pm - I would think not, because heterosexuals are not a protected class. What this case shows is that a business that provides a service to most Americans but not to a protected class can be forced to alter its business model and serve that protected class. The foolishness behind this lawsuit is that there are probably hundreds of sites for gays and lesbians to meet; they certainly don’t need eHarmony to do it.

Comment by Anonymous - November 19, 2008 at [27] 1:53 pm

1:53, does that means that steakhouses and non-kosher restaurants must now provide vegetarian and kosher food service to Hindus and orthodox Jews?
The restaurants are, after all, businesses that provide services to most Americans but not to people who can’t eat their food. And Hindus and Jews are protected classes.

Comment by member of the tribe - November 19, 2008 at [28] 2:01 pm

In answer to MSW’s question - maybe. According to this NPR article, [29] http://www.npr.org/templates/story/story.php?storyId=91486191, an employee of a MO hospital was fired for refusing to do that. To be sure, the court merely upheld her employer’s decision to fire her–which is a far cry from compelling her to provide therapy–but one can surmise that the employer’s decision was based on the fear of the legal consequences of her refusal to provide therapy to a homosexual.

Now, maybe there is an ethical rule among therapists, like there is for lawyers, giving broad freedom to refuse a client. I don’t know about that. . .

The same situation happened to a doctor (mentioned in the article). The CA Supreme Court may compel a doctor to provide in vitro to a lesbian woman against what he claims is his religious beliefs, DESPITE the fact that he referred her to another doctor who would do the procedure. (Like most of these lawsuits, the jilted homosexual appears not to be driven by any practical concerns beyond the need to make a statement). Bear in mind that this was not an ER doctor refusing to give someone emergency treatment. This doctor did not want to do the procedure himself, but he referred his patient to someone else, thus not prejudicing her interest.

Couple these with the wedding photographer case, and it’s arguable that there might soon be a duty of all businesses/professionals who provide a sexual or relationship-related service to provide it to all (regardless of expertise).

Comment by To MSW - November 19, 2008 at [30] 2:03 pm

So what if eHarmony stated that their research was only done on White couples, and therefore can’t allow Black people to search for potential partners on their website? Previous comments that say this case is ridiculous would obviously be fine with racism, as well, right???

Do you all need to see the definition of discrimination?

Comment by S - November 19, 2008 at [31] 2:04 pm

S, you ever heard of jdate, blacksingles, or blackscene.com? You think those sites are racist, right?

Comment by Anonymous - November 19, 2008 at [32] 2:07 pm

Yes I have heard of those sites, and perhaps the sites were made because of discrimination in the first place.

Comment by S - November 19, 2008 at [33] 2:12 pm

good thing prostitution isn’t legal, after all. can you imagine the outcry. They do provide a sexual service, and now, well, they’d be forced to…

Comment by para - November 19, 2008 at [34] 2:13 pm

I had an awesome comment typed out but someone called WordPress said I’m posting comments too quickly and my typing was gone when I backed up. Apparently once every two weeks is too often for this board to be graced with my genius and cutting edge commentary.

Comment by whatever - November 19, 2008 at [35] 2:24 pm

S:

Then the solution would not be to sue eHarmony and force them to serve non-White couples, but to utilize sites services which either cater to your particular group or don’t discriminate or limit their services at all. It’s called capitalism. If anything, this Mensa candidate that brought the suit missed a golden business opportunity.

Comment by Bryan - November 19, 2008 at [36] 2:25 pm

Does this mean my animal dating site needs to include people now?

Comment by West Virginia Fan - November 19, 2008 at [37] 2:25 pm

S, uh… or perhaps the sites were made because some people prefer to date people of a certain ethnicity. In the pursuit of a truly “equal” society, should we also make only dating people of one race a crime?

Comment by Another anonymous - November 19, 2008 at [38] 2:26 pm

Anonymous - “heterosexuals are not a protected class” thanks to your refusal to support hate-crime laws. Those laws prohibit discrimination on the basis of sexual orientation, which means that it would be a violation for a gay organization to discriminate against straights. Without such laws, they are free to pick on the hets. Thanks for shooting yourselves in the foot!

Comment by khazeh - November 19, 2008 at [39] 2:27 pm

whatever, when word press admonishes you (happens to me all the time) and you back out of it, just wait a few seconds and your text will reappear. we’re interested in your genius. go ahead now.

Comment by to whatever - November 19, 2008 at [40] 2:30 pm

Follow up question: Say eHarmony runs this thing for a few years and it doesn’t make a profit. They are losing money on it. And they conduct all kinds of market research and don’t get back any data that indicates it’s going to grow significantly any time soon. Does eHarmony get to close this site down and go back to focusing on what the hetero matches they started with or should they be forced to continue running a money-losing business just to satisfy this stupid law?

Comment by Bryan - November 19, 2008 at [41] 2:40 pm

Yes, that is possible. Which is why I said ‘perhaps.’

I don’t understand the logical jump to making dating people of one race a crime.

The issue here is discrimination, and people being excluded and made to feel as less than a legitimate person because of their sexual orientation. I think we all know the issues surrounding Prop H8. The issue here goes far deeper than simply eHarmony.

Comment by S - November 19, 2008 at [42] 2:42 pm

Yeah this is scary. eHarmony even argued it from a business perspective and not a social or religious (not that those reason aren’t valid) one. Looks like private companies will be forced to do whatever the courts want. Maybe it’s time for a new Boston Tea Party.

Comment by John - November 19, 2008 at [43] 2:49 pm

I suspect if eHarmony had pushed the case all the way to court, they would have won, but settling was probably the better PR move.

Comment by Tom - November 19, 2008 at [44] 2:51 pm

I’m appalled that in a law blog, there can be so many people who really don’t get that this really turns on basic principles of discrimination law. You cannot refuse service anywhere in the country based on prohibited reasons such as race, gender, national origin and so on. And in more and more parts of the country, sexual orientation, gender identity and gender expression are also being added to the list. The fact that eHarmony claims they lack the expertise to serve a gay clientele is as specious as if a restaurant were to refuse service to blacks because they didn’t think they were very good at preparing soul food. Like it or not, if eHarmony (or anyone else) wants to do business in this country, they need to follow the law and that means they may not illegally discriminate.

Comment by Nicole Hamilton - November 19, 2008 at [45] 2:58 pm

Remember, it is the activist courts, and people like Nicole Hamilton, that will determine what a business or person can or cannot do. In this case, they will say that gays are a protected class. As many of you know, hetrosexual, white, males aren’t protected.

Comment by JBM - November 19, 2008 at [46] 2:59 pm

Thank you, Nicole.

Comment by S - November 19, 2008 at [47] 3:00 pm

So presumably Match and J-Date and all the others will have to do the same, just as gay matching sites will now have to set up straight matching services. Or would that discriminate against them?

Comment by Anonymous - November 19, 2008 at [48] 3:04 pm

This is ridiculous. I assume it is cheaper for eHarmony to do this than to appeal the decision. I think the word “discrimination” is used WAY TOO MUCH out there right now. It is a shame when the whiny few have to cause harship for so many others out there because they feel their self-agrandized “rights” are being tread upon. Get a job, contribute to society in a positive way and SHUT YOUR CAKE HOLE. I will never hire someone I even suspect is gay because of bullshit like this.

Comment by Put A Sock In It - November 19, 2008 at [49] 3:05 pm

Nicole and S would pull people down to pull themselves up. There are plenty of gay match web sites already. Great. Now there’s one more.

Comment by Anonymous - November 19, 2008 at [50] 3:07 pm

i never thought of their position from a purely business standpoint. I thought they would lose eventually on a social/religious point. The business defense is simple, you would have to be a monkey not to agree with it. Expertise is what creates stiff competition, if everyone had a business where they equally sucked, what would be the basis of competition? I am blown away. what is sad is that I don’t think gays ever had any real interest in using a christian based site. they were just mad because they were excluded from a club they didn’t want to belong to in the first place. Can you say narcissism? and really - I hope eharmony doesn’t put alot of cash or effort into this, unless they hire experts. Otherwise it is going to drain the parent company. Federally forced bankruptcy - not there is a concept. This is beyond retarded. If you want to make case law in the absence of legislation - find the right case! It is evident that this issue was a vehicle for an approach to a large issue but the case was not the one that effectively defined the parameters of this argument. i don’t support discrimination but this wasn’t about discrimination. Too bad they settled. It’s possible it could have been overturned on appeal or mitigated by future rulings.

Comment by wow. - November 19, 2008 at [51] 3:07 pm

I really don’t see how its discriminatory for eharmony to market its services to straight couples.

It just doesn’t make sense to me how, in a free market, the govt can demand that a business change its marketing and sales efforts.

Nicole, what about the auto industry? I don’t see any car commercials geared specifically to handicapped people? Why is BMW not forced to market and service equally to this protected group?

Comment by para - November 19, 2008 at [52] 3:09 pm

Nicole,

You know this is full of holes. We don’t force steakhouses to serve kosher or vegan meals to Jewish or Hindu folks. I don’t expect Curves fitness centers to allow me as a man to join nor do I expect them to be forced to open male-only facilities.

No, we don’t allow restaurants to not serve black people. However, we don’t force the restaurant to serve “soul food.” If the black person wants to eat there, they eat what the restaurant makes.

Comment by Bryan - November 19, 2008 at [53] 3:11 pm

Horrible analogy, Nicole. Unless given more proof, I don’t believe eHarmony ever refused service to anyone on the basis of their sexual orientation. I believe eHarmony’s “crime” was in offering only one type of product, which *happened* to appeal only to heterosexuals. I believe anyone of any sexual orientation could register with eHarmony, but could only use their heterosexual product. So, to use your restaurant example… it’s like a black man suing a restaurant for *not* offering soul food. Or, if you want to focus on “protected classes”… an older man suing a dating site for high school kids, for denying him access.

Comment by Another Anonymous - November 19, 2008 at [54] 3:11 pm

This is communism. Telling a company to run a certain way to accomodate a minority group. Its not like there is no other option. If the guy wants a gay site pay eharmony for the program and open his own sight. But please government dont tell me how to run my business…

Comment by Scott - November 19, 2008 at [55] 3:11 pm

There are heterosexuals that get denied at eharmony do they have to set up a special sight for them also?

Comment by Anonymous - November 19, 2008 at [56] 3:16 pm

Scott, you’re right about communism.

this is the equivalent of disabled people suing Great Adventures for not making their roller coasters handicapped accessible. Not all services are meant for all people, and that’s ok.

This does cut at the heart of capitalism. We are not free any more to make products and services geared to a specialized market, to capitalize on the highest possible profit. No, all products and all services for all people. Homogenized, watered down, and completely worthless.

Comment by shrugged - November 19, 2008 at [57] 3:21 pm

eHarmony isn’t being required to market to gays, they’re simply being required not to refuse service to them. This actually is the same as in the auto industry: They aren’t being required to market to handicapped and in fact, they don’t; that’s pretty much an after-market industry. But the auto companies also surely don’t (and can’t) refuse to sell cars to anyone.

eHarmony’s decision to segregate gays and straights in separate websites was theirs alone. Some services do that and some (e.g., Match.com) don’t. But eHarmony was only site that refused service based on orientation. On other sites (gay or straight), if your orientation doesn’t match what they cater to, you can still join, you just won’t find many matches.

Comment by Nicole Hamilton - November 19, 2008 at [58] 3:22 pm

the funny thing was..they refuse service to a lot of classes of people. If you are not fully divorced, for example, you get bounced. If the consumer’s current lifestyle, for whatever reason, was contraindicated to the judeochristian basis of eHarmony, eHarmony would refuse service. This suit has been coming for a long time but as I mentioned before - I am shocked that they were not able to prevail in their defense by business model. Also shocked that they settled. I am waiting for the pr statement on that one.

Comment by eharmony was well known for discriminatory practices - November 19, 2008 at [59] 3:23 pm

Nicole,

There’s a wealth of difference between not offering a product that appeals to the gay community, and explicitly refusing to service them. Can you give some evidence to prove that gays were explicitly “refused service” at eHarmony? I think the auto industry + disabled example is very apropos to what’s happening here.

Comment by Another Anonymous - November 19, 2008 at [60] 3:24 pm

Does eHarmony require their clients to be single - or more importantly, not legally married? California may now have attained the legal equivalent of perpetual motion or lifetime employment for discrimination lawyers. Reminds me of the Groucho Marx song, “Whatever It Is, I’m Against It”.

Comment by DP - November 19, 2008 at [61] 3:25 pm

sounds like eharmony wanted to provide a quality product, it screened people so that people who eventually were qualified to join could have some trust in who they may date. Trust is a big deal when you’re using a website to find a date. Now, the folks who formerly couldn’t join, including, perhaps, the disabled (where the disability is severe mental illness and drug addiction), well now they’re members too. And there goes the trust in eHarmony, and there goes eHarmony’s profits.

Comment by shrugged - November 19, 2008 at [62] 3:30 pm

It sounds like they settled to avoid more litigation expenses. This is legal abuse.

Is eHarmony the only venue available to nonheteros?

I’m waiting for the Muslims to sue JDate…

Comment by Jay Sigel - November 19, 2008 at [63] 3:31 pm

other online dating/matching websites offer same-sex matching. I think only eHarmony doesn’t. I took my profile off eHarmony as soon as I discovered that they discriminate in this manner, and since the same sex-service they are planning to offer next year is called something different from eHarmony, I don’t plan on activating my eHarmony profile again. Oh and if you are straight and were rejected by eHarmony don’t worry, it doesn’t say anything about you, that business of screening for emotional health or whatever is total BS. I mean I was accepted back before I had therapy and I was still the psycho-girlfriend type. I’ve since apologized to everyone involved and have learned a lot through cognitive behavioral therapy, but it just showed me that their so called “screening” method is a crock.

Comment by mieoux - November 19, 2008 at [64] 3:34 pm

I’m surprised that my analogy to a restaurant refusing service to blacks because they didn’t think they were very good at preparing soul food would confound so many. Folks, this is not a difficult issue. If some restaurant to attempt that defense, the outcome would not be a order that they add soul food to the menu. It would simply be an order that they serve blacks whatever =is= on the menu. And that’s all the eHarmony case is about: No one is forcing them to go do anything special to cater to gays, they’re only be required not to turn them away.

Comment by Nicole Hamilton - November 19, 2008 at [65] 3:34 pm

To: para - November 19, 2008 at 2:13 pm

It’s not a sexual service, I believe you’re thinking about craigslist.

Comment by mieoux - November 19, 2008 at [66] 3:37 pm

Welcome to the DDUSA (That’s Dumbed Down, for those who couldn’t figure it out). We can no longer apply common sense or obvious reasons for treating anyone “differently”. Different treatment must now equal discrimination, period. And its okay to assume that the offending party must be a hateful bigot. Unless they are in a protected group themselves.

Comment by DP - November 19, 2008 at [67] 3:41 pm

Nicole, Can you give some evidence to prove that gays were explicitly “refused service” at eHarmony?

Get off the restaurant analogy already and offer the proof that you’re basing your argument on. please.

Comment by to nicole - November 19, 2008 at [68] 3:42 pm

nicole, please read the article. I’ll quote it here for you: “eHarmony, which runs an online dating service for heterosexual couples, must now cater to a gay clientele.” It’s the first sentence. You are not being honest when you say “And that’s all the eHarmony case is about: No one is forcing them to go do anything special to cater to gays, they’re only be required not to turn them away.” That simply is not true.
Don’t make things up. And please offer the proof that was requested of you, the proof that eharmony actually refused service to gays.

Comment by AR - November 19, 2008 at [69] 3:46 pm

Nicole Hamilton- So you’re justifying a condition of Labor Law under Discrimination Law? Must a private corporation be forced to change it’s market plan to cater to a specific clientelle? No! What is the justification? Should all businesses hire a consultant on gay/lesbian “rights” to fend off ridiculous law suits (that are sucking up limited resources)? These claims are consorting to stupid pleas for protecting a right to be gay. I have no rights for being straight. Marriage is an entirely different issue but who are we really defending?

Comment by Justify - November 19, 2008 at [70] 3:49 pm

Can I provide evidence that gays were explicitly refused service? You betcha! See [71] www.pinoy.ca/eharmony/339 where they’ve captured a statement that appeared on the eHarmony site from at least 2003 to 2005. That statement reads in part, “eHarmony does not offer same sex matching services.”

Comment by Nicole Hamilton - November 19, 2008 at [72] 3:51 pm

Ok so what if eHarmony offers a service to gay people and find that there are a limited number of clients in a specified region. They will not be able to create a match and what will the client claim? A bout of discrimination? Will they sue eHarmony for not matching them? What is eHarmony to do? create virtual matches? This is stupidity!

Comment by OK - November 19, 2008 at [73] 3:56 pm

More Dumbness! Refused service, e.g. turned away, is the same thing as not offering some services! Back to the restaurant analogy, not offering soul food is the same as not offering food!

Comment by DP - November 19, 2008 at [74] 3:57 pm

you betcha. well that explains it. we’re dealing with sarah palin. i followed the link. ok, i got it. there’s no way you can understand that “not offering same sex matching services” is not the same thing as refusing service based on sexual orientation. you just don’t get it. I’ll stop trying. it’s mind numbing. nicole, you probably think that bakeries discriminate against diabetics by not offering sugar free cookies. i give up.

Comment by shrugged - November 19, 2008 at [75] 3:59 pm

So if I only good at providing soft drinks and hamburgers, I must also sell t-shirts and shoes because someone wants to buy them from my shop? There is enough variability in this online dating market. Firms will specialize in a product they have competitive advantage in producing. Why don’t the gay/lesbian dating sites offer better services so homosexuals don’t complain about a lack of service provided to them?

Comment by Justify - November 19, 2008 at [76] 4:01 pm

So if I only good at providing soft drinks and hamburgers, I must also sell t-shirts and shoes because someone wants to buy them from my shop? There is enough variability in this online dating market. Firms will specialize in a product they have competitive advantage in producing. Why don’t the gay/lesbian dating sites offer better services so homosexuals don’t complain about a lack of service provided to them?

Comment by OK - November 19, 2008 at [77] 4:02 pm

eHarmony must now provide services to people that want to hook up with sheep.

Comment by Idaho - November 19, 2008 at [78] 4:03 pm

Looks like we’re doomed to suffer a number of logically invalid slippery slope arguments because of this decision.

Comment by JJ - November 19, 2008 at [79] 4:05 pm

Nicole,

Sorry, I’m still confounded. eHarmony never refused gays access to the service, but it didn’t offer same-sex services. No different than a restaurant that doesn’t serve soul food, but allows black people to eat anything that’s available. What part of this is difficult for you to understand?

Comment by Another anonymous - November 19, 2008 at [80] 4:08 pm

AR, is this your first time reading a news story? You’re quoting an off-hand characterization written by a reporter in his blog. That means nothing.

Comment by Nicole Hamilton - November 19, 2008 at [81] 4:09 pm

In case this helps:

On the eHarmony website, you will find that it offers only two options to register for their service:
You should be able to say that either you are
“Man seeking a woman”
or
“Woman seeking a man”

you cannot proceed without choosing one of these options.

If you are looking for someone of the same gender you won’t fit the above criteria and lying is against their terms of service if you look at the terms of service agreement.

Comment by mieoux - November 19, 2008 at [82] 4:10 pm

mieoux,

When I goto [83] http://boydates.net/, I can only search for gay or bisexual men. I can’t search for women. Are they discriminating against women?

Comment by Another anonymous - November 19, 2008 at [84] 4:14 pm

The decision to make a separate site was eHarmony’s; all the suit wanted was for them to allow those seeking same-sex partners to participate. If they want to comply with the law by providing a separate site, then that’s up to them, I guess (although why separate but equal works here, I don’t know…).

eHarmony’s founder is a supporter of Focus on the Family, etc., and got his first break when he was a guest on an evangelical’s TV show. That’s why they refuse gays - because they court Christian singles and don’t want to offend them, and because the owner thinks being gay is an abomination.

Think if Domino’s refused to sell pizza to gays. Would we all be OK with that?

Comment by timbnyc - November 19, 2008 at [85] 4:15 pm

@timbnyc, I would *not* be okay with Domino’s refusing to sell pizza to gays. But if gays don’t want to eat the product that Domino’s sells… yes, I’m okay with that.

Comment by Another anonymous - November 19, 2008 at [86] 4:16 pm

Let’s go with the Domino’s example. Think of Dimino’s “refused” to sell a kosher pizza… would you be okay with that? Aren’t they discriminating against Jews?

Comment by Another anonymous - November 19, 2008 at [87] 4:18 pm

Another anonymous: I’m sensing a dirty joke in there…

Comment by timbnyc - November 19, 2008 at [88] 4:18 pm

Retailers don’t typically have to accommodate religious preferences. For employers, it’s a little different.

Comment by timbnyc - November 19, 2008 at [89] 4:20 pm

This case is absolutely ridiculous. Every business decides who they want their target market to be. I could care less that manhunter.com or blacksingles.com doesn’t want to cater to me. Why would any same-sex relationship searcher want to be serviced by eHarmony anyway? The eHarmony service is based on decades of that doctor’s research on what makes opposite-sex marriages last. He has NO research on same-sex couples. The idiot plaintiff in this case isn’t even going to get the service he’s looking for anyway (i.e. a matching service similar to eHarmony, but based on decades of research on successful same-sex relationships). What’s the point of this lawsuit? THIS IS WHY WE NEED MAJOR TORT REFORM IN AMERICA.

Comment by BK - November 19, 2008 at [90] 4:21 pm

is this any different than an insurance company not selling insurance to a person based upon national origin or alienage? think those cases have already been decided. if not, and assuming sexual orientation is protected in a given jurisdiction, then to not allow gays to use your dating service, i.e., pay to post their listing for other gay posters to review, then it is discrimination.

Comment by is this easy enough for you - November 19, 2008 at [91] 4:22 pm

Asinine. But perfect for the Obama years. This, too, will pass.

Comment by The Birds and the Bees - November 19, 2008 at [92] 4:22 pm

Yes, Nicole. That was my very first time reading a news article. Thanks for your clarity. Hey, how’s that little problem you were having coming along? The one where you don’t understand that not offering same sex matching services is not the same thing as refusing service based on sexual orientation. How’s that working out for ya? Gonna make sense someday! You betcha!

Comment by AR - November 19, 2008 at [93] 4:24 pm

Just to add on, eHarmony wasn’t discriminating against gays. People of any sexual orientation can use their service (including hetero or G/L/B/T). They’ll just be paired with someone of the opposite sex. Of course, if you’re not looking for a traditional, monogamous, long-term relationship with someone of the opposite sex, you probably won’t be satisfied with your “match”, since the research wouldn’t really apply to you.

Comment by BK - November 19, 2008 at [94] 4:27 pm

I am diabetic. I went to the bakery. They didn’t offer sugar free cookies. Since they’re not offering a service specifically for me (and my protected class), then they must be discriminating against me? Right? Nicole?

Comment by New suit - November 19, 2008 at [95] 4:33 pm

The real discrimination favors gays. Domestic Partnership in California is available only to same-sex couples (or straight couples where one is older than 62). This gives the insurance benefits of marriage without the cost of Federal Married-filing-joint tax status. I wish my girlfriend and I could have that setup…

Comment by JDS - November 19, 2008 at [96] 4:34 pm

New suit - diabetics aren’t a protected class.

Comment by timbnyc - November 19, 2008 at [97] 4:35 pm

ok then fill in the blanks, it doesn’t make a difference.

the question is, if a company doesn’t offer a service specifically for a protected group, does it mean that the company is discriminating against that group?

I don’t think so.

Comment by new suit - November 19, 2008 at [98] 4:38 pm

The New Jersey AG must have been embarrassed by Andrew Cuomo’s success in some of the recent financial fraud cases, but is this the best they can do?

Comment by The Birds and the Bees - November 19, 2008 at [99] 4:45 pm

We only have eHarmony’s self-serving claim that their methods only apply to heterosexual couples. All they really do is ask people to fill answer a bunch of pretty ordinary questions (see [100] www.pinoy.ca/eharmony/questionnaire) and then they find people who answered in the most compatible manner. What makes you think what works for straights won’t work for gays? We already have the founder of eHarmony admitting (arguing, in fact!) that he doesn’t have any experience to give a reason. But even if did turn out that eHarmony’s algorithms don’t work as well for gays as for straights, so what? In this country, if you want to offer a service, you can’t illegally discriminate who you’ll you’ll sell it to. eHarmony refusing to offer their service to gays because they don’t think gays would be happy with the results is no different than a restaurant refusing to serve blacks because (they claim!) they don’t think they’d like the food.

Comment by Nicole Hamilton - November 19, 2008 at [101] 4:47 pm

This feels iffy. Can you really force a company that is focused on heterosexual relationships to cater to gays. Why would you sue…. Just start your own…

Comment by Anon - November 19, 2008 at [102] 4:48 pm

eHarmony also does not allow Atheists in either! They push their values upon others. I’ve never had any problems dating because of my freedom from religion and church going and being told that I could not join because of my lack of belief is discrimination too.

Comment by Atiests are also denied - November 19, 2008 at [103] 4:50 pm

eHarmony (to my knowledge) is the only online dating service with a compatibility test that actively rejects its applicants. Other services, such as jdate and match.com, accept all applicants. Whether or not those applicants are actually paired up with someone of their choosing is another story. The problem is that eHarmony rejected people of a certain sexual orientation and “refused service” to those people strictly because they were gay. If they operated like all the other services, then it wouldn’t matter that the service they offered was only for heterosexuals. The real issue is that the denied homosexuals access to their site altogether.

Comment by Right to refuse? - November 19, 2008 at [104] 4:52 pm

What if their service determines that a homosexual would be best matched to a heterosexual based on personality? Or what if a bi-sexual registers and is paired with someone of the opposite sex who doesn’t want a bi-sexual partner? Does this also mean that homosexual dating sites must also now cater to heterosexual customers? This ruling forces businesses into a market that will likely produce no ROI since it is a smaller market segment, much like the government forces Detroit to make cars no one wants to buy.

Comment by Stephen - November 19, 2008 at [105] 4:52 pm

Then answer one simple question. Why is it that websites like manhunter.com are not held to the same standard ?

They don’t allow straights to search for women ?

This is a slippery slope. The best solution to this is the market…. Where someone founds a match-making site that does cater to gays….

All this does is result in more judicial activism and more resentment.

Getting a date is not a right… and people can pick and chose who they match make for.

They need to appeal…

Comment by To Nicole Hamilton - November 19, 2008 at [106] 4:53 pm

Oh-oh, JDS, you found the dirty little secret! Not only does CA’s Domestic Partnership law(not available to most opposite sex couples) give them insurance benefits, it also literally guarantees them every right available to married couples. In addition, the State Constitution specifically prohibits discrimination against basically everyone. In all the brouhaha over Prop 8, did anyone ever catch exactly what discrimination was done by it’s passage?

Comment by DP - November 19, 2008 at [107] 4:53 pm

again with the restaurant. OK. The restaurant is open to anyone. No one is denied access. But the restaurant is being sued because it doesn’t offer food that is preferred by a protected group. Does that seem fair?

If not, then admit it, gays, as a protected group, had no right to claim discrimination just because this company (stay with me, think restaurant) didn’t offer the services they (the protected group) would prefer.

Comment by shrugged - November 19, 2008 at [108] 4:55 pm

Please see my post to Nicole Hamilton. How is this any different from manhunter.com

Comment by to right to refuse - November 19, 2008 at [109] 4:56 pm

I’m just telling you why they got sued in the first place. Remember that this was a settlement, not a judicial decision. Just because eharmony decided to start a gay business doesn’t mean the court would have ordered them to do so. All I am arguing is that they should have been granted access to the site and given a compatibility test, which is probably what the courts would have ordered. Under eHarmony pre-settlement, they weren’t even allowed into the restaurant. You have to at least serve them the slop you are offering.

Comment by Right to Refuse? - November 19, 2008 at [110] 5:00 pm

I’m not here to defend manhunter.com! If there are some gay sites that refuse service to heterosexuals, they’re probably in violation as well. And if you want sue them and think you can force them to settle, knock yourself out. But there’s a world of practical difference here. Did you actually go look at manhunter.com? Who besides the target audience could possibly want to join any of the bazillion slimy XXX hookup sites that come and go on the internet? eHarmony is different. They claim to match people based on a questionaire that appears to have almost nothing or nothing to do with orientation. If you look at the questions (follow the link I gave) it’s not hard to guess that gays might also like to find partners that match in those same ordinary dimensions. The only thing on their site that possibly made it unsuitable for gays is eHarmony’s arbitrary refusal to accept them as clients.

Comment by Nicole Hamilton - November 19, 2008 at [111] 5:18 pm

Some people don’t understand what “discrimination” truly involves. It involves offering a service or a product, and then denying that service or product on the basis of a protected characteristic. eHarmony offers a service, and in no way have they denied that service or product to gay people. The fact that gay people have no taste for the service offered is irrelevant. A hat store that fails to sell Kippahs is not discriminating against Orthodox Jews. But if the store refused to sell any hats to such a customer, than that would be discrimination. To argue otherwise is to argue that people should be forced to act affirmatively to provide services for people - and there would be no limit to such a requirement.

Comment by MDM - November 19, 2008 at [112] 5:22 pm

Clearly you do not understand the present case. eHarmony refused their service to gay people. Not because they didn’t set up a gay service or failed to match a gay person up with someone of the same sex, but because they refused gay people to have access to their site and refused to give them the compatibility test. They refused to sell their hats to gay people.

Comment by to MDM - November 19, 2008 at [113] 5:26 pm

Nicole Hamilton is a tooooooooooooool. Please go bury your face in your old lady’s muff

Comment by Nicole Hamilton is Stupid - November 19, 2008 at [114] 5:27 pm

Right to refuse is totally accurate. Its not a judicial decision and has no effect. The court most likely never could have ordered eharmony to do such a thing because civil rights are a protection when a STATE/FEDERAL entity discriminates. It was up to eharmony to choose to settle. They may have won, but considering the complaints they have received its not a bad business decision.

Comment by Attorney - November 19, 2008 at [115] 5:27 pm

Yet another outrageous perversion of the justice system. Here in NJ we are used to it. Of course, this is nothing compared to what Obama’s DOJ will do. Let’s see, we could sue OB/GYN’s for not accepting male patients…

Comment by Moving to Australia - November 19, 2008 at [116] 5:29 pm

That demonstrates why you are so confused. eHarmony didn’t refuse to give their service to gay people… gay people had just as much ability as a straight person to log on, create a profile, and search for people of the opposite gender. Like I said, the fact that they wouldn’t want such a service is irrelevant.

Comment by Anonymous - November 19, 2008 at [117] 5:32 pm

‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean - neither more nor less.’

‘Can I provide evidence that gays were explicitly refused service? You betcha!’ chortled Nichole; ‘See … That statement reads in part, “eHarmony does not offer same sex matching services.”’

Thus ‘eHarmony’s arbitrary refusal to accept them as clients’, QED.

`I know what you’re thinking about,’ said Tweedledum; `but it isn’t so, nohow.’
`Contrariwise,’ continued Tweedledee, `if it was so, it might be; and if it were so, it would be; but as it isn’t, it ain’t. That’s logic.’

Comment by Anonymous - November 19, 2008 at [118] 5:42 pm

Waht is e-harmony’s business philosophy? How does this philosophy help its own clientele gain better perspective of the services it provides. Not all customers are dictators, and not all of them are easily pleased. Gays and lesbians love to be pleased because they cater to an unusual type of desires–unatural in nature. Gays and lesbians are just a group living things with neuter sexual preferences. Heterosexuals are either male or female. Heterosexuals are easily pleased beacuse the are not asexual beings. Homo’s on the one hand have no satisfaction because of their sexual preference is asexual which only applies to plants and other forms of living things-of which have no conscience that tells them what is moral and immoral.Christians no matter where they go are always discriminated by the STATE.

Comment by ART-from CA - November 19, 2008 at [119] 5:45 pm

Since the government is now deciding business’ target markets, I’m waiting for OUT magazine to be forced to send a subscription offer to every American.

Comment by Miguel - November 19, 2008 at [120] 5:47 pm

“eHarmony does not offer same sex matching services,” does not mean it refuses gays services. Gays can use the service if they are looking for opposite sex matching services.

Comment by Anonymous - November 19, 2008 at [121] 5:49 pm

“J. Frank Vespa-Papaleo, director of the New Jersey AG’s Division on Civil Rights.”

He’s also director of the Lesbian and Gay Lawyers Association.

Comment by Miguel - November 19, 2008 at [122] 5:51 pm

It won’t be a problem for long. eHarmony used to focus on Christian singles, but since then has tried to broaden to secular folks. They’ve posted a number of non-Christian dating advice articles, costing them much of their Christian base. This will be the final nail in the coffin, their clientele will abandon them, and they will get out of the settlement when they file for Chapter 7 liquidation.

Incidentally, an important human right is the freedom of thought, conscience and belief. Forcing people to violate their sincerely held religious beliefs is a violation of their human rights.

Comment by Dean - November 19, 2008 at [123] 5:56 pm

Didn’t mean to be so anonymous on the other side of the looking glass above.

In case this helps, Mieoux:

On the Chinese restaurant menu, you will find that it offers only two options to avail yourself of their service:
You should be able to say that either you are
“Human seeking chinese food buffet”
or
“Human seeking chinese food ala carte”

you cannot proceed without choosing one of these options.

If you are looking for soul food you won’t fit the above criteria and lying is not nice, nor will it get you what you want.

You have therefore been explicitly denied service, right?

Comment by DP channeling LC - November 19, 2008 at [124] 5:58 pm

I thought this was AMERICA. When is it legal to make a business finance and start a whole different branch of business for something they don’t even understand? eHarmony’s target market is heretosexual men and women. Are they now going to have to start a match-up service for children under 18 years old, or 15 to 18? This is outrageous!!

Comment by Bronz - November 19, 2008 at [125] 6:01 pm

What a shame that E-Harmony didn’t make the effort to beat this ridiculous suit.

Comment by Raydarin - November 19, 2008 at [126] 6:01 pm

I vote to make Nicole Hamilton a Commissar, or an Ubergruppenfuhrer. She would make a good one.

Comment by Freedom Lover - November 19, 2008 at [127] 6:51 pm

I went into a shoe store today and demanded a shirt.

They had the nerve to send me elsewhere.

Comment by Policy - November 19, 2008 at [128] 6:53 pm

Hey, separate but equal… that oughta work!

Comment by Ventura Capitalist - November 19, 2008 at [129] 6:57 pm

Nicole and people like her refuse to open her eyes to reality. WHY would a homosexual use eHarmony if it doesn’t provide a service you want and their are better options available? We are NOT talking about housing discrimination or job discrimination. We can not nor should we have some sort of morphic world where everything equals everything. That is NOT reality. Saying manhunter.com might be in violation is just as stupid. God, America, grow the heck up, and stop listening to these fools.

Comment by Ziv Zulander - November 19, 2008 at [130] 7:01 pm

This whole “gay” thing is really way out of control and going to get worse. All begun by those psychologists who deemed it no longer to be considered deviant behavior.

Just like the problems with Prop. 8 in California.

I’m outraged that members of the gay community are making a farce of the democratic process in order to push whatever agenda they feel they have.

Proposition 8 has nothing to do with hate or exclusion. Any man can marry any woman. Period.

If gays and lesbians want to use the word, “marriage,” then it’s their choice to partner with someone of the opposite sex. Just as if they want to be called “heterosexual,” they’d need to give up sexual relations with the same sex. You can’t arbitrarily change a definition.

The gay population wants everyone to believe they’re being hated. Yet, there is no difference in the rights granted to homosexuals joined in a civil union or a husband and wife joined in marriage. They are equal.

No. Hatred would be to force them all back in the closet. Hatred would be to eliminate the special privileges they receive as a recognized minority.

Anger is what I and others feel for their bullying. Hatred will come out of the anger.

Perhaps if gays and lesbians truly experienced hate, they’d understand they’ve got it pretty good right now.

Perhaps we should boycott and picket APLA and other gay organizations. Perhaps they should get a taste of what they’re dishing out.

Comment by Michael Z. - November 19, 2008 at [131] 7:17 pm

So I’ve read through hundreds of blogs today about the press release from eHarmony. What I think people refuse to admit is that the company was admitting their service
MIGHT not work the same for homosexuals as it would for heterosexuals. How can we call this discrimination? Or do you prefer to be sold faulty products at high priced value?
The problem with Americans is we’ve become so blind by our own ignorance and rage that we’re quick to point a finger and shout that someone is doing wrong, but we never stop
and think that maybe its for better. Example Microsoft offered a product known as an xbox360, in the end it turns out the product was rushed Microsoft knew about the errors but
chose to still sell it, it didn’t matter about the people who bought the console just how much profit they made. Even though thats completely different from discrimination
it has the same ground work, big time corporations taking advantage of the smaller community. Eharmony took a stand, admitting that maybe their product wouldn’t work and
wasn’t willing to have the consumer put up their money on a risk basis, instead they chose to go with what they know. Everyone is quick to say that homosexuals and
heterosexuals are the same, but yet in traditional relationship’s men are men and the women are women, I want you to focus on this statement, think about how hard women
fought for equal rights and still have not succeeded in assuring that they receive them. Basically in every day life we see some kind of act that can be considered
discrimination yet we turn a blind eye to it if we have to be the first to fight it. Eharmony is a large figure head for conservative communities which makes them a
target to most irate liberals, homosexuals, and non religious fanatics. In this post people have mentioned Neil Clarke Warren, but when was the last time you’ve seen the
founder on advertisements for eHarmony? When was the last time Focus on the Family advertised eHarmony? Many of you may not remember that eHarmony had to separate from its
initial investors due to the fact that they were given a decision to only provide Christians with a service or lose their funding. Eharmony answered with separation and
stated they chose to have a diverse community. Maybe eHarmony may not have included homosexuals in the first place because of discriminationis hard to believe,
maybe it was because eHarmony felt it was bad business to provide a service that may not work, or is hard to believe that a company who focuses on healthy relationships truly
cares about the consumers who use it? With the launch of the new site we get to see if eHarmony can truly match and create healthy long lasting relations between both
heterosexual couples and homosexual couples, the only worry is if the new site fails then will the next complaint be that the eHarmony openly released a product they knew might
not work for everyone in any community or class? See people are people, it’s not corporations that forget that, believe me in corporate America it’s all about the all mighty
dollar. The only sad thing here is that a corporation that made decisions on not taking advantage of people is now forced to make an overall business decision. In short maybe
the new site won’t work but that won’t stop eHarmony from profiting on new subscriptions from a completely different community. In all honesty the litigation didn’t hurt e
eHarmony, it only helped them in growing and gaining new assets. So in fact all people who claimed discrimination should be applauded, the outcome is simple, for the sake
of having their voice heard and listened to they have helped a corporate guru achieve new assets from a community that it may fail.

Comment by ignorance - November 19, 2008 at [132] 7:39 pm

IT IS MY CONSTITUTIONAL RIGHT TO DISCRIMINATE AGAINST ANY INDIVIDUAL OR IDEA I DO NOT PARTICULARLY LIKE. THOSE THAT THREATEN OR PRESSURE ME TO ACT IN ANY WAY THAT IS AGAINST MY FREE WILL ARE CRIMINALS IN DISGUISE, LIKE THE POLITICALLY CORRECT GANGS THAT ROAM ALL OVER THE AMERICAN LANDSCAPE. AND THEN THERE ARE PEOPLE THAT STILL ASK “WHY DO THEY HATE US?”

Comment by JAYSONREX - November 19, 2008 at [133] 8:47 pm

What a Pandora’s box. I can understand the logic of non-discrimination in non-moral issues such as selling someone a car or a house, but forcing doctors to provide artificial insemination for gay couples or photographers to do gay weddings when it goes against their beliefs? We now FORCE businesses to provide services to someone for ANY reason? Only in the USSA.

Comment by tommco - November 19, 2008 at [134] 9:47 pm

By the same logic, women should sue for being denied a male role in a film, Buddhists should sue for not being able to be a Christian pastor, people without any money should sue for being denied an expensive house, Asian people should sue for only being able to get Italian food at an Italian restaurant. Just when I thought this country couldn’t go any farther off the deep end.

Comment by tommco - November 19, 2008 at [135] 9:52 pm

Some of these comments are just ridiculous. E-harmony decided on their own volition to settle the case. This does not set any precedent requiring other private businesses to follow suit. Evidently the E-harmony attorneys found it to be in the company’s best interest to settle for whatever reason. Providing their services to gays and lesbians more than likely will only increase their profits, so why not settle? There was a suggestion that the E-harmony attorneys’ decision to settle was absurd; however, the company and the company’s attorneys probably thought increasing their customer-base and, consequently, increase profits makes good business sense. The NJ AG clearly is looking to get his name in the papers, which makes sense considering his position and seeming ambition.

Comment by Zack - November 19, 2008 at [136] 10:21 pm

If dating was arranged by the girl’s parents, none of this would be necessary.

Comment by The Good Old Days - November 19, 2008 at [137] 10:54 pm

Let’s say, as part of its policy, E-harmony does not perform interracial matches. All races are allowed to join E-harmony, but no interracial matches will be performed. A black woman sues because she wants E-harmony to help her find a white guy. What is the correct outcome?

Even though I don’t see much of a distinction between the hypothetical policy and the actual policy, I feel much less comfortable with a no interracial-match policy than I do with a no homosexual-match policy. Perhaps that is because interracial relationships have reached a level of social acceptedness that homosexual relationships have not yet reached. Perhaps it is because I’m not convinced that homosexuality should be treated the same as race. I don’t know.

What I do know is that it will be fascinating to see how everything turns out in 50 years. Will all the anti-homosexual laws and constitutional amendments be viewed the same way as Jim Crow laws are viewed now, or will society determine that there really are good reasons to promote heterosexual relationships and to discourage the legitimization of homosexuality?

Comment by Matt - November 20, 2008 at [138] 12:01 am

I love Animals!!! Do I get a site too?

Comment by Beast_Lover - November 20, 2008 at [139] 4:58 am

I’m going to sue Def Jam records because they don’t make Native American music and that hurts my feelings. Hell, my case has as much merit as this one.

Comment by Bryan - November 20, 2008 at [140] 10:13 am

Wait a minute. Why are polygamists being discriminated? I am sure they are suffering for being left out! What about their rights!!!! Polygamists have been around just as long as homosexuals! What about e-polygamy.com???

Comment by Polygamists - November 20, 2008 at [141] 10:16 am

So let’s just get it straight now. No pun intended.

If a company doesn’t offer a service specifically designed to a protected class, then that company is discriminating against that protected class.

That is insane.

Comment by recap - November 20, 2008 at [142] 11:17 am

It is possible for a business to discriminate legally, even against a protected class. They just can’t do it arbitrarily. There has to be an actual legitimate reason. For a quick primer, c.f., [143] www.legalzoom.com/legal-articles//article13363.html.

eHarmony was in the business of matching people based on their answers to an extensive questionnaire about interests, values, personality traits, etc. The questions have all been posted to the web so it’s easy enough to go read them and confirm that they’re all very ordinary things like what do you do in your spare time. None of them are even remotely what anyone might regard as “explicit.” eHarmony claims their questions were developed based on extensive research, an unremarkable marketing claim commonly made about everything from laundry detergent to age-defying makeup.

But arguing that their research had been done solely on successfully-matched heterosexual couples, they refused to offer their services, i.e., matching people based on their answers to this standard questionnaire, to gays and lesbians. We can split hairs about how they wordsmithed their refusal but the point is, if you were searching for an opposite-sex match with someone also looking for an opposite-sex match, they’d run the query and give you the results. But if you wanted a same-sex match, they wouldn’t do it. The question is, was this arbitrary or did it serve a legitimate business interest.

Now, it’s simply not credible that their refusal could have been for technical reasons, that they just didn’t know how to do this in software or that it would cost too much. This would have been just one more term in an already large query. But that wasn’t what they argued anyway. Their only arguments were (a) that their research was only based on heterosexuals and (b) that eHarmony is focused on marriage and same-sex marriage is illegal in most states.

So, again, was that arbitrary? Setting aside the marriage argument (since they didn’t offer their services to gays and lesbians even in states where same-sex marriage is legal) it helps to consider several points: Was there anything about their questionnaire or their matching algorithm that in any possible obvious way would make it unsuitable for anyone but heterosexuals? No. You can go look for yourself but not even eHarmony attempted to argue otherwise.

Would it have placed their business at substantially greater risk (as some here have suggested) of complaints about quality? It’s hard to see how. Just like every other site, they don’t promise any particular outcomes, merely that they’ll run their match algorithm against others already in their database and tell you the results. From their terms and conditions (see ), “eHarmony makes no guarantees, either express or implied, regarding your ultimate compatibility with individuals you meet … eHarmony makes no guarantees as to number or frequency of matches.” Anyway, if people routinely went to dating sites and instantly found perfect matches, it wouldn’t be a good business model because they depend on people NOT finding a match but remaining hopeful enough to continue paying monthly fees. People who don’t find any matches at all don’t sue, they just leave.

Finally, it helps to know that the founders were extremely religious and were on record professing extremely negative views of homosexuality. In discovery, who knows what else might have been uncovered going to the question of motive.

The bottom line was that NJ found in it’s initial investigation that eHarmony was probably guilty of violating the law by discriminating in an arbitrary manner not supported by any legitimate business justification. I think this is why eHarmony settled: They were going to lose.

Comment by Nicole Hamilton - November 20, 2008 at [144] 12:57 pm

Nicole,

eHarmony was not in the business of matching people based on their answers to an extensive questionnaire.

eHarmony was in the business of matching men and women based on their answers to an extensive questionnaire.

this isn’t about the questionnaire, Nicole. It’s about the market eHarmony was attempting to and has every right to reach.

It’s about the service that a business provided, and how that business got bullied into providing its service to a protected class, simply because the service didn’t meet the needs of that protected class.

Comment by let’s try again - November 20, 2008 at [145] 1:58 pm

It could be about the market eHarmony was attempting to and had every right to reach except that’s that’s not a valid legal reason to refuse service to anyone outside that market. Apologies to those who are tired of the restaurant analogy but let’s suppose you’ve done extensive research and developed a menu and facilities that is absolutely spot on for your target market of white Americans. They have the money, you know they’ll like your product and all your advertising is targeted toward them. It’s a great business plan.

Let’s go further: Let’s suppose that not only do you sincerely believe that anyone who not a white American will likely not like your restaurant, you actually have research and even some experience that every non-white or foreign national who’s ever eaten hated your restaurant.

Does that mean you can refuse service to blacks or Indians or whoever else walks in that doesn’t fit your target market? Of course not! The most you’re allowed to do is warn those customers that your product might not be suitable for them. (And btw, in the settlement, eHarmony does get to do that.)

Under the law, if you offer what’s known as a public accommodation, you cannot arbitrarily discriminate who you’ll serve without a valid reason. And under the law, the fact you never intended to sell to a given audience is not a valid reason. (If that were allowed as a valid reason, antidiscrimination laws would be meaningless.)

Comment by Nicole Hamilton - November 20, 2008 at [146] 2:21 pm

but eharmony didn’t refuse service to gays. it simply didn’t market its service to gays.

and when did online dating become a public accommodation?

Comment by shrugged - November 20, 2008 at [147] 2:27 pm

You’re still missing the point. The government should not be in the business of forcing a company to offer a product it does not wish to offer. As I said before (and have yet to see refuted), if I own a record label that produces (for example) Celtic folk music and perhaps one or two others, but does not offer Native American folk music or African folk music, that is my prerogative. You nor any gov’t should be coercing me with lawsuits into making music that I don’t wish to make. Note, I’m not arguing for the right not to sell the music I do make to certain protected groups. Native Americans and people of African descent are welcome to purchase my Celtic CDs. What they are not welcome to do is dictate to me what my product mix has to be.

Sure, eHarmony settled because they probably figured out that they weren’t going to get through these ideologues’ thick heads on the matter.

Comment by Bryan - November 20, 2008 at [148] 2:31 pm

thank you bryan. perfect analogy. gays were free to purchase the eharmony service, but not dictate the service eharmony provided.

Comment by shrugged - November 20, 2008 at [149] 2:38 pm

A public accommodation is any facility, accommodation, resort or amusement which is open to, accepts or solicits the patronage of the general public. That’s just the definition. (Go look it up if you’re unsure.) eHarmony is such an accommodation.

We can split hairs about what it means to refuse service, but the simple fact is that eHarmony refused to match people looking for same-sex partners based on their answers to the questionnaire even though they would do it for those seeking opposite-sex partners. That’s a discrimination based on orientation. The only question is whether that was an arbitrary discrimination. NJ thought it was and I agree and I explained why. Just saying you don’t like it or that you think that’s just stupid isn’t a particularly compelling response.

Comment by Nicole Hamilton - November 20, 2008 at [150] 2:45 pm

eHarmony is not such an accommodation. it was not soliciting the patronage of the general public. it was soliciting the patronage of men seeking women and women seeking men.

No need to split hairs when defining what it means to refuse service.

EHarmony offered service for men seeking women, and women seeking men.

Just because it offered service to one market does’t mean it refused service to another.

See, no hair splitting. It’s quite simple. A company offered one service, and now is offering another service, by brute force.

Comment by shrugged - November 20, 2008 at [151] 3:04 pm

Actually, it’s not splitting hairs at all. It’s clear as day. eHarmony offered opposite-sex matchmaking services. Italian restaurants offer Italian food. Some music companies only produces certain kinds of music and not others. While none of these entities have the right to refuse their product to a customer willing to pay simply based on things like race, religion, or sexual orientation, they do have the right to sell what they wish to sell and nothing else.

Thus, a Chinese man does not get to make the Italian restaurant serve him Shrimp Fried Rice, a Native American woman does not get to tell the Celtic music company they must produce Native American music for her and gay people do not (or should not) be able to tell a eHarmony to offer them a same-sex matchmaking product.

It’s not discrimination based on orientation anymore than the other examples are discrimination based on race or ethnic origin.

Comment by Bryan - November 20, 2008 at [152] 3:05 pm

You’re wrong. The service — the only service! — was matching people according to a fixed questionnaire. No one ever asked them to offer a different service or even a different questionnaire. The only question is whether eHarmony’s refusal to offer that questionnaire matching service to gays was arbitrary and in violation of the law. A valid defense would be a legitimate business reason =why= they couldn’t sell to gays arguing, e.g., (if you really think you can make the case) that it’s technologically impractical to match responses from two males or two females. You have to come up with an actual reason beyond just the fact that that’s not what they wanted to do. What is that reason? They couldn’t show one.

This isn’t about requiring a shoe store to sell shirts or an Italian restaurant to sell Chinese food, it’s only about the legal requirement it you offer a product or service to the public, you have to be willing to sell it to anyone unless you have what the law accepts as a valid business reason.

I suspect the real disagreement isn’t over whether this was an arbitrary decision but whether they should been allowed to make it anyway. The real disagreement is over antidiscrimination laws, or more to the point, that it’s okay to outlaw discrimination against ‘accepted’ minorities you like but not to outlaw it against minorities you don’t like.

Well, that’s actually a valid political position, even if not one I agree with, especially insofar as no minority suffering discrimination ever starts out being favored. (After all, that’s precisely =why= they’re suffering discrimination.) But if that’s your position, that certain groups should not be protected, what you need to do is lobby to change the law, not argue that we should ignore it.

Comment by Nicole Hamilton - November 20, 2008 at [153] 4:04 pm

the only service eHarmony offered was matching men and women. Nicole, do you understand that part? that the service was matching men and women? I’m not trying to aggravate you, I just don’t see the point in continuing this dialog if you are not going to admit that eHarmony’s service = its only service = was opposite sex match making. Please let me know if you understand that. Again I am not being sarcastic or anything, I really need to know if you understand that part. thanks.

Comment by shrugged - November 20, 2008 at [154] 4:15 pm

1. service was for opposite sex matchmaking.

2. service was available to anyone willing to pay for it.

3. anyone willing to pay for it knew that the results of the service would show you a match of someone from the opposite sex.

Nicole, what part of what I just wrote do you have trouble comprehending?

Comment by sammy - November 20, 2008 at [155] 4:26 pm

Guys, you’re confusing what the service was with who they wanted to offer it to. They matched responses to questionnaires. That was the service. That’s all it was. But they only offered it heterosexual men and women. Under the law, they needed to show a reason why that restriction was valid, not merely arbitrary. What was that valid reason? It’s not enough to say they hadn’t ever been selling to gays or that they never planned to, therefore they should be allowed to continue. Nor is it enough to say they didn’t want to sell to gays or even that the whole business was formed in support of ancillary goal, e.g., the promotion of marriages between men and women. If I offer a product or service to the public, I can certainly try to guess why it might appeal to a certain target audience. And I can do pretty much whatever I like to make it especially attractive to that target market. But I don’t get to refuse to sell to people outside that group or to those who have a different (legal) reason for buying than the one I had in mind.

I’ll say again: They had a service, matching questionnaires. They wanted to sell only to heterosexuals. What was their legally valid reason for refusing to sell to gays? You have to give a reason why they couldn’t, not just that they didn’t want to. What was it?

Even eHarmony couldn’t come up with a good answer and that’s why they settled.

Comment by Nicole Hamilton - November 20, 2008 at [156] 4:56 pm

OK, that clears it up, thanks Nicole, for answering my question.

1. You deny that eHarmony’s service was opposite sex matchmaking. This is delusional.

2. You’ve convinced yourself that eHarmony’s service was providing questionnaires. This, too, is delusional.

Comment by shrugged - November 20, 2008 at [157] 5:09 pm

Okay, let’s suppose we accept your position that it’s impossible to separate eHarmony’s computerized matching service from the audience they chose to serve. Suppose their service hadn’t been about only matching heterosexual men and women looking for compatible dates, but about only matching whites looking for compatible white friends. How (if at all) would that have been different? Could they have refused to match blacks? Why or why not?

Comment by Nicole Hamilton - November 20, 2008 at [158] 6:29 pm

I almost hate to jump into this argument because it seems so absurb.

There are plenty of dating sites that cater to a particular clientele. Off the top of my head, I can think of interracial sites, sites for men looking for Russian (Asian, Jewish, Arab) women, sites that cater to gay people, BDSM, etc. SO WHAT?!!

Even if there was (are) sites that cater to only white people, again, So WHAT?!! People have right to associate with whom they please.

This lawsuit only gives credence to those pro-prop 8 allegations, that gay people are attempting to force others to accept them. Gays claimed those allegations were nothing but lies, but lawsuits like this tell another story.

E-Harmony is a private business that was attempting to meet the needs of a particular clientele. Are they now going to be forced to accomodate polygamists? After all, if they can match one man to one woman why can’t they expand it to match any number of people?

Comment by Outraged - November 20, 2008 at [159] 7:13 pm

As somebody who started the only relationship-focused dating website specifically for the gay and lesbian community, I understand that all the gay and lesbian community wants is to be able to find somebody to love and respect. We want to enter into loving committed relationships just like heterosexuals do. eHarmony’s settlement is just that, settling. Since we are excluded from many rights currently and even websites, we have to always create our own instead of being treated properly.

Comment by Frank M, Founder of oneGoodLove.com - November 20, 2008 at [160] 7:44 pm

Outrage, you are absolutely correct in pointing out that romantic attraction is not an equal opportunity proposition. No one is required to be attracted to someone just because they have every quality they’re looking for except just that they aren’t the right race, religion, ethnicity, or whatever.

But that argument only applies to customers of a matchmaking service, not to the service itself. The customers may be free to proclaim as loudly as they like (and with every right) that they will only date whites or blacks or whatever. And it’s certainly fair for the business to cater to those individuals by focusing on trying to attract only whites, blacks or whatever, knowing that’s what their current customers are looking for.

But the difference is that a business can’t refuse to serve those non-whites or non-blacks or non-whatevers just because that’s not what they were targeting. The most they can legally do is point out that the odds of the customer finding what he wants aren’t very good.

And again, under the settlement, that’s exactly what eHarmony gets to do.

Comment by Nicole Hamilton - November 20, 2008 at [161] 8:47 pm

Technically, eHarmony may have settled out of their own volition. But they weren’t sued by just an average person or even by an ACLU-style organization. They were sued by a state attorney general’s office, which has the backing of the taxpayers; essentially, it can pursue a lawsuit, no matter how frivolous, with the power of the taxpayer’s purse at their disposal. Essentially, they could have sued eHarmony til kingdom come.

eHarmony has a business to run, a reputation to protect in the public sphere and investors to which it must report. It also has limited resources that it must generate from its operations. It doesn’t have the blank checks that a state attorney general’s office is given by taxpayers.

Essentially, eHarmony could have won the suit because this doesn’t involve any sort of necessary public accommodation. But it would have lost too much money in the process. Settling is no admission of wrongdoing, but a realization that business is more important than tort in the life of a profit-making enterprise.

By the way Nicole: This is not a “public accommodation” issue. eHarmony isn’t providing hotel service, serving food or transporting people by airplane. Dating isn’t a needed service that involves sustaining human life or providing shelter. It’s a dating service and in the marketplace, a gay or lesbian can choose any of the other dating sites that will cater to their preferences.

I am against discrimination of all kinds. But not every case of discrimination can or should be solved by government interference. To compare the decision by a dating service to serve a certain clientele to decisions by Jim Crow segregationists to not serve food to blacks is not only ridiculous, but denigrates the legacy of those such as my grandparents, who fought against discrimination all their lives. They would laugh at your comparison if they were alive today.

Comment by Mack Simmons - November 20, 2008 at [162] 10:56 pm

A state AG does indeed have virtually limitless resources, but he’s also a politician, meaning that he might like to make a name for himself on a high-profile case, he probably doesn’t want that name to be mud for an unpopular position.

Whether eHarmony is or isn’t a public accommodation doesn’t really turn on whether it was food, shelter or transportation. It turns on what the law in NJ says it does. At [163] www.state.nj.us/oag/dcr/accom.html, NJ claims “The New Jersey Law Against Discrimination (LAD) prohibits an owner, manager, or employee of any place that offers goods, services and facilities to the general public.” They go on to give examples where it applies and also where it doesn’t. They’re pretty clear about including services though I concede it’s possible they mean ‘place’ to refer to a physical location that customers actually come to, not a website. That aside, it’s clear (at [164] www.state.nj.us/oag/dcr/credit.html) that in NJ, “It is unlawful for a person to refuse to buy from, sell to, contract or otherwise do business with an individual because of the individual’s race, creed, color, national origin, nationality, ancestry, marital status, domestic partnership status, liability for service in the Armed Forces of the United States, age, sex, affectional or sexual orientation, or disability or because of race, creed, national origin or other protected characteristics of the person’s spouse, partners, employees, business associates, suppliers or customers.”

Finally, regarding the question of whether blacks view discrimination today against gays as being similar to that which they experienced in the past, we agree. It’s well-known they don’t. In fact, that was widely lamented in California, where black voters showed stronger support for Prop8 than did white voters. Personally, I think this is somewhat sad and likely to viewed unfavorably by