Seniors Treated Better Than Nerds

Two items in the newspapers last week deserve to be read side by side.

First, attorneys for Vertigo, the trendy downtown Los Angeles nightspot that openly discriminates against the attire-impaired, are appealing efforts by the California Department of Alcoholic Beverage Control to force the club to admit nerds.

Vertigo makes no bones about sorting the stodgy from the chic. A guy at the door eyeballs supplicants eager for entry and makes the decision based entirely on their clothes. Only the cool are admitted.

The second item reports on the growing cornucopia of discounts offered to senior citizens. Once known insensitively as old people, these individuals are eligible for a staggering array of discounts on travel, health care, entertainment and financial services. Off-price goodies range from cheap eats at Denny’s to free checking at Great Western Bank.

Not all these discounts represent the unfettered workings of the free market. Old people get discounts on Amtrak, for example, and free admission to national parks. In California, the law of the land actually promotes this sort of thing.

State legislation established a Golden State Senior Discount Program in 1981. Encouraged by the government, firms in California charge young people--junior citizens?--more for goods and services than old people.

By way of perspective, imagine if businesses routinely charged blacks more than whites for the same products at the same location. This is in fact one outcome of senior citizen discounts, since the population over 65 is made up of predominantly of white women.

The stories about Vertigo and senior citizen discounts together raise a troubling question. How can the state of California claim that a business can’t discriminate against the, uh, sartorially challenged, while the state itself has encouraged companies to discriminate by age?

The contradiction isn’t difficult to resolve. Vertigo’s discrimination is probably just as legal as Denny’s, and more defensible intellectually than the spreading boondoggle of discounts for the elderly.

Unfortunately, this isn’t clear to the folks at the state Department of Alcoholic Beverage Control, which regulates bars.

“The problem we had philosophically was that they could use this” as a cover for racial, ethnic or other discrimination, ABC staff attorney David Wainstein says.

In other words, the state wanted to prevent more serious discrimination. “That was the primary reason” ABC acted, Wainstein agrees.

Yet even Wainstein admits that there’s no evidence of such racial, ethnic or gender discrimination at the club. On the contrary, Vertigo attorney Joshua Kaplan says the club draws men and women of all races and ethnic backgrounds, and that even leaving aside the moral question, to discriminate on such grounds “would be economically suicidal.”

Would the state settle for a promise by Vertigo never to discriminate except by coolness, a promise enforceable by surprise ABC inspections? Nope.

“It’s still a violation,” Wainstein insists.

Vertigo is appealing the ABC decision to an ABC appeals panel, where Kaplan says defeat is certain, but then plans to move into California’s overburdened courts, where the prospects seem brighter.

John Wiley, a UCLA law professor unlikely ever to win admission to Vertigo, calls the ABC action “completely insane.” Robert Post, a constitutional law expert at UC Berkeley, says the ABC effort “becomes a little silly in this context.”

Silliest of all is that Vertigo’s customers apparently like being treated this way. They show up knowing full well they’ll be subjected to the California equivalent of St. Peter at the Pearly Gates. That’s why Vertigo does it. It makes the place seem exclusive. Simply put, it’s good business.

The same may not be true for senior citizens’ discounts, which are fostered by government. In California, the law intended to promote discounts says:

“The Legislature recognizes that senior citizens, who are retired or living on fixed incomes, are significantly affected by rising inflation. They must spend their limited incomes on those items that are visibly spiraling upward such as groceries, health care, shelter and energy costs.”

But the bill makes no effort to distinguish rich old people from poor ones. Nor does it take account of the enormous home equity enjoyed by many older Californians--home equity that largely escapes taxation thanks to Proposition 13.

Many of these discounts apply to Americans as young as 50, even though--or perhaps even because--”the 50- to 64-(year-old) people are probably the richest per capita in the country,” says Jon Torp, a USC gerontology and marketing specialist.

Under the law, age discrimination is a lot easier to justify than racial discrimination, and it might even pay. Senior citizens’ discounts are a classic form of price discrimination, which is usually quite profitable (witness airline tickets).

In any case, says Post, “it seems pretty clear to me it would pass constitutional muster.”

On the other hand, the law requires no justification for discriminating against nerds. Our pocket protectors and double-knits make us fair game. In the absence of legislation, there’s not a thing we can do about it--except stay away from Vertigo.