Law Review: Is an ‘Under age 30’ discount price legal? | SierraSun.com

Law Review: Is an ‘Under age 30’ discount price legal?

Jim Porter
Law Review

Tinder is a free online dating service. It presents users with photos of potential dates. How superficial is that? The user can swipe right to express approval or swipe left to express disapproval. Good looking or not — I guess. I'd have to use my younger brother's photo.

In 2015, Tinder released a premium service called "Tinder Plus," which allowed users to access additional features of the app for a monthly fee. Like: "Jim Porter is charming and an excellent square dancer. A lovable guy." Now we're talking.

DATING APP USERS UNDER 30 PAY LESS

Tinder Plus charges app users who are age 30 and older $19.99 per month, while it charges users under the age of 30 only $14.99 per month.

Allan Candelore, who apparently had nothing better to do, filed a class action for age discrimination claiming a violation of the Unruh Civil Rights Act (Civil Code section 51 "Unruh Act") and the Unfair Competition Law (B & P Code section 17.200).

The issue in this case is whether it is legal to give a price break to younger users of the online dating service.

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UNRUH ACT

The Unruh Act provides that all persons are free and equal and may not be discriminated against no matter what their "sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status." It applies to business establishments. Court cases have expanded the Unruh Act to include age discrimination.

DATING APP'S RATIONAL

Tinder argued that it did not arbitrarily discriminate against users over 30, but instead, based on tests it had conducted, was offering younger users who are more budget constrained and "need a lower price to pull the trigger" a discount.

Tinder said the discount was merely a logical price differential not some irrational, invidious act of discrimination.

The trial court agreed with Tinder.

OTHER PRECEDENT

The Court of Appeal discussed other price break cases. including a blanket denial to families with minor children who want to rent, finding it a violation of equal access afforded to all persons. Another example: if height is required for a job, a tall woman may not be refused employment merely because, on average, women are shorter than men. Ladies Day car wash events and Ladies Night bar events are discriminatory sex-based pricing. I wrote a column on the bar case. On the other hand, many laws expressly allow discounts for children and seniors based on social policy considerations.

Senior citizens are often entitled to discounts. I used to decline senior discounts when buying a movie ticket or paying for park entry or a ski pass, trying to affirm myself as young. Now I am realistic and take all the breaks I can get. No getting around it, I am old.

In one interesting case it was found legal for "Baby-Boomers" to be given a discount to a musical about the baby-boomer generation. I like the result, not sure how it could be legal.

The plaintiff who sued Tinder argued it would be improper under the Unruh Act for a grocer to charge an unemployed 31-year-old patron twice as much as an employed 28-year-old patron merely on the basis of market testing that typical 31 year olds make more money than 28 year olds. i.e. not all users under 30 make less money than users over 30.

COURT RULING

In the end, the Court of Appeal overturned the trial court and concluded that Tinder's pricing model favoring users under 30 cannot be justified by generalizations about the relative incomes and budget limitations of younger and older groups.

Nor was there a public policy that would justify the age-based discrimination.

Despite the logic and Tinder's rationale for trying to entice young users to use the dating site, it can't discriminate on the basis of age under the Unruh Act or California's Unfair Competition Law. I'm not sure about this ruling.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, and Reno. His practice areas include: real estate, development, construction, business, HOA's, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com.