eHarmony Faces New Lawsuits for "Separate But Equal" Policy

Dating site accused of segregating same-sex dating partners

By Jon Hood
ConsumerAffairs.com

April 3, 2009

eHarmony • eHarmony Faces New Lawsuits for "Separate But Equal" Policy • eHarmony Agrees to Launch Same-Sex Dating Site • Love's Labors Looted: Internet Dating Can Get Expensive --- • Complaints • More about Dating Services

Dating website eHarmony is facing more allegations that it treats gay users inequitably. The website resolved one lawsuit alleging it barred gays from subscribing by starting a second website, but now faces claims that its remedy still violates gay rights.

In March 2005, New Jersey citizen Eric McKinley filed suit against eHarmony, alleging that he was denied access because he is gay. When McKinley tried to register with the site, he found that there was no option for "man seeking man" or "woman seeking woman" — the only available options were for heterosexual individuals.

The lawsuit led to a state investigation in 2007; the Attorney General eventually announced that the company’s policy was in violation of state discrimination laws, which prevent differential treatment based on sexual orientation.

In November 2008, eHarmony settled the suit, agreeing to set up a separate site for gay individuals by March 31, 2009. The company also promised a free six-month membership for up to 10,000 members, a free one-year membership and $5,000 to McKinley, and $50,000 to the New Jersey Attorney General for investigation-related expenses. The company's attorney, Theodore Olson (a former Solicitor General who also represented President Bush in the infamous 2000 recount) insisted that the suit "resulted from an unfair characterization of our business," but agreed to the settlement given that "litigation outcomes can be unpredictable."

A similar lawsuit was filed in May 2007 by Linda Carlson of California. Her suit sought class action status, and named as co-defendants eHarmony founder Neil Clark Warren and his wife Marylyn, a former vice president of the website. In a statement, Carlson said that the company's discrimination "is hurtful and disappointing for a business open to the public in this day and age." Carlson, too, was denied a membership after she tried to register as a "woman seeking woman." After the New Jersey settlement was ironed out, eHarmony Vice President Antone Johnson said he was confident that Carlson's suit would be declared moot, given the company's concessions.

As promised, this week CompatiblePartners.com launched, billing itself as "a site for singles seeking a long-term, same-sex relationship." Sounds perfect, no? Not quite — Carlson's case is barreling ahead, albeit with a new lead plaintiff, charging that eHarmony's insistence on creating a second site, rather than modifying the original, constitutes an unacceptable "separate but equal" policy.

As Joshua Konecky, the plaintiffs' attorney, put it, "Nothing in the law or logic allows companies to operate a business that discriminates so long as they open up another one that does not." He drew a parallel to the "separate but equal" policy that plagued America after the Civil War. The phrase comes from Plessy v. Ferguson, the 1896 Supreme Court decision allowing continued school segregation so long as separate facilities were "equal" in their accommodations.

Indeed, the "traditional" eHarmony has a leg-up on Compatible Partners in several respects. Most significantly, the matchmaking process is "based on traits and personality patterns of successful heterosexual marriages," according to a statement by the company. In setting up Compatible Partners, the company didn't create a new methodology; rather, they extrapolated from their original process, which could mean that gay members are given weaker matches than their straight counterparts.

Judge Victoria Chaney has granted the plaintiffs' motion for class certification, and the case is set to proceed. Potential class members include any gay, lesbian, or bisexual individual who tried to join the website going back to May 2004 and was denied access. Individuals don't need to show actual injury to be eligible to join the class.

In addition to damages for class members, Konecky is seeking an injunction forcing eHarmony to offer gay individuals all the services it offers to straight members, and on the same website.

Many individuals are unaware of the strong evangelist elements propping up the website that touts itself the "number one trusted relationship site." Warren, a psychologist and author of several books about relationships, founded the site in 2000 with help from James Dobson, founder of Focus on the Family, a social conservative group which strongly opposes gay marriage and other benefits for homosexuals. Dobson subsequently promoted the website on his radio show, which Warren cites as one of the major factors contributing to the company’s success.

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