TINDER is a smartphone-based dating app. Subscribers use the app to find people whom they would like to date. Tinder presents users with photos of potential dates. In March 2015, Tinder released a premium service called “Tinder Plus,” which allows users to access additional features of the app for a monthly fee.
The monthly fee depended on the user’s age group. Tinder charged users who are age 30 and older $19.99 per month for subscribing to Tinder Plus, while users under the age of 30 are charged only up to $14.99 per month for the Tinder Plus features.
A Tinder subscriber, Allan Candelore, sued Tinder on behalf of himself and other California Tinder subscribers who were over 30 years old at the time of their subscription. Candelore alleged that Tinder’s age-based pricing of its service is age discrimination and violates California’s Unruh Civil Rights Act.
The Unruh Act provides that all persons are “free and equal, and 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 are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments.” The purpose of the law is to secure equal access to public accommodations. The Act, therefore, prohibits “arbitrary discrimination by business establishments.”
The Unruh Act’s prohibition extends beyond the enumerated classes. Although age is not specifically listed as a protected characteristic, the courts have recognized that the Unruh Act prohibits age-based discrimination.
In the trial court, Tinder defended its age-based pricing as a result of its market testing showing that “younger users” are “more budget constrained” than older users. The trial court agreed with Tinder, noting that Tinder’s age-based pricing is not unfair because “it is entirely proper for Tinder to charge alternative prices in the pursuit of profit maximization.” The court then dismissed the case. Candelore appealed.
The Court of Appeal noted that the Unruh Act provides broad protection against arbitrary age-based price discrimination. Previous courts have determined that pricing differentials can constitute actionable discrimination. Even if it is true that older persons generally have more disposable income, this cannot justify charging them more for a service.
Even if Tinder’s market research shows that as a group younger users have less income and would be less willing to pay, this does not give Tinder the right to discriminate against its older users. Some older users may be “more budget constrained” and less willing to pay than some in the younger group. Generalizations about a protected class will not justify discrimination under the Unruh Act if they affect individuals to whom these generalizations do not apply. The Court of Appeal also reviewed the facts to determine if there is a strong public policy that justifies the alleged discriminatory pricing, but found none.
The Court of Appeal concluded that since Tinder’s pricing is arbitrary, age-based, and uses generalizations about older users’ income, that it violates the Unruh Act, and that the case should be allowed to proceed in trial court.
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