How a gay activist and the state of New Jersey dictated diversity to a popular online dating service.
11:00 PM, Dec 23, 2008 • By ERIN SHELEY
Early in November, the popular online dating company eHarmony settled with the New Jersey Attorney General's Division on Civil Rights (DCR) over allegations that the company violated the state's anti-discrimination law by limiting its matching service to heterosexual couples. In 2005, gay New Jersey resident Eric McKinley had filed a complaint with the state, and in July 2007 the director of the DCR issued a finding of probable cause that eHarmony had violated the statute. In the face of mounting legal costs and the risk of crippling civil and administrative liabilities--stemming not only from the New Jersey investigation but other potential litigation, such as a recently certified class action in California state court--eHarmony agreed to create, by March 2009, a new matching service for same-sex couples called CompatiblePartners.net. By the terms of the settlement, the company was not found to have actually violated the law. As counsel for eHarmony Theodore B. Olson states, "We believe these claims are legally baseless, but fighting a case like this to the end of the line can be expensive and a distraction for any company."
The settlement also requires the company to provide free registration for the first 10,000 users of CompatiblePartners, to post photos of successfully matched same-sex partners in the "Diversity" section of the eHarmony website, and to "enlist the assistance of a media consultant experienced in promoting and ensuring fair, accurate and inclusive representation of gay and lesbian people in the media."
This outcome has caused an uproar among social conservatives. From a legal standpoint, the consternation is understandable. The company's founder, clinical psychologist Neil Clark Warren, developed a formula for making matches through three years of research into opposite-sex compatibility. The argument that eHarmony discriminates for lacking a same-sex matching service is somewhat analogous to finding a pharmaceutical company discriminatory for selling drugs for prostate cancer but not breast cancer.
For the state's legal theory to make sense, one must assume that same -sex and opposite-sex chemistry can necessarily be predicted in substantially the same way, such that gay customers are being discriminatorily deprived of the right to purchase the existing service. Whether this is true as a matter of fact seems questionable enough that a private business whose success has flown largely from its high success rate at matching deserves deference in determining whether it has the capacity to offer a service that might otherwise require substantial new research costs. The term in the eHarmony settlement requiring that the same-sex service "be provided using the same or equivalent technology and service quality" as the original service almost guarantees this problem, especially since CompatiblePartners must be rolled out in just a couple of months.
Regardless of the legal merits of the settlement, the outcry against the company it has generated from observers on both sides of the debate is notable. A quick search of socially conservative blogs reveals numerous calls for boycotts of eHarmony, such as one by a former eHarmony user "sickened" by the company's acquiescence to the demands of gay activists. Unfortunately for eHarmony, the same search reveals a similar number of proposed boycotts by gay match-seekers, such as one who labels the settlement "separate but not equal" and states "there are plenty of other websites for dating that will take our gay dollar$ and not segregate gays from heterosexuals."
What this backlash highlights is the impossibility of expecting all corporate actors to function at all times as vehicles of political expression. A citizen's power as a consumer to express disapproval of overt political action is a useful feature of a free state; recent examples include the boycott, by opponents of Proposition 8, of businesses whose owners had made donations in support of the initiative, or that of the Dixie Chicks by former fans disgusted by Natalie Maines's comments about President Bush. In such cases the relevant commercial interest had chosen to enter the world of political discourse, and politically expressive consumer choices functioned as collective responses to those actions. But for a company that has not otherwise chosen to enter the realm of politics to be punished for the incidental political effects of a neutral business decision, such as the decision to settle a lawsuit, necessitates that productivity and innovation be permanently limited by the scope of compromise between competing ideological agendas.