(February 4, 2018) A claim that the dating site Tinder engages in age discrimination by charging premium subscribers over 30 up to twice as much as those under 30 has been reinstated by a California appellate court.
Tinder, Inc. owns and operates a smartphone-based dating application. The basic level of the app is free, but it also offers “Tinder Plus,” which gives subscribers access to additional features. The fee for users over 30 is $19.95 per month. For those under 30, the fee is either $9.99 or $14.99. Tinder justified the price difference by claiming that those under 30 make less money than those over 30 and thus their fee should be less.
The plaintiff alleged the pricing structure violated the California civil rights statute and California’s unfair competition law. The trial court granted Tinder’s request to dismiss the case for failing to state a cause of action, accepting Tinder’s argument that the practice did not constitute arbitrary or invidious discrimination because it was based on market testing showing under 30 users are “more budget constrained” than older users “and need a lower price to pull the trigger.”
The appellate court reversed, finding the pricing model is discriminatory “to the extent it employs an arbitrary, class-based, generalization about older users’ income as a basis for charging them more than younger users.” While some users under 30 may earn less than those over 30, it is not always the case, the appellate court found. “Tinder’s pricing model will, in some cases, result in older individuals who earn less than some younger users being charged more than twice what those younger users must pay to access the Tinder Plus features. A blanket, class-based pricing model like this, when based upon a personal characteristic such as age, constitutes prohibited arbitrary discrimination” under California law.
“Were Tinder’s justification sufficient, generalizations about the relative incomes of different age groups could be employed to rationalize higher prices for all consumers 30 and older in even the most essential areas of commerce—such as grocery shopping, gasoline purchase, etc.—even in instances where an individual did not in fact enjoy the economic advantages that are presumed about his or her age group as a whole,” the appellate opinion states.
The appellate court also rejected the trial court’s finding that the pricing structure was justified by public policy that promotes increased access to services for the general public and profit maximization by the vendor. “[W]hatever interest society may have—if any—in increasing patronage among those under the age of 30 who may be interested in the premium features of an online dating app, that interest is not sufficiently compelling to justify discriminatory age-based pricing that may well exclude less economically advantaged individuals over the age of 30 from enjoying the same premium features.”
Allan Candelore v. Tinder, Inc., Calif. Second Appellate District No. B270172, filed January 29, 2018.