WASHINGTON, November 26, 2017 — What is “discrimination” in the world of retail goods and services, and when is it legal? Can the owner of a restaurant refuse to serve anyone? Must wedding photographers agree to take photos of any couple? Does a bakery owner have to cater any event? Can Charlottesville, Virginia business owners refuse to serve Nazis?
Is all discrimination bad?
Establishments post plenty of signs like these:
- No shoes, no shirt, no service.
- Ladies night.
- We reserve the right to refuse service to anyone.
But in Brooklyn, ultra-orthodox Jewish businesses took a great deal of heat after posting “modesty” signs that declared:
“No shorts, no barefoot, no sleeveless, no low cut neckline allowed in this store.”
In just one two-block area, lawsuits were filed against several of these businesses.
Dress codes are legal. But discriminatory ones, with or without a sign, are not.
Contrary to popular myth, no state health codes compel stores or restaurants to require customers to wear footwear. Businesses can, however, require their employees to wear shoes.
It is illegal under federal law (Title II of the Civil Rights Act of 1964) for a business open to the public to have a policy that discriminates against individuals based on race, color, religion, national origin, disability, gender or sex.
Discrimination in public accommodations: Race, religion and disability are protected
Laws that deal with refusal of service are mostly aimed at “public accommodation” businesses. These include businesses that offer lodging, food, entertainment, sales or rental services, healthcare or recreation to the general public.
Yet the commonly held belief that private businesses can do as they please is simply not accurate. Public accommodations are subject to the federal anti-discrimination law. Owners of such businesses can be heavily fined and even closed down for violations.
Moreover, private businesses are subject to state anti-discrimination laws as well. Some states (21 of them, plus Washington, D.C.) protect sexual orientation in their anti-discrimination laws. California prohibits all types of arbitrary discrimination, including attempted bans based on physical attributes, political beliefs and geographical origin.
Courts back up these statutes, tending to favor the consumer in their opinions. Judges have used an array of laws, aside from the specific anti-discrimination statutes, in support of consumers and against businesses refusing service. Consumer protection and unfair business practices laws are two types of these collateral laws that are used to strike down refusal practices.
When you can refuse service
Businesses do have an array of legitimate reasons to refuse service. One obvious class of reasons is grounded in the common sense understanding of a business’s need to maintain safety and of a restaurant’s need to maintain sanitary conditions.
Among the reasons to refuse service that will be upheld:
- A customer is not properly dressed.
- A customer is or has been disruptive.
- A customer is harassing employees or other customers.
- There is knowledge that a customer cannot or will not pay for goods or services.
- A customer is intoxicated.
- A customer’s privacy needs cannot be accommodated.
- The business establishment is full and there is no room for additional patrons.
Refusal of service is justified in cases where a customer’s presence interferes with the safety and wellbeing of other customers or of the business itself. Common examples of these concerns would be kicking out patrons who are unreasonably rowdy or loud; patrons lacking adequate hygiene; and groups of non-paying individuals (ostensibly taking up a great deal of room) who are simply accompanying one or two paying customers.
While it would be insane from a business standpoint, Starbucks could legally kick out non-paying individuals who come in and sit down do work, etc., but who do not buy products.
These criteria must be applied on a “bias-neutral” basis. However, a compelling business reason will not overcome obvious discrimination.
Nazis may be protected, but swastikas aren’t
There is no federal bar against refusing service to a customer based on political or social beliefs. Thus, a business might legally refuse service to a customer wearing a Nazi uniform. Yet, refusing service to a Nazi or KKK member, in some places, even outside of California, may require a legitimate business reason. Otherwise the business owner could face a civil rights lawsuit.
When refusing to serve individuals who promote hate is the goal of an establishment, a business policy that is “facially neutral” must be in place. It is a legitimate premise that allowing hate group patrons would deter other patrons. Such a policy would include the rejection based on clothing, as opposed to the political affiliation, as the basis for the refusal to serve.
Thus, “No shirt, No Shoes, No Nazis” probably would not pass muster, but substituting “No Swastikas” for “No Nazis” would work.
In 2001, a California court ruled in favor of a sports bar business that would not allow motorcycle club members in when they were wearing their colors. Although no fights had ever occurred, the bar thought that allowing the colors to be worn could lead to fights with rival clubs inside the bar. Preventing hypothetical violence is a legitimate business interest.
The second class of reasons to refuse service includes the issue of religious beliefs.
You don’t have to make a tee shirt, but you do have to bake a cake
A recent case involved a tee shirt shop owner who was not prosecuted for refusing to print shirts for a gay rights festival, based on his religious beliefs. Another case, however, saw a florist heavily fined for refusing to supply flowers for a same-sex wedding.
In 2015, the Standard Hotel, recognized as one of the better hotels in New York, refused entrance on Memorial Day weekend to a Navy officer in dress uniform because her clothing did not match the lounge’s dress code. The hotel later apologized.
It is commonly known that nightclubs discriminate based on gender and physical appearance. They are aiming to create an environment that fits an image that they believe is good for their business. Gay bars, for example, would describe that too many straight people of the opposite sex would make patrons uncomfortable and hurt business. Doormen and bouncers will tell you there’s “a guest list” or that entrance was being refused for dress code reasons, making it very difficult to sustain a claim of discrimination.
A New York club that blatantly refused admission to anyone other than Koreans ended up with a $20,000 fine a few years ago.
To serve or not to serve. Be careful: No swastikas.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.
Samakow has now also started a small business consulting firm. The website for this business is brand new and Mr. Samakow will be most appreciative of any and all comments. www.thebusinessanswer.com.