What is discrimination in the world of retail goods and services? Can an owner of a restaurant refuse to serve someone? Must wedding photographers agree to take photos of any couple? Does a bakery owner have to cater the event?

There are plenty of signs that are posted:

No shoes, no shirt, no service.

Ladies night.

We reserve the right to refuse service to anyone.

Can Charlottesville, Virginia business owners refuse to serve Nazis?

Brooklyn, ultra-orthodox Jewish businesses took a great deal of heat after posting “modesty” signs: “No shorts, no barefoot, no sleeveless, no low cut neckline allowed in this store.” Lawsuits were filed against several of these businesses over a two- block radius.

Dress codes are not illegal, but discriminatory ones are, with or without a sign.

Further, despite popular myth, there are no state health codes that legally require stores or restaurants to require customers to wear some sort of footwear.  The businesses can require their employees to have 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.

Laws that deal with refusal of service are mostly “public accommodation” businesses.  These include businesses that offer lodging, food, entertainment, sales or rental services, health care or recreation to the general public.  Despite what might be common belief that “private businesses can do as they please,” that concept is simply not accurate.  These types of businesses are subject to the federal anti-discrimination law and owners can be heavily fined and even closed down for violations.

Moreover, private businesses are subject to state anti-discrimination laws.  Some states (21 of them, and Washington, D.C.) include sexual orientation in the list of 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 and tend to favor the consumer.  Judges have used an array of laws, aside from the specific anti-discrimination statutes, to bolster the support for the consumer and against the business refusing service. Consumer protection and unfair business practices laws are two types of these collateral laws that are used in striking down refusal practices.

Businesses do however have an array of legitimate reasons they can refuse service.  The obvious “first set” of these reasons are grounded in the common sense understanding of the business’ right to maintain safety and for restaurants in particular, to maintain sanitary conditions.

The types of reasons that will be upheld include refusing service when

  • 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
  • there are safety concerns
  • a customer is intoxicated
  • a customer’s privacy is in need of protection and such 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, and 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 people (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 individuals (non-paying people) who come in and sit, do work, etc., and who do not buy products.

These matters need to be applied on a “bias-neutral” basis.  A compelling business reason will not overcome obvious discrimination.

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, or the business owner could face a civil rights lawsuit.

In this instance, where refusing to serve individuals that promote hate is the goal, 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.

A “second set” of reasons to refuse service include religious beliefs.

Recent publicly seen cases 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 gay 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, and it follows, one that 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.

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