Can A Business Use The Right To Refuse Service Because of Someone’s Appearance
The Right to Refuse Service
Almost everyone has walked into a restaurant with a sign stating the establishment has the right to refuse service to any individual or no service for any patrons not wearing a shirt or shoes. The question regarding the actual meaning of these types of signs has recently made headlines. The question is when refusing to serve someone is discrimination leading to a potential lawsuit and when it is justified.
When the Religious Freedom Restoration Act was passed by the state of Indiana, the law was immediately protested by gay rights activists. They claimed the law made discriminating against gays legal. Business owners would have the right to refuse service to gays with religious objections. The law resulted in so much uproar, an amendment was almost immediately enacted by the legislature.
The amendment stated the law was not applicable regarding discrimination based on the sexual preference of the individual. The problem is other states are considering passing religious freedom laws. This ensures the issue will remain. When the owner of a business believes the lack of a shirt or shoes is a risk for their customers or patrons or others will become uncomfortable, the sign is both justified and completely legal.
When the sign is intended for a specific group or surpasses the requirements for traditional clothing, there will be controversy regarding the law. Ultra-Orthodox Jewish businesses located in Brooklyn became controversial for signs stating no barefoot, no low-cut necklines, no shorts, and no sleeveless patrons are allowed to enter.
In Williamsburg, the city sued the Satmar Hasidic section. The two blocks of stores in this area posted signs stating no shirt, no shoes, no open-toed footwear, no service. The city believes the sign targeted women choosing to dress modestly. This is considered discrimination. According to Hasidic advocates, places such as the Four Seasons have signs posted for the same dre’ codes.
Whether or not it is legal for hardware and grocery stores to have the same dress code standards as private clubs and upscale restaurants, it is not considered to be logical.
The Anti-Discrimination Laws
The anti-discrimination laws of the local, state, and federal governments are at the center of the debate. The Federal Civil Rights Act passed in 1964. This law covers the United States. Discrimination of public accommodations with private ownership is prohibited on the basis of color, national origin, race or religion. A public accommodation is classified as hotels, theaters, health clubs, restaurants, banks, and stores. Nonprofit organizations including churches are usually exempt.
Public accommodation rights are guaranteed to the disabled according to the Americans with Disabilities Act. Private businesses are prohibited from discriminating against disabled citizens.
Discrimination due to sexual orientation is not prohibited by the law. This means federal law does not protect gays. There are roughly 20 states including California and New York with laws prohibiting public accommodations from discrimination due to sexual orientation. Discrimination based on an individual’s unconventional dress is also prohibited in California. There is no law in numerous states banning gay discrimination, although laws have been passed in several cities.
No matter which states the business is located in, service cannot be denied due to race, religion, disability, color or national origin. Certain states and cities prohibit discrimination based on sexual orientation. If there are no local, federal or state laws prohibiting discrimination for specific groups of people in public accommodations, the business can refuse service to any of these groups of people.
Nightclub Door Policies
The nightclub door policies appear discriminatory. There are reasons these establishments are able to post specific signs. Although refusing service is unlawful, discounts can legally be provided by the majority of businesses based on specific characteristics. This is meant to attract the clientele desirable for the business. This law is the reason a nightclub received a $20,000 fine for refusing to deny all patrons except Koreans.
The same law also resulted in an anti-feminist lawyer losing numerous cases against Ladies Nights. This is because the nightclub was specifically trying to attract more females to the club as opposed to refusing admittance for a specific group. The apparently discriminatory policies of clubs have become well known. Clubs have discriminatory policies based on physical appearance and gender.
The chance these policies will change in the near future are extremely slim. The strict door policies of clubs are enforced for the creation of an environment beneficial for both the business and its image. A good example are gay bars. These businesses argue straight individuals hurt business because they make the patrons uncomfortable.
The clubs sued by the anti-feminist lawyer claimed women were provided with discounts to bring more men into the clubs. The purpose is to increases profits. Bouncers and doormen have many different reasons for denying access such as wearing the wrong shoes or being absent from an imaginary guest list. This is why legitimate discrimination is so difficult to prove.
When Can Service be Refused?
There are valid reasons for a business refusing service from the establishment or asking people to leave. Some businesses have people they simply do not want to serve. If a group or individual is being disruptive or causing trouble, the business may ask them to leave. Some businesses such as restaurants have a capacity limit. Customers must be turned away to stop the capacity from being exceeded.
Service can also be refused if a group or individual enters right before the business is closing or is not going to make a purchase. There are many different examples. The important aspect of each example is the reason the business is refusing service. This cannot be based on specific characteristics or be an arbitrary decision. The decision to refuse service must be justifiable and reasonable.
A business can ask a customer to leave if they are not dressed properly. An individual cannot be asked to leave based on their beliefs or reasonable religious apparel. Service can be refused due to the harassment of members of the staff or safety concerns. An individual in violation of health codes due to the way they are dressed cannot be served legally.
If the business has clear standards, anyone wearing clothing violating these standards can be asked to leave. A good example of a justifiable reason for refusing service is an individual attending a black-tie dinner wearing blue jeans. A case in California court involved a bar refusing to serve a biker gang when they refused to remove their marks of affiliation or colors. The bar was legitimately concerned this could result in a fight. The refusal was legitimate, specific and meant to protect the bar.
There is one specific conflict appearing more and more often in the news and media. Businesses are clashing over the right for refusing service based on the business owner’s religious freedoms. Conflicts are resulting due to the protection of lesbian and gay couples according to anti-discrimination laws. Numerous states have made civil unions and same-sex marriages legal.
Despite the federal government recognizing same-sex marriages, numerous businesses have refused service to homosexuals. The businesses claim they do not support or agree with same-sex marriages. One side of the coin is the owners of the businesses claiming they have the right to religious beliefs. The other side is the same-sex couples claiming they have the right to protection from discrimination while visiting public accommodations.
The First Amendment protects the liberty of conscience. The Civil Rights Act protects freedom from discrimination. There are numerous different areas of law where the issue between freedoms and discrimination is always changing. The first court decisions regarding discrimination against same-sex couples have been reached. No business has the right to deny service to lesbian or gay couples just like service cannot be refused for specific nationalities or races.
The bottom line is people are entitled to their own beliefs. This does not mean service can be refused for patrons adhering to reasonable rules including dress and behavior. Sexuality is not a reasonable or justifiable factor for refusing service. An interesting point is despite the illegality of businesses refusing to serve certain types of people, specific groups can be offered discounts.
This can be based on occupation, military service, age or political affiliation. Providing discounts for the elderly, veterans, students and police officers is completely acceptable. The United States was built on the law providing equality for all citizens. Businesses must ensure all of their customers receive equal and fair service and treatment.
The Meaning of Discrimination Against Patrons
According to anti-discrimination laws, a business does have the right to deny service to patrons in a protected group under certain circumstances. If the refusal is targeted at a specific group of people, it must not be arbitrary or unjustifiable. In order for a business to eliminate the risk of being arbitrary, the refusal of service for all customers must remain consistent.
A business can legally refuse service for numerous reasons such as a dress code created to maintain the decorum of the business, policies directly impacting the safety of the employees and customers, or fire codes placing restrictions on the number of people allowed on the premises at any given time. It is illegal to refuse service to anyone because the business does not like the dress or appearance of an individual or a group of customers.
The business must apply all policies to every customer. A black man without a tie cannot be turned away from the business if a white man without a tie is served. No policy is legal if it seems to be applicable to everyone but actually excludes a specific group. A good example is a policy in a restaurant prohibiting patrons from wearing headscarves. This type of policy is considered discriminatory for Muslims.
There have been several court cases accurately showing the fine line between the justification for the refusal of service and discrimination. In one case, a baker in Colorado refused to serve a customer interested in having a cake baked decorated with bible verses targeting anti-gays. The argument of the customer was the business was being discriminatory due to his religious beliefs.
The judgment of the court stated the baker had not been discriminatory because the policy of the business was consistent. The baker enforced a policy to all customers refusing to create any cake decorated with derogatory imagery or language. Another case in Colorado also involved a baker. The wedding cake requested by a same-sex couple was refused by the baker. He said baking the cake was a violation of his religious beliefs.
The baker was held liable by the courts. His reason was determined to be a pretext for gay discrimination. This leads directly back to the restaurant signs reserving the right to refuse service to any customer. This language is both arbitrary and vague. A business does not have the right to randomly refuse to serve any customer. The no shoes, no shirt, no service sign represents a clear dress code in direct relation to safety and health concerns.
This sign is commonly seen in beach towns because all different types of tourists walk around the town shoeless or shirtless. The policy will not be in violation of any of the discrimination laws provided it is equally applied to all customers.
The Reasons Customers are Refused Service
Customers with tattoos covering a large portion of their bodies are often refused service or asked to leave the business. The legality of refusing service is based on the location of the business and if the tattoos are considered cultural or religious. Refusing service to these individuals may be viewed as discrimination. Another prime example is marijuana. Although marijuana is now legal in numerous states, the owner of the business can refuse service to customers smelling like marijuana or high.
Under most circumstances, the owner of the business has the legal right to refuse to serve a customer with an offensive smell. There are exceptions to this law such as disabled individuals, and elderly individual with a medicinal smell of individuals reliant on medical marijuana for health issues. It is illegal for any business to refuse service to a customer due to their race.
This is different than refusing service to a racist customer. If the appearance or behavior of the customer is viewed as threatening or menacing, the individual can be legally banned. In most cases, a business cannot legally refuse to serve a customer based on their beliefs. The exception is if the customer is displaying outward signs of their beliefs that are disruptive to the staff or other customers such as hate symbols or swastikas. The business can refuse service to these customers.
One of the biggest issues is currently gender identity or sexual orientation. The question of discrimination varies according to where the business is located. In certain states including California, this is considered definite discrimination. Unfortunately, the answer in many other states is less clear. No matter which states the business is located in, it is not wise to refuse service unless the individual or couple is disruptive or poses a clear threat.
Prior to initiating any customer ban or refusal of service, the business should speak with an attorney to help prevent any discrimination lawsuits.