The Right To Refuse Service Or Discrimination?
By Stephanie Tallman Smith
You have probably seen the signs: “We Reserve the Right to Refuse Service.” Common sense would dictate that a business does not have to serve an unruly customer, or allow its employees to be abused or threatened by a patron. Likewise, many business owners have moral or religious reasons for refusing service and have increasingly exercised the right to their convictions. But does that mean by simply posting a sign that businesses have the right to discriminate against customers for any reason it sees fit? In a word, sometimes.
Businesses are primarily places of public accommodation. That means they are in business to accommodate the needs of the public. They actively invite and seek the patronage of the public and therefore are subject to the same anti-discrimination laws that protect workers seeking employment or promotion. Specifically, the Civil Rights Act of 1964 prohibits discrimination and guarantees all persons the right to “full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, without discrimination or segregation on the grounds of race, color, religion or national origin.”
Rosa Parks could not be asked to sit in the back of the bus today, just as the lunch counter segregation of the early 1960s would be deemed a violation of constitutional law. The scope of the Federal Civil Rights Act is narrowed specifically to those four areas of discrimination, however. Consequently, the Americans with Disabilities Act was enacted and prohibited businesses from refusing service based on a person’s disability. A restaurant could not refuse to serve a blind patron because they could not read the menu. A car dealership could not refuse service because a proposed buyer was in a wheelchair.
Some states have taken the federal legislation farther and enacted their own Civil Rights laws. California, for example, prohibits discrimination based on unconventional dress and sexual orientation. The California legislation, known as the Unruh Civil Rights Act, make it illegal for businesses to refuse service just because the owner does not like the way someone is dressed or because they are against gays.
For example, a restaurant in California was held in violation of the Unruh Act because it refused to seat a gay couple in a booth normally reserved for intimate, opposite-sex patrons. A drug store could not refuse service to a homosexual male who wishes to purchase condoms. At the time of the Unruh Act in the 1960s, California was considered progressive, even for its era. Businesses would regularly refuse service to hippies, police officers, African-Americans, Republicans and other groups of people, simply because the business owner disliked the associated group the individual belonged to.
So if all of these laws are in place, why then the need for signs? Because a business may refuse service if a legitimate business need exists, as in the case of an unruly customer or a violent patron threatening employees or other customers. Using the same legislation, schools in California are allowed to regulate the dress of students to ensure the safety and well being of everyone because they have been deemed to have a legitimate business need for doing so.
The Moral and Religious Debate
Despite the anti-discrimination protections in place across the country, some patrons of specific businesses are finding themselves being refused service due to the moral or religious convictions of the business owner or employee. For example, some pharmacists refuse to dispense birth control pills to unmarried women or emergency contraception (the morning after pill) to rape victims because of their religious teachings. These pharmacists are protected under refusal clauses that allow a person’s conscience, moral conflict or moral values to dictate their business practices.
Currently this refusal clause affects the medical field, such as doctors, nurses, hospitals, clinics and pharmacists, and with good reason. Imagine a physician with an opposition to abortion being ordered to perform one because the customer demands it. On the other hand, the slippery slope of American legal interpretation is just one court decision away from allowing clerks in bookstores to refuse service to customers buying material they find objectionable. Likewise, if moral convictions are an acceptable reason for refusing service, what is to stop a business owner from refusing service to alcoholics, or women, or any other group of people not specified in either federal or state legislation?
How to Stay on the Right Side of the Law
As a business owner, it is important to understand the laws affecting your rights to refuse service. Understand the limits of both the Federal Civil Rights Act and any state or local laws affecting your jurisdiction. As a general rule, your right to refuse service can be based on one of the following five reasons:
-Patrons who are unruly
-Patrons who would place your business overcapacity in violation of local fire laws
-Patrons who wish to be served after hours or just before closing, necessitating the expenditure of overtime for your employees.
-Patrons who bring non-paying customers with them that require more space than one person would be reasonably be allocated. In other words, if a paying customer brings three non-paying customers and is seated at a four person booth, service cannot be refused. However if the customer brings six non-paying customers, he or she can be refused service because it requires the use of more than the one booth allocated to the paying customer.
-Patrons who exhibit such poor hygiene that results in numerous customers leaving.
Employees of your business should receive regular training on their right to refuse service and the understanding of public accommodation. Businesses that have refusal of service policies in place and regularly train their employees of the rights and responsibilities of the business are in a better position to defend themselves against discrimination lawsuits that may arise when service is refused.
Make sure your employees understand what the term “arbitrary” means and how any refusal of service that does not meet the criteria above can be considered arbitrary and therefore in violation of federal law. Likewise, understand that as a place of public accommodation, you cannot make arbitrary decisions about the type of client you wish to service.
Julia Roberts’ character was refused service at an upscale Beverly Hills boutique in the movie, Pretty Woman. This is an example of an arbitrary decision and if it had happened in real life could have resulted in a lawsuit.
If you feel that you have been the victim of a discriminatory refusal of service, first objectionably examine the circumstances. Were you unruly? Were you inordinately rude to the sales staff? Did you enter a restaurant barefoot and proceed to put your feet up on the dining table? Although the courts regularly find that the rights of the individual are weighted more heavily than the rights of the business, they still provide for exceptions and allow businesses to refuse service for legitimate reasons.
Refusing service is a complicated matter. As a patron, understand your rights to be served in places of public accommodation and your responsibility for behaving like a reasonable person in such an establishment. With reasonable customers and accommodating businesses, the need to refuse service should rarely arise and if it does, should be held legal and acceptable in a court of law.
The women were wise enough not to forcibly grab notes out of her otherwise it would escalate to battery charge.
