Written by Chris Bergin
Edited by Brian Cafritz
Racial and Religious discrimination has been an issue in our country for generations. Gender, Age and Sexual Orientation discrimination, however, has become more of an issue in recent years. For Retailers and Restaurateurs who deal with the public at large, the issue is even more pronounced.
On June 26, 2015—just about one year ago—the United States Supreme Court returned its landmark ruling in Obergefell v. Hodges holding that the United States Constitution guarantees same-sex couples the right to marry. In the immediate aftermath of this decision, some business owners actively protested the ruling by categorically refusing to provide services for same-sex weddings. In doing so, those same businesses, knowingly or not, opened themselves up to liability under public accommodation statutes.
Although public accommodation statutes first appeared in the 50’s and 60’s to combat racial discrimination, they are rapidly evolving to combat sex discrimination, religious discrimination, and discrimination against the LGBTQUIA community. Restaurant and retail owners should understand these statutes to ensure compliance and mitigate risks.
Generally speaking, property owners have a right to exclude anyone from their private property for any reason. There is, however, one major limitation on this general rule: federal, state, and municipal public accommodation statutes. These statutes prohibit private property owners who operate “public accommodations” from excluding customers on certain discriminatory grounds. For business owners, this raises two questions: (1) what qualifies as a public accommodation, and (2) who do public accommodation statutes protect?
What Qualifies as a Public Accommodation?
Under the federal public accommodation statute, a “public accommodation” is one of the following:
- Hotels and other businesses providing lodging to transient guests;
- Restaurants and other facilities principally engaged in selling food for consumption on the premises;
- Places of exhibition or entertainment; and
- Establishments that are within or that purport to be a hotel, restaurant, or place of exhibition or entertainment.
See 42 USC § 2000a(b). Thus, restaurant owners should take heed—restaurants are always public accommodations and may be subjected to lawsuits for allegedly discriminatory practices.
Retail establishments, on the other hand, generally do not fall into one of the four enumerated categories. Under federal law, they are not “public accommodations.” See Gray v. Home Depot, 2015 U.S. Dist. LEXIS 5115 at *20–22 (E.D. Va. January 25, 2015); (holding that a home improvement retailer was not a place of public accommodation); Eldib v. Bass Pro Outdoor World, LLC, 2015 U.S. Dist. LEXIS 99833 at *7–8 (E.D. Va. July 30, 2015) (holding that a retailer of outdoor goods was not a place of public accommodation). Thus, a claim for discrimination which has been brought against a retail establishment in federal court can sometimes be quickly dismissed upon a Rule 12(b)(6) Motion to Dismiss. The question becomes murkier when a retailer operates a restaurant in its store or offers other food services. There are different tests used by the various circuits in resolving this issue, so if you have a question about any particular location, KPM Law attorneys can help you.
Who do Public Accommodation Statutes Protect?
The current federal public accommodation statute is surprisingly limited in scope. It only prohibits owners from discriminating on the grounds of “race, color, religion, or national origin.” 42 U.S.C. § 2000a(a). Notably, it does not prohibit owners from discriminating on the basis of sex, pregnancy, marital status, age, sexual orientation, or gender identity.
Despite limited federal protections against discrimination, however, most states have enacted their own public accommodation statutes, which prohibit additional forms of discrimination. These laws vary widely from state-to-state and even from municipality-to-municipality.
For example in the Fourth Circuit, Maryland and D.C.’s public accommodation statutes are extensive and prohibit discrimination on the basis of sex, pregnancy, marital statutes, age, sexual orientation, disability, and gender identity. Md. Code, State Gov’t § 20-302; D.C. Code §2-1402.31.
Virginia’s public accommodation statute, on the other hand, does not prohibit discrimination on the basis of sexual orientation or gender identity. Va Code § 2.2-3900.
South Carolina and West Virginia’s public accommodation statutes are even more limited, and do not prohibit discrimination on the basis of marital status, sexual orientation, or gender identity. W. Va. Code §5-11-2; S.C. Code §45-9-10.
North Carolina is one of only five states in the U.S., which does not have its own separate public accommodation statute.
To complicate matters even further, local municipalities may enact their own public accommodation statutes and offer more protections than their federal and state counterparts. For example, although Virginia’s public accommodation statute does not consider sexual orientation, the City of Alexandria in Northern Virginia has enacted its own public accommodation statute which specifically prohibits discrimination on the basis of sexual orientation. Alexandria Virginia, Code of Ordinances, § 12-4-2(a)(4). Thus, a restaurant in Alexandria, Virginia operates under a stricter legal scheme than a restaurant in Norfolk, Virginia.
Litigating claims of discriminatory business practices requires a nuanced understanding of the interplay between federal, state, and local laws, all of which are rapidly evolving. KPM LAW’s Restaurant and Retail Team has experience navigating these issues and is here to help you understand your rights, mitigate your risks, and pursue your remedies.