Can Your Business Refuse Someone Service?

Recently in the news there have been a number of high profile cases involving businesses that provide services for weddings being sued for refusing to accommodate gay couples. These situations receive an out-sized portion of media coverage because gay marriage is currently both a hot topic and a polarized debate. It’s clear that the photographers, bed & breakfast owners, and bakers never considered that by setting out their shingle they would have to compromise religious beliefs or face legal and/or economic sanctions by their government, but it is turning out to be the case in many places.

The general public is confused as well. Many people seem to think that in America business owners can choose their clientele and refuse service to anyone they do not wish to associate with. Is this true? What do small business owners need to know about the rights of the public to be served in commercial establishments, and what are those rights?

Well, to begin with, small business owners cannot pick and choose whom they will serve if they seek to deny service based on race, color, religion, or national origin. This was established by the Civil Rights Act of 1964 which guarantees the right of all people to “full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, without discrimination or segregation.” This law was put into place to check the desires of businesses to enforce segregation or humiliate customers who belonged to certain race, ethnic, or religious groups. The Americans with Disabilities Act widened this protection to cover those with physical or mental disabilities as well.

Those are federal statutes and apply nationwide. However, many states have enacted additional provisions. An example of this is California’s Unruh Civil Rights Act which was intended to offer protection to other groups experiencing discrimination during the 1960s, including hippies and gays and lesbians. Since its enactment California courts have interpreted the Unruh Civil Rights Act liberally meaning making it illegal to refuse to serve people of certain professions, such as police officers, or those who hold certain political beliefs, such as Republicans.

Of course, California is not the rest of America, and the courts have not viewed all cases involving group identity the same. In lawsuits where business owners have demonstrated that they refused to served group members because they refused to comply with restrictions designed to maintain general safety – such as removing gang colors or other identification before entering – business owners have often won.

It’s also worth noting that while businesses do not have the right to deny service to protected groups or populations, they do have the right to give business discounts to customers based on age (retirees) or group affiliation (veterans). Recently, however, activist groups like the Freedom From Religion Foundation have attempted to deny the rights of business owners to offer discounts based on religious affiliation or participation, citing discrimination against the non-religious. Since these challenges are relatively new to the private sector, it remains to be seen how the courts will view these kinds of cases.

Currently, from a legal perspective, things are in a state of flux, although there seems to be a trend towards extending and protecting equal access to service to all groups of people, placing this civic goal over the right of free association for business owners. For entrepreneurs who do not wish to come into the crosshairs of a lawyer or activist group, consulting with an experienced law firm about what exactly state and federal laws require of businesses that operate within their jurisdiction must abide by when it comes to serving the public would be a wise step.

However, it must be said, that even if deny service to certain customers is legal in certain areas of the country, practicing this right is a potential PR disaster and/or an expensive legal fight that most small businesses cannot afford to take on.  So choose your battles very wisely or not at all.