Discrimination laws and shops/restaurants

I don’t have any specific examples to hand, but I believe “whites-only” restaurants were a source of flashpoints during the 1960s civil rights movement. (Actually, I do recall an example - the restaurant owner and politician (?) who died recently – his name escapes me for the moment – who closed his diner rather than being forced to admit blacks.)

Anyway, I was wondering how this tallies with the right of shopkeepers and restaurateurs to reserve the right of admission to their premises. Presumably, if you own an establishment, you can decide who comes in and who doesn’t, and so can exclude anyone you don’t like the look of. In the same way, it has been repeatedly pointed out on these boards that shopkeepers are free to refuse any means of payment for no particular reason.

So how does the law prevent discrimination on racial grounds in these cases? Does it not conflict with the rights of the establishment’s owner to decide whom he lets onto the premises?

I think that it’s like the Supreme Court affirmative action vote in June … a sign that says “no hippes or Hindus” is not permitted because it is a steadfast rule that discriminates, well, “equally” which is not the same as kicking out a loiterer who is just hanging out reading the magazines for six hours at a stretch.

You’re thinking of Lester Maddox, r_k.

Lester Maddox, thanks. So say you didn’t put a sign up saying “no blacks”, but you still barred black people from entering without giving a reason - would you be commiting an offence?

(NB I’m only asking cos I’m curious how the law works. I’m not a racist plotting to open a restaurant :slight_smile: )

Here’s my WAG: Certain groups of people are protected, such that it is illegal to discriminate against them. All other groups of people are not protected, so that it is not illegal to discriminate against them.

Therefore, I can refuse service to right-handed people, for example, because they are not a protected group, and I could even put up a sign to that effect. But any race will be a protected group, and I’d better not put up such signs.

I can also refuse service to anyone for no particular reason. But if someone carefully watches who I serve and who I refuse, and can demonstrate that the people I refused coincidentally happen to be in a protected group, I’ll be in big trouble.

Most jurisdictions have laws that prohibit discrimination in “places of public accomodation,” which includes hotels, bus stations, and restaurants.

There are still battles fought over the line between public accomodations and private. For example the recent lawsuits over homosexuals and the Boy Scouts.

I don’t know of any cases where a property owner has challenged such a statute on the grounds that it interferes with his or her constitutional property rights, but I have little doubt that such a challenge would fail.

And homosexuals aren’t a protected group, am I right? Does that mean I can open a coffeeshop with a sign on the door that says ‘No gays’ without breaking the law? Would someone sue me? Would they win?

(Not, I want to emphasize, that I would like to do such a thing. I wouldn’t.)

Anti-discrimination laws protect everyone based on categories. Federal law makes it illegal to discriminate, for example, on the basis of “race.” So people of any race are protected, not just members of particular races.

Sexual orientation is not a protected category on the federal level. Fourteen states and many counties and municipalities offer such protection. A “no gays” policy might or might not be legal depending on jurisdiction, but the PR shitstorm such a policy would kick off would probably not make it worth it. Besides, how would you tell?

If you refused service to all black people (or all white people for that matter) then you are breaking the law. Here’s some information on a relatively recent lawsuit against Denny’s for allegedly refusing service to minorities.

A “No Gays” sign in a coffeeshop? Doesn’t matter if anyone sue you, you’ll go bankrupt in a few months!

Just too many customers would be offended:

  • those that are gay/lesbian.
  • those that have relatives who are g/l.
  • those that have friends/co-workers who are g/l.
    Enough of them would stay away to put you under pretty quickly, given the competitivness of the coffee shop market. And don’t count on extra patronage from the anti-gay crowd – they aren’t generally known as a big coffeeshop crowd. (A straights-only bar might make it, maybe.)

This ties in with a question I’ve had for a while. In recent years several women-only gyms have opened up, presumably to foster a more pleasant environment for women, free from the sweaty stares of over-muscled cavemen. Do they really have the legal right to prevent me from joining on the basis of my gender?

I hear **Ollie’s Barbeque **still makes a nice brisket.

When I lived in the Southern culture-oriented west suburbs of Orlando, some mom-and-pop restaurants in the area displayed Confederate sign flag stickers on the doors. I asked a few locals about this, and they said it was a way of implying “no blacks allowed” without actually saying “no blacks allowed.” African Americans apparently understood the meaning of the display.

Oh … and before I forget, what about trendy clubs and bars in New York and Los Angeles, that have bouncers at the door who reject admission to those who aren’t hip and/or fit?


So how does the law prevent discrimination on racial grounds in these cases?


Most jurisdiction have declared it illegal.

Yes. But violating property rights does not seem to be something with which the government has a problem.

The Supreme Court decision is a completely separate issue. In that suit, the assertion was that the discrimination violated the Constitution. A private individual discriminating against blacks would not be violating the Constitution, and I would be absolutely shocked if the Supreme Court were to declare otherwise. The issue in private discrimination is whether it violates a law. Whether blacks or gays or whatever is a protected group is irrelevant; if the law says that you can’t discriminate against them, then discriminating against them is illegal.


A nitpick: race is a set of categories, or class. There’s a disctinction between protecting a category (“No one may discriminate against blacks”) and protecting a class (“No one may discriminate on the basis of race”). One of the reasons why the Supreme Court found Colorado’s Amendent Two unconstitutional
was that it prohibited protection for a category rather than a class.


They have the moral right, but depending on the jurisdiction, they may not have the legal right (although I would expect any anti-sex discriination law to be worded to allow this).

So if I had a sign up in my restaurant (not that I own one) that said, “No [insert protected group members] allowed,” would I get in trouble. Not for enforcing the rule–just for having the sign.

The Ryan

Leaving aside the politics of this statement, what courts do when rights conflict is balance the ights of each party. Courts have consistently found that the state’s interest in eliminating discrimination outweighs the right of discriminators to discriminate.

A nitpick: race is a set of categories, or class. There’s a disctinction between protecting a category (“No one may discriminate against blacks”) and protecting a class (“No one may discriminate on the basis of race”). One of the reasons why the Supreme Court found Colorado’s Amendent Two unconstitutional
was that it prohibited protection for a category rather than a class.

You’re making a distinction that really makes no difference. True, the legal term is “class” but for purposes of this dscussion I think it was understood what I meant by “category.” And Amendment 2 was held unconstitutional on Equal Protection grounds because it discriminated against a “class.”

Curves gym was recently sued in Wisconsin because it refused to admit males. The Wisconsin legislature passed a law exempting helath clubs from sex discrimination laws. Whether the gym policy would pass muster under federal law is an open question.

You could have the sign if you wanted it, but if you ever refused service to someone of a class listed on the sign–whether it was because of their membership in that class or not–the sign would be taken as pretty strong evidence that you intended to discriminate and, were you sued, would probably lose the case for you.

Neither hipness not fitness are protected classes under any civil rights law I know of. Now, if “fit” were defined somehow as “able-bodied” and the club refused to admit any disabled people the club would run afoul of the Americans with Disabilities Act.

It seems like most of the controversy stems from the different definitions of public and a private businesses.

On a related note, now that NYC has banned smoking in public places have private smoking clubs started up? I assume these might look just like a bar on the inside but would require a monthly or yearly membership fee. In this case, could the owner of the club discriminate since it’s a private establishment?

It’s not an open quetsion as far as I can tell. The public accommodations provisions of the federal Civil Rights Act only prohibits discrimination “on the ground of race, color, religion, or national origin.” Cite. Gender discrimination is simply not covered. Nor does the Constitution have anything to say on the issue of discrimination by private business owners, since such concepts as Equal Protection and Due Process apply only against government entities. State laws, of course, may vary.

The leading cases on the power of Congress to prohibit discrimination in places of public accommodatio are: Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964).

As for those people who have brought up the issue of property rights, such “rights” are basically only such as are recognized by the law of your state. If New York wants to prohibit all indoor smoking, even in a citizens private residence, there is nothing to prevent it from doing so. Heck, if the state wants to prihibit smoking entirely, and criminalize possession of tobacco, you don’t out of jail just because you were on your property when you lit up that illicit cigar. Same thing with racial discrimination.

Minty Green:

If the racial discrimination took place in a private home (rather than a private business), I don’t see how the government could use the commerce clause to justify an anti-discrimination law. For example, if I don’t want to let any black people come to my halloween party, I most certainly don’t have to. There’s that whole “expressive association” thing that, after the Dale case, lets the Boy Scouts keep gays out (and the BSA is more of a business than my party). So I would say no, there is something that prevents the gov’t from prohibiting racial discrimination on my private, noncommercial property. The First Amendment right of expressive association.

Also, smoking involves the use of a drug, nicotine. Racial discrimination doesn’t. As we all know, neither the Constitution nor the Bill of Rights apply to laws concerning drug use (it’s in a footnote at the bottom). So comparing a law banning smoking to a law banning discrimination is disingenuous. Apples and oranges.

State government could, which was the point I was trying to make.

“Disingenuous”? Did this get moved to the Pit and I didn’t notice? You are certainly welcome to distinguish smoking and racial discrimination. Fact is, I never equivocated the two. I simply responded to robo’s use of the smoking example in his discussion of property rights.