The Right to Refuse Service: Can a Business Refuse Service to Someone Because of Appearance, Odor or Attitude?

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Is it a violation of your civil rights for a business to refuse to serve you because of the way you look, the way you smell, or the way you act? The answer is...it depends.

The Federal Civil Rights Act guarantees all people 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 ground of race, color, religion, or national origin."

The right of public accommodation is also guaranteed to disabled citizens under the Americans with Disabilities Act, which precludes discrimination by businesses on the basis of disability.

In addition to the protections against discrimination provided under federal law, many states have passed their own Civil Rights Acts that provide broader protections than the Federal Civil Rights Act. For example, California's Unruh Civil Rights Act makes it illegal to discriminate against individuals based on unconventional dress or sexual preference.

In the 1960s, the Unruh Civil Rights Act was interpreted to provide broad protection from arbitrary discrimination by business owners. Cases decided during that era held that business owners could not discriminate, for example, against hippies, police officers, homosexuals, or Republicans, solely because of who they were.

In cases in which the patron is not a member of a federally protected class, the question generally turns on whether the business's refusal of service was arbitrary, or whether the business had a specific interest in refusing service. For example, in a recent case, a California court decided that a motorcycle club had no discrimination claim against a sports bar that had denied members admission to the bar because they refused to remove their "colors," or patches, which signified club membership. The court held that the refusal of service was not based on the club members' unconventional dress, but was to protect a legitimate business interest in preventing fights between rival club members.

On the other hand, a California court decided that a restaurant owner could not refuse to seat a gay couple in a semi-private booth where the restaurant policy was to only seat two people of opposite sexes in such booths. There was no legitimate business reason for the refusal of service, and so the discrimination was arbitrary and unlawful.

In one more complicated case, a court held that a cemetery could exclude "punk rockers" from a private funeral service. A mother requested that the funeral service for her 17-year-old daughter be private and that admission to the service be limited to family and invited guests only. The cemetery failed to exclude punk rockers from the service. The punk rockers arrived in unconventional dress, wearing makeup and sporting various hair colors. One was wearing a dress decorated with live rats. Others wore leather and chains, some were twirling baton-like weapons, drinking, and using cocaine. The punk rockers made rude comments to family members and were generally disruptive of the service.

Ironically, the funeral business had attempted to rely on the Unruh Civil Rights Act, claiming that if they had denied access to the punk rockers, they would have been in violation of the Act. But the court held that the punk rockers' presence had deprived the deceased person's family of the services of the business establishment, which were meant to provide comfort to grieving family members. On that basis, the court stated that the funeral business could have legitimately denied access to the punk rockers.

It's interesting to note that while it is unlawful to refuse service to certain classes of people, it is not unlawful to provide discounts on the basis of characteristics such as age. Business establishments can lawfully provide discounts to groups such as senior citizens, children, local residents, or members of the clergy in order to attract their business.

Like many issues involving constitutional law, the law against discrimination in public accommodations is in a constant state of change. Some argue that anti-discrimination laws in matters of public accommodations create a conflict between the ideal of equality and individual rights. Does the guaranteed right to public access mean the business owner's private right to exclude is violated? For the most part, courts have decided that the constitutional interest in providing equal access to public accommodations outweighs the individual liberties involved.