The Corner of Politics and Main
By: Jeff Cunningham
Tags: Politics, Marketing, Social Media, Law, Trump

The Corner of Politics and Main

Can a business refuse to serve a customer based on politics? Two eminent attorneys debate the pros and cons.

In small towns across America, people enjoying a quiet meal or drink at the end of the day are finding themselves tossed into the street. You may be surprised to learn this isn’t happening in biker bars or after-hours clubs, but at quaint village restaurants like the Red Hen in Lexington, Virginia, or hipster hangouts like the Griffin in Atwater, California.

The message to the patron is that if your political views are not welcome in our community, your money isn’t either.

The bookstore can turn into a partisan battleground, too. Black Swan Booksellers in Richmond, Virginia, was attacked online when the owner tried to stop a woman from assaulting a former presidential advisor.

The problem is that when it comes to dealing with customers divided along ideological lines, there aren’t any simple choices. A business as big as Walmart or as small as the corner grocery is equally vulnerable to boycotts or charges of discrimination, no matter what action it takes.

To get a better handle on how to deal with political polarity infecting the marketplace, I reached out to two eminent legal minds — one is an employment attorney in New York, the other is a constitutional law professor in California — for their take on this perplexing matter.

In fact, can a business refuse to serve a customer based on their political views?

I put the question to Lorie Almon, who specializes in employment issues for the law firm of Seyfarth Shaw LLP in New York CIty, and she said that on a federal level, any private business that serves the public has the right to refuse service for any reason . However, she adds, the refusal must not be based upon any federally protected classifications including race, sex/gender, age, religion, national origin, disability, genetic information, and veteran status.

What about refusing to serve someone based on ideology?

For this one, I turned to Eugene Volokh, who publishes a highly influential legal blog, is a constitutional law professor at UCLA School of Law, as well as an academic affiliate with Mayer Brown LLP. He told me that in most states there is no prohibition on ideological discrimination and a public accommodation business like a restaurant could say, “we don’t serve Republicans” or “we don’t serve communists.”

But can it also refuse to serve someone for wearing a MAGA hat?

Almon said that if a state law prohibits ideological discrimination, a political hat by itself may not be grounds for refusal of service. But if the hat is worn by a customer who is behaving in a manner that is frightening or disruptive, the restaurant absolutely has the right to ask them to leave.

Volokh adds that a business based in California should keep in mind there is a state statute banning public accommodation discrimination , which courts have interpreted as banning discrimination based on dress and on personal beliefs. It could be also interpreted as barring businesses from excluding customers because of ideological messages on their clothing.

Volokh also recalled a case going back at least 30 years involving a German restaurant that refused to serve a group wearing Nazi pins, and in this case, they were actual Nazis.

The ACLU sued on behalf of the Nazi pin wearers for impermissible discrimination based on ideology , in violation of the California statute. The court’s decision found that the German restaurant was prohibited from ejecting people based on their wearing such pins.

Not very gemütlich of the ACLU.

Does it help to post a dress code?

To Volokh, the law is “fairly clear” that with or without a sign, a business never has the right to refuse service to a customer based on grounds forbidden by state or federal law (such as race or religion), but the business may otherwise refuse service to anyone not conforming with either a dress code or behavior code.

But if you happen to have a business in one of those jurisdictions that ban discrimination based on dress or on politics, a restaurant saying, ‘No political pins,’ and especially ‘No political pins of this particular political persuasion,’ could be construed as discriminatory. So people’s clothing is afforded some degree of protection, just like their beliefs.

Are political beliefs subject to protection like religion?

As Tip O’Neill said, “all politics is local,” and it comes down to the State where you do business. According to Volokh, discrimination based on religion is generally forbidden, but based on political ideology, it has mostly been allowed, except in a few cities (such as Seattle and D.C.) and likely, in California.

Almon also observed that federal law mandates “reasonable accommodation” of religious beliefs, so that any ‘no hat’ policy would have to accommodate religious headgear such as a hijab or yarmulke.

When will we start seeing MAGA yarmulkes?

What if a customer is rude or gets argumentative?

Volokh says the restaurant owner has every right to say to the customer “look you can’t argue with strangers at the neighboring table and you can’t intrude into the dinner of the others by arguing with them.”

Volokh says the business may be confident that in this case, the restaurant would have every right to eject the person, and has that right without having to prove anything. One caveat, is if the jurisdiction bans political discrimination, they need to apply the rule uniformly.

For example, if a restaurant in Seattle ejects an anti-immigration customer for arguing with people at the table next to them, but allows environmentalist customers to do the same, that would be forbidden political discrimination.

Almon also reminds us that if the patron’s behavior rise to the level where it impacts the safety or enjoyment of other patrons or employees, the restaurant can absolutely refuse service as well.

But what if the customer you refuse decides to sue?

So I asked, does the establishment bear the burden of proving the customer was rude and aggressive? Volokh says the business doesn’t have to prove anything at the outset — but once the customer shows some evidence of possible forbidden discrimination (such as that the business ejected one customer for arguing but not another), then the business would be expected to provide a legally permissible reason for treating them differently. For example, that the ejected customer started the aggressive behavior, or was more aggressive than the others.

The critical thing is that in jurisdictions that ban political discrimination, they would have to apply the same standards at all times.

What if customers say things that are offensive to workplace policies?

Almon said that if a customer is broadcasting offensive remarks that contravene the business’ anti-harassment/EEO policies, based on race or national origin, or the like, that could certainly create an uncomfortable working environment for restaurant employees. At that point, the restaurant faces legal risk (and potential liability) by not acting to remove the offending patron.

Are political conversations in a restaurant covered by Freedom of Speech?

Almon confirms many people are confused about the First Amendment to the U.S. Constitution. The First Amendment only protects people from governmental action based on their politics . Private establishments generally do not have to concern themselves with their customer’s First Amendment rights.

Almon also asks business owners to consider that a number of states have much broader protections than those offered by federal law or the Constitution. She noted that under California law (and under New York law, for that matter), there are a great number of protected classes, including LGBT status and political affiliation.

So, a California business owner who refuses to serve someone based upon a political T-shirt or some overheard conversations may inadvertently face a civil rights lawsuit if that refusal can be tied to a protected class.

What if a bar or restaurant is asked to host a rally that customers see as racist?

Almon strongly recommends that the restaurant can (and should) have politically neutral rules allowing them to decline service to patrons who are being loud, threatening, disrespectful of servers, making comments to other patrons, or displaying images or engaging in conduct that violates anti-harassment policies.

Almon thinks this is relatively straightforward, provided the restaurant handles disruptive conduct in the same way regardless of the political affiliation of the offending patrons. The restaurant would have to be sure that it doesn’t treat frightening and disruptive people with more sympathetic political views in a different manner.

What can an owner do to protect the business?

If Almon were counseling the restaurant that ejected the offending patron, she would recommend they get signed, written statements from anyone who was present and overheard the situation. She would also have the restaurant managers promptly document why they took the steps that they did, e.g., because the patron was speaking loudly for others to hear, and made a racial remark that violated the company’s EEO policy, or alarmed other diners, e.g., by making drunken threats of violence.

Almon adds, of course, that a public drunken rant is nearly always captured on someone’s iPhone. All of this evidence should help the restaurant defend any claim by the patron, showing that the patron was tossed for reasons other than his political thinking. Conversely, if the patron wanted to sue, he would have to prove that it was his unpopular political beliefs and not bad conduct, that led to his ouster.

Is more staff training a good idea?

When I asked Volokh about the owner’s role in providing staff training, he confirmed that owners are responsible for what the employees do on the job because they are acting on behalf of the business. What this means, practically speaking, is that employees need to know how to comport themselves in these politically polarized times or if they don’t, the business could be subject to a lawsuit.

With some anti-discrimination laws, there is an obligation to train. Volokh doesn’t believe there is a formal training requirement under the few existing bans on political discrimination — but if an employee hasn’t been trained and therefore doesn’t know about the law and violates it, the restaurant may run the risk of being sued and losing.

On the flip side, can a business show preferential treatment to a specific ideology or group?

It might interest business owners to note, according to Volokh, that while discriminating against specific sets of people by refusing to serve them may be illegal, providing discounts for particular groups are okay, because many jurisdictions don’t ban preferences (I would call this a form of positive discrimination) based on age, occupation, or military service, in places of public accommodation.

Other forms of this kind of discrimination are specially allowed by statute (some states exempt discounts for the elderly from their anti-discrimination laws). But if the law bans political affiliation discrimination, then discounts for people who have a particular political affiliation are equally banned.