The right to service

How the right to refuse service can impact your business

In June 2018, the U.S. Supreme Court ruled in favor of a Colorado baker who asserted his right to refuse service to create a same-sex couple’s wedding cake. The court’s decision has raised confusion as to whether business owners can now legally cite their religious beliefs as grounds for refusing to serve people based on their sexuality.

Does a business legally have the right to refuse service?

It’s common to see signs in restaurants and stores stating, “No shirt, no shoes, no service” or “We reserve the right to refuse service to anyone.” While the sentiments aren’t exactly friendly, as long as they aren’t violating someone’s rights, businesses do have the right to refuse service.

However, the Supreme Court’s ruling in favor of the Colorado baker does not confirm the right to refuse service based on sexuality.

The 7-2 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission states the deciding factor was a remark made by a member of the commission during a previous ruling that demonstrated bias against the baker’s religious beliefs, which are protected under the First Amendment. The court did not uphold the baker’s right to refuse service to the gay couple on the basis of those religious beliefs.

Justice Anthony Kennedy’s majority opinion states, “these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

Title II of the Civil Rights Act of 1964 (a federal law) makes it illegal to discriminate at places of public accommodation (restaurants, stores, hotels, etc.) based on someone’s race, color, religion, or national origin. It doesn’t include protection for sexual orientation. However, many states, including Colorado, have public accommodations laws that also prohibit discrimination based on sexual orientation. That means if the same Colorado baker refuses service to any gay customer based on his religious beliefs, he could still potentially be sued in state court.

Why refusing service may not be a good idea

Even if a business owner has the legal right to refuse service outside of race, religion, and sexuality, there might still be repercussions.

In June 2018 Sarah Huckabee Sanders was asked to leave the Red Hen, a Virginia restaurant, because of her work in the Trump administration. In this case, Sanders’s rights were not violated because she was not refused service because of her race or religion, but rather her political affiliation. Since there is no federal or Virginia state law prohibiting discrimination based on political beliefs, the owner was within her legal rights to ask Sanders to leave.

After Sanders was asked to leave the restaurant, she wrote about the incident on social media and it became a widespread news story. This led to the Red Hen enduring an onslaught of negative reviews and comments from Sanders supporters, forcing it to temporarily close.

Refusing service for any reason can result in a backlash, especially in the social media era where a customer’s negative post about a business can go viral in a matter of hours, if not minutes. Business owners should consider the potential impact on their business before telling any customers they aren’t welcome.

Insurance can protect business owners against refusal of service claims

Another potential issue is the possibility of a lawsuit. Even though Sanders’s rights weren’t violated, she could choose to sue the Red Hen. If she decided to file a lawsuit, the cost to defend against it could potentially bankrupt the restaurant, even if Sanders didn’t win. That is, unless the Red Hen has employment practices liability insurance (EPLI).

This type of insurance was initially created to protect business owners from employment-related lawsuits such as sexual harassment, discrimination based on age, gender, religion, race, or other protected classes, wrongful termination, and breach of an employment contract.

In addition to covering employee lawsuits, some insurance carriers also offer an endorsement that covers claims from third parties, such as customers. So if Sanders did sue the Red Hen, an EPLI policy would be able to pay for legal expenses – provided it had the endorsement.

While the protection EPLI provides can help a business survive a discrimination lawsuit, the potential negative publicity can make the price of refusing service higher than most business owners can bear. Unless a customer poses a legitimate threat, it makes better business sense to offer service to everyone rather than risk a potentially costly trial, be it before a judge or simply in the court of public opinion.

Compare quotes from trusted carriers with Insureon

Complete Insureon’s easy online application today to compare insurance quotes from top-rated U.S. carriers. Once you find the right policy for your small business, you can begin coverage in less than 24 hours.

“We Reserve The Right To Refuse Service To Anyone”, But What Would Blackstone Do?

January 31, 2020

  • New U.S. Travel Bans Announced on Friday, January 31, 2020 by: Susan J. Cohen
  • Coronavirus-Related Travel Alert Likely to Cause U.S. Visa… by: Tejas Shah and M. Mercedes Badia-Tavas
  • China Patent Office to Cease Issuing Paper Patent Certificates by: Aaron Wininger
  • U.S. Fish and Wildlife Service Proposes to Codify Exemption of… by: Tyson C. Kade and Melinda M. Meade Meyers
  • Federal Reserve Adopts Revamped Standards for Determinations of Bank… by: Guy C. Dempsey, Jr.
  • Court Grants Preliminary Injunction Against Enforcement of California… by: Scott P. Jang
  • The Duty to Cooperate Is Not a Duty to Conform by: John P. Fischer
  • Hydro Newsletter – Volume 7, Issue 2 by: Sharon White and Rachael L. Lipinski
  • Happy BREXIT Day! What Happens to your EU and UK Intellectual… by: Bud Ehrlich
  • NFA’s Swaps Proficiency Requirements Effective and Available Online by: Kevin M. Foley and Timothy D. Kertland
  • WV Legislative Brief – 2020 – 1/31 by: L. Gil White
  • Patent Trial and Appeal Board Provides Guidance on Timing of Requests… by: Brad Lane and Andrea L. Shoffstall
  • UK Introduces Bereavement Leave Entitlement for Loss of Child or… by: Rebecca Emery
  • CFTC Adopts NIST Framework for Data Privacy Protection by: Kevin M. Foley and Timothy D. Kertland
  • SEC Proposes Expanding Access to Private Funds by: John S. Marten and Nathaniel Segal
  • Food Contact Materials: What Are Your Legal Responsibilities? by: Hazel O’Keeffe
  • Federal Court Blocks “Request Arbitration, Go to Jail” Law in… by: Anthony J Oncidi
  • Coronavirus and the Occupational Safety and Health Act: What… by: Michael T. Taylor and Genus Heidary
  • Judge Grants Preliminary Injunction Prohibiting Enforcement of… by: Paul M. Huston
  • SEC Designates Decision Deadline for Proposed Off-Floor Position… by: Michael T. Foley and Stanley V. Polit
  • Beltway Buzz, January 31, 2020 by: James J. Plunkett
  • Court Holds That A Defendant Cannot File A No-Evidence Summary… by: David Fowler Johnson
  • Housing in California in 2020: A Look Ahead and a Lesson in Try, Try… by: Jennifer E. Renk and Daniel S. Maroon
  • HazCom/GHS – Labelling – Multi-Jurisdictional Labels – Different… by: Packaging Law at Keller and Heckman
  • CFTC Proposes Revised Rules Establishing Position Limits on… by: Kevin M. Foley and Timothy D. Kertland
  • New Public Charge Rule Effective February 24, USCIS Announces by: Amy L. Peck
  • Alert – U.S. Embassy and Consulates in China Cancel Immigrant and… by: Jia Zhao
  • D.C. Circuit Vacates NLRB Decision, Reinforcing Board’s Limited… by: Mark Theodore and Joshua S. Fox
  • OCIE Provides Observations on Cybersecurity and Operational… by: David Y. Dickstein and Elise W. Michael
  • National Monuments, by Land and by Sea by: RichardD. Bertram and Stanley A. Millan
  • New Jersey’s Plant Closing Law Significantly Expanded and Now… by: Patrick T. Collins
  • No Relief in Sight for NJ Employers: Six Newly-Enacted State… by: Grace A. Byrd and Clifford D. Dawkins, Jr.
  • SEC Division of Corporation Finance Issues C&DIs on Omission of… by: Mark D. Wood and Mark J. Reyes
  • Enforceability of “No Contest” Clauses in Connecticut Wills and Trusts by: Matthew E. Smith and Kaitlyn A. Pacelli
  • Union Membership Rates Continue to Decline by: Thomas P. McDonough and Howard M. Bloom
  • Let the Seller Beware – NASA’s Proposed Rule Seeks to Limit the… by: Ariel Debin and David S. Gallacher
  • Federal Judge Grants Preliminary Injunction to Prevent Enforcement of… by: Michael S. Kun
  • USCIS Releases New Form I-9, Effective Today by: Benjamin Lau and Frida P. Glucoft
  • USCIS Releases a New Form I-9 by: Dillon R. Colucci
  • Motion to Dismiss Denied: ATDS Allegations About Impersonal Text… by: Jason M. Ingber
  • Update on Coronavirus, Impact on Consular Services by: Forrest G. Read IV
  • Top Five Reasons Why Not Filing an Income Tax Return is a Bad Idea by: Angelique M. Neal
  • NC Business Court Clarifies Exception to Rule that LLC Members Do NOT… by: Luke C. Tompkins
  • The Final “WOTUS” Rule — a Twist or a Tweak? by: Stanley A. Millan and Elise M. Henry
  • BRAG Biobased Products Blog: January 31, 2020 by: Lynn L. Bergeson
  • McDermottPlus Check-Up: January 31, 2020 by: Mara McDermott and Rachel Stauffer
  • Federal Court Strikes Down HIPAA Fee Limitations for Third-Party… by: Jennifer Orr Mitchell and Jared M. Bruce
  • Critical Infrastructure: 3rd Annual Cybersecurity Year in Review/Look… by: James P. Bayot and Ani M. Esenyan
  • Eight Steps to Protect Your Clients and Competitive Intelligence… by: Erin (Maggie) M. Cook and Jennifer L. Gregor
  • 1933 Filings in State Court: Excerpt from Securities Class Action… by: Alexander “Sasha” Aganin
  • SEC Proposes New Rule Governing Funds’ Use of Derivatives by: John S. Marten and Nathaniel Segal
  • SEC Investigating Cyberattacks Used to Find Secret Company Mergers by: Matthew Stock and Jason Zuckerman
  • Extrinsic Evidence Leads to Summary Judgment on Aggregate Corridor… by: Larry P. Schiffer
  • Comments on Chapter 14: Recall Plan of FDA’s Draft Guidance on Human… by: Food and Drug Law at Keller and Heckman
  • California Law Creates New Risk Factor by: Keith Paul Bishop
  • Why the Health Care Industry Should Be Concerned About Section 889 of… by: Jonathan S. Aronie and Michael W. Paddock
  • Commentary on the Final Opportunity Zone Regulations by: Korb Maxwell and Jeffrey A. Goldman
  • Glasser Limited?: First District Court Ruling to Apply Glasser Finds… by: Eric J. Troutman
  • Diving into OFCCP’s Construction Contractor Technical Assistance Guide by: Laura A. Mitchell and F. Christopher Chrisbens
  • Does Defendant’s “Learned Profession” Preclude A Chapter 75 Claim?… by: Philip J. Mohr
  • United States v. Blaszczak: Second Circuit Ruling Creates Opening for… by: Sarah E. Aberg and Bochan Kim
  • Are Your Mortgage Loan Officers Properly Compensated Under The… by: Kary Bryant Wolfe
  • IR35 Reforms – A Taxing Time for Pension Trustees and Corporate… by: Wendy Hunter and Mark Simpson
  • The SEC’s 2020 Examination Priorities by: Sarah E. Aberg and Kate Ross
  • Newly Amended China Patent Examination Guidelines Effective February… by: Jun Wei
  • Can You Subpoena The President? If It’s Anyone Other Than “The Donald… by: Philip J. Mohr
  • Verifying CCPA Requests to Know and Requests to Delete by: Jerel Pacis Agatep and Joseph J. Lazzarotti
  • REAL ID and Enhanced Driver Licenses: Are TSA Agents As Confused As… by: David Grunblatt
  • DoD’s Squeeze of Chinese Telecom Equipment Continues by: Jonathan S. Aronie and Jonathan E. Meyer

The Right to Refuse Service: Can a Business Refuse Service to Someone?

Updated April 6, 2015

You’ve probably seen these signs at restaurants: “We reserve the right to refuse service to anyone.” Or, “No shirt, no shoes, no service.”

But what do these signs really mean? Can a business just refuse service to someone? Can they throw you out if you forgot your flip-flops on the beach? When is a refusal to serve someone justified and when is it discrimination that could lead to a lawsuit?

The issue made big headlines recently, when the state of Indiana passed its Religious Freedom Restoration Act. Gay rights activists immediately protested that the law was just a way to legalize discrimination against gays: any business owner could now refuse to serve them simply by citing a religious objection.

The law caused such a firestorm that the legislature hastily enacted an amendment clarifying that the law could not be used to discriminate on the basis of sexual preference. But with other states also considering religious freedom laws, the issue isn’t likely to go away anytime soon.

What Do the Anti-Discrimination Laws Say?

At the heart of the debate is a system of anti-discrimination laws enacted by federal, state and local governments. The entire United States is covered by the Federal Civil Rights Act of 1964, which prohibits discrimination by privately owned places of public accommodation on the basis of race, color, religion or national origin. Places of “public accommodation” include hotels, restaurants, theaters, banks, health clubs and stores. Nonprofit organizations such as churches are generally exempt from the law.

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

The federal law does not prohibit discrimination based on sexual orientation, so gays are not a protected group under the federal law. However, about 20 states, including New York and California, have enacted laws that prohibit discrimination in public accommodations based on sexual orientation. In California, you also can’t discriminate based on someone’s unconventional dress. In some states, like Arizona, there’s no state law banning discrimination against gays, but there are local laws in some cities that prohibit sexual orientation discrimination.

So, no matter where you live, you cannot deny service to someone because of his or her race, color, religion, national origin or disability. In some states and cities, you also cannot discriminate against people because of their sexual orientation. If there is no state, federal or local law prohibiting discrimination in public accommodations against a particular group of people, then you can legally refuse to serve that group of people.

What Does It Mean to Discriminate Against Someone?

If there’s an anti-discrimination law, does that mean that a business can never refuse service to a member of a group that is protected from discrimination?

The answer is that you can refuse to serve someone even if they’re in a protected group, but the refusal can’t be arbitrary and you can’t apply it to just one group of people.

To avoid being arbitrary, there must be a reason for refusing service and you must be consistent. There could be a dress code to maintain a sense of decorum, or fire code restrictions on how many people can be in your place of business at one time, or a policy related to the health and safety of your customers and employees. But you can’t just randomly refuse service to someone because you don’t like the way they look or dress.

Second, you must apply your policy to everyone. For example, you can’t turn away a black person who’s not wearing a tie and then let in a tieless white man. You also can’t have a policy that sounds like it applies to everyone but really just excludes one particular group of people. So, for example, a policy against wearing headscarves in a restaurant would probably be discriminatory against Muslims.

A couple of recent court cases illustrate the fine line between discrimination and a justifiable refusal of service. In each case, a Colorado baker was sued for violating discrimination laws.

In the first case, the baker refused service to a customer who wanted her to bake a cake with anti-gay Bible verses on it. The customer argued that he was discriminated against because of his religious beliefs. But the court ruled that this was not discrimination because the baker had a consistent policy of refusing to create cakes that used derogatory language or imagery.

In the second case, a baker refused to create a wedding cake for a same-sex couple, saying that it violated his religious beliefs. The court held the baker liable, saying that his reason was just a pretext for discriminating against gays.

Which brings us back to the original restaurant signs. “We reserve the right to refuse service to anyone” sounds vague and arbitrary. As we’ve seen, a business can’t just randomly refuse to serve someone.

“No shirt, no shoes, no service” on the other hand, is a clear dress code that could also relate to health and safety issues. You usually see the sign in beach towns where tourists of all kinds are apt to be walking around shirtless or shoeless. As long as the policy is applied to everyone equally, it’s not likely to violate any discrimination laws.

If you feel you have been discriminated against, a LegalZoom legal plan attorney might be able to help. When you sign up for a legal plan, you will have access to personalized legal advice on an unlimited number of new legal matters for a low monthly fee. Learn more about the many benefits of the LegalZoom personal legal plan.

Is There A Constitutional Right to Refuse Service to Rude Customers?

Working directly with clients is a challenge, but with some basic knowledge about your rights and theirs, it can also be satisfying and profitable.

There have been some recent news stories about customers who were denied service at a business in the United States. These situations may leave business owners confused about when and under what circumstances they can legally refuse to serve a customer.

While you have the right to refuse service to anyone, that right may be limited under local, state, and federal laws…

What is the Constitutional Right to Refuse Service?

According to the Federal Civil Rights Act of 1964, no business serving the public, even if it’s privately owned, can discriminate because of a customer’s national origin, religion, color, or race.

The Americans with Disabilities Act prevents a business’s right to refuse service based on a customer’s disability.

Under federal law, you have a constitutional right to refuse service based on sexual orientation, but many communities have statutes that specifically prohibit businesses from refusing service to customers based on their gender identity or sexual preference.

Before you use your right to refuse service to a rude customer, ask yourself if your actions could be misconstrued as a breach of these laws.

Here are the current laws according to state regarding discrimination based on gender identity and expression:

Every person in these states is protected from discrimination:

  • Washington
  • Oregon
  • California
  • Nevada
  • Utah
  • Colorado
  • New Mexico
  • Minnesota
  • Iowa
  • Illinois
  • New York
  • Vermont
  • New Hampshire
  • Main
  • Massachusetts
  • Rhode Island
  • Connecticut
  • New Jersey
  • Maryland
  • Delaware
  • Washington DC

Local ordinances protect 50-99% of these states

  • Montana
  • Wyoming
  • Nebraska
  • Kansas
  • Oklahoma
  • Texas
  • Louisiana
  • Mississippi
  • Alabama
  • Georgia
  • South Carolina
  • Virginia
  • West Virginia
  • Ohio
  • Michigan
  • Wisconsin

Three states ban cities and counties from passing nondiscrimination provisions

  • Arkansas
  • Tennessee
  • North Carolina

Knowing the federal laws is an important part of making decisions about whether your business has the right to refuse service to rude customers or for any other reason that seems justified at the moment. It’s just as important to understand your state and local rules about discrimination, though.

Your Right to Refuse Service to Rude Customers

You may have a sign posted in your place of business that says, “We Reserve the Right to Refuse Service to Anyone” or “No Shirt, No Shoes, No Service”. While both of those signs are legal, your reasons for asking a customer to leave your business or telling them you won’t accept them as a customer must be within the laws as they apply to your business.

In general, if a customer is causing a scene or making it impossible for your other customers to enjoy their experience at your place of business, you can legally ask them to leave.

As the business owner, your goal should always be to deescalate the situation. Keep these quick tips in mind:

  • Don’t take it personally, even if a rude customer gets personal
  • Never mistake an unhappy customer for a rude customer
  • Remember that people say things online that they would never say in person
  • Practice empathizing statements like, “I understand your disappointment” and “I see why that’s inconvenient for you”
  • Maintain eye contact and keep your body language open
  • If your customer has a legitimate gripe, offer a sincere apology
  • Don’t be afraid to ask the customer how they would like you to resolve their problem

Talk with your employees and co-owners about specific customer behaviors that will not be tolerated before you have to deal with an angry customer.

Lawful Discrimination vs Unlawful Discrimination

If you run a black-tie restaurant and a party shows up in flip-flops and cargo shorts, you can refuse to serve them based on your dress code. This is an example of lawful discrimination.

How you handle a situation like this is important.

Be discreet. You don’t want to embarrass the customer or those near the person who violated your dress code. Speak quietly and smile, so it won’t be obvious from across the room that there’s a problem.

Here are 5 other examples of lawful discrimination:

  1. A customer brings their dog to your restaurant, which is a violation of local health ordinances. Unless it’s a service dog, which is protected under the Americans with Disabilities Act, you can refuse service legally.
  2. A customer threatens or verbally abuses you, your employee, or other customers. You can ask them to leave. If they refuse and you feel as if your physical safety is being threatened, it may be wise to call for police backup.
  3. Your business is closed and a customer wants service.
  4. A customer is causing a scene by yelling, swearing, or making a mess, or they are clearly intoxicated.
  5. A customer breaks the rules of your establishment, which are within local, state, and federal statutes.

As a business owner, you do not have the legal right to refuse service based on religion, skin color, sex, physical conditions not within the customer’s control, or nationality. If you do so, you are guilty of unlawful discrimination.

This behavior could make you and your business vulnerable to a lawsuit. As mentioned previously, before you refuse service to a rude customer, make sure your reasons are clear and can’t be misunderstood.

Does My Business Have the Right to Refuse Service?

Understanding how to run a successful small business is a learning process.

As you seek to understand local, state, and federal laws about how and when to refuse service, remember that your goal as a businessperson is to gain as many customers as possible. While you have the right to refuse service to rude customers, ask yourself if there’s a way to make that person a loyal customer instead of kicking them out. In some cases, you may not have a choice. However, building bridges by listening to their concerns and trying to understand why they are upset could help you create a lasting relationship.

Talk with a lawyer about how small business insurance can protect you, as well. The best way to handle a lawsuit is by preventing it, so consult knowledgeable and experienced advisors before you make important decisions about who you choose to serve as a business owner.

Experts at Next Insurance can help. If you have questions or need insights about what best practices to follow, contact them today for a free quote.

Restaurants: Right to Refuse Service

No. The Civil Rights Act of 1964 explicitly prohibits restaurants from refusing service to patrons on the basis of race, color, religion, or national origin. In addition, most courts don’t allow restaurants to refuse service to patrons based on extremely arbitrary conditions. For example, a person likely can’t be refused service due to having a lazy eye.

But Aren’t Restaurants Considered Private Property?

Yes, however, they are also considered places of public accommodation. In other words, the primary purpose of a restaurant is to sell food to the general public, which necessarily requires susceptibility to equal protection laws. Therefore, a restaurant’s existence as private property does not excuse an unjustified refusal of service. This can be contrasted to a nightclub, which usually caters itself to a specific group of clientele based on age and social status.

So Are “Right to Refuse Service to Anyone” Signs in Restaurants Legal?

Yes, however, they still do not give a restaurant the power to refuse service on the basis of race, color, religion, or national origin. These signs also do not preclude a court from finding other arbitrary refusals of service to be discriminatory. Simply put, restaurants that carry a “Right to Refuse Service” sign are subject to the same laws as restaurants without one.

What Conditions Allow a Restaurant to Refuse Service?

There a number of legitimate reasons for a restaurant to refuse service, some of which include:

  • Patrons who are unreasonably rowdy or causing trouble
  • Patrons that may overfill capacity if let in
  • Patrons who come in just before closing time or when the kitchen is closed
  • Patrons accompanied by large groups of non-customers looking to sit in
  • Patrons lacking adequate hygiene (e.g. excess dirt, extreme body odor, etc.)

In most cases, refusal of service is warranted where a customer’s presence in the restaurant detracts from the safety, welfare, and well-being of other patrons and the restaurant itself.

How Can a Lawyer Help Me?

If you were unjustly refused service at a restaurant, you should contact a personal injury attorney specializing in premises liability immediately. A lawyer can help determine the existence of any unlawful discrimination, as well as the overall strength of your individual case.

If you are a restaurant owner, a business attorney can provide more details on your right to refuse service, including guidance on placing limited restrictions on who gets served at your restaurant.

About the author

Leave a Reply

Your email address will not be published. Required fields are marked *