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?

What about refusing to serve someone based on ideology?

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

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?

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?

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 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?

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?

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

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 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?

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?

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?

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.

Professor of Leadership. Extraordinary Lives Project. Author “Be Somebody” (2021); 2019 Telly Award IconicVoices.tv; ex-publisher Forbes

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