Many places of business post notices that say they have the right to refuse service to any individual. However, this right of refusal does not override federal anti-discrimination laws. While places of business can set guidelines regarding whom they will serve, they must apply these guidelines to everyone equally. Business practices must respect federal and state laws that forbid discrimination against members of certain protected classes.
The federal Civil Rights Act of 1964 bans discrimination of individuals based on race, color, national origin, sex and religion. While it does not explicitly refer to sexual orientation or gender identity, in June 2020 in the case of Bostock v. Clayton County, the U.S. Supreme Court ruled that the provisions of Title VII of the Civil Rights Act of 1964, which protect employees from sex discrimination, also extend to the protection of employees based on their gender identity and sexual orientation.
However, the ruling in Bostock v. Clayton County is limited in an important way; it only prohibits discrimination on the basis of sexual orientation and gender identity in employment. It does not extend the protection of Title VII to other areas of activity, such as housing or public accommodation.
Laws that prohibit discrimination in public accommodation may protect LGBTQ people from being refused service or discriminated against in public places on the basis of sexual orientation and gender identity. However, only 20 states, some localities and Washington, D.C. have passed laws that ban this type of discrimination. There are no laws that expressly prohibit this type of discrimination in 30 states and five U.S. territories. There is also no federal law that expressly prohibits this type of discrimination.
Phoenix, Arizona has a law prohibiting discrimination on the basis of sexual orientation. A city ordinance in Phoenix prohibits discrimination on the basis of sexual orientation in housing, employment and other public accommodations — just as the law does already for discrimination on the basis of race, sex, marital status, national origin and religion. The state of Arizona, however, has no legal protections for LGBTQ people.
Again, the situation is different with respect to discrimination in employment. Many states, such as Washington and California, have enacted laws that prohibit discrimination based on sexual orientation. In states that do not have these kinds of laws, some cities have adopted local ordinances that protect LGBTQ people from discrimination in employment.
Twenty-two states and two U.S. territories have adopted laws that prohibit workplace discrimination based on sexual orientation. All but one of these states also prohibit workplace discrimination on the basis of gender identity.
The following states and territories expressly forbid discrimination on the basis of sexual orientation and gender discrimination in employment:
- District of Columbia (D.C.);
- New Hampshire;
- New Jersey;
- New Mexico;
- New York;
- Puerto Rico;
- Rhode Island;
In other states, federal law would determine the issue.
Does the Law Protect LGBTQ People from Discrimination in Lending?
Only fourteen states have adopted laws protecting LGBTQ people from being denied credit and lending services on the basis of sexual orientation and gender identity. There are no such laws in 36 states, Washington, D.C. and any of the U.S territories.
Are There Laws that Protect LGBTQ People from Discrimination in Healthcare?
As of 2018, 37 states had not expressly prohibited discrimination in the provision of health insurance on the basis of sexual orientation and gender identity. The state of New Jersey prohibits this type of discrimination on the basis of gender identity only and not sexual orientation.
Only 19 states and D.C. prohibit the exclusion of medical services for transgender people in insurance plans. Twenty-two states have no policy on transgender health coverage, and 10 states expressly exclude protection for transgender people in health coverage.
As for federal law, certain provisions within the Affordable Care Act (ACA) attempted to address some of the issues experienced by LGBTQ people in healthcare in the following ways:
- Included more health coverage options, including Medicaid expansion;
- Required most health insurance plans to offer the same level of coverage for behavioral and mental health services as for medical and surgical services;
- Prohibited healthcare discrimination on the basis of “sex,” which includes gender identity.
However, as of 2017, the last provision, prohibiting healthcare discrimination on the basis of sex, defined to include gender identity, has been challenged in eight states in an apparent effort to eliminate this protection in the ACA.
State efforts to block the ACA’s prohibition of sex discrimination based on gender identity and the fact that discrimination on the basis of sex does not include sexual orientation, adds to confusion in this area. The right to fair and non-discriminatory treatment in healthcare for LGBTQ people is quite unclear. Again, unfortunately, the status of laws prohibiting discrimination in healthcare may depend on the law of the state or locality in which a person lives.
Can an LGBTQ Couple Sue a Business for Refusing Service?
Many lawsuits have been filed by LGBTQ couples who claim they were refused service by private businesses because of their sexual orientation. This issue surfaces most commonly in the wedding service industry as some business owners claim that selling wedding services to LGBTQ couples violates their right to religious expression.
Of course, the U.S. Supreme Court has ruled that same-sex marriage is a constitutionally protected right in the U.S.
In 2014, the Colorado Civil Rights Commission held that a baker had violated the state’s anti-discrimination law, which prohibits businesses from discriminations against LGBTQ people, when the baker refused to sell a custom-made wedding cake to a same-sex couple.
On appeal, a Colorado judge ruled that a baker’s refusal to make a wedding cake for an LGBTQ couple was illegal.
On appeal to the U.S. Supreme Court, in the case of Masterpiece Cakeshop, Ltd., et al. v. Colorado Civil Rights Commission, et al., that Court ruled in favor of the baker, noting that “religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” The Court viewed the situation as one in which the First Amendment to the U.S. Constitution protected the baker’s right to practice his religion by expressing his disagreement with same-sex marriage.
A U.S. District Court in Philadelphia ruled that state-approved, taxpayer-funded foster care placement services could not refuse to place children with same-sex couples because of religious objections to LGBTQ lifestyles. In the Philadelphia case, however, the court was applying a local anti-discrimination law. Perhaps because the placement service was taxpayer funded and not affiliated with a religious organization, it did not appeal to the U.S. Supreme Court.
As can be seen from the above discussion, federal law does not prohibit discrimination in public accommodations on the basis of gender identity or sexual orientation. So, again, the status of laws prohibiting discrimination may depend on the law of the state or locality in which a couple lives. The U.S. Supreme Court may not protect LGBTQ people from discrimination in public accommodation, if it is claimed to be an expression of a religious belief.
How Can a Business Defend Itself?
Again, as noted above, the Supreme Court decided in 2015 that marriage was a right for all individuals regardless of their sexual orientation. Nonetheless, it may well be completely defensible for a church to discriminate against LGBT individuals in hiring a pastor, for instance, and also for a florist or a bakery to refuse service to some customers based on sexual orientation or gender identity, if the refusal is based on a religious belief.
As noted above in the case of the Colorado baker, the U.S. Supreme Court allowed the baker to deny a wedding cake to a same-sex couple. The Court viewed his work in commercial cake making as an expression of his religious beliefs. It therefore viewed his refusal to sell the couple a cake as protected by the First Amendment to the U.S. Constitution.
So, strangely enough, a same-sex couple has a constitutional right to get married, but the happy couple may be denied a wedding cake by a local baker because the baker has a First Amendment right to express their religiously-based disapproval of the couple’s choice to exercise their marriage right
Basically a business may defend itself against claims of discrimination on the basis of gender identify or sexual orientation on the grounds that no state or local law forbids such discrimination. This argument would be availabel if they are in a state, county and city that does not ban this type of discrimination. Or, it might claim that the discrimination is a protected expression of religious belief or a religious practice and therefore protected by the First Amendment.
Do I Need a Lawyer?
Whether you are a person who has been discriminated against or a business that has been accused of discrimination, you need a skilled and experienced discrimination lawyer to advise you of your best course of action.
Your lawyer can develop a case on your behalf, or a defense to a claim of discrimination if necessary. Your lawyer can represent you in settlement negotiations or in court.