Refusal of service problem

<<Deleted>>

I am trying to understand how being lazy "undiligent", or having a particularly gassy colon allows a business to discriminate. Regarding the proper attire---if your clearly posted rules of participation are to wear such and such, and he doesn't, he isn't allowed to partcipate. You are mixing things that aren't relevant ( having gas as grounds for discrimination ) with things that may be acceptable grounds for disallowing participation---not having proper safety attire, or violating rules of contact, if, of course, you have specifically outlined that such conduct is unacceptable and those who do so will be dismissed or refused service.

The entire " no body likes him, so we don't want him around" clouds any legitimate grounds you may have for refusal of service. The ACLU would love that.

It's too bad that the OP seems to be gone. I disagree with you (at least on a general level). What discrimination laws would the OP be violating by not servicing an unkempt customer?

When it comes to discrimination, you need to start from the premise that a party may discriminate against anybody for anything. Then, you work your way through the various laws with the view that they are exceptions to the preceding common principle.

Generally speaking, a business may turn away a customer for wearing a red shirt, for enjoying country music, or for smelling weird. A business may not turn away a customer because of race, religion, ***, ethnicity, etc.

Name a single court ruling that upheld the right of a business to refuse service to a person wearing a red shirt.

I'm riveted.

That's like asking me to find a court ruling that upheld the right of an individual to eat a hot dog. If you don't think an individual can eat a hot dog, then show me the law that says he can't. Don't ask me for the law that says he can.

Prior to the Civil Rights Act, a business could lawfully refuse to serve somebody because of race. If that outrageousness was allowed, then it certainly seems reasonable to assume that the same business could refuse to serve a person because of something much less offensive, such as his clothing, right?

Okay, so now we have the Civil Rights Act, and discriminating because of race is specifically banned. The law states it plain and simple. But where is the clause that says anything about clothing? Or hygiene? Or...

Get it?

Granted, some states have somewhat stricter laws that don't allow completely arbitrary discrimination, but we don't know what state the OP is in. Regardless, I am fairly certain that in just about all states most businesses can refuse service to a person with offensive hygiene.

I still disagree. We live in a day and age where there is a HUGE gray area about what is acceptable and what is not. An example that confounds me is the use of the much despised "n' word. While most white people wouldn't consider uttering such vulgarity, many black people use it and call each other that without so much as an eyebrow being raised. If I say it, it's "hate" speech. If one of my best friends says it ( he is black ) he is cool.

The point is--the status quo YOU describe ALLOWS people to discriminate on age, race, etc. yet STATE it is for another reason. My point is also that--if what you are saying is true---businesses could cleary use stupid things such as "eating hotdogs" or "wearing red" to discriminate ---when the real reason they are discriminating is something much more obvious, such as gender.


If what you are saying is true, the Citadel could have refused Shannon Faulkner entry on the grounds of her regrettable haircut she insisted upon sporting. (when, obviously, the real reason was because she was a woman). 'WE ARE SORRY TO INFORM YOU, MA'AM, YOUR HAIRCUT SUCKS. THEREFORE, YOU ARE BEING DENIED ADMISSION." and, according to you, the court would have upheld it.

YOU said it was legal for someone to refuse to serve someone in red----since you said it, I was asking you to prove it. Prove where the court has upheld someones right to discriminate against someone wearing red.

I believe the truth is that a lawsuit simply hasn't been levied against a business for doing so--this doesn't make it acceptable or reasonable--it makes it simply unchallenged.

According to some sources, the key word seems to be arbitrary, such as the case in california where a bar refused service to partrons who refused to remove their identification with a gang. The refusal of service was in an attempt to avoid a gang fight---hardly the same as "I don't like red shirts". The Right to Refuse Service: Can a business refuse service to Someone because of appearance, odor or attitude?

That's true. That's why illegal discrimination claims are so difficult to prove.
That case was determined based upon state law, not federal. Unless the OP is in Cali, it isn't much use. Further, I think it was I who pointed out that "some states have somewhat stricter laws that don't allow completely arbitrary discrimination." But we don't know where the OP resides. That's why in my first post, I wrote "I disagree with you (at least on a general level)." We obviously can't apply state law to the facts, unless we know the state, or if all states have the same basic law.

But even if the OP were in Cali, he'd still most likely be able to lawfully discriminate against a customer who drove others away due to poor hygiene. That is hardly arbitrary discrimination.

This case sums things up nicely:

At common law a restaurant owner had the right to arbitrarily refuse service to any guest.5 Absent constitutional or statutory rights, the common law still controls in this jurisdiction. This is not a case of racial discrimination or violation of civil rights.6 We do have a statute making it unlawful for a restaurant to refuse service to "any quiet and orderly person" or to exclude any one on account of race or color;7 but, as we have said, there was no racial discrimination here and we do not think the requirement to serve any quiet or orderly person prevents a restaurant from having reasonable requirements as to the dress of its customers, such as a requirement that all male customers wear coats and ties or, as here, that all customers wear shoes. Had the restaurant manager observed that appellant was not wearing shoes when she first entered the restaurant, he could have properly and lawfully refused to serve her and requested her to leave.

So, under the common law, arbitrary discrimination is legal. That said, there are laws banning discrimination based upon things like race, and some states have laws banning unreasonable (or maybe arbitrary) discrimination. The bottom line is that when a business has some business related reason for it's discrimination, and if that discrimination is not specifically banned (such as for race), then as a general rule it is lawful.


PS: Why did you emphasize the word "was" in my post?

I see it the other way around. You state illegal discrimination claims are hard to prove? I see acts of discrimination difficult to DEFEND or justify. Why any business owner would rattle that sabre is beyond me. Usually when incidents like this arise in "real" life, it is not like online ----where the more fuel you toss onto the fire, the longer it burns. In all probability the person the OP wants to discriminate against doesn't really WANT to be where he isn't wanted. If everything the OP said is true, he is probably just a trouble maker that would LOVE nothing more than to be banned. It gives him something to DO----cause trouble.

I made the word WAS bold because you were referring to a different era---"If that outrageousness was allowed, then it certainly seems reasonable to assume that the same business could refuse to serve a person because of something much less offensive, such as his clothing, right?" As you state, it WAS allowed---as was presumably the right to discriminate against people in red shirts. BUT, it IS NO longer acceptable to discriminate on race, or other grounds but you never extended the analogy that would make the second part of the sentence illegal or at least questionable, too----and my personal opinion--which I am entitled to, dear one, is that discrimating on such insipidness such as "he doesn't wear nice deodorant" falls into the gray area that organizations such as the ACLU loves so much.

I can think of a dozen more profitable ways to spend money than to fight a court battle with someone who doesn't wear deodorant--and if you think of it, there ARE certain people of different races who do NOT wear deodorant. In fact, many of them work for a large retail chain---and I avoid their check out lines because of the overwhelming smell of body odor. I'd LOVE to see said retailer REFUSE to HIRE them because they smell badly.

It's a huge gray area with a lot of subjectiveness, I think. Sure, kick the guy out---but be ready for a fight--its all he wants anyway. *shrug*

Here is another idea---how about YOU answer some questions instead of waiting until I do and then say "I disgree with you , at least on a GENERAL level" and sparse words---when , in fact, we are saying the same thing--you just want to disagree with me?

Have at it skipper.

That's because you're still looking at the situation backwards. You seem to be assuming that any discrimination is presumed to be illegal, with maybe with a few exceptions. That is not true. Your own motorcycle gang case should tell you that. Read Hessians Motorcycle Club v. Flanagans, 103 Cal.Rptr.2d 552 (Cal.App. 4 Dist., 2001).

The court said:

The Unruh Act prohibits businesses from denying any person access to public accommodations based on specified classifications. (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1148 (Harris).) Section 51, subdivision (b), provides in part: "All persons within the jurisdiction of this state are free and equal, and no matter what their ***, race, color, religion, ancestry, national origin, disability, or medical condition are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."

In addition to the particular forms of discrimination specifically outlawed by the Act (***, race, color, etc.), courts have held the Act "prohibit[s] discrimination based on several classifications which are not specifically enumerated in the statute." (Gayer v. Polk Gulch, Inc. (1991) 231 Cal.App.3d 515, 520.) These judicially-recognized classifications include unconventional dress or physical appearance (In re Cox (1970) 3 Cal.3d 205, 217-218), families with children (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 736-741), homosexuality (Rolon v. Kulwitzky (1984) 153 Cal.App.3d 289, 292), and persons under 18 (O'Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 794).

In Harris, supra, 52 Cal.3d 1142, the Supreme Court reexamined these earlier decisions which treated the list of statutory classifications as "'illustrative rather than restrictive'" (id. at p. 1152) and cautioned against extending the Act's reach any further. "[W]ere we writing on a clean slate, the repeated emphasis in the language of sections 51 and 52 on the specified classifications of race, ***, religion, etc., would represent a highly persuasive, if not dispositive, factor in our construction of the Act. [Citation.]" (Id. at p. 1159.) The court concluded "the Legislature intended to confine the scope of the Act to the . . . types of discrimination" specifically identified in the statute. (Id. at p. 1155.)

Despite this conclusion, the Harris court did not overrule the prior cases which extended the Act to certain nonenumerated classifications. (Harris, supra, 52 Cal.3d at p. 1155.) The court did, however, adopt a new, narrower construction of the Act and "made it clear future expansion of prohibited categories should be carefully weighed to ensure a result consistent with legislative intent.

The Hessians attempt to stake out an Unruh Act claim here by characterizing their exclusion from the bar as discrimination based on unconventional appearance -- a nonenumerated classification recognized In re Cox, supra, 3 Cal.3d 205, 217-218, and reaffirmed in Harris, supra, 52 Cal.3d at p. 1155. In Cox, a shopping mall attempted to eject a young man based solely on the appearance of his companion "who wore long hair and dressed in an unconventional manner." (In re Cox, supra, 3 Cal.3d at p. 210.) The court held the Unruh Act barred such treatment; in fact, the court held the Act "prohibit[ed] all arbitrary discrimination by business establishments." (Id. at p. 216, italics added.) Harris subsequently limited that holding to the much narrower rule that the Act precludes discrimination based on unconventional appearance. (Harris, supra, 52 Cal.3d at pp. 1155, 1161.)

So, in California there are a few statutorily stated and judicially stated reasons that a business may not discriminate. The Supreme Court then made it clear that courts should not stray any further from the specific language of the law. The Supreme Court (in Harris) also overturned the rule that arbitrary discrimination was per se illegal.

Maybe you should talk to Mr. Hannoon about smelling badly in the workplace (Hannoon v. Fawn Engineering Corp., 324 F.3d 1041 (8th Cir., 2003)):

Hannoon argues that the confrontation concerning body odor demonstrates animus concerning race or national origin. We disagree. Because the comments regarding body odor did not suggest any reference to race or national origin, we are unwilling to hold such comments reasonably capable of supporting an inference of discriminatory intent.

Hannoon attempts to bolster his argument on this point by noting that Wayne did not need to confront him, but rather could have referred him to Fawn's employee medical assistance program. As an initial matter, while we understand that comments from a supervisor to a subordinate concerning the delicate issue of body odor are, no doubt, distressing to all involved, we do not believe that a reasonable jury could find such comments to be race-based, inherently discriminatory, or the type of matter that requires referral to a medical assistance program. Further, there is no evidence that Hannoon's body odor problem was a medical issue rather than merely an issue of personal hygiene.

I have a feeling it happens a lot more often than you think. OJ Simpson has been famously kicked out of a restaurant because of the owners' opinion about OJ's murder trial. Do you think OJ has a case?

LOL. If you think I lie in wait until you post, you're sorely mistaken. I also don't think we are saying the same thing. In this thread, I think you have a serious misconception about the law.