Public Accommodations

What is a "public accommodation"?

A "public accommodation" is an item, service, or benefit offered generally to the public. "Places of public accommodation" include hotels and motels, restaurants, stores, and other businesses that cater to consumers. The definition of the term "public accommodation" can differ from jurisdiction to jurisdiction, and a company or facility subject to the antidiscrimination statute of one state might be exempt from a similar law elsewhere. The issue of what constitutes a public accommodation may seem arcane, but it can determine the life or death of an antidiscrimination claim. In 1990 a newspaper in Green Bay, Wisconsin, successfully evaded a lawsuit brought by two gay organizations whose classified advertisements it had rejected, by convincing an appellate court that newspapers do not offer "accommodations" to the public, as that term is used in the state's civil rights laws. 13

Under state laws, the offices of doctors, dentists, and other highly trained professionals are often not deemed "places of What should a person do if refused service in a jurisdiction that outlaws discrimination on account of sexual orientation?

In most of these places, a person may, without a lawyer, file a complaint with a city, county, or state commission. The commission will then notify the establishment of the complaint and begin an investigation. If the investigation indicates there is "probable cause" to believe an act of discrimination took place, the agency will then typically schedule a hearing to look into the matter further. Each agency has its own procedures, however. An attempt to acquaint oneself with them should be made, ideally with the advice and assistance of a lawyer.

Is there recourse of any kind if the discrimination occurred in a place without a law prohibiting discrimination on the basis of sexual orientation?

Possibly. The denial or mistreatment may fall within a category of discrimination prohibited under existing law, such as race or disability. Although federal law does not include the terms "sex" and "marital status," many state and local laws do, and some include additional categories. Moreover, if the discrimination took place in a facility run by the governmentfederal, state, or localthere might be a constitutional claim under the Fourteenth Amendment's guarantee of "equal protection of the laws."

Can a bar or club prohibit two men or two women from dancing together?

It can, unless the city or state in which it is located outlaws discrimination on account of sexual orientation. Disneyland, the amusement park in Anaheim, California, was sued successfully several years ago under the state's Unruh Civil Rights Act when it tried to stop gay couples from dancing. Later, Disneyland tried to prevent two men from dancing while holding one another, on the claim that the earlier suit had dealt only with "fast dancing." A second lawsuit resulted in a settlement under which the amusement park agreed to let gay couples engage in both kinds of dancing. public accommodation." 14 By contrast, a federal law that protects people with AIDS from discrimination does define physicians' offices as places of public accommodation. State laws also may exclude from this category certain types of companies, like those that sell insurance. (Insurance companies are, in every state, subject to separate regulatory schemes administered by special agencies.15 ) Also exempt from public accommodation statutes are entities, like social clubs, that are truly private in nature. In many places, however, a club or association that calls itself "private" may still be "public" in the eyes of the law if it is relatively unselective in choosing its membership, particularly if it is also large and well known. In 1979 the state of Minnesota filed a complaint against the Jaycees, a national civic organization for young men, alleging a violation of the state's Human Rights Act because the Jaycees refused to admit women as members, and the Supreme Court upheld the constitutionality of the state's attempt to integrate the organization.16

Can a store, motel, or restaurant refuse to serve a gay man or lesbian?

In most places, yes. As we have already said, only four statesConnecticut, Massachusetts, New Jersey, and Wisconsinexplicitly outlaw discrimination based on a person's sexual orientation. Many cities and counties also prohibit discrimination against gay people. (See Appendix C.) And under an unusual statute called the Unruh Civil Rights Act, California forbids "business establishments" from engaging in arbitrary discrimination of any kind, including that against lesbians and gay men.17 But elsewhere in the United States, businesses may deny service to gay people or treat gay people differently simply because they are gay.

Businesses may not, however, discriminate against a person on the basis of "race, color, religion, or national origin"18 or "disability"19 since federal law expressly prohibits such discrimination. A bill to add the phrase "sexual orientation" to this list has languished in Congress since 1975. (Note that discrimination on account of "sex" or ''gender" is also missing from the current federal list pertinent to "public accommodations.")