Businesses in America must follow federal and state anti-discrimination laws. The anti-discrimination practices include treatment of employees of the business, treatment of customers, and business policies. Several areas that are not included in federal anti-discrimination laws are protected under state law; such as the addition of political affiliation as a protected class in Washington DC. For employees, anti-discrimination protection also involves the right to be protected from retaliation and job consequences after complaining of discriminatory practices or behaviors. Business owners need to be aware of both state and federal law governing their behavior toward employees and the public. And how to set policies for the business that do not unintentionally discriminate.
What is a Protected Class under Anti-Discrimination Laws?
Under federal law, there are several classes of people who are protected specifically against discrimination. There are a number of federal laws covering these areas of discrimination and civil rights. The protected classes include genetic information, disability, national origin, age, sex (also covers pregnancy status), religion, color, and race.
Some states have added additional protected classes to their anti-discrimination laws. In all cases, the restrictions against discrimination include the federal government laws, plus any additional that the state writes.
The Trouble with Targeted Ads
Facebook’s targeted ads were recently sued by the Department of Housing and Urban Development; these ads promoted housing discrimination. Marketing departments, using customer data analytics, find they can be very specific in the demographics of their target market. An ad campaign that targets the specific demographic may seem like the best use of new data and marketing dollars. But if the ability of a protected group to access an essential service, such as housing, is compromised because they do not fit into a business’s targeted demographic, then they will not have access to the same information and opportunities as those in the target demographic.
Public vs Private Business?
There is a misconception that privately owned business in the US has more freedom to enact customer and employee policies. An example might be the ability to enforce a dress code. Federal laws, including anti-discrimination laws, apply to all who operate a business in America. Businesses who do not have out of state work or federal contracts still have to abide by the federal rules. They apply to all Americans. States agree, as part of their admission into the Union, to abide by federal laws. States may pass laws that are complementary to the federal laws, or ones that add additional protections. But they cannot make a law that is in direct violation of a federal law already on the books.
So an American business can restrict or refuse service to a person; however, that restriction or refusal cannot be due to their protected class. This applies equally to both public and private businesses.
Discrimination on Moral Grounds
Several states have added amendments of their laws that allow discriminatory behavior under certain conditions. These are most commonly refusal to provide abortion drugs by pharmacists on grounds of “moral objection.” Several states have these laws, and they attempt to find a line between protecting the public’s rights and protecting the rights of the pharmacists to not violate their religious or moral beliefs. In most cases, service cannot be refused, but the person must be referred to another provider. This fine line is difficult and is regularly challenged in the courts.
We Reserve the Right to Refuse Service
Many American businesses have a similar statement somewhere around the public interface, especially food service businesses. This is a legal right of refusal unless that refusal is based on discrimination of the protected class. Care must be taken, because the public’s understanding of this right of refusal may be incomplete. An important piece is the way the policy is enacted. If everyone without shoes is denied entrance, with a policy requiring shoes, that is a right of the business. If the policy is stated that shoes must be worn to enter, but only people of color are refused entry based on that policy, then the way the policy is being implemented is discriminatory. This example would clearly violate anti-discrimination laws.
Very public confrontations with the public, in the light of many cell-phone cameras, is always bad for business. It isn’t illegal to be rude, but it is bad for business, and these days the incident will most likely be splashed across multiple platforms and websites before the boss hears about it. Attention to how these policies are written, and how their staff is trained, with that training documented, is critical.
The Future of Anti-Discrimination Laws
Anti-discrimination laws are evolving in the courts with new social mores. New technologies that collect private data are going to be challenged as businesses use public and private data to make business decisions. State legislatures are looking closely at privacy rights regarding personal data, and many are passing new privacy laws that will impact businesses. It is critical for businesses to have a careful review of their employment and public policies, as well as a review of how they are using data to make marketing decisions. Consider an experienced group of business law attorneys to consult on these critical issues. We look forward to hearing from you!
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