When the owner of the Red Hen restaurant in Lexington, Va., asked Donald Trump’s press secretary, Sarah Huckabee Sanders, to leave the premises last Friday, she was perfectly within her rights to do so.
But if it had been a restaurant in Washington, D.C., then it may have been a different matter. The same goes if Sanders had been trying to sit down for a meal at a restaurant in Quebec.
That’s because the right of a business to refuse someone service in the U.S. or Canada often depends on rules set down by the individual states or provinces.
When it comes to the U.S., “the short answer is almost everywhere it’s not illegal for a business to deny service to someone because of their political affiliation, because of the job they have or the shirt they wear,” said Elizabeth Sepper, a law professor at Washington University in St. Louis, Mo.
The Virginia restaurant’s co-owner, Stephanie Wilkinson, told the Washington Post that her staff had called her to report Sanders was at the restaurant. She said several of her employees are gay and knew Sanders had defended Trump’s desire to bar transgender people from serving in the military.
‘I can ask her to leave’
“Tell me what you want me to do. I can ask her to leave,” Wilkinson says she told her staff. “They said yes.”
Historically, the refusal of service in the U.S. was usually linked to racism and the denial of service to visible minorities, particularly black Americans.
The landmark U.S. Civil Rights Act of 1964 set out to address some of those issues, laying down some basic anti-discrimination laws that are applicable across the country with respect to denying someone service.
But the laws were actually narrow in scope, applying only to certain businesses, “a place of public accommodation,” which included restaurants, movie theatres, sports arenas, hotels and motels. And the categories of discrimination only included race, national origin, colour and religion.
Almost all individual states have filled the gaps with their own so-called public accommodation laws. They have made them applicable to almost any business open to the public. As well, some states have expanded the list of “protected traits” to also include sex, sexual orientation, disability and age.
D.C.’s list, for example, is particularly extensive. It prohibits a business from denying service to someone based on political affiliation, personal appearance, gender identity or expression, familial status, source of income and place of residence.
Last night I was told by the owner of Red Hen in Lexington, VA to leave because I work for <a href=”https://twitter.com/POTUS?ref_src=twsrc%5Etfw”>@POTUS</a> and I politely left. Her actions say far more about her than about me. I always do my best to treat people, including those I disagree with, respectfully and will continue to do so
So would a restaurant in D.C. have been able to deny Sanders service? Maybe not, but it could depend on the definition of political affiliation.
The restaurant might be able to argue it’s not denying service to Republicans in general, but just to Sanders.
“It seems that rather than being discrimination against Republicans, this is actually a targeted shaming of a public official for her individual actions,” Sepper said.
North of the border, the Canadian Human Rights Act covers federally regulated operations, including banks, interprovincial transport companies and federal institutions.
As for regular businesses and their right to deny service, it depends on the province or territory, as each has its own human rights code. Generally, nobody can be denied a service on the basis of personal traits such as race, age, national origin, sex, religion or sexual orientation. But provinces vary with respect to other categories, including political beliefs.
Gregory Ko, a Toronto-based civil litigator who specializes in employment law, said the human rights codes of B.C., Alberta, Saskatchewan and Ontario do not prohibit an individual from denying service to someone based on their political beliefs.
(There is, however, a debate in Ontario over whether creed, which has historically been interpreted to mean religion, also includes political convictions.)
But in Manitoba, Quebec and all provinces eastward, their codes do, in some way or another, prohibit refusal of service based on political beliefs, association and activity.
The Quebec Human Rights Commission gives specific examples of what it means by denying somebody a service on the basis of political conviction, Ko said.
“They say, for example, you cannot be denied access to a business or a restaurant because you’re wearing a political symbol such as a pin a badge or a sticker,” he said.
“They don’t want folks who are carrying some type of political party message on their lapel to be denied service in a restaurant.”
The tighter rules in Quebec likely come from the “very defined cleavages between federalists and sovereigntists and the history behind that,” Ko said.
Brian Smith, a senior counsel with the Canadian Human Rights Commission, told The Canadian Press there are differences in how the provinces and territories define political beliefs and apply their laws.
So before an individual in Canada wants to deny someone service based on political beliefs, “it would be worth double-checking,” he said.
Notable cases involving refusal of service:
- This month, the U.S. Supreme Court handed a victory to a Christian baker from Colorado who refused to make a wedding cake for a gay couple for religious reasons.
- Also this month, a Walgreens pharmacist, because of moral objections, refused to fill an Arizona woman’s prescription to induce a miscarriage. Walgreens said they allow for pharmacists to deny service based on moral objections, but the pharmacist should refer the customer to another store.
- In 2012, a woman launched a human rights complaint against a Toronto barbershop that refused to cut her hair. The barbers were Muslim and told her their religion didn’t allow them to cut the hair of a woman who is not a member of their family. (The issue was later resolved in a closed-door mediation session, the National Post reported.)
- Also in 2012, a B.C. Human Rights Tribunal ruled that owners of a Grand Forks bed and breakfast illegally discriminated against a gay couple when they denied the pair a room.