T-shirt images courtesy Sarah Haider
The Freedom from Religion Foundation (FFRF) is calling the recent incident when Ex-Muslims of North America were refused service and expelled from a Starbucks and Hilton a Civil Rights violation, but not everyone agrees.
Fellow Blogger Jim (aka Conservative Skeptic) provides a counter argument here. We agreed to do this when we discovered on Twitter that we had different perspectives on the incident. You may find him on Twitter at Outwest @jeh7041.
Here’s why I believe FFRF is correct:
Background:
Ex-Muslims banned from Houston Hilton Starbucks for Atheist shirts
Facts as presented by the Ex-Muslims of North America (EXMNA) in their public statement:
Off video:
On Saturday, September 1st, 2018, Ex-Muslims of North America (EXMNA) volunteers were forcibly expelled from a Starbucks within a Hilton hotel in Houston, Texas, after refusing to change out of t-shirts stating “Love (overprinted over God) is Greatest” and “I’m an Ex-Muslim, Ask Me Why.” They were informed by staff that they must leave the establishment.
Back of both shirts:
The EXMNA volunteers were taking a coffee break at the Starbucks after a day of handing out flyers and speaking with and interviewing attendees at the Islamic Society of North America’s (ISNA) annual conference.
Volunteer Lina’s statement: “I was told that they are not allowing protestors at the property. I assured the woman that I was not a protestor. She then asked me if I was part of the event or a guest at the hotel. I was neither. I was then told that even though I was a paying customer, I was not allowed to be on the premise as it was reserved for guests and event members for the weekend and that they will not be allowing anyone else on their private property. However, I noticed the Starbucks was still open to the public and I didn’t see anyone else being asked to leave.”
On video:
Upon additional inquiry after leaving the premises, a hotel employee stated on video that the EXMNA group was not welcome due to their T-shirts, and repeatedly claimed the group was “protesting,” a charge which all volunteers explicitly denied multiple times.
President of Ex-Muslims of North America, Muhammad Syed, said: “We were asked to leave the premises and informed that we could only enter the premises if we removed the shirts, none of which stated anything inflammatory.”
———–
Refusal of service:
The reasons provided by Starbucks and Hilton do not seem to follow any coherent or consistent policy (see arbitrary clause at the end of this article).
First, Starbucks claims (according to Lina’s statement) that Starbucks was suddenly restricted to guests of the hotel or attendees of the ISNA event only. This appears to be false by Lina’s observation, was not posted as “reserved” prior to their entry into the Starbucks, nor was it brought up when they ordered and were served their drinks without objection.
On video, the Hilton representative said he was refusing service because they were protestors. When they denied being protestors or causing any problem, he said their t-shirts were the problem. When they pointed to one member having a plain shirt and asked if he could enter, the representative said no. At one point, the Hilton rep threw out the possibility that they could remove the shirts, but then abandoned that idea and threatened arrest for trespassing.
I believe the focus the Hilton rep made on the t-shirts being the final deciding factor were discriminatory against a protected class. Specifically, I believe the protected class would fall under the category of religion, or in this case, the lack of religion (atheism or Ex-Muslims).
An article published by CNN after Sarah Huckabee Sanders was asked to leave a restaurant touches upon some of the issues which are pertinent to this event.
CNN: “Under the federal Civil Rights Act of 1964, discrimination in public businesses in the United States is prohibited on the basis of race, color, religion or national origin.”
CNN: “It depends on a number of factors, including whether the business’s reasons are political, moral or discriminatory, and the person claiming discrimination falls under a protected trait or class, such as race or religion, lawyers say.”
What about refusal of service and dress codes?
This issue is problematic and is certainly not a simple one. We all know the policies of “No shirts, no shoes, no service,” or “We reserve the right to refuse the service to anyone,” which are often used by private businesses to protect themselves.
However, these policies do not make the private businesses exempt from allegations of discrimination under certain circumstances. CNN: “Legal experts say business owners are at liberty to enforce dress codes — as long as they don’t fall under discrimination categories.”
Shake Law: “Laws that deal with refusal of service generally govern places of ‘public accommodation.’ These include any facilities that offer lodging, food, entertainment, sales or rental services, health care, or recreation to the general public. So even though restaurants, stores, and swanky rooftop bars may be operated on private property, they still qualify as public accommodations and are thus subject to the service regulations set forth by federal and state laws.”
Shake Law: “WHEN IT’S ILLEGAL TO REFUSE SERVICE
Two federal laws govern when a refusal of service is illegal. Title II of the Civil Rights Act of 1964 prohibits discrimination in places of public accommodation based on a patron’s race, color, religion, or national origin, and the Americans with Disabilities Act prevents discrimination on the basis of physical, mental, or emotional impairments. Additionally, some (but not all) state laws extend their anti-discrimination policies to protect customers from refusals of service based on other criteria, including age, gender, sexual orientation, and military status.”
Shake Law: “Bottom line: Dress codes are not illegal, but discriminatory ones are — sign or no sign.”
Shake Law: “WHEN YOU ARE PERMITTED TO REFUSE SERVICE
The patron lacks adequate personal hygiene (extreme body odor, excess dirt, etc.)
The patron is visibly intoxicated
The patron is unreasonably rowdy or causing trouble
The patron’s presence would overfill venue capacity
There is good reason to believe the patron will not be a paying customer
The patron has chosen not to abide by a venue’s neutral dress requirements, in a manner that is somehow within the patron’s control
That last point is important. It’s why although ‘no shirt, no shoes, no service’ policies are rarely mandated by law, they are also rarely illegal, because they don’t discriminate against any particular category of person.”
The last point above may provide a legal out for Starbucks and Hilton. However, an article titled “The Right to Refuse Service: Can a Business Refuse Service to Someone?” offers the following caveat:
“You can refuse to serve someone even if they’re in a protected group, but the refusal can’t be arbitrary and you can’t apply it to just one group of people.
To avoid being arbitrary, there must be a reason for refusing service and you must be consistent. There could be a dress code to maintain a sense of decorum, or fire code restrictions on how many people can be in your place of business at one time, or a policy related to the health and safety of your customers and employees. But you can’t just randomly refuse service to someone because you don’t like the way they look or dress.”
Sources:
“Here’s why some businesses can deny you service – but others can’t,” Faith Karimi, CNN, June 30, 2018.
https://www.cnn.com/2018/06/29/us/when-businesses-can-deny-you-service-trnd/index.html
“No Shirt, No Shoes, No Service? What You Need to Know About Refusal-of-Service Laws,” Lauren Kreps, 05.30.15.
http://www.shakelaw.com/blog/refusal-of-service/
“The Right to Refuse Service: Can a Business Refuse Service to Someone?” Jane Haskins, Esq., LegalZoom, September 2007.