The story is about a pregnant woman, Michelle Lee, in Roselle, Illinois (a suburb of Chicago) who was kicked out of a bar because she was pregnant. A bouncer asked her if she was, and when she said “yes”, he made her leave. According to the story:
“He just said, if anything happens, if a fight breaks out and you get hurt, we are responsible,” Lee said. “That can happen anywhere. If I am going somewhere, I am taking responsibility.”
Sounds rather familiar to what we barefooters hear, doesn’t it? In this instance, the ACLU is concerned because of sex discrimination (since, obviously, it is only women who get pregnant, so far).
However, the part of the article that raises the question related to barefooting is this part:
According to the Illinois Human Rights Act: “It is unlawful to discriminate in the full and equal enjoyment of facilities and services by any place of public accommodation.”
* * *
Chicago lawyer Martin Dolan, who handles civil rights and personal injury cases, said that a private bar may set its own rules, including behavior standards or a dress code, but that those rules must be established in advance and be obvious to customers, such as a visual posting.
“The key to this is being able to justify the legitimate reason, not just (pull something) out of the air,” Dolan said.
And that leads to the question from Michael:
What does your experience tell you about how this applies to barefooters? Can a business legally discriminate against us if they don’t have “established” rules? In other words, can we share with managers or security that they have no right to discriminate if they are just making rules up on the spot?
The answer? It depends (doesn’t everything?). To a large extent it depends on the state that you are in.
As a general rule, businesses are allowed to discriminate however they want and can kick out whomever they want for whatever reason, as long as it is not because of race, creed, color, sex, sometimes sexual orientation, etc.. That is based upon states’ public accommodation laws. However, some states go beyond that restricted set of reasons. For instance, California has The Unruh Act, that has been interpreted to mean that you cannot be tossed from a public accommodation merely for unconventional dress. The seminal case there was In re Cox, 3 Cal.3d 205, 474 P.2d 992 (1970), from 1970. Since that time, California courts have been emasculating that ruling, and it has never been tested in regards to going barefoot, but it is at least something. (On a more pessimistic note, I wouldn’t be surprised if some court there would say that a barefoot ban would be “reasonable”.)
I am also aware that New Jersey has a similar state law. Now, from this article, I see that Illinois also has something similar, except that I note that the language for Illinois is the strongest I have seen: the right to be in a public accommodation doesn’t seem to be an afterthought to the other conditions (race, sex, etc.). The Illinois law is (775 ILCS 5/) The Illinois Human Rights Act, and as the article states:
It is a civil rights violation for any person on the basis of unlawful discrimination to:
(A) Deny or refuse to another the full and equal enjoyment of the facilities, goods, and services of any public place of accommodation;
As I look at case law, I cannot find anything that even supports what the lawyer in the article says, that rules must be specified in advance and posted. It appears to me to be even stronger than that, and in fact there is language in a major court decision, Chicago v. Corney, Jr., 13 Ill. App.2d 396, 142 N.E.2d 160 (1957), (that opinion was in regard to racial discrimination) that says: “Persons seeking such accommodations, etc., cannot be excluded from the premises so long as they conduct themselves in a peaceable and orderly manner.”
Who knows how an Illinois court might rule in a barefooting case. I do note that the Chicago Public Library has a barefoot rule — in this regard I don’t see how it could be legal, but I also know that judges are extremely reticent to legitimize barefooting and they end up succumbing to the usual myths.
Finally, let me finish with my state, Ohio. I only recently realized that their human rights statute goes a bit beyond the standard race, sex, etc. It says, in the Ohio Revised Code § 4112.02(G), that it is an unlawful discriminatory practice:
For any proprietor or any employee, keeper, or manager of a place of public accommodation to deny to any person, except for reasons applicable alike to all persons regardless of race, color, religion, sex, military status, national origin, disability, age, or ancestry, the full enjoyment of the accommodations, advantages, facilities, or privileges of the place of public accommodation.
I’ve added the emphasis. There are some court rulings that suggest that that phrase really does require the business have a consistent policy (such as a sign) for it to be enforceable.
That might be fun to test someday.