Hobby Lobby

The way the law is is that stores and the like are considered private property, and that owners are allowed to do as they wish with their private property. Property rights are strong.

But it’s not that simple.

Certainly we’d all agree that we have strong property rights when it comes to our personal homes and property. If I don’t want somebody in my house, I can kick them out at my whim.

Well, the same principle applies to corporations, but with a few caveats. After all, they are different from human individuals. Generally, stores and the like are considered “public accommodations”. They have opened themselves up to the public and invited them in. And as a result of (mostly) racial discrimination, legislators responded to that and wrote public accomodation laws, which say that public accommodations cannot discriminate based on a fairly narrow list of categories, such as race, creed, and color. As folks are no doubt aware, there is a current push to add sexual orientation to that list. There are also laws such as the American with Disabilities Act which puts requirements on accommodating disabilities onto public accommodations.

These laws do not apply to private clubs (in particular, country clubs). I have heard from other barefooters that Costco, though, since it is a “membership” store, has claimed to them that they do not have to make an accommodation to those who go barefoot for health reasons. I have been unable to verify that this is legally true. In particular, here is a court case, Grill v. Costco Wholesale Corp. (2004) in which they make no such claim in their defense. It may just be that the barefooter was told this by a store employee but that it actually wasn’t the case.

That kind of brings me to what prompted to write this entry. How much can we believe store employees, and how much of what they say really ought to be binding?

Remember, the whole idea of stores being able to exclude anybody according to their whim (modulo race, creed, color, etc.) is that stores are private property, and owners should be able to do what they want with their private property.

My issue is that, certainly when it comes to barefoot customers, I doubt that the real owners care one way or another. So how much should an employee’s prejudice be binding? (Note that I am going to discuss this philosophically—the law says otherwise.)

Just think about your standard BigBox corporation. It is owned by a bunch of shareholders. On top of that, many of those shares of stock are owned by other corporations. Some of those shares are just owned by mutual funds by folks like you and me. Or they are owned by unions or pension funds (so in some ways that’s also by you and me, but more indirectly). Heck, you even get a situation in which Corporation A holds some shares of Corporation B which holds some shares of Corporation C which holds some shares of Corporation A. It’s Ourborous Ownership.

With such a mish-mash of ownership, what do the “owners” want? Sure, they’ve delegated those decisions to various votes, and stockholder meetings in which most votes are proxies. In the end, though, it does come down to a collection of real people, but who knows who they might be, or in what proportions.

So can anybody tell me how the owners really want barefoot customers to be treated?

I didn’t think so.

And that’s why I don’t mind at all public accommodation laws, and think that in general they ought to be expanded to exclude all sorts of arbitrary (and whether one is barefoot or not would fall into that) discrimination.

But what about a “closely-held” corporation?

 

 

I suspect most folks are aware of how Hobby Lobby was given a religious exemption (via the Religious Freedom Restoration Act) to the Obamacare requirement of contraception for women. According to the Supreme Court, that hinged on the fact that, even though Hobby Lobby was a corporation, it was a closely-held corporation. Hobby Lobby is completely owned by Norman and Elizabeth Hahn, which they run along with their sons (one of whom is the president and CEO). In this case it is easy to know who the owners are, and it is evident what their desires and religious beliefs are regarding contraception.

[Note: much of the furor regarding the Supreme Court decision seems to focus on Hobby Lobby being a corporation, and treating corporations like people. After all, how can a corporation have religious beliefs? This ignores the fact that many past RFRA case were won by corporations . . . religious corporations like churches. Yes, many churches are incorporated. What was new was whether a for-profit corporation could have expressed religious beliefs.]

Anyways, we can see that the desires of a closely-held corporation can sometimes be discerned.

But when it comes to barefooting, that breaks down, too. After all, even in a closely-held corporation, there are layers of bureaucracy between a customer and the true owners. Can we really know what the owners want in that regard?

I think it is clear that the answer is no.

There was a recent Facebook posting in which a barefooter was kicked out of a Hobby Lobby. The barefooter sent an email to Hobby Lobby’s corporate office and got this reply:

Thank you for shopping Hobby Lobby. I regret the difficulty that you experienced while shopping at our store. This is not the type of experience we want any of our customers to have.

At this time Hobby Lobby does not have a shoe policy. I did speak with the store manager Pam, and passed your concerns along to her. Pam will be addressing your concerns with the staff.

In the retail business there are many elements that combine to create a successful store and few are as important as customer service. Your feedback on the performance of our stores is very important. Thank you for taking the time to tell us about your experiences with our store and giving us the opportunity to improve our service for you.

Once again, I apologize for your situation. Thank you for shopping at Hobby Lobby and we hope that you will visit our store again soon.

It was signed by a “Customer Service Representative”.

Sounds like a victory for barefooting, right?

Well, not so fast.

I was also kicked out of a Hobby Lobby (a few years back). My reply from customer service said the following:

Thank you for shopping at Hobby Lobby. We apologize for any inconvenience you may have experienced while shopping at Hobby Lobby.

For the safety of all of our customers, we ask that every customer wear some type of shoe that covers the bottom of their feet. I do apologize for how the manager handled this situation. I can assure you that it will be addressed.

Your feedback on the performance of our stores is appreciated; it helps us to better serve you, the customer. Thank you for taking the time to tell us about your experiences with our store and giving us the opportunity to better serve you.

We hope that you will continue to shop at Hobby Lobby and that all of your future visits are pleasant and productive.

The second thing you’ll notice is the rote format with four paragraphs, and only the second paragraph really matters. The others are polite fluff.

The first thing you’ll notice is the difference in paragraph two. 180° from the other reply.

In this case, I wrote back, since I’d been using this particular Hobby Lobby for a long time, and had even talked to the manager. But that was the manager from that time—now they had a new manager. So I asked about that, and also asked my “Customer Service Representative” to check with a supervisor.

Here is the reply from the Customer Service Manager (in relevant part):

The decision of requiring customers to wear shoes in our stores is entirely up to the store manager. If a store manager requires all of their customers to wear shoes, then we stand behind that decision. Again, this is strictly up to the discretion of each individual store manager.

So basically, we are back to whim.

It all depends on the whim of the manager of a store. It then depends on the whim of the Customer Service Representative who happens to handle your particular complaint. And it depends on the whim of whatever manager is above the representive (and their whim on whether to check with an even higher level of management—I suspect he just made up that bit about being up to the store manager right on the spot).

Where is the connection to the desires of the owners? Nowhere. It may be the “private property” of the Hahns, but do we really have any clue about what they feel about bare feet in their stores?

They have specifically insulated themselves from any of those sorts of decisions, so it is impossible to know. (In my email I made sure I included a reference to Exodus 3:5, knowing the religious proclivities of Hobby Lobby. That may have had some effect if the Hahns themselves saw it.)

So that’s another reason why I have no problem with public accommodation laws (and think it would be reasonable to extend them). Even in a closely-held corporation we’re just subject to the whims and myth-believing of some random level of a bureaucracy. If they want to be a corporation, and get all sorts of corporate protections (including special tax breaks like depreciation (at a minimum) and be able to sit behind a corporate veil), then part of being a good corporate citizen really ought to include not being able to exclude any well-behaved member of the public at a whim.

 

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