Antidiscrimination Law

Nevada finds no right of reasonable access to public accommodations unless a state antidiscrimination statute confers such a right

/ Antidiscrimination Law, Trespass

The Supreme Court of Nevada held that businesses of public amusement (including casinos) have the right to exclude patrons at will unless a state or federal antidiscrimination law limits their discretion. Slade v. Caesars Entertainment Corp., 373 P.3d 74 (Nev. 2016). A state statute provided that “all gaming establishments in this state must remain open to the general public and the access of the general public to gaming activities must not be restricted in any manner except as provided by the Legislature.” Nev. Rev. Stat. §463.0129(1)(e). But it also provided that “[t]his section does not … [a]brogate or abridge any common-law right of a gaming establishment to exclude any person from gaming activities or eject any person from the premises of the establishment for any reason.” Nev. Rev. Stat. §463.0129(3)(a). The court held that the common law gave places of entertainment full powers to determine who to serve, citing one Indiana Supreme Court …

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Public accommodation law applies to state actor

/ Antidiscrimination Law

A federal court in Massachusetts has interpreted the Massachusetts public accommodations statute to apply to a public entity, the Martha’s Vineyard Transit Authority, when a traveler was denied access to a bus because of his race. Brooks v. Martha’s Vineyard Transit Auth., 2020 WL 30586 (D. Mass. 2020). Government entities are included in the category of “whoever” denies access. The court also held that the Authority could be vicariously liable for the acts of its agents acting within the scope of their employment. 

Landlord may be liable for fair housing violation if no response to one tenant’s racial harassment of another

/ Antidiscrimination Law, Fair Housing Act, Real Estate Transactions

In the case of Francis v. King’s Park Manor, Inc., 2019 WL 6646495 (2d Cir. 2019), a tenant engaged in a vicious campaign of abuse and intimidation of another tenant, coming to his door and threatening to kill him and repeatedly yelling at him and calling him the “n-word” and “fucking Jews.” The victim called the police several times and notified the landlord of the harasser’s behavior, which persisted. The victim sued the landlord, claiming that it failed to investigate or attempt to resolve the problem and allowed the harasser to continue to live in his unit without reprisal. The harasser was convicted of the crime of harassment in violation of New York Penal Law §240.26(1). The Second Circuit agreed with other Circuits that have addressed the question that post-acquisition claims are cognizable under the federal Fair Housing Act (FHA), 42 U.S.C. §§3601 et seq.. Section §3604(b) prohibits discrimination in the “terms, …

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Shop owner has constitutional right to refuse to print gay pride T-shirts

/ Antidiscrimination Law, Religious Freedom, Sexual Orientation

An appellate state court in Kentucky has held that the first amendment gives a shop owner the right to refuse to print gay pride T-shirts for an organization espousing views the shop owner does not hold. Lexington Fayette Urban County Human Rights Comm’n v. Hands On Originals, 2017 WL 2211381 (Ky. Ct. App. 2017), aff’d, Lexington-Fayette Urban County Human Rights Comm’n v. Hands On Originals, 2019 WL 5677638 (Ky. 2019), The Kentucky Supreme Court affirmed, explaining that the public accommodations law protects individuals alone and confers no rights on organizations.

Landlords and condo associations may be liable for discrimination by tenants or unit owners against other occupants if they are aware of the conduct and take no action to stop it

/ Antidiscrimination Law

New regulations adopted in 2016 provide that a discriminatory housing practice includes “[f]ailing to take prompt action to correct and end a discriminatory housing practice by a third-party, where the person knew or should have known of the discriminatory conduct and had the power to correct it.” 24 C.F.R. §100.7(a)(iii), 81 Fed. Reg. 63074, Sept. 14, 2016.

Eighth Circuit holds that videographers have First Amendment free speech right to refuse to provide services at same-sex weddings

/ Antidiscrimination Law, Consumer Protection, Free Speech, Religious Freedom, Sexual Orientation

In Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019), the Eighth Circuit held that Minnesota could not enforce its public accommodations law against a company that refused to provide video services for same-sex weddings. The process of producing a video, the court said, constitutes “speech” and would be posted on the company’s website. The company sought to produce wedding videos of opposite-sex couples to “affect public attitudes and behavior” by “depict[ing] marriage as a divinely ordained covenant” that exists “between a man and a woman.” To forced them to produce videos for same-sex couples constitutes compelled speech that violates the Constitution’s protection for freedom of speech. The court emphasized the creative work that would go into editing; the company was not simply videotaping the wedding but retained “ultimate editorial judgment and control.” The court accepted the company’s assertion that if it provided its services for same-sex couples, this would “compel …

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State constitutional and statutory right in Arizona to refuse to create custom wedding invitations for same-sex couples

/ Antidiscrimination Law, Consumer Protection, Religious Freedom, Sexual Orientation

In a 4-3 decision, the Arizona Supreme Court has interpreted its constitution, Ariz. Const. art. 2, §6, and its Free Exercise of Religion Act, Ariz. Rev. Stat. § 41-1493.01, to give a public accommodation the right to refuse service to same-sex couples who seek custom wedding invitations. Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890 (Ariz. 2019). Arizona has no state statute that prohibits discrimination on the basis of sexual orientation in public accommodations, but several cities, like Phoenix, have such local laws. This case involved a public accommodation that refused to produce a custom-designed wedding invitation for a same-sex couple. While Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S.Ct. 1719 (2018) had suggested that public accommodation laws could be enforced despite religious objections by the public accommodation owner, although it did not reach the free speech issue in that case and decided the religious liberty claim on …

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Federal court allows public accommodation to refuse to create custom videos of same-sex weddings

/ Antidiscrimination Law, Consumer Protection, Free Speech, Gender Identity, Religious Freedom, Sexual Orientation

In a 2 to 1 vote, the Eight Circuit has held that the First Amendment prohibits a state from enforcing its public accommodations law if it requires videographers to create custom videotapes of same-sex weddings even though they provide this service to opposite-sex weddings. Telescope Media Group v. Lucero, 2019 U.S. App. LEXIS 25320 (8th Cir. 2019). Because the videos will be edited and posted on the videographer’s website, the majority accepted the defendant’s argument that they would convey a message of support for same-sex marriage contrary to the views of the regulated entity. Judges David Stras and Bobby Shepherd found this to be “compelled speech” that violates the business’s constitutionally-protected right to freedom of speech. Dissenting judge Jane Kelly found no compelled speech, just a statutory duty to provide the same services to both same-sex and opposite sex couples.

Washington Supreme Court reaffirms its finding of sexual orientation discrimination by florist

/ Antidiscrimination Law, Sexual Orientation

On remand in light of the Supreme Court ruling in Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n,  the Washington Supreme Court unanimously reaffirmed its ruling in State v. Arelene’s Flowers, 389 P.3d 543 (Wash 2017), as modified by 2017 Wash. LEXIS 222 (Wash. 2017). Lambda Legal, A key victory reaffirming LGTBT rights in flower shop discrimination case, June 6, 2019. See also CNN Politics, Washington state Supreme Court ruling in Arlene’s Flowers case,  June 6, 2019. In its opinion in State of Washington v. Arlene’s Flowers, Inc., (Wash. 2019), the Washington Supreme Court found that the case was tainted by none of the antireligious views the Supreme Court had found in Masterpiece Cakeshop and that the opinion in that case had affirmed that states can prohibit sexual orientation discrimination in public accommodations and that owners of such establishments cannot evade them by citing religious convictions. The court also reaffirmed its initial ruling that the refusal to provide flowers for a wedding of a same-sex couple …

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Wedding planning website cannot refuse to serve same-sex couples

/ Antidiscrimination Law, Sexual Orientation

A Web-based graphic design company that intends to design custom websites for customers planning weddings sought to place a statement explaining the owner’s intent not to serve same-sex couples. A federal court has held that this violates the state’s public accommodations law because it constitutes discrimination on the basis of sexual orientation. 303 Creative LLC v. Elenis, 2019 WL 2161666 (D.Colo. 2019). Lorie Smith claimed she was not discriminating on the basis of sexual orientation but on the basis of her religous beliefs that do not recognize same sex marriage. The court rejected this argument and held that denying her the ability to post this statement did not violate her constitutionally-protected free speech rights since government power to prohibit discrimination necessarily includes the power to regulate speech that indicates an intent to engage in discrimination. The court also held that Employment Division v. Smith precluded her claim since the antidiscrimination law was a neutral law …

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