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Masks in Private Businesses: Do Customers Have Any Rights?

Posted by Giovanna A. D'Orazio | May 29, 2020

If you've been paying attention to the news or social media, you know mask requirements have turned into a Big Thing.  In New York, employees in contact with customers or the public have to wear masks, as does anyone (over the age of two) when they are out and social distancing may be difficult. Given that social distancing is 6-feet, this would apply to being inside of most businesses and many businesses have implemented mask requirements.  And now, Governor Cuomo has made it official that a business may deny you entry (and compel your removal) if you're not wearing a mask.

Masks are not the battle we're choosing to fight (we have no problem doing a little something to protect others, even if it ends up being for naught), but lawyers are uniquely positioned to recognize your rights, and even to fight for them, regardless of whether we agree with your point of view.  In the words of Charles Lamb, “He is no lawyer who cannot take two sides.”  The question here is whether there is another (legal) side to argue in the first place.

So, if you object to wearing a mask, and you are turned away from a purely private business, do you have any recourse?  We think the answer is (mostly) no.

Constitutional Rights and Freedoms?

The US Constitution protects you from government intrusion upon your rights (both federal and state, since the original Bill of Rights was extended to the states via the 14th Amendment).  When someone's constitutional rights are violated, the civil remedy is to bring a lawsuit under 42 U.S.C. § 1983 (commonly called simply a “1983” or “civil rights” case).  The magic words, and foundation element, of a 1983 case is “state action” a/k/a action under “color of law.”  If the defendant (i.e., the perpetrator of whatever action you believe has violated your rights) is not a state actor, then you have no claim.

So, we don't perceive anyone's civil or constitutional rights to be implicated by the mask policy of a private business. This is simply “no shirt, no shoes, no service”.

[Because of this, we don't know that Governor Cuomo necessarily needed an executive order telling businesses they can deny people entry. But, it has been reported that some business owners do not know whether they have recourse if someone refuses to wear a mask and perhaps this was meant to offer some clarity.  The Order also relieves business owners of liability for claims of “violation of the covenant of quiet enjoyment, or frustration of purpose, solely due to their enforcement” of their no mask policy.  We'll leave what happens if someone both refuses to wear the mask and refuses to leave the premises to the criminal attorneys.]

Discrimination? Probably not, but disabilities may be more complicated.

When can there be “rights” in a private business?  When they are discriminating.  First, we are going to tell you when there can be discrimination, and then it's going to be followed by a big “BUT”.

Discrimination in Places of Public Accommodation

Discrimination in places of public accommodation (which includes many types of private businesses) is relatively limited under federal law, applying only to race, color, religion, or national origin.  42 U.S. Code § 2000a.  The federal ADA also protects individuals with disabilities in private businesses.  New York State law is more protective because the New York State Human Rights Law covers a significantly greater number of groups from discrimination in places of public accommodation that are excluded by the federal law (such as sex and sexual orientation).

Here's the BUT: illegal discrimination only happens when a protected class is treated differently because of their protected status.  A blanket mask policy that is applied evenly to all is not discriminatory. 

As an aside, we have seen some analogies to the Masterpiece Cake Shop same sex wedding cake case.  When that was in the news, many felt that a private business should be able to do whatever it wants. (Ironically, the same demographic seems to be going the other way on the mask issue).  But in that case, the decision to deny the cake was made because of a status that was protected under the Colorado Human Rights Law, i.e., sexual orientation.  So, it was discriminatory. If the bakery refused to make wedding cakes for anyone (or, in our context, made everyone wear a mask), there would be no problem.  Conversely, if the cake shop only required same-sex couples, or a certain race, or a certain gender, to wear masks, there would be a problem.

What About Customers With Disabilities? 

This is the area where we perceive room for legal debate but, at this point, we still come out on the side that a private business doesn't have to let you in without a mask.  Ultimately, this issue is probably the one to end up being hashed out in the courts. 

An individual with a disability is entitled to reasonable access to places of public accommodation.  (A disability is defined by the law and is not going to extend to everyone who is uncomfortable in a mask or just doesn't want to wear one).  However, regardless of disability, places of public accommodation do not have to allow individuals who pose a direct threat to the health and safety of others.  At this point, whether you agree with it or not, the CDC recommends masks and New York has ordered masks to be worn when social distancing may not be possible as part of its public health orders.  Additionally, it is possible to accommodate an individual with a disability who cannot (because of that disability) wear a mask by providing curbside service or delivery.  

We also perceive there to be a Catch-22 for business owners in this context due to their obligations to keep their employees safe.  Wearing a mask is to protect others - what happens, now, if employees complain that their employer is letting people in without masks and putting them at risk?  Now, a whole other can of worms of potential liability is opening up for employers.  So, if the CDC and state requirements point towards masks, an employer may be better off following those recommendations and fighting the ADA battle with the customer, and not the OSHA, ADA, NLRA, whistleblower, Labor Law, etc. battle with its own employees.

What About Employees with Disabilities?

The employment context is a topic for another day, but the ADA allows employers to require their employees to wear masks.  If an employee has a disability within the meaning of the law, they can request an accommodation.  The employer will then have to undertake an analysis of whether the requested accommodation creates an undue burden.  An employee is not necessarily entitled to exactly the accommodation they request, just something reasonable that allows them to do their job.  Information on the ADA and COVID-19 can be found on the EEOC's website here

This is not meant to be an exhaustive discussion of every potential legal issue that could arise in the mask context, and should not be relied on as legal advice. Every situation is dependent upon its own particular set of facts.  If you believe your rights have been violated, you are welcome to contact us.  Our civil rights practice is typically limited to employment cases or constitutional rights cases where someone has suffered a physical or financial injury, but, if we can't help you, we can direct you to someone who can.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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