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Why the Sarah Sanders Restaurant Situation is Not Like Masterpiece Cakeshop

Posted by Giovanna A. D'Orazio | Jun 26, 2018 | 0 Comments

Recently, it was reported that Sarah Huckabee Sanders, President Trump's press secretary, was asked to leave a Virginia restaurant ostensibly because employees disagreed with her political activity and defense of some of the administration's more controversial policies.  Some supporters of Ms. Sanders have cried discrimination and asked why those upset by the Masterpiece Cake Shop case (that recently went to the Supreme Court involving a baker's refusal to make a same sex wedding cake) weren't upset about this too.

Well, even if you don't think it's appropriate or respectful to kick a government official out of a restaurant, in this scenario, it's simply not “discrimination” within the meaning of the law.  For discrimination to be illegal, adverse action must be taken against someone within a protected class and because of that person's protected status.  (So, your race is “protected” but you're only discriminated against if action is taken against you because of your race.). 

Masterpiece Cakeshop involved a Colorado human rights statute pursuant to which sexual orientation is listed a protected class. That means that a place of public accommodation – which is going to include most restaurants and businesses open to the public – cannot discriminate against individuals based on their sexual orientation.  The case arose because the owner of the bakery refused to create a cake for a same sex wedding because of his asserted sincerely held religious beliefs.  Even though the Supreme Court technically found in favor of the baker (because it found that the Colorado civil rights commission did not adequately consider his religious beliefs), no one was claiming that the baker had the right to refuse to serve customers because of their sexual orientation.  There was a distinction made in this case due to the nature of “creating” a cake specifically for a same sex wedding.  If the baker had refused to sell the couple some other goods or services unrelated to the wedding and because of their sexual orientation, the Court was pretty clear this would have been illegal.  You can learn more about sexual orientation discrimination here.  

In the Sarah Huckabee Sanders situation, there is no protected status implicated.  The decision was not made because Ms. Sanders is white or a woman or for some other reason that might be protected (sex is actually not protected in places of public accommodation under federal law, but many state human rights statutes do protect sex).  There is also no First Amendment protection in a private business, so refusing to serve someone because of their speech or political views or simply because you do not like them is not illegal.

If you feel you have been discriminated against in a place of public accommodation, give us a call. We're happy to see if we can help.

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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