With the growth of the Alt-Right and other hate groups in recent years, business owners face increased challenges to uphold values of diversity, ensure employee and customer safety, and protect their brand from association with customers’ possible bigotry. At the same time, questions have arisen regarding when a business may lawfully refuse to welcome or serve customers based on their views against diversity. These questions will flare up again in Washington, D.C. this weekend as white supremacist organizations convene for a “Unite the Right” rally commemorating last year's rally in Charlottesville, Virginia. Restaurants and other business owners have good arguments that they may lawfully refuse entry or service to customers who appear associated with hate groups.
The DC Human Rights Act
Because federal law does not ban public accommodations discrimination based on ideology, customers who have been excluded based on their anti-diversity views or conduct would have to rely on local law. Section 2–1402.31(a) of the DC Human Rights Act prohibits discrimination in public accommodations and employment based on, among other traits not relevant here, political affiliation. “Political affiliation” is defined as “the state of belonging to or endorsing any political party.” Thus, the definition requires a party affiliation, not a mere political viewpoint.
The D.C. Court of Appeals and the U.S. District Court for the District of Columbia have both held that a “political party” is defined based on “ordinary sense and with the meaning commonly attributed to that term.” Specifically, it is a party that nominates candidates for office. Accordingly, the D.C. Court of Appeals concluded that a private club in the District could expel a known affiliate of the National Alliance, a white supremacist organization.1
Further, a business or other employer has an established basis for declining service based on a person’s asserted “political” conduct. For example, the U.S. District Court for the District of Columbia has held that a local university did not violate the DC Human Rights Act when it demoted a diversity officer who signed a petition to ban same-sex marriage.2
In light of such precedent, DC law appears not to forbid “discrimination” in public accommodations based on a customer’s or white supremacist's views, organizational affiliation, or political conduct. A place of public accommodation therefore has a basis to exclude both individuals and their organization.
Virginia and Maryland
Protections for political ideology, conduct, or affiliation immediately outside the District are less common. Neither Virginia nor Maryland ban public accommodation discrimination based on political ideology or affiliation. The only neighboring local government that does so is Prince George's County, Maryland, where Section 2-220 of the County Code bans public accommodation discrimination based on “political opinion.”3 Section 2-186(a)(15) defines “political opinion” as “the opinions of persons relating to government, or the conduct of government; or related to political parties authorized to participate in primary elections in [Maryland].” A place of public accommodation in this jurisdiction should be able to clarify that it excluded a hate organization or member based on their views or conduct towards persons of a particular race or other protected status, and not because of political opinion.
Business owners have public relations and other incentives to not welcome or serve patrons strongly associated with the Alt-Right rally. Such patrons may endanger the safety of other patrons or employees, especially those who are the targets of hatred. Even where such patrons do not act violently, their affiliation with the Alt-Right movement may cause others to feel unsafe. Businesses may want to avoid negative media exposure suggesting they are friendly to hate groups. Lastly, a business and its owners may not want to welcome or serve individuals whose oppressive views and affiliation offend the business’s values of diversity. For these reasons, businesses may consider the following actions:
Consider how to identify patrons that may be declined service. An employer may want to train employees to identify certain clothing or paraphernalia that warrant asking a patron to leave. Making a hotline to a corporate resource available to managers on the ground may be another option.
Train employees who may have to decline patrons about not only appropriate safety measures, but also how to explain to patrons who are declined service that the business is denying service based on the individual's apparent support for the oppression of minorities and concerns that this will create a hostile environment for others.
Train employees who may have to expel patrons to do so politely and without any threat, intimidation, or coercion. Train employees to warn patrons who refuse to leave that they will contact the police.
Pre-prepare press releases and social media messages to go out in response to any incidents.
Consider posting a sign celebrating diversity on the façade of your business, which may discourage hate groups in the first instance.
Because laws differ by jurisdiction, businesses outside the Washington D.C. metropolitan area that face similar issues should consult with counsel.