What to know about Public Accommodation

In this increasingly progressive age where society’s understanding and ideology surrounding sex and gender identity are continuously developing, companies may find themselves at a loss as to who is a protected class under the law. The protections provided by federal law are very narrow, so companies and individuals alike often look to the broader state laws to determine who is protected by public accommodation laws.[1] The law in the State of Tennessee mirrors federal law and provides that “[i]t is illegal for a place of public accommodations to refuse or deny the full and equal enjoyment of goods, facilities and accommodations based on Age (40+), Color, Creed, National Origin, Race, Religion and Sex.”[2]

This law applies to any establishment that provides goods and/or services to the general public (e.g. stores, hotels), holds themselves open to the general public (e.g. parks), or is supported by government funds (e.g. the fire department) and prohibits such establishments from discriminating against anyone based on those seven categories. Unlike the more progressive states, Tennessee does not provide protections based on sexual orientation or gender identity. Furthermore, the rules of the Tennessee Human Rights Commission define “sex” as “the designation of an individual person as male or female as indicated on the individual’s birth certificate.”[3] Therefore, under Tennessee law, sexual orientation and gender identity are not protected classes, meaning businesses may deny goods/services to people based on these classes.

However, in this age of advanced technology, many businesses do not provide their goods and/or services in just one state. With e-commerce becoming the norm and often preferred method for many businesses and customers alike, business owners should be aware of the more encompassing laws of other states. For example, about 20 states and the District of Columbia have expanded their public accommodation laws to prohibit discrimination based on sexual orientation or gender identity. Therefore, business owners providing goods/services across state lines, should be cognizant of these state differences and ensure they do not discriminate against a protected class.

As you may have seen in the news, the Supreme Court has carved out an exception to public accommodation laws that involve speech.[4] In its 303 Creative LLC v. Elenis opinion, the Supreme Court held that if a business owner provides goods/services that are original, customizable, and tailorable creations that convey a message, while the business owner cannot pick and choose who to offer such goods/services to, they can choose what messages to convey, even if such messages are discriminatory.

How Should Business Owner’s Respond?

Since many goods/services involve speech, it may be challenging to some business owners to know when this case may apply. Business owners should know that they cannot discriminate when providing goods/services based on the categories protected by state and federal laws (i.e., the goods/services must be offered/provided to everyone equally). In some instances, when the goods/services being offered are speech (meaning they are original, customizable, and tailorable creations that convey a message), the protections of the public accommodation laws cannot be used to compel the providers to convey any particular message, particularly when those messages violate the provider’s moralities.

To promote uniformity throughout the business, ensure compliance with all state public accommodation laws, and clarify the principles of the company, business owners should implement company policies explicitly stating the protected classes they will not discriminate against while providing goods/services. At the bare minimum, these policies must prohibit discrimination against the classes protected by federal law. However, for companies who are predominantly e-commerce in nature and/or providing goods/service throughout the United States, these policies should be broad to include the other categories protected by states.

For more information, please refer to the resources below:

[1] See 42 U.S.C. § 2000(a).

[2] Public Accommodations (tn.gov).

[3] See Rules of Tennessee Human Rights Commissions 1500-01-02-.01(aa).

[4] 303 Creative LLC v. Elenis, 600 U.S. at 14 (slip opinion) (citing Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Comm’n, 584 U.S. (slip opinion)).

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