Thursday, September 30, 2010

Just Cookies Can't Discriminate Against Gays Because It's The Law

I'm not surprised the administration of Mayor Greg Ballard is confused about what the City's human rights ordinance says about discriminating against persons based on their sexual orientation since his administration has been hostile to anything related to gays, but it is a bit disturbing that prominent local lawyers are confused on what the law says. In 2005, the City-County Council adopted a Human Rights Ordinance that added sexual orientation and gender identity to the list of prohibited characteristics upon which discriminatory practices could be based. Despite the law being on the book for almost 5 years now, many prominent attorneys appear to be completely ignorant of its meaning.

This flap began when Fox59 News reported that Just Cookies' owners, David and Lily Stockton, refused to take an order from a student at IUPUI who wanted to place an order for rainbow-colored cupcakes for "National Coming Out Day." Lily was smart enough to tell Fox59 News' Ray Cortopasi that the business refused the order because we sell "Just Cookies" as the name suggests. "Look around, we don't have cupcakes," said owner Lilly Stockton. David, however, couldn't keep his mouth shut and told the reporter he didn't approve of gays and had two young impressionable daughters; therefore, he refused to take an order to prepare cupcakes for a gay-related event. "I explained we're a family-run business, we have two young, impressionable daughters and we thought maybe it was best not to do that," said co-owner David Stockton. That news report set off the firestorm and led to call for the City to take action against the owners.

Everything is going along fine until the lawyers become involved. It seems a number of attorneys in this town are confused about a human rights ordinance that really does mean what it says. The IBJ quotes John Haskin as claiming the ordinance is limited to employment matters:

John Haskin, a local employment discrimination lawyer with Haskin & Larue LLP, said the city ordinance protecting sexual orientation probably doesn't apply at all in this case because it deals only when discrimination is alleged in employment matters, such as the termination of an employee.

“So whether or not the cookie stand violated that ordinance is really questionable,” he said.
Sorry, John, but you should read the ordinance first before commenting on it. The ordinance specifically covers public accommodations. It reads, in part:
The council finds that the practice of denying equal opportunities in employment, education, access to and use of public accommodations, and acquisition of real estate based on race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service veteran status is contrary to the principles of freedom and equality of opportunity and is a burden to the objectives of the policies contained herein and shall be considered discriminatory practices . . .
To provide all citizens of the city and county equal opportunity for education, employment, and access to public accommodations without regard to race, religion, color, disability, sex, sexual orientation, gender identity, national origin, ancestry, age, or United States military service veteran status
The term "public accommodation" as defined in the ordinance clearly includes businesses like Just Cookies. It is defined as "an establishment which caters to or offers its services, facilities or goods to the general public." Just Cookies' refusal to take an order from someone based on sexual orientation falls within the definition of a "discriminatory practice" under the ordinance:
The exclusion from or failure or refusal to extend to any person equal opportunities or any difference in the treatment of any person by reason of race, sex, sexual orientation, gender identity, religion, color, national origin or ancestry, disability, age, or United States military service veteran status . . .
Because Just Cookies leases space in the city-owned City Market, the ordinance further requires a non-discriminatory clause in any contract City-County agencies enter into with businesses, organizations and individuals in employment matters:
Every contract to which one (1) of the parties is the city or the county, or any board, department or office of either the city or county, including franchises granted to public utilities, shall contain a provision requiring the governmental contractor and subcontractors not to discriminate against any employee or applicant for employment in the performance of the contract, with respect to hire, tenure, terms, conditions or privileges of employment, or any matter directly or indirectly related to employment, because of race, sex, sexual orientation, gender identity, religion, color, national origin, ancestry, age, disability, and United States military service veteran status. Breach of this provision may be regarded as a material breach of the contract.
An attorney at Barnes & Thornburg decided to add to the absurdity spewed by Haskin suggesting the ordinance doesn't apply to Just Cookies.

Still, most businesses have the right to refuse a customer, said Ken Yerkes, who leads Indianapolis-based Barnes & Thornburg LLP’s employment practice.

“Generally speaking, a private company can decide to whom it will or will not provide services,” he said.
Ken, you better read the ordinance, particularly since your law firm does more legal work for the city than any other law firm in town. And not to be outdone, an Ice Miller attorney suggests the ordinance may not apply because the order was being placed for a group of persons as opposed to one individual:

“If a person walked up to Just Cookies, say a Latino, and [the business] said, ‘we’re not going to serve you,’ that would clearly violate the ordinance,” Blickman said. “What I don’t know is whether the ordinance extends to a group.” . . .

Absent a city ordinance, there would be no basis to argue discrimination, even against a business operating within city-owned property. That’s because neither state nor federal law prohibits discrimination based on sexual orientation, according to attorneys . . .

“And that is why the spotlight is on the Indianapolis ordinance,” Blickman said. “You might say it is on the cutting edge of anti-discrimination in relation to sexual orientation and gender identity.”
Yeah, right, Mike. Are you telling me if the City refused to grant a permit to Indy Pride to hold its annual pride parade and celebration downtown, the ordinance wouldn't apply because it's a group rather than an individual? The ordinance clearly defines a "person" covered by the act to include a group:
Person means and includes one (1) or more individuals, partnerships, associations, organizations, cooperatives, legal representatives, trustees, trustees in bankruptcy, receivers, governmental agencies and other organized groups of persons.
Geez, do any of these attorneys bother to read the law? Further, Indianapolis' ordinance is hardly on the cutting edge of anti-discrimination in relation to sexual orientation and gender identity as Blickman suggests. A number of states and hundreds of municipalities, including several in Indiana, beat Indianapolis to the punch on that one.
So the law is very clear, notwithstanding the confusion of several prominent Indianapolis lawyers on what it means. The question is whether the Ballard administration intends to enforce it against Just Cookies. After all, the owner is recorded on camera stating his discriminatory motive for turning down the order for rainbow-colored cupcakes.


Blog Admin said...

I still consider myself relatively new to the local political scene, and it does seem Ballard has alienated much of his base on issues such as taxes, public safety, and arguably gun laws. What practices has he put in place that has worked against the LGBT community?

Gary R. Welsh said...

First of all, if he knows someone is gay, he's not about to hire them to work anywhere near him or appoint them to any city board. All of his diversity outreach efforts has specifically excluded the GLBT community despite the endorsement he got in the 2007 election by the only gay newspaper in town. He has turned down invitations to participate in the annual Pride Parade & Celebration downtown despite it being one of the largest downtown events during the calendar year. I could go on, but suffice it to say, Ballard does not like gay people.

Downtown Indy said...

Wow you are so off the beam on this one I'm left flabbergasted.

First, there had been no failure to accommodate -- they would certainly have been sold anything they wanted from the display case.

Second, there was no discrimination -- they were not refused service in any way. The shopkeeper determined a customized order request was not one they wanted to take on. Would Levi Strauss produce a batch of rainbow blue jeans rather than face prosecution for discrimination? (OK, so if they already make such a product spare me the admonishment for choosing that as an example).

Third, you are way stretching on the way you wish to interpret 'access to public conveniences and accommodations' -- There were no barriers to access, no refusal to sell anything anywhere in the store at the time of their visit. I further contend the meaning of 'accommodation' is not accommodation of solicitations of custom work but of physical access such as but not limited to physical disabilities.

[Incredibly, I have exceed some maximum size in blogger so part 2 follows...]

Downtown Indy said...

[...and now, Part2..]

Fourth, the 'public' part of any accommodation would not extend within the confines of the service counter.

Fifth, that they lease space from a government entity that does not make them subject to any special requirements imposed specifically on the government, unless it was written into the lease terms that they would. The store is a private entity that has paid solely for the use of government-owned floorspace. The Market certainly could choose to not renew the month-to-month lease. But they may open themselves to legal action for doing so.

There is no 'human right' to demand an proprietor produce any new work product they don't routinely produce. Refusal to do so is not a discriminatory act, it is a business decision.

In fact, someone making such an unwelcome demand under threat of legal action or duress is being as ignorant of human rights as they assert their target to be.

Blog Admin said...

After looking over the text of the HRO, it's quite clear they violated the ordinance. Thanks for posting the text.

I really don't like how the media in this town jumps to the most well connected law firms for legal opinions.

Gary R. Welsh said...

I made it clear, DI, I didn't think Just Cookies would have had a problem if they had stuck with Lily's explanation--we sell Just Cookies--no cupcakes. The husband stepped in and backed up the complainant's statement that the order was turned down because it was requested for a gay cause. Levis isn't a good example. It does't do custom orders. Just Cookies is a specialized bakery that takes special orders. The owner let it slip they would take a custom order; not just this special order.

Unknown said...

I understand the letter of the law, and reach the same conclusion you did AI. I also can say that as a gay person, I don't like the idea of being discriminated against. It's usually tough to prove intent... unless, of course, someone is dumb enough blab to a news camera.

That said, I'd guess that these are otherwise decent business owners who are in the business of baking cookies, not interpreting HRO laws. Even the experts are having a little bit of trouble.

Look, this is where adults need to step in. If I were the owners, I'd call the folks up, sincerely apologize and send them a complementary box of cookies. If the students were smart, they'd take the opportunity publicly say, "look, we had a good conversation, they apologized, let's move on."

That's what should happen - and everyone would learn something from the experience.

Unknown said...

Cutting edge? Indianapolis? I agree with that. We still don't have federal or state laws prohibiting discrimination against LGBT. He's right about what the city did. Now it's up to the city to enforce it. Will they? That's the question.

Unknown said...

Your assessment of the various commentaries on the city ordinance seem correct. However, I do think your conclusion is invalid.

It does not appear based on available information at this time that Just Cookies discriminated against either a person or a group. The issue seems to be the use of the product rather than the user of the product. If the former, I don't see how the city ordinance can be applied.

The Just Cookies owner clearly viewed the use of his products and by extension his business name and reputation as "part of the groups celebration of National Coming out Day" to be a negative association that was not appropriate for his business philosophy.

A vendor is under no obligation to have their products used in a demeaning (and possibly public in this case) manner that is in direct opposition to what they consider proper for their business.

I think this is a case of "use of" rather than "use by".


Septly said...

Downtown, you don't understand what the word "public means" in the term "public accommodation." It doesn't refer to a publicly owned facility, it means a business selling goods or services to the general public, which is every business, except anything that would constitute a religious group or private club. Second, there was a refusal of goods by the business. The business would NOT have "gladly sold" anything to the gay group. Contrary to what the article in the Star mentioned, the shop specifically ADVERTISES that it fills custom dessert orders. Also, the business owner went on the local Fox news affiliate and admitted that the issue was not about filling a "special order," but rather that he didn't want to sell to gay people. Now, one can debate whether or not the law, or any anti-discrimination law is good public policy, but the issue of what happened and what the law covers is not a matter of debate, it's all very clear and settled.

Unknown said...

Hey I'm curious about what INDIANA cities have laws like Indy's? You say alot of them do... Which ones do you know about?

Gary R. Welsh said...

At the time Indianapolis enacted its ordinance in 2005, there were also similar ordinances on the books in Bloomington, Fort Wayne, Michigan City and West Lafayette. I believe there have been other cities added as well since that time. I don't have the entire list.

Blog Admin said...

South Bend has also been trying to pass an HRO, though I'm not sure if it has come to a vote yet.

Paul K. Ogden said...

I agree with you regarding how the ordinance reads. The problem is the application of the ordinance in this situation interferes with certain constitutional protections that the owner Just Cookies has. The Supremacy Clause governs in such circumstances and that means the U.S. constitutional provision wins out over the local ordinance..

The Free Exercise Clause has been interpreted to require that government must accomodate religious beliefs (even on public property), no matter how disagreeable those beliefs may be, even if they advocate discrimination. Plus, City officials have made comments that their action would be based on what the male owner said. That could well constitute a free speech violation. Government can't discriminate against someone for expressiving views government doesn't agree with it.

The City would be wise to not go down the path of opening up expensive litigation. If they think it's an open and shut case that they have an absolute right to boot Just Cookies, they should think again.

Septly said...

IndyCad, I have to disagree with your assessment of what business practices the law prohibits. First, there is no stated or implied exception in the city's anti-discrimination ordinance for customer use, nor is there such an exception in any anti-discrimination law for that matter. And where a law is clear on its face and states no exception, none will be read into it. Obviously, there is no exception based on customer use for a good reason, as allowing businesses to sidestep the anti-discrimination provisions based on a customer's actual or presumed use would be an easy way for any business to avoid compliance with an ant-discrimination law. If the owner would sell rainbow cookies to a mother wanting them for her son's birthday, then they have to sell them to gay customers, and how those customer's intend to use the product is irrelevant (aside perhaps from some sort of illegal use). Second, the owner's name was not on the cookies, nor was the owner asked to lend their sponsorship to the event held by the gay students' group. Cookies do not have labels, and there would be no way for anyone to distinguish a cookie from one bakery from another. Moreover, any objections to the supposed "demeaning" use of the product are simply an attempt to engage in the very invidious discrimination which the law prohibits. If I were a racist baker who advertised that I filled custom orders (like the cookie store does), then I couldn't refuse to sell a cake with a picture of the MLK, Jr on it to African-Americans wanting to use it for a Black History celebration simply because I didn't want my products associated with African-Americans. Business owner's objections to being associated with certain classes of individuals evidences the sort of discrimination which anti-discrimination laws seek to prohibit in general commerce. During the segregation era, businesses which banned African-Americans often stated that they didn't want to serve black people because they didn't want their businesses associated with "those sort of customers."

Russ said...

Just go to another bakery and order your damn cupcakes from them... is this really that big of an issue that we have to drag in the media and lawyers?

Here's your reasonable accomodation: they aren't the only bakery in town. Go elsewhere, spread the news that they're anti-gay, and if they lose enough business, then they will either go under or rethink your policy.

I get sick of hearing the left complain about "proselytizing" at Christian-owned stores like Chick-Fil-A... if you don't like it, go to another restaurant. Heck, if you want fried chicken, there are plenty of competitors. Let the free market take care of it.

Speaking of the free market, to jump off of something Indy said, what about this scenario: I own a bakery that 10 churches come in every Sunday morning and purchase dozens and dozens of donuts from me. I refuse the single cupcake order because I don't want to offend my regular customers or lose my regular business. Should I sacrifice 10 regular customers for the sake of a one-off order in the name of "accommodation"?

Blog Admin said...

Russ, if a bakery refused a group of Christian church goers, the Moral Majority right wing crowd would go NUTS over something like that. You would not be hearing about the owner's "right to discriminate" in that case. This is beside the fact that Christians haven't been a discriminated segment of society for hundreds of years, whereas discrimination based on gender, sexual orientation, disability, and race are more recent (This isn’t to say Christians haven’t been discriminated against in recent years, but I’d bet it’s a small fraction compared to discrimination based on race, sexual orientation, disability, etc…).
Here's where I disagree with my more libertarian leaning friends. When they say that laws such as the Civil Rights Act, the HRO, and the Americans with Disabilities Act are unnecessary because you can't enforce beliefs and equality, and that if these beliefs are truly widely held, the free market would make it happen. As someone who has been discriminated against, I appreciate the (admittedly limited) legal avenues that the ADA has provided to folks like myself, and I imagine other groups feel likewise about the other respective laws. Frankly, I suspect some of the people who are against these types of anti-discrimination laws have never been discriminated against. It’s a horrible feeling, regardless of the reason.
But regardless of what one thinks of these laws, the fact is they are laws as of right now. Don’t like it? Feel free to challenge them in court. I think it’d be a waste of time, but go for it. Public opinion would likely turn against anyone who tried to take down the ADA or Civil Rights legislation, and it’d bring out associations a reasonable person wouldn’t want.

Blog Admin said...

part 2:

I also think people need to be reminded that just because you have freedom of speech and freedom of religion does not mean you can say or do anything you want and hide behind the “durr it’s my religious belief” to avoid consequences. A judge in Lousiana was asked to resign in 2009 because he refused to marry interracial couples. It doesn’t matter one iota WHY he refused to marry interracial couples. It could be because he was grumpy that day/week/year/decade, or because he had a bad breakfast that day, or because of his religious beliefs. The fact that he refused to do his public service/job was enough to attempt to force him out.

On another note, if a business owner feels he needs to be so picky with his customers, then maybe he should re-think his line of work. I have NEVER, in my several years of working at a bakery-cafe and in my current gig of IT consulting, asked for a background check on a customer or denied them service based off of knowledge of their history or personality unless they were trying to con me. If you don't like a customer, tough shit, because the customer is essentially your boss. Go to the break room and complain and vent after your shift is over. That's what I did. But before that, smile and service your customer.

Unknown said...

Point is clearly understood and articulated well. However, valid exceptions are not limited to explicitly or implicitly stated exceptions in law. Applications of law naturally produced a variety exceptions. The question is: is it possible to interpret an exception in this case? Admittedly the odds are against it. But I think it is reasonable to move the argument from an arbitrary refusal to a business interest refusal.

However, in the court of public opinion Just Cookies hit a home run today. The lines were long and they operated at times on just a few trays at a time. I even seen one gentleman walk by and with a lisp that didn't sound very natural say "oh well" when he seen the number of people waiting in line.

Hoosier in the Heartland said...

National Coming Out Day is Thursday, October 7th, 2010 from 11:30 am - 1:30 pm in the Campus Center Atrium. Join the IUPUI community in empowering our GLBT community to live openly, honestly, and without fear. Between 12:00 pm - 1:00 pm, listen to proclamations and statements of support by Chancellor Charles R. Bantz, Interim Vice Chancellor of Student Affairs, Dr. Norleen Pomerantz, and many more. Celebration activities will include a resource fair and cupcakes provided by The Flying Cupcake. See you there.

Anonymous said...

AI - you missed Lafayette and Tippecanoe County. We all beat Indy to the punch, although Indy also included Gender Identity and expression - an omission that Fort Wayne and West Lafayette are trying to rectify.

As a member of the Lafayette Human Relations Commission, I'd think this would be a pretty good case for mediation - which is a step we have before we investigate here.

Frankly I've been confused about the cookie versus cupcake thing - but the owner was stupid for revealing his bigotry through that statement. There's no question that will be his Achilles heel.

Anonymous said...

By the way, Purdue will be celebrating National Coming Out Day on October 6th - 11 AM-4 PM at the Unfinished Block P behind the Stewart Center. Resource Fair, speakers, and unfinished business...

Christopher Daley said...

@Paul Ogden - the theory that you are advancing is one that is periodically made by commentators who oppose laws that prohibit sexual orientation or gender identity based discrimination. However, it is not one that is supported by the courts.

When a person or company is involved in commerce, anti-discrimination ordinances govern their conduct even if that requires the person or company to do something that is against their personal beliefs.

Some religions prohibit women from working outside the home (or have had such prohibitions in the past). However, a business owner who prescribes to that belief cannot refuse to hire women.

The same is true in this case. The owners of Just Cookies are welcome to have their private beliefs but they must not conduct their business in a manner that violates the local ordinance (even if such conduct is based on private beliefs).

Finally, the comment by the owner is evidence of discriminatory intent. Of course it can be used in adjudicating any complaint filed against him. Particularly in this case where he basically says, "We didn't provide the cupcakes because..."

All the best,


Joshua Bissey said...

Thanks for posting the letter of the law for us all to review. It clearly indicates that the Stocktons were within their rights to refuse the order, as they did not discriminate based on sexual orientation or any other criterion listed in the statute.

Had the Stocktons refused service to a customer because he or she was a homosexual, they would have been in violation. But that is not what happened. They actually "discriminated" based on viewpoint, which is not a protected characteristic.

Hopefully, the city will choose not to persecute the bakers for having mainstream views about sexuality, that happen to differ from those of the IUPUI or the city government.

kar mart dave said...

what if a progressive bakery was asked to make anti-abortion "fetus cupcakes?" HMMM?