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Business Without Bias: Avoid LGBT Discrimination or Pay the Price

September 18, 2015

Business without bias: Avoid LGBT discrimination or pay the price

By Donald R. Keller

It’s apparent that societal attitudes are changing toward the LGBT community. Before the U.S. Supreme Court legalized gay marriage nationwide, many states had already done so.

In other areas, however, the legal status of LGBT folks has changed very little. One such area is state anti-discrimination laws in public accommodations. There are only a handful of states that have passed legislation prohibiting businesses from refusing to provide services based on a potential customer’s gender orientation or identity. In a majority of states, LGBT status is not a protected classification like sex, race or religion.

However, the absence of state legislation doesn’t mean that businesses are safe from legal repercussions if they discriminate against lesbians, gays, or transgender people. It pays to know whether and how local ordinances address the issue. Many counties and municipalities have adopted or are adopting anti-LGBT discrimination ordinances, and addressing complaints through established local enforcement mechanisms, such as local human relations commissions.

Protections for the LGBT community are also coming from state courts. In July, a suburban Denver baker appealed a Colorado judge’s ruling that he couldn’t refuse to bake a wedding cake for two men because of the baker’s religious beliefs.

Ensure your business in on the right side of the law by considering these six factors:

  1. Know the law:  It would not be surprising if many businesspeople aren’t aware of what local ordinances say. Check with your lawyer or local officials to find out.
  2. It’s not the venue; it’s the business address: A caterer asked to service a gay wedding 100 miles away might legitimately decline on the basis of distance. But declining out of opposition to gay marriage may put that caterer in the crosshairs of anti-discrimination ordinances covering the business locality, not the address of the event.
  3. Be consistent: A caterer who declines on the basis of distance could be caught red-handed if the business has serviced distant, opposite-gender weddings. A finding against the business could result in a hefty fine.
  4. Know your business: A business that sells hardware probably knows or learns nothing about the sexual orientation or gender identity of its customers. But in many other transactions, those facts can become known during the course of the business transaction. Be aware that “public accommodations” can cover a lot of ground. Photographers and caterers are frequently in the news, but anti-discrimination statutes apply to a wide range of businesses.
  5. Know the religious exclusions: In some ordinances, churches are not defined as public accommodations, and faith groups may set policies banning ministers from performing same-sex marriages. But there’s gray area when the faith group engages in secular activities, such as in the matter of employment. When a Roman Catholic Diocese fired a teacher found in a same-sex relationship, the case hinged on whether the teacher’s employment and the decision to terminate was within or outside of a city’s ordinance prohibiting gay discrimination in employment. The diocese took the position that all teachers teach religion and therefore are ministers and exempt from the ordinance. A settlement was reached, but, of course, there were legal expenses.
  6. Instill fair practices in company culture: Take preventive measures by training all employees in treating all customers fairly and evenly. Make sure your business has a policy of providing services or products without regard to protected status.

Remember: All it takes is one complaint from a customer to start a legal and publicity nightmare. Take some time beforehand to consult with an attorney about best practices.

The bottom line: Serve all customers with equanimity and fairness. It’s not just good business; increasingly, it’s the law.

Attorney Donald R. Keller is a member of McNees Wallace & Nurick LLC’s Labor and Employment Group in the firm’s Columbus, Ohio, office. His practice concentrates on private- and public-sector labor relations, equal employment opportunity, and general employment and labor law. Donald can be reached at 614-719-5955 or


McNees is a full-service law firm based in central Pennsylvania with more than 130 attorneys representing corporations, associations, institutions and individuals. The firm serves clients worldwide from offices in Harrisburg, Lancaster, State College and Scranton, PA; Columbus, OH; and Washington, D.C. McNees is also a member of the ALFA International Global Legal Network. @McNeeslaw LinkedIn