Sex / Gender Discrimination: Overview

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Discrimination in Public Accommodations

What is a Public Accommodation?

Federal and state laws prohibit discrimination against certain protected groups in businesses and places that are considered “public accommodations.” The definition of a “public accommodation” may vary depending upon the law at issue (i.e. federal or state), and the type of discrimination involved (i.e. race discrimination or disability discrimination). Generally speaking, it may help to think of public accommodations as most (but not all) businesses or buildings that are open to (or offer services to) the general public. More specifically, the definition of a “public accommodation” can be broken down into two types of businesses / facilities:

  • Government-owned/operated facilities, services, and buildings
  • Privately-owned/operated businesses, services, and buildings

Government-owned/operated facilities and services. Government-owned facilities include courthouses, jails, hospitals, parks, and other places owned and operated by federal, state and local government. Government-operated services, programs, or activities provided by federal, state, or local governments include transportation systems and government benefits programs (such as welfare assistance).

Privately-owned/operated businesses and buildings. Privately-owned businesses and facilities that offer certain goods or services to the public — including food, lodging, gasoline, and entertainment — are considered public accommodations for purposes of federal and state anti-discrimination laws. For purposes of disability discrimination, the definition of a “public accommodation” is even more broad, encompassing most businesses that are open to the public (regardless of type).

Laws Prohibiting Discrimination in Public Accommodations: Race, Color, Religion, and National Origin

Federal law prohibits public accommodations from discriminating on the basis of race, color, religion, or national origin. If you think that you have been discriminated against in using such a facility, you may file a complaint with the Civil Rights Division of the Department of Justice, or with the United States attorney in your area. You may also file suit in the U.S. district court.

There are also state laws that broadly prohibit discrimination on the bases of race, color, religion, and national origin in places of public accommodation. To determine whether your state has such a law, you should contact your state or local human rights agency, your state attorney general’s office, or speak to a Civil Rights attorney in your area.

Laws Prohibiting Discrimination in Public Accommodations and Disability Discrimination

At the federal level, the Americans with Disabilities Act prohibits discrimination on the basis of disability in a wide range of places of public accommodation, including facilities that offer lodging, food, entertainment, sales or rental services, health care and other professional services, or recreation. State and local governments must eliminate any eligibility criteria for participation in programs, activities, and services that screen out or tend to screen out persons with disabilities, unless the government can establish that the requirements are necessary for the provision of the service, program, or activity. In addition, public facilities must ensure that individuals with disabilities are not excluded from services, programs, or activities because buildings are inaccessible.

There are also state laws that broadly prohibit discrimination on the basis of disability in places of public accommodation. To determine whether your state has such a law, you should contact your state or local human rights agency, your state attorney general’s office, or speak to a Civil Rights attorney in your area.

ADA Access to Buildings and Businesses (Public Accommodations)

A federal law that requires most business and facilities to provide reasonable access and accommodation for all disabled customers, clients, and members of the public. This law, the Americans with Disabilities Act (ADA), applies to almost all businesses that are open to the public, regardless of size. Below is an introduction to the ADA and its application to “public accommodations.”

The Americans with Disabilities Act

The Americans with Disabilities Act (ADA) is a federal civil rights law that prohibits the exclusion of people with disabilities from everyday activities, such as buying an item at the store, watching a movie in a theater, enjoying a meal at a local restaurant, exercising at the local health club, or having the car serviced at a local garage. To meet the goals of the ADA, the law established requirements for private businesses of all sizes. These requirements first went into effect on January 26, 1992.

In recognition that many small businesses cannot afford to make significant physical changes to their stores or places of business to provide accessibility to wheelchair users and other people with disabilities, the ADA has requirements for existing facilities built before 1993 that are less strict than for ones built after early 1993 or modified after early 1992.

Private Businesses that Serve the Public: “Public Accommodations”

Private businesses that provide goods or services to the public are called “public accommodations” under the ADA. The ADA establishes requirements for twelve categories of public accommodations, including stores and shops, restaurants and bars, service establishments, theaters, hotels, recreation facilities, private museums and schools, and others. Nearly all types of private businesses that serve the public are included in the categories, regardless of size. Existing facilities are not exempted by “grandfather provisions” that are often used by building code officials.

New Construction and Alterations

The ADA requires that newly constructed facilities, first occupied on or after January 26, 1993, meet or exceed the minimum requirements of the ADA Standards for Accessible Design. Alterations to facilities, spaces or elements (including renovations) on or after January 26, 1992, also must comply with the Standards. Renovations or modifications are considered to be alterations when they affect the usability of the element or space. For example, installing a new display counter, moving walls in a sales area, replacing fixtures, carpet or flooring, and replacing an entry door. However, simple maintenance, such as repainting a wall is not considered an alteration by the ADA.

What Are Civil Rights?

“Civil rights” are the rights of individuals to receive equal treatment (and to be free from unfair treatment or “discrimination”) in a number of settings — including education, employment, housing, and more — and based on certain legally-protected characteristics.

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Civil Rights and Discrimination: U.S. Supreme Court Decisions

Following is a list of U.S. Supreme Court decisions involving civil rights and discrimination.

  • Dred Scott v. Sanford (1856) | (Case Background)
    A major precursor to the Civil War, this controversial U.S. Supreme Court decision denied citizenship and basic rights to all blacks — whether slave or free.
  • Plessy v. Ferguson (1896)
    This decision allowed the use of “separate but equal” racially segregated accommodations and facilities.
  • Korematsu v. U.S. (1944)
    The Court in this case upheld the conviction of an American of Japanese descent, who had been prosecuted for remaining in California after a 1942 presidential order designating much of the west coast a “military area”, and requiring relocation of most Japanese-Americans from California (among other west coast states)
  • Shelley v. Kraemer (1948)
    This decision held that “racially restrictive covenants” in property deeds are unenforceable. In this case, the “covenants” were terms or obligations in property deeds that limited property rights to Caucasians, excluding members of other races.
  • Bailey v. Patterson (1962)
    The Court in this case prohibited racial segregation of interstate and intrastate transportation facilities.
  • Gideon v. Wainwright (1963)
    In this case, the Court found that criminal defense attorneys must be provided for indigent criminal defendants.
  • Loving v. Virginia (1967)
    This decision holds that state laws prohibiting inter-racial marriage are unconstitutional.
  • Jones v. Mayer Co. (1968)
    The Court held in this case that federal law bars all racial discrimination (private or public), in sale or rental of property.
  • Griggs v. Duke Power Co. (1971)
    In this case, the Court decided that certain education requirements and intelligence tests used as conditions of employment acted to exclude African-American job applicants, did not relate to job performance, and were prohibited.
  • Lau v. Nichols (1973)
    The Court found that a city school system’s failure to provide English language instruction to students of Chinese ancestry amounted to unlawful discrimination.
  • Roe v. Wade (1973)
    In this landmark case, the Court decided that a woman’s right to abortion is part of the constitutional right to privacy.
  • Cleveland Bd. of Ed. v. LaFleur (1974)
    Found that Ohio public school mandatory maternity leave rules for pregnant teachers violate constitutional guarantees of due process.
  • Batson v. Kentucky (1986)
    This decision holds that a state denies an African-American defendant equal protection when it puts him on trial before a jury from which members of his race have been purposefully excluded.
  • Bowers v. Hardwick (1986)
    The Court holds that a Georgia statute criminalizing same-sex sodomy is constitutional.
  • Johnson v. Transportation Agency (1987)
    The Court decides that a county transportation agency appropriately took into account an employee’s sex as one factor in determining whether she should be promoted.
  • Oncale v. Sundowner Offshore Serv., Inc. (1987)
    In this case, the Court held that sex discrimination consisting of same-sex sexual harassment can form the basis for a valid claim under Title VII of the Civil Rights Act of 1964.
  • Franklin v. Gwinnett County Public Schools (1992)
    The Court decided that an award of money damages is possible in a case brought to enforce Title IX of the Education Amendments of 1972, alleging sexual harassment and abuse by a teacher.
  • Romer v. Evans (1996)
    In this case, the Court finds that an amendment to Colorado’s constitution, which sought to preclude legal protection of homosexuals’ rights, is unconstitutional.
  • Bragdon v. Abbott (1998)
    The Court holds that HIV infection qualifies as a disability under the Americans with Disabilities Act (ADA).
  • Burlington Industries, Inc. v. Ellerth (1998)
    Holding that an employee who refuses unwelcome and threatening sexual advances of a supervisor (but suffers no real job consequences) may recover against the employer without showing the employer is at fault for the supervisor’s actions.
  • Faragher v. City of Boca Raton (1998)
    The Court decides that an employer may be liable for sexual discrimination caused by a supervisor, but liability depends on the reasonableness of the employer’s conduct, as well as the reasonableness of the plaintiff victim’s conduct.
  • Murphy v. United Parcel Service, Inc. (1999)
    In this case, the Court explains how to determine whether an impairment “substantially limits” a major life activity under the Americans with Disabilities Act (ADA).
  • Lawrence v. Texas (2003)
    The Court holds that a Texas statute criminalizing same-sex conduct is unconstitutional.
  • Grutter v. Bollinger (2003)
    In this case, the Court finds that a law school’s limited “affirmative action” use of race in admissions is constitutional.

Have Your Civil Rights Been Violated?

From race discrimination to sexual harassment and fair housing rights violations, if you believe you have been the victim of a civil rights violation, you most likely have questions about your situation and your options. Following is an overview of initial questions to ask and steps to take if you believe that your civil rights have been violated.

(Note: In any potential legal situation involving civil rights, you should speak with an experienced Civil Rights Attorney at the outset. Legal issues involving civil rights can be very complicated, and can be very difficult to resolve without proper expertise.)

Was a “Protected Right” Violated?

The first question you should ask is whether a “protected right” has been violated. You may feel that your rights have been violated, but it doesn’t necessarily follow that your civil rights were violated. Only certain rights are protected under civil rights and anti-discrimination laws. Some apparent “rights violations” are in fact perfectly legal, and cannot form the basis for a civil rights case. The examples below point out the difference between lawful discrimination and an unlawful civil rights violation, in the area of housing rights.

Example 1: Applicant 1, an owner of two dogs, fills out an application to lease an apartment from Landlord. Upon learning that Applicant 1 is a dog owner, Landlord refuses to lease the apartment to her, because he does not want dogs in his building. Here, Landlord has not committed a civil rights violation by discriminating against Applicant 1 based solely on her status as a pet owner. Landlord is free to reject apartment applicants who own pets.

Example 2: Applicant 2, an African-American man, fills out an application to lease an apartment from Landlord. Upon learning that Applicant 2 is an African-American, Landlord refuses to lease the apartment to him, because he prefers to have Caucasian tenants in his building. Here, Landlord has committed a civil rights violation by discriminating against Applicant 2 based solely on his race. Under federal and state fair housing and anti-discrimination laws, Landlord may not reject apartment applicants because of their race.

If a Protected Right Was Violated: Your Options

If you believe that a protected right was violated, you likely have a number of options available to you — including resolving the matter through informal negotiations, filing a claim with the government, and filing a private lawsuit in civil court.

Informal Negotiations

As with most legal disputes, your civil rights matter can be resolved without your having to file papers in court, or face the prospect of a lengthy legal battle. For example, a potential employment discrimination matter can be resolved by both sides (typically through the employer and employee and their respective attorneys) sitting down and drafting an agreement in which the employer agrees to pay the employee a certain amount as severance, and the employee agrees to give up any right to sue over the matter.

Filing a Claim with the Government

For most cases involving civil rights violations, one of your options is to file a complaint with the government at the federal or state level, and allow a government agency to take steps to enforce your civil rights. Filing a complaint will usually trigger an investigation into your claims by the agency, and the government may take further action on your behalf. Whether your complaint is handled at the federal or state level will depend on the facts of your case and the claims involved (what laws were allegedly violated, etc.). What matters most is that your complaint gets filed; after that, the agencies will decide where and how your case will be handled. In most cases, neither the offender nor the victim need be affiliated with the government. It is important to note that, for some types of civil rights cases, a claim must be filed with the government before any private lawsuit may be pursued.

Filing a Private Lawsuit for a Civil Rights Violation

If you believe you have been the victim of a civil rights violation, you most likely have the option of filing a lawsuit against those responsible for any harm suffered as a result.

Once you decide to file a lawsuit for a civil rights violation, one of your first considerations will be where to file: in federal or state court. Depending on the specifics of your case, the choice may be yours, or your options may be dictated by an applicable law. Regardless of where the case is handled (federal or state court), in order to begin the case the person claiming a civil rights violation (the “plaintiff”) files a “complaint” with the court. The complaint sets out certain facts and allegations, in an attempt to show that the opposing party (the “defendant(s)”) is/are responsible for the civil rights violations alleged in the complaint, and for any harm suffered by the plaintiff as a result. Remember that, for some types of civil rights cases, you must file a claim with the appropriate government agency before pursuing any private lawsuit.

Civil Rights Violations: Hiring a Lawyer

As mentioned above, if you believe you have suffered a civil rights violation, the best place to start is to speak with an experienced Civil Rights Attorney. Important decisions related to your situation can be complicated — including whether a “protected right” was violated, which laws apply to the situation, whether you must file a claim with the government, and where you might file a lawsuit. A Civil Rights Attorney will evaluate all aspects of your case and explain all options available to you, in order to ensure the best possible outcome for your case.