Is Use Discrimination Unlawful if Customers are Treated Equally?

By Jay Marshall Wolman 

There has been significant commentary in the blogosphere about a recent order out of Oregon allegedly imposing a gag order on a bakery that expressed an aversion to same sex weddings. I’ll leave the First Amendment analysis to Ken White at Popehat and Eugene Volokh as linked above. 

I’m a little more concerned with the order’s analysis of the discrimination claim itself. The Labor Commissioner did not undertake the traditional McDonnell Douglas test for discrimination. Now, this might not be an Oregon requirement, but there was no real analytical framework. This is usually important in determining if the acts were discriminatory. 

This case involved statements by the owners expressing an aversion to making cakes for same sex weddings. Let’s assume the easier case: an express policy against catering such weddings.  Is that unlawful? Why?

The statute prohibits announcing you will deny services “on account of …sexual orientation “.  ORS 659A.409. Technically, and it is unclear anyone argued this, no one is denied service on account of their orientation. Rather, the customers are denied service for the nature of the wedding. In most weddings, parents pay for the cake. This bakery would likely sell a cake to gay parents for their straight son’s wedding and refuse to sell to straight parents for their gay son’s wedding. No paying customers are denied on the basis of their orientation. The statute doesn’t address associational discrimination. Disparate treatment discrimination is not implicated and thus the bakery policy announcement of discrimination against same sex weddings, but not necessarily gay customers, would seem to be lawful. [Arguably, the conduct/person analysis of Elane Photography could suggest that it constitutes disparate treatment, but I believe that the conduct/person distinction is more suited to disparate impact analysis. The New Mexico Supreme Court in that case conflated Constitutional Equal Protection analysis with the statutory interpretation frameworks of disparate treatment and impact.]

The policy clearly has a disparate impact; there’s bound to be a spate of older gay couples now paying for their own weddings. However, the Commissioner did not address disparate impact theory, which may or may not be available under Oregon public accommodation law.  Thus, it may be the right outcome but for the wrong reasons. 

3 Responses to Is Use Discrimination Unlawful if Customers are Treated Equally?

  1. dan says:

    ummmmm…most couples (gay straight queer or whatever) go to order their cake no matter who is paying for it. The refusal was refusal of service before the fact, not at the point of payment so I think the analysis is irrelevant even if mom or dad were picking up the actual tab at the end of the day. the clients names would be the couple.

    To use a simple example you arent going to be able to make that analysis if a gay couple and the parents of one go to dinner and are refused pizza because the couple is gay. It doesnt matter that everyone expected daddy to pick up the tab. the couple were the ones being refused service. now I’m hungry for pizza.

    and I dont know how many gay weddings you have been to but it hasnt been that long that you could expect to see even one set of parents let alone both. So the concept of the parents picking up the tab for the cake at a gay wedding as an expected tradition is stretching it quite a bit. Here in Canada we are years ahead in having gay marriages but i haven’t been to one where the parents of one picked up the tab for anything.

    • Jay Wolman says:

      It boils down to whether the consumer is discriminated against on the basis of their protected class status. This may be ripe for a disparate impact claim per your analysis, but not necessarily disparate treatment if all consumers can purchase cakes for all of the same events and if all consumers are denied permission to purchase for the same events.

      • dan says:

        Why would call be denied? That would anoint to withdrawing a product/service from the market. If its an in-demand product such as a wedding cake in summer it seems a poorly designed protest. I can see a Cake Boss episode. ” boss we have 35 wedding cakes to ship cross country for next weekend”. Competitors would pick up the slack. Refusing to sell to a small targeted group is a legal issue. Refusing to sell to all is a business issue. Both are grandstanding but the second us also business suicide by publishing the none targeted group

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