Barefoot in Businesses — Rights?

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Michael Buttgen of The Primalfoot Alliance asked me about how this news story, Pregnant woman says she was kicked out of bar, might apply to barefooters.

The story is about a pregnant woman, Michelle Lee, in Roselle, Illinois (a suburb of Chicago) who was kicked out of a bar because she was pregnant. A bouncer asked her if she was, and when she said “yes”, he made her leave. According to the story:

“He just said, if anything happens, if a fight breaks out and you get hurt, we are responsible,” Lee said. “That can happen anywhere. If I am going somewhere, I am taking responsibility.”

Sounds rather familiar to what we barefooters hear, doesn’t it? In this instance, the ACLU is concerned because of sex discrimination (since, obviously, it is only women who get pregnant, so far).

However, the part of the article that raises the question related to barefooting is this part:

According to the Illinois Human Rights Act: “It is unlawful to discriminate in the full and equal enjoyment of facilities and services by any place of public accommodation.”

* * *

Chicago lawyer Martin Dolan, who handles civil rights and personal injury cases, said that a private bar may set its own rules, including behavior standards or a dress code, but that those rules must be established in advance and be obvious to customers, such as a visual posting.

“The key to this is being able to justify the legitimate reason, not just (pull something) out of the air,” Dolan said.

And that leads to the question from Michael:

What does your experience tell you about how this applies to barefooters? Can a business legally discriminate against us if they don’t have “established” rules? In other words, can we share with managers or security that they have no right to discriminate if they are just making rules up on the spot?

The answer? It depends (doesn’t everything?). To a large extent it depends on the state that you are in.

As a general rule, businesses are allowed to discriminate however they want and can kick out whomever they want for whatever reason, as long as it is not because of race, creed, color, sex, sometimes sexual orientation, etc.. That is based upon states’ public accommodation laws. However, some states go beyond that restricted set of reasons. For instance, California has The Unruh Act, that has been interpreted to mean that you cannot be tossed from a public accommodation merely for unconventional dress. The seminal case there was In re Cox, 3 Cal.3d 205, 474 P.2d 992 (1970), from 1970. Since that time, California courts have been emasculating that ruling, and it has never been tested in regards to going barefoot, but it is at least something. (On a more pessimistic note, I wouldn’t be surprised if some court there would say that a barefoot ban would be “reasonable”.)

I am also aware that New Jersey has a similar state law. Now, from this article, I see that Illinois also has something similar, except that I note that the language for Illinois is the strongest I have seen: the right to be in a public accommodation doesn’t seem to be an afterthought to the other conditions (race, sex, etc.). The Illinois law is (775 ILCS 5/) The Illinois Human Rights Act, and as the article states:

It is a civil rights violation for any person on the basis of unlawful discrimination to:

(A) Deny or refuse to another the full and equal enjoyment of the facilities, goods, and services of any public place of accommodation;

As I look at case law, I cannot find anything that even supports what the lawyer in the article says, that rules must be specified in advance and posted. It appears to me to be even stronger than that, and in fact there is language in a major court decision, Chicago v. Corney, Jr., 13 Ill. App.2d 396, 142 N.E.2d 160 (1957), (that opinion was in regard to racial discrimination) that says: “Persons seeking such accommodations, etc., cannot be excluded from the premises so long as they conduct themselves in a peaceable and orderly manner.”

Who knows how an Illinois court might rule in a barefooting case. I do note that the Chicago Public Library has a barefoot rule — in this regard I don’t see how it could be legal, but I also know that judges are extremely reticent to legitimize barefooting and they end up succumbing to the usual myths.

Finally, let me finish with my state, Ohio. I only recently realized that their human rights statute goes a bit beyond the standard race, sex, etc. It says, in the Ohio Revised Code § 4112.02(G), that it is an unlawful discriminatory practice:

For any proprietor or any employee, keeper, or manager of a place of public accommodation to deny to any person, except for reasons applicable alike to all persons regardless of race, color, religion, sex, military status, national origin, disability, age, or ancestry, the full enjoyment of the accommodations, advantages, facilities, or privileges of the place of public accommodation.

I’ve added the emphasis. There are some court rulings that suggest that that phrase really does require the business have a consistent policy (such as a sign) for it to be enforceable.

That might be fun to test someday.

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4 Responses to “Barefoot in Businesses — Rights?”

  1. Beach Bum Says:

    After reading all this and most of the links, I noticed that it also says, with regards to the rule allowing trespassers to be kicked out:

    “Exceptions. This section shall not apply in any of the following instances: (1) Where its application results in or is coupled with an act prohibited by the Unruh Civil Rights Act or any other provision of law relating to prohibited discrimination against any person on account of color, race, religion, creed, ancestry or national origin; (2) Where its application results in or is coupled with an act prohibited by Section 365 of the California Penal Code or any other provision of law relating to duties of innkeepers and common carriers; (3) Where its application would result in an interference with or inhibition of peaceful labor picketing or other lawful labor activities; (4) Where its application would result in an interference with or inhibition of any other exercise of a constitutionally protected right of freedom of speech such as (but not limited to) peaceful expressions of political or religious opinions, not involving offensive personal conduct;”

    Notice the last line – it says “not involving offensive personal conduct” –
    I guess that means if the business owner thinks that going barefoot is “offensive personal conduct” he can legally kick the person out. Or am I not interpreting this correctly?

  2. Bob Neinast Says:

    I would say that being barefoot is a condition, not conduct (and of course, we would all dispute that it is offensive, any more than flip-flops).

    Of course, what you have to keep in mind is that what matters is what a court ends up saying. Until the Unruh Act is actually tested with a barefooter, all we can do is make logical arguments and speculate.

    That’s the way the court system works.

  3. Paul Says:

    When I read articles like this I wish we could just turn barefoot living into a religion or creed. Then we could be protected against discrimination under the law. In Ontario, Canada we have the Ontario Human Rights code that states….

    Under the Ontario Human Rights Code, discrimination because of religion (creed) is against the law. Everyone should have access to the same opportunities and benefits, and be treated with equal dignity and respect, regardless of their religion.

    Religion includes the practices, beliefs and observances that are part of a faith or religion. It does not include personal moral, ethical or political views. Nor does it include religions that promote violence or hate towards others, or that violate criminal law.

    Where a rule conflicts with religious requirements, there is a duty to ensure that individuals are able to observe their religion, unless this would cause undue hardship because of cost, or health and safety reasons. Unlawful discrimination because of religion can include:

    Refusing to make an exception to dress codes to recognize religious dress requirements;

    I wonder how hard it would be? Church of Society for Barefoot Living?

  4. jorgekafkazar Says:

    Followers of Bokonon went barefoot wherever possible. They have died out, however. I believe Jains also go barefoot to avoid crushing small lifeforms. I suspect nominal affiliation with a barefoot religious sect, new or old, would put an end to discrimination.

    Note that ancient Jewish priests never entered the temple while shod. Holy ground was (is) only to be walked upon barefoot.

    The famous Swedenborgian missionary, John Chapman, never wore shoes, even under severe surface conditions. He was man of great intelligence, humor, eccentricity, and industry. He was one of the largest land owners in the “West” (Ohio and Indiana).

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