Testing the boundaries
Discrimination and the right to refuse service
“W e reserve the right to refuse service to anyone.”
We have all seen signs like these at restaurants and other establishments.
But do businesses really have an unfettered right to refuse service? Some might argue that private business owners should have the right to run their businesses as they see fit, including the right to pick and choose their own customers.
However, such a right can be used as a cloak for discrimination.
It is worth looking back at one of the landmark cases on discrimination and the right to refuse service—Constantine v Imperial Hotels Ltd (1944) KB 693.
Constantine v Imperial Hotels Ltd
Learie Constantine is perhaps best remembered as a legendary West Indies cricket player.
In fact, he took West Indies’ very first wicket in test cricket.
By 1943, he was living and working in England and in August of that year he travelled to London to play a charity match at Lords Cricket Ground. He booked himself and his family to stay at the Imperial Hotel.
However, when he arrived, he was told that he couldn’t stay there.
White servicemen from America—where segregation was in full swing—were staying at the hotel and had objected to his presence.
The hotel manager insisted that Constantine and his family leave and used a racial slur to refer to him.
Constantine brought a legal claim against the hotel. At the time, there were no laws expressly prohibiting private businesses from racial discrimination in the provision of their services.
As a general rule, businesses were allowed to pick and choose their customers.
However, Constantine based his claim on an old common law rule that prohibited innkeepers from refusing accommodation to guests without just cause.
His claim was successful and, although he was only awarded the nominal sum of five guineas, he also achieved a significant moral victory by winning public opinion to his side.
Constantine went on to pursue careers in both law and politics and eventually became the first black peer admitted into the House of Lords.
The UK eventually passed the Race Relations Act, which prevented discrimination on the grounds of race.
That Act was later superseded by the UK Equality Act, which prevents discrimination on the grounds of several “protected characteristics” including sex, race, religion, disability, age and sexual orientation.
The legal position today
In T&T today, the general rule remains that private businesses are allowed to pick and choose their customers. This rule is, however, limited by the Equal Opportunity Act.
The Equal Opportunity Act prohibits discrimination on the grounds of certain protected categories including sex, race, ethnicity, origin (including geographical origin), religion, marital status and disability.
The act prohibits any person concerned with the provision of goods, facilities or services to the public from refusing to serve a customer because they fall within one of these protected categories.
It also prohibits businesses from discriminating in the terms and/ or manner in which they provide their services.
In other words, a business is not entitled to refuse to serve someone just because of their sex, race, religion, disability or other protected category.
The act provides a non-exhaustive list of types of businesses to which it applies, including:
• Hotels, guest houses and other similar establishments;
• Banking, insurance, loans, credit and finance;
• Entertainment, recreation and refreshment;
• Transport and travel; and
• Any profession or trade.
Age, sexual orientation and political affiliation are not currently protected categories under the act, though the Equal Opportunity Commission has recommended that the act be amended to extend protection to at least some of these categories.
The act does not prohibit private business from refusing service on other non-discriminatory grounds, such as disruptive or unruly behaviour.
However, it is important to note that refusing service on certain grounds that don’t appear to be discriminatory at first glance could in practice result in indirect discrimination.
For example, dress code requirements could disproportionately impact one sex over another, or persons belonging to certain religious groups.
It is inevitable that tensions will arise between the right of a private business to choose its customers and the right of an individual not to be unfairly discriminated against.
However, as Constantine v Imperial Hotels illustrates, society is always changing, and those tensions will inevitably be tested.
Catherine Ramnarine is a partner at M Hamel-Smith & Co. She can be reached at mhs@trinidadlaw.com
DISCLAIMER: This column contains general information on legal topics and does not constitute legal advice.
"It is important to note that refusing service on certain grounds that don’t appear to be discriminatory at first glance could in practice result in indirect discrimination. For example, dress code requirements could disproportionately impact one sex over another, or persons belonging to certain religious groups.
We have all seen signs like these at restaurants and other establishments.
But do businesses really have an unfettered right to refuse service? Some might argue that private business owners should have the right to run their businesses as they see fit, including the right to pick and choose their own customers.
However, such a right can be used as a cloak for discrimination.
It is worth looking back at one of the landmark cases on discrimination and the right to refuse service—Constantine v Imperial Hotels Ltd (1944) KB 693.
Constantine v Imperial Hotels Ltd
Learie Constantine is perhaps best remembered as a legendary West Indies cricket player.
In fact, he took West Indies’ very first wicket in test cricket.
By 1943, he was living and working in England and in August of that year he travelled to London to play a charity match at Lords Cricket Ground. He booked himself and his family to stay at the Imperial Hotel.
However, when he arrived, he was told that he couldn’t stay there.
White servicemen from America—where segregation was in full swing—were staying at the hotel and had objected to his presence.
The hotel manager insisted that Constantine and his family leave and used a racial slur to refer to him.
Constantine brought a legal claim against the hotel. At the time, there were no laws expressly prohibiting private businesses from racial discrimination in the provision of their services.
As a general rule, businesses were allowed to pick and choose their customers.
However, Constantine based his claim on an old common law rule that prohibited innkeepers from refusing accommodation to guests without just cause.
His claim was successful and, although he was only awarded the nominal sum of five guineas, he also achieved a significant moral victory by winning public opinion to his side.
Constantine went on to pursue careers in both law and politics and eventually became the first black peer admitted into the House of Lords.
The UK eventually passed the Race Relations Act, which prevented discrimination on the grounds of race.
That Act was later superseded by the UK Equality Act, which prevents discrimination on the grounds of several “protected characteristics” including sex, race, religion, disability, age and sexual orientation.
The legal position today
In T&T today, the general rule remains that private businesses are allowed to pick and choose their customers. This rule is, however, limited by the Equal Opportunity Act.
The Equal Opportunity Act prohibits discrimination on the grounds of certain protected categories including sex, race, ethnicity, origin (including geographical origin), religion, marital status and disability.
The act prohibits any person concerned with the provision of goods, facilities or services to the public from refusing to serve a customer because they fall within one of these protected categories.
It also prohibits businesses from discriminating in the terms and/ or manner in which they provide their services.
In other words, a business is not entitled to refuse to serve someone just because of their sex, race, religion, disability or other protected category.
The act provides a non-exhaustive list of types of businesses to which it applies, including:
• Hotels, guest houses and other similar establishments;
• Banking, insurance, loans, credit and finance;
• Entertainment, recreation and refreshment;
• Transport and travel; and
• Any profession or trade.
Age, sexual orientation and political affiliation are not currently protected categories under the act, though the Equal Opportunity Commission has recommended that the act be amended to extend protection to at least some of these categories.
The act does not prohibit private business from refusing service on other non-discriminatory grounds, such as disruptive or unruly behaviour.
However, it is important to note that refusing service on certain grounds that don’t appear to be discriminatory at first glance could in practice result in indirect discrimination.
For example, dress code requirements could disproportionately impact one sex over another, or persons belonging to certain religious groups.
It is inevitable that tensions will arise between the right of a private business to choose its customers and the right of an individual not to be unfairly discriminated against.
However, as Constantine v Imperial Hotels illustrates, society is always changing, and those tensions will inevitably be tested.
Catherine Ramnarine is a partner at M Hamel-Smith & Co. She can be reached at mhs@trinidadlaw.com
DISCLAIMER: This column contains general information on legal topics and does not constitute legal advice.
"It is important to note that refusing service on certain grounds that don’t appear to be discriminatory at first glance could in practice result in indirect discrimination. For example, dress code requirements could disproportionately impact one sex over another, or persons belonging to certain religious groups.