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Civil Rights Group Alleges Discrimination By Chick-Fil-A Because Of Dan Cathy’s Opinion

A Chicago-based Civil Rights group called, conveniently enough, The Civil Rights Agenda, has filed a Complaint with the Illinois Department of Human Rights against Chick-Fil-A alleging that the political opinions of the company’s President Dan Cathy,along with the political contributions he makes to groups that oppose same-sex marriage constitute discrimination under Illinois law. Here’s how the group describes it a Press Release:

The Civil Rights Agenda (TCRA), Illinois’ largest lesbian, gay, bisexual and transgender (LGBT) civil rights advocacy organization, working with cooperating attorneys and on behalf of claimants, filed multiple complaints against Chick-fil-A with The Illinois Department of Human Rights.  Among other things, the complaints allege that Chick-fil-A’s “intolerant corporate culture” violates Illinois law, specifically Section 5-102(B) of the Human Rights Act, which prohibits a “public accommodation” from making protected classes “unwelcome, objectionable or unacceptable.”

“In our current high speed media and social media environment, Chick-fil-A has announced and caused to be published, to hundreds of millions of people, that LGBT people are unacceptable and objectionable,” said Jacob Meister, Governing Board President of The Civil Rights Agenda and the attorney who filed the complaint. “They have made it clear the lives of LGBT individuals are unacceptable to them and that same-gender families are unwelcome at Chick-fil-A.”

(…)

Since it is against Illinois law to discriminate against a protected class and the company had a history of discrimination against minorities, Alderman Moreno made clear his conviction of protecting Chicago residents. “It’s my responsibility, as a community representative, to have responsible businesses [in my Ward], and part of that responsibility is to not have [a business with] discriminatory policies” Moreno told Chris Matthews on MSNBC’s “Hardball” yesterday.  “I’m not going to back off.”

The dialogue between TCRA and Chick-fil-A stalled once the news of Dan Cathy’s comments broke. “I spoke to a Senior Vice President the week before Dan Cathy’s comments hit the press. Since then, we have not been able to get a hold of anyone at Chick-fil-A,” stated Meister.

The Civil Rights Agenda is quick to point out that this is not a First Amendment Issue.  “The complaint has nothing to do with freedom of speech or religious liberty as some might suggest,” insists Martinez. “This is about Chick-fil-A having a policy, a corporate culture, which promotes discrimination. The COO in his personal capacity can say or think whatever he wants, it may be hateful, but it is his right.  But when he speaks on behalf of the company, and the company starts implementing policy that reflects that hatred it is against the law in Illinois.”

Despite what the press release says, it’s fairly obvious that there are serious First Amendment problems with this Complaint. The complaint does not allege at all that any of the unnamed Complainants were denied service at a Chick-fil-A location, denied employment at a Chick-fil-A location, or made to feel unwelcome at said location by the actions and omissions of Chick-fil-A employees because of their sexual orientation. In fact, it’s not even clear from the Complaint than any of them have ever actually visited a Chick-fil-A, or that they would but for the political positions of the company’s President. The entire basis for the discrimination claim here is because of what the owners of the company happen to do with the money that they earn from the business. How can it possibly be “discrimination” against someone in Illinois for a man who lives all the way down in Georgia? It would be one thing if Cathy had direct comments personally to one of the Complainants, but this strikes me as a bridge too far.

Eugene Volokh agrees:

Despite the Agenda’s protestations (“The Civil Rights Agenda is quick to point out that this is not a First Amendment Issue”), the complaint is all about speech: Because the corporation’s officials are expressing views that disapprove of homosexuality, the theory goes, the government is supposed to hold the company liable — again, without any evidence that any particular person was denied service because of his homosexuality.

I have argued that such “hostile public accommodations environment” theories violate the First Amendment even when patrons claim that a business’s decor insidethe business is offensive based on race, religion, sex, sexual orientation, and so on. (See also Daniel Koontz, Hostile Public Accommodations Laws and the First Amendment, 3 NYU J. Law & Liberty 197 (2008). If a restaurant or a bookstore, for instance, wants to hang Confederate flags, Playboy centerfolds, pictures hostile to Catholicism, or insults of Republicans (in those cities which ban public accommodations discrimination based on political affiliation) or whatever else, it has a First Amendment right to do that, I think, even if some patrons as a result feel offended.

But the Civil Rights Agenda is going further still: They are arguing that it violates public accommodations environment law for companies to express certain viewpoints even in their officials’ public statements. That theory is even more clearly violative of the companies’ First Amendment rights.

In the Koontz paper [PDF] that Volokh refers to, the author proposes a test to determine when speech that is claimed to be the basis for a discrimination claim should not be considered protected under the First Amendment:

(1) The proprietor or employee of the public accommodation speaks directly and specifically to a member of a protected class, as opposed to the public at large;

(2) The speech would cause a reasonable member of the protected category to believe that the proprietor did not want to extend to him or her full and equal enjoyment of the accommodation as a result of his or her membership in that protected category; and

(3) The totality of the circumstances indicates that the proprietor’s offensive statements are motivated by a desire to exclude the patron because of the patron’s membership in a protected category

It’s fairly clear that the “hostile speech” that is the basis in this Complaint does not fall within any of criteria listed here. Cathy’s comments, as well as the contributions that are made to “pro-family” groups by Chick-fil-A and other members of the Cathy family, are not directly to any specific member of a protected class (I’m assuming without checking that gays and lesbians are a protected class under Illinois law.) It is also clear that no reasonable person would consider comments made by a corporation officer located in Georgia to a religious magazine about his personal opinions on a matter of public controversy were an indication that Chick-fil-A wants to deny services or employment to people who happen to be gay. Finally, there’s no evidence that the statements are motivated by a desire to exclude people because they are homosexuals. Rather, it’s eminently clear that they are meant to influence public debate on a subject of public controversy. You can disagree with them if you wish, I certainly do. You can choose not to patronize the company if you wish. There is not, however, a legitimate claim of discrimination here and TCRA is clearly just using the Chick-Fil-A controversy to draw attention, and quite likely donations, to itself.

H/T: Jonathan Turley

 

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. michael reynolds says:

    Free speech is: “I don’t approve of gays.” (Stupid but free.)

    Hostile speech would be: “Beat gays to death with chicken strips.”

    Like or Dislike: Thumb up 2 Thumb down 2

  2. superdestroyer says:

    the complaints are about raw political power. Homosexuals are letting every privately owned business owner know that homosexuals will try put out of business any entity that does not agree with them.

    This is about what used to be called SLAP http://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation

    Business will either do what homosexuals want them to do or face spending money on legal fees.

    Like or Dislike: Thumb up 3 Thumb down 7

  3. al-Ameda says:

    A Chicago-based Civil Rights group called, conveniently enough, The Civil Rights Agenda, has filed a Complaint with the Illinois Department of Human Rights against Chick-Fil-A alleging that the political opinions of the company’s President Dan Cathy,along with the political contributions he makes to groups that oppose same-sex marriage constitute discrimination under Illinois law.

    If the Civil Rights Agenda was smart, they’d encourage Dan Cathy to speak out on this issue more often. Why? Because it gets conservative groups to stage support activities, like getting people to eat more meals at Chick-Fil-A, which causes more obesity, higher cholesterol and higher blood pressure, decreases life spans, and ultimately this results in fewer conservative voters.

    They can thank me later.

    Like or Dislike: Thumb up 1 Thumb down 3

  4. michael reynolds says:

    @al-Ameda:

    Absolutely, more Cathy. This nitwit has now inextricably bound his company to a downscale, old, rural, southern and declining customer base. If it wasn’t a privately-held company they’d have tossed him out of the window by now. What a maroon.

    Like or Dislike: Thumb up 6 Thumb down 3

  5. Al says:

    @superdestroyer:

    Ah, yes. Who can forget the halcion days of late July when judgments in anti-SLAPP lawsuits were still handed down?

    Well, at least straight, white men don’t make similar 1st degree butt hurt free speech complaints, right?

    Like or Dislike: Thumb up 1 Thumb down 1

  6. @michael reynolds:

    My (casual) reading is that he wants to back off the politics. IMO we should be gracious and let him.

    I’ve never actually had a Chick-Fil-A. I probably should stop by sometime, just because I feel more empathy for the line staff who have to deal with dicks, than the dicks who harass them.

    Like or Dislike: Thumb up 2 Thumb down 1

  7. al-Ameda says:

    @superdestroyer:

    Business will either do what homosexuals want them to do or face spending money on legal fees.

    Yes, if CEOs like Don Cathy make prominent public statements like the one he gave, and if they contribute their time and money in support of laws that are discriminatory and deny gay and lesbian people equal protection under the law – then I guess that I’d expect that those businesses might be the target of boycotts. Doesn’t seem surprising to me.

    Like or Dislike: Thumb up 2 Thumb down 1

  8. @al-Ameda:

    If your are talking about boycotts, then yes that’s a valid exercise of an individual’s right to choose not to do business with a company for any reason they choose.

    Trying to use discrimination laws in this manner, though, strikes me as unconstitutional

    Like or Dislike: Thumb up 3 Thumb down 0

  9. superdestroyer says:

    @al-Ameda:

    I find it odd that homosexuals claim that want to be equal to everyone else but then are filing complaints under a law that include sexual orientation as a protected class. Of course such laws give homosexuals avenues to harass heterosexuals that heterosexuals cannot use in reverse.

    It appears in Chicago that homosexuals can openly discriminate against heterosexuals without risk of government intervention but heterosexuals have to worry about how they treat protected classes.

    As I have pointed out many times, progressives love the idea of separate and unequal. Progressive love the idea of using the government to openly discriminate.

    Like or Dislike: Thumb up 5 Thumb down 5

  10. wr says:

    @superdestroyer: Ooh, another group that SuperD is terrified of. I thought it was just the brown folk, but now it seems the gays also keep him cowering under his bed.

    Like or Dislike: Thumb up 2 Thumb down 1

  11. michael reynolds says:

    @john personna:

    Sure they want to back off now. They’re just like the bigots who occasionally appear in the comments here. They have the cowardice of their convictions.

    But, no: this gets hung around their necks. Like DOW and napalm or BP and oil spills.

    Like or Dislike: Thumb up 3 Thumb down 4

  12. al-Ameda says:

    @Doug Mataconis:

    @al-Ameda:
    If your are talking about boycotts, then yes that’s a valid exercise of an individual’s right to choose not to do business with a company for any reason they choose.
    Trying to use discrimination laws in this manner, though, strikes me as unconstitutional

    I agree with you on the merit of their legal tactics. I don’t see how it can possibly succeed.

    Like or Dislike: Thumb up 2 Thumb down 1

  13. Al says:

    @superdestroyer:

    Yes, because conservatives never threaten to sue anyone, right?

    Like or Dislike: Thumb up 2 Thumb down 1

  14. al-Ameda says:

    @superdestroyer:

    It appears in Chicago that homosexuals can openly discriminate against heterosexuals without risk of government intervention but heterosexuals have to worry about how they treat protected classes.

    Not sure what you’re referring to here?
    How are homosexuals discriminating against heterosexuals? By refusing to eat at Chick-Fil-A?

    Like or Dislike: Thumb up 2 Thumb down 2

  15. @michael reynolds:

    Every movement becomes what it is. At some point this became something about angry gays harassing unwed mothers at drive-throughs, girls who just want to make it through the shift and get home.

    I hear you wanting to make it about top management, and perhaps if opposition had discipline it would have remained that way.

    But no, they lost it.

    Like or Dislike: Thumb up 1 Thumb down 0

  16. superdestroyer says:

    @al-Ameda:

    The point of the complaints is not to win, it is to harass. The civil right complaints, the fighting of the issurance of business permits, the trying to force the business off of campuses is meant to harass CFA into giving the homosexuals whatever they want.

    Like or Dislike: Thumb up 1 Thumb down 2

  17. al-Ameda says:

    @superdestroyer:

    The point of the complaints is not to win, it is to harass. The civil right complaints, the fighting of the issurance of business permits, the trying to force the business off of campuses is meant to harass CFA into giving the homosexuals whatever they want.

    Many people in our society (not just homosexuals) use the legal process to harass or otherwise obstruct persons or businesses. It happens all the time, across the country. Sometimes their claims and obstructionist tactics have merit, other times they do not.

    I o not think that this particular Complaint has merit. My opinion.

    Like or Dislike: Thumb up 4 Thumb down 0

  18. michael reynolds says:

    @john personna:

    Has there been more than the case of the douche who YouTubed his own drive-thru douchebaggery? I don’t think anyone supported that. I will personally always be on the side of the people working with hot grease for low wages. But that doesn’t lessen the fact that Mr. Cathy is contributing large piles of money to reduce some of his fellow Americans to permanent second-class status.

    Like or Dislike: Thumb up 5 Thumb down 2

  19. @michael reynolds:

    Well, you balance that with “at the end of the day, it’s a chicken sandwich.”

    I’d say pro-rights people ran it further than expected, got their press, and now is the time to let go.

    I mean seriously, a siege of castle Chick-Fil-A? For the long haul?

    Like or Dislike: Thumb up 0 Thumb down 1

  20. PD Shaw says:

    I’m assuming without checking that gays and lesbians are a protected class under Illinois law.

    Yes, but its similar to federal civil rights law, it deal with specific relationships or situations, like public accommodations or employment.

    The section they claim is “violated” is 5-102(B):

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

    (B) Written Communications. Directly or indirectly, as the operator of a place of public accommodation, publish, circulate, display or mail any written communication, except a private communication sent in response to a specific inquiry, which the operator knows is to the effect that any of the facilities of the place of public accommodation will be denied to any person or that any person is unwelcome, objectionable or unacceptable because of unlawful discrimination;

    The law also expressly exempts protected First Amendment speech.

    Like or Dislike: Thumb up 0 Thumb down 0

  21. PD Shaw says:

    In case that needs decypering, its a frivolous complaint, probably a licensed attorney did not draft it.

    Politically, it re-enforces the notion that these types of laws always create slippery slopes where people will get sued for professing a religious belief. It was probably secretly brought by anti-gay-rights group, using “Civil Rights Agenda” as its “beard.”

    Like or Dislike: Thumb up 1 Thumb down 0

  22. michael reynolds says:

    @john personna:

    Not a siege, no. And I not only strongly oppose harassing innocent employees, I just as strongly oppose taking legal (unconstitutional) measures to attack Chick-Fil-A. But a boycott is legal and I think reasonable, certainly as reasonable as refusing to patronize environmentally irresponsible corporations, for example.

    I’ve avoided CFA for quite some time now since I already knew their political stance on gay rights. I used to eat there fairly often. Of course now that I’m in the Bay Area I can only boycott in spirit.

    Like or Dislike: Thumb up 3 Thumb down 3

  23. G.A. says:

    Did anyone ever explain to me what the hell gay rights are?I can’t remember.

    Like or Dislike: Thumb up 2 Thumb down 2

  24. bill says:

    @G.A.: they have the right to be gay and do gay stuff?! wtf cares anyway, most of my gay friends wish these windbags would stop drawing attention to them.

    Like or Dislike: Thumb up 2 Thumb down 0

  25. Al says:

    @G.A.:

    They want the same rights that you and I have. Nothing more, nothing less.

    Like or Dislike: Thumb up 1 Thumb down 0

  26. G.A. says:

    They want the same rights that you and I have. Nothing more, nothing less

    But, but they have the same rights as you and I, or whats left of them.

    Like or Dislike: Thumb up 0 Thumb down 3

  27. al-Ameda says:

    @G.A.:

    Did anyone ever explain to me what the hell gay rights are?I can’t remember.

    Stuff like equal protection under the law.

    Like or Dislike: Thumb up 2 Thumb down 0

  28. Clanton says:

    @michael reynolds: Mr. Cathy is planning more restaurants in our area. The places here now are packed.
    Here is a thoughtful comment on CNN:http://www.sbts.edu/blogs/2012/08/01/mohler-addresses-chick-fil-a-controversy-at-cnn-belief-blog/

    Like or Dislike: Thumb up 0 Thumb down 0

  29. Al says:

    @G.A.:

    You’re lucky you’re not in England. There you’d be liable for my medical bills. I rolled my eyes so hard I’m pretty sure I pulled a muscle.

    Like or Dislike: Thumb up 1 Thumb down 0

  30. michael reynolds says:

    @Clanton:

    I’m sorry, was I supposed to be. . . what, impressed? By that silly blog post?

    If Chick-Fil-A is doing just fine then I guess they have nothing to complain about, do they? And if the Bigot Chicken brand is the one that makes them happy, then again, they must have no complaints. Everything’s great for them.

    Right. They love having their business identified with rednecks and rustics. That was their business plan all along: expand into more rural Wal-Mart parking lots. It’s not like they wanted California. Noooo. They have Georgia. So much better.

    Good-bye southern California shopping malls. Good-bye big cities. Good-bye college towns. We’ve got Sh!theel Arkansas!

    Let me enlighten you on something: the CFA board may be bigots but they’re not morons. So they know they just screwed themselves. You may not, but they do.

    Like or Dislike: Thumb up 5 Thumb down 2

  31. G.A. says:

    You’re lucky you’re not in England. There you’d be liable for my medical bills. I rolled my eyes so hard I’m pretty sure I pulled a muscle.

    So glad I don’t live there…

    Stuff like equal protection under the law.

    How don’t they have equal protection under the law?

    Like or Dislike: Thumb up 0 Thumb down 1

  32. @michael reynolds:

    This nitwit has now inextricably bound his company to a downscale, old, rural, southern and declining customer base.

    I wish this were the case, but I live in an upscale, slightly democrat leaning suburb just outside Philadelphia, and it’s been quite depressing to see the massive lines at Chick-Fil-A ever since this thing began.

    Like or Dislike: Thumb up 0 Thumb down 0

  33. @michael reynolds:

    But that doesn’t lessen the fact that Mr. Cathy is contributing large piles of money to reduce some of his fellow Americans to permanent second-class status.

    It’s worse than that. The FRC, which has received millions of Cathy’s funds, is still arguing that homosexuality should be illegal; McCathy is actually advocating for violence toward gays, albeit violence on the part of government officials.

    Like or Dislike: Thumb up 0 Thumb down 0

  34. Al says:

    @G.A.:

    I heard some chicken sandwich place was trying to make sure they don’t have a bunch of protections under the law related to some civil right but I forget what.

    @Stormy Dragon:

    I wonder how long that’ll last, though. In the short term this was good for Chick-Fil-A, no doubt, but I wonder how things will look six months from now. The majority of people who are packing the place now won’t sustain that pace while people like me who are staying away will continue to do so.

    Like or Dislike: Thumb up 0 Thumb down 0

  35. jd says:

    @G.A.: “How don’t they have equal protection under the law?”

    The same way blacks, catholics and the elderly didn’t have equal rights in reality, regardless of what the law says, until they became enumerated classes. It must be human nature. GLSEN has research showing that school anti-bullying policies that don’t enumerate LGBT are only slightly more effective for LGBT than NO policy.

    Like or Dislike: Thumb up 0 Thumb down 0