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Response to zaj (Reply #103)

Fri Aug 16, 2019, 08:38 PM

104. It is not a valid legal argument.

A number of years ago, I helped write the first draft of casebook on the ADA (Based on the author's current publication list, she does not appear to have published beyond the law school where it was used as a casebook for several years) In that context I gained more than a passing familiarity with the ADA. The entire purpose behind the ADA (as to places of public accommodations) is to ensure that people with disabilities cannot be excluded from places of public accommodations because of their disability - claiming that it isn't really because of the disability - it is because of the loss of business is no more legally sound that excluding blacks using the argument that is not because they are black, but because of the loss of customers (who refuse to share the same air space with blacks).

There is no valid legal argument to be made on that basis - it would be a pretextual argument. Those work in traffic stops, but not discrimination.

Gender discrimination - and employment discrimination - fall under a different body of law (civil rights act) and apply different standards than apply to access to public accommodations. However tenuous the argument seems, Hooters gets away with hiring only women as servers because it has been deemed is a bona occupational requirement. Rights to a particular job are less protected than rights to public accommodations. (Incidentally - people with disabilities have somewhat less protection as to employment - but that's not what the discussion is about - this discussion is about access to public accommodatiosn.)

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