Private Businesses And Discrimination: Constitutional Limits?

The US Constitution does not explicitly forbid discrimination by private businesses. However, starting in the 1960s, Congress gained the power to prohibit various forms of private discrimination through its authority under other constitutional provisions, such as the Thirteenth Amendment, its control over the federal budget, and its ability to regulate interstate commerce. The Civil Rights Act of 1964, for instance, prohibits discrimination in public accommodations and employment on the basis of race, colour, religion, sex, and national origin. Additionally, the Americans with Disabilities Act of 1990 outlaws employment discrimination against qualified individuals with disabilities, and the Genetic Information Nondiscrimination Act of 2008 prohibits employment discrimination based on genetic information. While the Constitution does not directly address private discrimination, the courts have intervened when state involvement is identified, demonstrating a commitment to addressing discriminatory practices.

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The US Constitution does not forbid private discrimination

The US Constitution does not explicitly forbid discrimination by private businesses. While the Fourteenth Amendment's equal protection clause prohibits discrimination based on race and gender by the government, it does not extend to private parties. This means that until the 1960s, private businesses could legally discriminate based on race and gender.

However, it's important to note that the Constitution does not condone private discrimination either. The Court has made it clear that if the state is involved or endorses discriminatory practices, it will intervene. For example, in the case of *Burton v. Wilmington Parking Auth.*, the Court found that by allowing a restaurant leasing its property to refuse service to a Black patron, the state had "made itself a party to the refusal of service" and was complicit in the discrimination.

Starting in the 1960s, Congress began using its power under other sections of the Constitution to prohibit various forms of private discrimination. This included the Thirteenth Amendment, which abolished slavery, and its power to regulate interstate commerce. The 1964 Civil Rights Act, for instance, prohibited discrimination in public accommodations and employment based on race and gender.

Despite these advancements, there are still certain types of private discrimination that Congress may not constitutionally reach or has chosen not to address. The Thirteenth Amendment, for example, only covers racial discrimination and not other forms such as gender or age discrimination.

However, the Court will act if the state is involved

While the US Constitution does not explicitly prohibit discrimination by private businesses, the Court will take action if there is significant state involvement or endorsement of discriminatory practices. This is based on the interpretation that the state has become a party to the discrimination and is using its power to perpetuate it.

For example, in Burton v. Wilmington Parking Auth. (1961), the Court found state action and a constitutional violation when a Delaware restaurant leasing city property refused to serve a Black patron. The Court held that the state, "by its inaction" in permitting discriminatory uses of its property, "has not only made itself a party to the refusal of service but has elected to place its power, property, and prestige behind the admitted discrimination."

In another case, Peterson v. City of Greenville (1963), the Court reversed the trespass convictions of Black boys and girls who sat at a "whites-only" lunch counter, as their actions were justified due to a city ordinance requiring separate dining facilities. Similarly, in Robinson v., the Court reversed the convictions of patrons who refused a manager's instructions to leave a "whites-only" restaurant, citing the Florida State Board of Health's requirement for racially separate toilet facilities in restaurants.

The Court has also found state involvement in discrimination when city officials endorse local segregation customs. In Lombard v. Louisiana (1963), the Court overturned convictions for Black patrons who refused a manager's order to leave a segregated lunch counter. The Court ruled that the city officials' statements that they would not tolerate "sit-in demonstrations" officially endorsed local segregation practices, constituting state action and a constitutional violation.

Starting in the 1960s, Congress gained the power to prohibit many forms of private discrimination using various sections of the Constitution. This included the Thirteenth Amendment, which abolished slavery, the power over the federal purse, and the power to regulate interstate commerce. The 1964 Civil Rights Act, enacted using the commerce power, played a significant role in prohibiting discrimination in public accommodations and employment. Title VII of this Act prohibits employment discrimination based on race, colour, religion, sex, and national origin.

Congress can prohibit private discrimination using its powers under the Constitution

While the US Constitution does not explicitly forbid discrimination by private businesses, Congress has been able to prohibit many forms of private discrimination using its powers under the Constitution since the 1960s. The three main sources of power that Congress has used to this effect are its power under the Thirteenth Amendment, its power over the federal purse, and its power to regulate interstate commerce.

The Thirteenth Amendment, passed shortly after the American Civil War, prohibited "slavery and involuntary servitude." Section 2 of the Amendment gives Congress the "power to enforce this article by appropriate legislation." In the 1960s, the Supreme Court held that this section gave Congress the authority to abolish "all badges and incidents of slavery." As private discrimination based on race was viewed as a continuation of the harms of slavery, Congress gained the power to prohibit private racial discrimination. For example, under two statutes passed pursuant to the Thirteenth Amendment, a landlord could not refuse to rent to a Black person (Jones v. Alfred H. Mayer Co.), and a private school could not refuse to admit a Black child (Runyon v. McCrary).

Congress's power under the Thirteenth Amendment is broad in that it can cover almost all kinds of private activities. However, it is also narrow in that it can only be used against racial discrimination and not other forms of discrimination, such as gender or age.

Congress has also used its power over the federal purse to prohibit private discrimination. The power of the purse is broad and can be used to prohibit any kind of discrimination. For example, in response to a Supreme Court interpretation of "program or activity" in 1988, Congress amended the law to clarify that if any part of an organization received federal funds, the entire organization was bound by anti-discrimination laws.

Additionally, Congress has employed its power to regulate interstate commerce to prohibit private discrimination. For instance, one section of the 1964 Civil Rights Act, upheld by the Supreme Court, prohibits discrimination on the basis of race in places of public accommodation, such as restaurants and hotels, regardless of their size or clientele. Another significant part of the same Act is Title VII, which prohibits employment discrimination based on race, colour, religion, sex, and national origin.

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The 1964 Civil Rights Act prohibits discrimination in public accommodations

The US Constitution does not explicitly forbid discrimination by private businesses. However, starting in the 1960s, Congress has been able to prohibit many forms of private discrimination using its powers under other sections of the Constitution.

The Civil Rights Act of 1964 is a landmark piece of legislation that outlaws discrimination based on race, colour, religion, sex, and national origin. It comprises several titles, each addressing discrimination in different areas.

In conclusion, while the US Constitution does not explicitly prohibit discrimination by private businesses, the Civil Rights Act of 1964, through its various titles, comprehensively addresses discrimination in public accommodations, including private businesses that serve the public.

The Fourteenth Amendment prohibits discrimination by the government

The Fourteenth Amendment to the US Constitution, passed by Congress on June 13, 1866, and ratified on July 9, 1868, was intended to extend liberties and rights to formerly enslaved people. It also nationalized the Bill of Rights by making it binding on the states.

The Fourteenth Amendment's equal protection clause prohibits discrimination by the government on the basis of race, gender, alienage, and national origin. For example, in the context of elections, the administration of election statutes that treat white and black voters or candidates differently constitutes a denial of equal protection. Similarly, gerrymandering of electoral districts and the creation or maintenance of electoral practices that dilute the voting strength of minorities is subject to the Fourteenth Amendment.

While the Fourteenth Amendment prohibits discrimination by the government, it does not extend to private discrimination. However, the Supreme Court has held that if the state is involved in private discrimination "to some significant extent," it may intervene. For instance, in Burton v. Wilmington Parking Auth. (1961), the Court found state participation in segregating private businesses, and thus reversed trespass convictions for Black boys and girls who sat at a "whites-only" lunch counter due to a city ordinance requiring separate dining facilities.

Starting in the 1960s, Congress has used its power under other sections of the Constitution to prohibit many forms of private discrimination. This includes its power under the Thirteenth Amendment, its power over the federal purse, and its power to regulate interstate commerce. For example, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, and national origin.

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