2018/07/20

Politics over Profit: When Is It Right to Turn Away Customers?

Sarah Huckabee Sanders

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Wharton's Eric Orts and Washington University's Elizabeth Sepper discuss the question: How far should businesses go in expressing political views?
One night this past June, at a small farm-to-table restaurant in Lexington, Virginia, a customer of note came to dine. White House press secretary Sarah Huckabee Sanders sat down with a group at the Red Hen, and her presence and what some feel she represents agitated the restaurant’s staff.
After discussing the matter with employees, the restaurant’s co-owner pulled Sanders aside, and politely asked her to leave. The act was an expression of adhering to a corporate culture of “honesty, and compassion, and cooperation,” the co-owner explained.
Sanders left and tweeted about her ejection. L’Affaire Red Hen, as it might be known, was followed by similar incidents targeted at other members of the Trump administration. These incidents bring up a number of questions. A particularly salient one for businesses in an age when American society appears to be in a state of turmoil not seen since the 1960s: Should businesses be allowed to turn away — or turn out — customers with whom owners or employees have a political difference?
A thornier question, perhaps, is whether the episode really turned on politics.
After all, Americans have long been able to agree to disagree on tax policy or environmental regulation. But much of the outrage directed toward the Trump administration has been over what many see as moral issues, such as the policy of separating migrant children and their parents at the U.S.-Mexico border.
Seen through this lens, some say that not only do businesses that embody social-conscience values have a right to turn away certain customers — they may actually have a responsibility to do so.
The first thing to keep in mind is that no one can stand on “some exceptionless principle,” says Errol Lord, University of Pennsylvania professor of philosophy. “It seems clear that sometimes it is permitted, or even required, to refuse service on the basis of political actions.” If a restaurant could refuse service to high-ranking members of the Taliban and escape serious punishment, then the restaurant is permitted if not required to, Lord notes. On the other hand, he adds, it would be impermissible — or at least objectionable — for someone to refuse service to someone with whom they had a relatively trivial disagreement — say, the exact amount of income tax that people who make $40,000 a year should pay.
“Blanket appeals to civility or to what you’re entitled to when you disagree aren’t going to get us very far.”–Errol Lord
“Given that there will be cases where refusing service is permitted and cases where it isn’t, it’s important to investigate the particular details of cases that are near the borderline,” Lord says. “Blanket appeals to civility or to what you’re entitled to when you disagree aren’t going to get us very far.”
What is clear is that it has become harder for anyone to stand on the sideline, position undeclared — and businesses are now clearly part of that zeitgeist.
“I think this is a very complicated time in terms of understanding when it is essential that one have the courage to take an action based on convictions rather than being complicit with a challenge to basic American values,” says Carolyn J. Lukensmeyer, executive director of the University of Arizona’s National Institute for Civil Discourse, a non-partisan group that promotes civil political debate. “Businesses much larger than small restaurants have some serious thinking to do.”
Upholding Morals One Meal at a Time
“I’m not a huge fan of confrontation,” Red Hen co-owner Stephanie Wilkinson told The Washington Post about her decision. But, she added, “This feels like the moment in our democracy when people have to make uncomfortable actions and decisions to uphold their morals.”
Ironically, many were similarly appalled when in 2015 Sanders’ father, former Arkansas Governor and then presidential hopeful Mike Huckabee, vigorously argued for Kim Davis’s right to refuse to issue marriage licenses to same-gendered couples, points out Wharton professor of legal studies and business ethics Philip Nichols.
“A possible difference between the Huckabee pater and Huckabee filiasituations is that a county clerk in Kentucky is part of the government and the Red Hen Restaurant is a business. But that difference is not as crisp as one might think,” he says. “As a society, we have chosen to place a lot of community functions in the realm of business rather than in government. Thus, there is a public aspect to business that differs from that of a private home.”
But he noted that just as no one forced Davis to become a public servant with an obligation to respect the rights of all people in Rowan County, Kentucky, no one forced Wilkinson to open a dining establishment. “If it is open to the public, it should be open to the public,” Nichols said. “… I am utterly sympathetic with Wilkinson and agree that this racist administration must be challenged. But kicking people out of a public eating establishment, denying access to the breaking of bread with others, seems wrong and a violation of business ethics.”
What kind of governmental behavior would be so extreme as to justify turning away customers?
Nichols says there is no bright line. “I don’t think a public establishment must serve no matter what. The Nazis are a cliché, but they are a cliché for a reason, and the reason is that it was a regime repugnant to anyone,” he notes. Has the current administration risen to that level? “I think we haven’t crossed the line yet. If we ever get to the point where we need to start looking for those bright lines we’ll be in much more serious shape than we are right now.”
If some question the Red Hen’s right to turn out Sanders, others say it was the White House press secretary who is guilty of a more objective transgression. Her tweet about the incident was not only an abuse of power, it was also a violation of the law, former White House ethics chief Walter Shaub said in a series of tweets. By using her official White House Twitter account, she was using her public office for private gain, he argued. “It’s the same as if an ATF agent pulled out his badge when a restaurant tried to throw him/her out,” tweeted Shaub.
In fact, had Sanders not tweeted about her encounter at the Red Hen, it may never have become a public issue. But there has been a spate of such encounters recently between member of the Trump administration and general public.
“The business sphere should be continuous with ordinary morality. Sometimes they do so at a cost to themselves, such as buying more expensive equipment because it is fairly or sustainably sourced.”Amy Sepinwall
Legally speaking, patrons asked to leave an establishment because of their political views enjoy no federal protections, says Janice Bellace, Wharton professor emeritus of legal studies and business ethics. The Civil Rights Act of 1964 prohibits discrimination because of race, color, religion or national origin in places of public accommodation. “The person was treated unfavorably not because of her race, color, religion or national origin. Therefore, under federal law, there was no violation,” she says. Local laws sometimes offer protection, but no such laws exist in Virginia.
These kinds of clashes represent something relatively new, says Lukensmeyer.
“When a local town council raises property taxes or does something that seems absurd, people are in their faces immediately. What is different about this circumstance is that it is happening to federal officials, and that has not happened in American politics in a long time,” she says.
Emotion is continually simmering beneath the surface for many. In its recent annual stress survey, the American Psychological Association (APA) found that nearly two-thirds of Americans feel that the future of the nation was a very, or somewhat significant, source of stress. More than half of the 3,440 adult U.S. residents polled in August 2017 — 59% — said that this was the lowest point in history they can remember. APA surveys previous to 2016 had shown generally declining stress levels since 2007, with work, the economy and money as the top stressors.
“We’re seeing significant stress transcending party lines,” said APA CEO Arthur C. Evans, Jr., in a statement relating to the last survey. “The uncertainty and unpredictability tied to the future of our nation is affecting the health and well-being of many Americans in a way that feels unique to this period in recent history.”
But if politics made the Red Hen incident reverberate, it wasn’t political differences that gave the restaurant the right to ask the White House spokeswoman to leave. In fact, the Red Hen had no obligation to serve her, says Wharton professor of legal studies and business ethics Amy Sepinwall. Business owners frequently seek to run their businesses conscientiously, she says, “and this is in many cases a good thing. The business sphere should be continuous with ordinary morality. Sometimes they do so at a cost to themselves, such as buying more expensive equipment because it is fairly or sustainably sourced.”
“We are in a moment when lots of our elected officials — of which Sanders is not one, but she comes close — are just not willing to face their constituents.”–Elizabeth Sepper
Problems arise, she points out, when a business is large and dominant — if, for instance, Walmart were to refuse service on conscience to all Democrats, alienating a large group of potential customers; when the business’s conscience does not align with its employees’ consciences; and if the business excludes on bases that the state has reason to deplore — for instance, if the business thinks that as a matter of conscience it must deny service to blacks, as happened during the Jim Crow era.
Sepinwall’s current work seeks to preserve a ground for conscience that does not raise these problems by limiting refusals to small businesses that are not publicly traded (e.g., mom and pop shops with four or fewer storefronts); in which decisions are made on the basis of democratic procedures that include employees; and where service is refused only where the customer is engaged in a project that promotes hate or oppression (e.g., the KKK).
Says Sepinwall: “My understanding is that the Red Hen is a small business, the owner consulted with her staff and was indeed acting at their behest, and Sarah Huckabee Sanders is arguably facilitating numerous projects that promote hate and oppression in her work as press secretary. By the light of my own account, then, the restaurant owner was within her rights to refuse service.”
“For elected leaders and political appointees in the executive branch, dealing with public pressure is part of the job description,” says Robert Hughes, Wharton professor of legal studies and business ethics. “If political officials support a controversial use of governmental force, like imprisoning young children or other innocent people, they accept a risk of facing ostracism. That includes the risk of being excluded from some restaurants.”
Some critics have said what’s good for the goose is good for the gander — that if a baker in Colorado can decline to bake a wedding cake for a gay couple (per a recent Supreme Court ruling), then a restaurant can ask a Trump official to leave. But the comparison is actually a poor one, says Penn’s Lord. “First, in the baker case, the couple were refused service because the baker disagrees with something that is private and not related to any sort of public professional role,” he says. “It is true that the baker objects to certain actions that the couple perform and objects to the event where the cake would be consumed, but those actions and that event are not political in the way Sanders’ actions are. The couple doesn’t perform those actions or hold that event while executing a public and political role. This seems relevant to how strong a reason one has for wielding one’s power as a service provider in order to protest.”
And while it might be true that the restaurant staff disagreed with Sanders’ politics, “it’s pretty clear that there is a lot more behind the motivation to ask her to leave,” he says. “It wasn’t merely because they disagreed. Sanders has also professionally defended actions that the staff deeply opposes. Sanders as a professional representative of the government has done things that the staff strongly opposes. So, it’s not just a matter of a clash of beliefs about politics. It’s also about protesting actions that Sanders performed as a professional representative of the administration.”
But what about businesses refusing service to customers who are not functionaries, but just run-of-the-mill customers expressing political opinions? Some local municipalities have laws prohibiting discrimination based on political beliefs. New York City has no such law, however, and when a bar in the West Village kicked out a Philadelphia accountant wearing a Make American Great Again hat, the man sued. He claimed it was the cap that got him ejected; the bar’s owner said the man had verbally abused the staff. A Manhattan judge threw out the case, saying that the law did not cover protection from discrimination for political beliefs.
Are we entering an age requiring new protections for political beliefs? The Constitution and its amendments are our primary rule of recognition, and discrimination is a right of business owners unless specifically forbidden by laws that have been constitutionally tested, says Peter A. French, Arizona State University emeritus philosophy professor and founding director of the school’s Lincoln Center for Applied Ethics.
“Overt racial discrimination is illegal in business practices. Other sorts of discrimination, however, are not so clear,” French says. “Unless the courts decide that discriminating against someone because of his or her political views or political associations is unconstitutional, restaurants and other businesses can claim legal protection for refusing to serve those whose politics annoy them just as bakers can refuse to bake wedding cakes for same -sex couples.”
“America is headed in the very bad and dangerous direction of segregating its citizens in ways that could well lead to greater discriminatory practices than being asked to leave a chicken restaurant.”–Peter A. French
Because of such cases, he feared that “America is headed in the very bad and dangerous direction of segregating its citizens in ways that could well lead to greater discriminatory practices than being asked to leave a chicken restaurant. I worry about the potential of the Balkanizing of this country into irreconcilable hostile factions.”
Civility While Staying True to Ourselves
It’s one thing for a farm-to-table restaurant to turn away a customer. But how does this play out in bigger businesses? Some firms cultivate an image that makes their corporate values quite clear. Puma, for instance, is promoting itself these days with the tagline “Stay Woke” in a partnership with rapper and songwriter Meek Mill to raise money for criminal justice reform group Gathering for Justice.
Employees of Microsoft sent a letter of protest to their own employer over the company’s $19.4 million contract with the Immigration and Customs Enforcement agency given the government’s practice of separating migrant children and their parents entering the U.S. “As the people who build the technologies that Microsoft profits from, we refuse to be complicit,” the letter stated. “We are part of a growing movement, comprised of many across the industry who recognize the grave responsibility that those creating powerful technology have to ensure what they build is used for good, and not for harm.”
Outside of tech, several airline companies recently said they would not participate in the separation of children and parents entering the U.S., pointed out Eric W. Orts, Wharton professor legal studies and business ethics, in recent segment on the Knowledge@Wharton show on Wharton Business Radio on SiriusXM. “What’s the moral responsibility of a firm in these cases?” he asked. “American Airlines, United, Frontier and Southwest have all come together and said we will not transport immigrant children because we are morally opposed to being complicit in a policy that we feel extremely strongly is just fundamentally immoral, and we as a company will not participate in advancing that.”
Some might argue that that the actions by Microsoft employees or the airlines “looks like civil disobedience, that’s it’s a political statement,” Orts noted. “But I actually personally believe their moral position is correct, and even if they were ordered to and they said, ‘No we’re not participating in something we believe is fundamentally evil,’ that businesses do have to make these kinds of decisions.”
This kind of response, while unusual, should come as no surprise.
“Essentially in our democracy, it’s the back and forth of views on a particular issue and reaching different compromises in different times that makes this country what it is,” says Lukensmeyer of the National Institute for Civil Discourse. “What we haven’t seen before, at least in modern American political history, is that so many of an administration’s positions are a challenge to our basic institutions and values. This is leading many Americans to rethink how they stay true to their values; including respect for differences and staying true to one’s self.”
Other Trump officials have been confronted in public places with challenges to the administration’s policies — Homeland Security Secretary Kirstjen Nielsen, White House senior policy adviser Stephen Miller, and now-departed EPA chief Scott Pruitt among them. Enough, declared The Washington Post in a recent editorial. “Those who are insisting that we are in a special moment justifying incivility should think for a moment how many Americans might find their own special moment,” wrote authors from the editorial board.
But part of the reason citizens are approaching leaders spontaneously is that official public spaces and forums have been shrinking over time, pointed out Washington University Law professor Elizabeth Sepper on the K@W radio segment.
“We are in a moment when lots of our elected officials — of which Sanders is not one, but she comes close — are just not willing to face their constituents,” said Sepper, a religious liberty and health law scholar. “Sen. Roy Blunt [R-Mo.] is one of my representatives and he’s not willing to hold town halls, he’s not willing to meet with constituents. And so, when people see him on airplanes or in restaurants, it seems actually quite right that they engage with him on issues that they care about.”
Moreover, letting the Trump team “eat in peace” the way ordinary Americans do doesn’t take into account that ordinary Americans aren’t developing, enforcing and articulating policy that affects millions. “It’s not as if the way in which they refused service was uncivil,” Lord said of the Red Hen incident. “[Sanders] was asked nicely and she left without protest. She was not confronted in an overly hostile way. So, civility was respected at least in this sense.”
Many feel, in fact, that the Red Hen’s response was the very model of how a business of conscience handles itself in the age of Trump — maintaining the right to protest while respecting the dignity of the person being protested.
“My understanding is that [the co-owner] asked Sarah Huckabee Sanders to step outside with her, and all was handled quietly,” says Sepinwall. But there are two things the owner might have been up to, she added: One was refusing to provide any kind of benefit to Sanders. If that were all she cared about, then taking the customer aside and calmly explaining her reasons might be exactly what she should have done. But if a storeowner also aims to make a statement, then she should calmly and politely explain her reasons in front of her staff and other customers.
“Obviously, there is a greater business risk with the latter — you might alienate other customers,” Sepinwall added. “But that is always the cost of political advocacy.”

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