More adventures of Oregon BOLI commissioner Avakian

The Oregon Bureau of Labor and Industries, recently in the news for ordering Melissa and Aaron Klein to pay $135,000 for not wanting to make cake for a commitment ceremony, in 2013 ordered the owner of the Twilight Room Annex, a gay-friendly bar in North Portland, to pay $400,000 for disinviting a trans club from meeting at the nightclub on Friday nights after business from other customers dropped off [Oregonian]


  • It sees to me that this is a subtle issue. Suppose that the owner of had posted a notice excluding black people, not because he personally dislikes black people, but because he has concluded that his customer base does not and that that the presence of black customers is reducing his custom. Presumably, most of us would agree with the law that forbids him from doing that. By the same token, he ought not to be able to exclude people on the basis of sexual orientation.

    At the same time, there’s a difference between banning a class of customer and banning organized groups, or merely declining to reserve a regular time for an organized group. The owners of a restaurant do have the right to decide whether their establishment will cater to a gay crowd or a straight crowd, one that is boisterous or one that is subdued, one that is into karaoke or one that is not, etc. How does one allow a restaurant to decide whether it wants to host the transgender group or the Elks or the Elvis impersonators into karaoke while still forbidding discrimination against protected classes?

  • At one end of a continuum, most discrimination statutes are reasonably clear that a bar owner must not exclude customers on the basis of simple prejudice or animus by other customers. At the other end of a continuum, it also seems relatively clear that a bar owner is legally justified in turning down a certain club’s wish for regular meetings, no matter that it is associated with members of a protected group, if he can document enough previous acts and incidents that tended to interfere with other customers’ quiet enjoyment. In between are a lot of cases where a dispute might be raised over whether the annoyance or irritation expressed by other customers (over, say, too much noise or swear words or monopolizing the bar stools or whatever) are stereotypical or pretextual or in some way disrespectful of the culture of the protected-group members in the club. I wouldn’t want to be the owner and have to guess with $400,000 at stake, much less if both contending factions of customers happen to be members of some protected group, as must sometimes happen.

    Relatedly or not, here is a tale from Box Turtle Bulletin of how wrangling between different customer factions on issues of gender inequality with respect to shirtlessness doomed a Halifax, Nova Scotia gay bar.

  • I’m also curious about the calculation of damages. The damages seem to be to have been assessed on the assumption that the plaintiffs were individually denied entry to the club. As I understand it, that is not the case – they were simply asked not to come as a group at a regular time. The damages therefore seem excessive.

  • So according to BOLI, a business owner whose customers are being driven away by a group of people in a protected class has little to no recourse besides losing his business

    • Not exactly. As I understand it, the business owner can exclude individual members of a protected class for reasons other than their membership in the class. Thus, although the transgender group cannot be excluded because the owner does not want to host transgender groups, the members of a particular transgender group could be excluded on other grounds, say because they abuse the waitresses or are too loud.

  • I think Bill is describing it correctly.