Photographer's rights? Sued for discrimination

[brmill26]

This is a very interesting story:
http://www.lcsun-news.com/ci_8893673

In my opinion, the decision of that committee is wrong; a photographer more closely resembles an independent contractor than a public accommodation. A public accommodation usually refers to a business establishment open to and serving anyone in the public, like McDonald's. A photographer, on the other hand, may chose her jobs as she pleases; she's not involved in providing a "service" to the public. A wedding photographer, for example, may refuse to shoot an auto race. So I don't think that "public accommodation" determination will hold in court, but then, I don't know NM law.

As for her stated reason, that's much more questionable. Certainly most professionals, in any profession, would give a neutral reason for their refusal... a response which has grown out of cases like this.

Anyway, I think this story is interesting for photographers' rights.

[adina]

I'm moving this to the Viewfinder, I think it will make an interesting discussion....

[Dylan8i]

thats interesting, not sure how i feel about it competely, however hiring a photographer seems more similar to hiring a plumber or electriction, than going to a restaurant, which if they refused to do your work because your gay would be discrimination.... but photography has more of an artistic side (obviously). should be interesting to see how this turns out.

[f5fstop]

Cool subject, would love to post my thoughts; however, my answer would upset both the gay community and the religious community.
This could get interesting....

[racedraper]

SO let me guess, she said she didn't want to work for them cause they are gay due to her religious beliefs? So now the courts can say whom you can or can not work for without causing discrimination . I am sorry this politically correct is killing this country.

If I don't want to work for you that is my right. This is my business, My loss, I am the boss.


So can I sue someone who refused to use my as a photographer cause I am straight?
We are sooooo sue happy, what ever happened to walk away and look for someone that fits you needs..

[racedraper]

Let me throw this out. what if I was a member of a Klan group and I wanted to hire a person to take pics of a rally. The person comes and is Black, she refuses to take the photos, can the Klan sue for discrimination?

[megan]

I was thinking along those lines as well. While I personally am ambivalent towards gay marriage, I would refuse an assignment to photograph pornography, a politician I didn't agree with, etc. etc.

Can ad agencies refuse clients? Absolutely. Why can't a photographer choose not to work for someone?

[Skyman]

It is simply bad business on the photographers part, I would never take a booking for a wedding without meeting the couple first and rather than saying - I can't do this because my beliefs are different to yours, I would be saying I am terribly sorry but I have another booking on that date. This way you are not potentially loosing customers through bad word of mouth.

[mwfanelli2]

I see this a bit differently and it is not clear from the article what actually happened.

If the photographer agreed to do the wedding and then chose not to because of some belief (silly or not), that's sounds like breach of contract and there should be damages. If the choice was made before a contract was agreed to, I don't see that there should be any lawsuit at all.

[Frog]

Rulings like this make it hard to be a liberal.
I don't get how the state can say she discriminated and yet they won't recognize gay marriages.

[xystren]

First off, IANAL (I am not a lawyer) and this is just my opinion.

This is a very tricky situation and likely someone is going to be offended regardless what the outcome is.

Any artist, photographer, drinking and/or eating establishment, etc. has the right to refuse service, as long as is is not on the basis of race, religion, sexual orientation, and/or other "attributes" (for lack of a better word) that are currently protected by law.

One could say, "I can't take this assignment due to scheduling conflicts" and likely be pretty safe in saying so.

But if one said "I won't take this assignment because you are [insert protected attribute here]." I doubt you would have a leg to stand on. More than likely, you are going to get sued for discrimination.

Like it or not, we live in a overly political correct society, and seems that just accusation are enough to convict (what ever happened to innocent until proven guilty?)

We don't know the any of the details of what exactly was said, so it is very hard to judge if this was a fair decision or not. The "media" in my opinion doesn't tend to be the most unbiased source for information.

One could easily change the word homosexual in this report to something different and there would not be this outcry. Ask yourself why?

In reality it comes down to, is both parties could have handled the situation much better.

As a client, do you want a photographer who doesn't approve of your major life event to be recording it? I think most sensible people would say absolutely not. As a photographer, if you didn't like the job, your schedule could have been filled.

Cheers,
Greg

[Axle]

Yeah, this is a tricky situation. I am in a Country that does allow same-sex couples to be married. As a Christian by stand is slightly unique, I want all people to be happy (and to know the Love/Grace/Gift of Christ - but I don't shove it down people's throats either), however I do not agree with the government's law to change the definition of the word 'marriage' gay couples should be allowed to share the same benefits as heterosexual couples, but the government shouldn't forces churches to comply with this.

You can't even say Merry Christmas anymore...but I still do.

However if I was approached by a gay couple to photograph their wedding, I'd ask the date, then apologize that the slot was filled and made sure I was far away from where the wedding was taking place.

And yes, both in Canada and the United States we are Sue happy, we actually discussed this on Monday in my First Aid Training class.

[Medley]

This is an argument of semantics, not ideals. Gays are a federally protected class.

Let me give you an example. I am a landlord. As a landlord, do I discriminate? You'd better believe it. In fact, I discriminate more than most landlords. You see, I don't rent to lawyers- period. Federal law states that I cannot refuse to rent to you because of race, creed, color, religion, sexual orientation, national origin, or source of income. (I'm sure I've left a few protected classes out, as I'm working from memory)

"But wait!", you say. "If you can't discriminate based on source of income, then how can you refuse to rent to lawyers?" I've actually been to court over this one. The short answer is that that statement is NOT discrimination based on source of income. If I were to say that I don't rent to lawyers from the lawfirm of _________, then THAT would be discrimination based on source of income. Saying that I don't rent to ANY lawyer means that I discriminate against them as a class. And, discriminating against lawyers as a class is not illegal. Lawyers are not a federally protected class.

But sexual orientation IS a protected class. By and large, if you provide a service to the community, and you refuse that service solely on the basis that someone is gay ( or black, or Muslim, or any other protected status), then you're asking for this sort of thing to happen.

The photographer in question could have refused the shoot for any of a hundred different reasons and been fine. That she chose to refuse them based solely on their sexual orientation is what has her in hot water.

By the way, I'm not a lawyer either. If I were, I couldn't live in my own housing.

- Joe U.

[Axle]

Further on the article....since I sort of diverted in my first post...

If the photographer in question agreed to photograph the wedding before finding out about the sexual orientation of the couple, then they'd be in breach of contract, and as a Christian presents a bad view of us by breaching that contract.

Matthew 5 (NIV)
33"Again, you have heard that it was said to the people long ago, 'Do not break your oath, but keep the oaths you have made to the Lord.' 34But I tell you, Do not swear at all: either by heaven, for it is God's throne; 35or by the earth, for it is his footstool; or by Jerusalem, for it is the city of the Great King. 36And do not swear by your head, for you cannot make even one hair white or black. 37Simply let your 'Yes' be 'Yes,' and your 'No,' 'No'; anything beyond this comes from the evil one.

It's a sticky topic to be sure.

[dumpy]

Aren't religious beliefs and sexual orientation both entitled to protection under the law (as well as arguably the constitution)? If so I'd declare this a stalemate. I love the American way of protecting freedom of speech/beliefs etc by oppressing another's beliefs and rights:confused5: .
If the photographer was upfront about this policy, then no problem. If a contract was broken (written or even verbal), for any reason, then this should be a breach of contract lawsuit.

To me this sounds like a case of someone who did not like the personal policy of another and wasn't smart/motivated enough to follow the proper channels, that is letting others know of this policy, their disapproval of it and why; make their level of business drop. Let money talk, don't tie up the legal system. Or maybe (gasp) just respect that others have different opinions.

[retroactiv]

Simply, do unto others... I personally and on a religious level don't agree with gay orientation, but from a business aspect there money spends just the same as a straight couple and isn't that why many of us go into business is to make money, and the only way to do that is gain customers.

If this woman didn't agree with it, and just couldn't do it because of her beliefs she should have just taken the easy way out and said I have another shoot on this day sorry than opening her mouth and spouting out her feelings on gay unions.

[Frog]

f this woman didn't agree with it, and just couldn't do it because of her beliefs she should have just taken the easy way out and said I have another shoot on this day sorry than opening her mouth and spouting out her feelings on gay unions.

Several have said this, which means the woman would have to lie to avoid being sued.
Sad world!

[retroactiv]

Yes, it is a sick sad world. But just like many other have also said its sue happy, and I don't know about you but I can't afford $6000 in court costs.

Personally I would have shot it.

[brmill26]

This is an argument of semantics, not ideals. Gays are a federally protected class.

You're absolutely right this is about semantics and not ideals. However, sexual orientation is not technically a federally protected class. Many of the more liberal states have passed laws prohibiting discrimination based on sexual orientation. But there are a fair number who have not. Federally, though, including the FHA as far as I know, technically does not protect sexual orientation.

HOWEVER, I use "technically" for a reason, b/c even though it's not explicitly protected, you're going to have a major uphill battle to fight in court, and many courts (particularly the 9th Circuit) are going to rule as if it is protected. And of course, if you live in a state where it is illegal and the case falls under state law, then that will be enforced by the Federal courts if the case is brought there.

But do know that at the moment, by letter of the law as far as the Federal government is concerned, religion is more protected than sexual orientation.


As for the case in the article, though, it specifically says the photographer "violated New Mexico discrimination law," so the action is under the state's code. Even though it's not the best article, I assume it would not be a breach of contract b/c discrimination would not come into play. All you need for that is an agreement and a breach - doesn't matter why.

But the reason this is relevant for us as photographers is b/c of the way the commission - and do note that it is a "commission," NOT a court, which means it takes no legal precedence - ruled that a photographer could not refuse this couple because she is a "public accommodation." While I'm not familiar with NM law, I think that is a legally incorrect conclusion because photographers typically operate more similarly to independent contractors rather than a business establishment - therefore, any discrimination would be "private" rather than "public," which IS protected (see country clubs for example). So, if this ruling stands, at least in New Mexico your rights as a photographer are much limited in as far as your ability to pick and chose who and what you photograph. Basically, you would have to take any job that came in the door, assuming it was legal, unless you had a neutral reason not to do it - and even if you gave a neutral reason, if the person thought your real motive was discriminatory, he could still sue you.

[f5fstop]

This is an argument of semantics, not ideals. Gays are a federally protected class.

Let me give you an example. I am a landlord. As a landlord, do I discriminate? You'd better believe it. In fact, I discriminate more than most landlords. You see, I don't rent to lawyers- period. Federal law states that I cannot refuse to rent to you because of race, creed, color, religion, sexual orientation, national origin, or source of income. (I'm sure I've left a few protected classes out, as I'm working from memory)

"But wait!", you say. "If you can't discriminate based on source of income, then how can you refuse to rent to lawyers?" I've actually been to court over this one. The short answer is that that statement is NOT discrimination based on source of income. If I were to say that I don't rent to lawyers from the lawfirm of _________, then THAT would be discrimination based on source of income. Saying that I don't rent to ANY lawyer means that I discriminate against them as a class. And, discriminating against lawyers as a class is not illegal. Lawyers are not a federally protected class.

But sexual orientation IS a protected class. By and large, if you provide a service to the community, and you refuse that service solely on the basis that someone is gay ( or black, or Muslim, or any other protected status), then you're asking for this sort of thing to happen.

The photographer in question could have refused the shoot for any of a hundred different reasons and been fine. That she chose to refuse them based solely on their sexual orientation is what has her in hot water.

By the way, I'm not a lawyer either. If I were, I couldn't live in my own housing.

- Joe U.

Could I ask what Federal statute states sexual orientation is protected? Gay rights, except where it pertains to hate crimes, is something I usually do not get involved with, but I'm almost positive there is no Federal Policy on sexual orientation (gender identity); except that which pertains to actual Federal workers. I do know there are many states that have passed sexual orientation protection laws; not sure which ones or how many (I would guess around 30).

Now, when you say you will not rent to Lawyers, are you saying practicing lawyers recognized by the BAR in the State you are renting, or someone who has a Law Degree, but does not practice law and does not belong to the BAR in said State? Just curious...
(Actually, can't blame you knowing a great number of practicing attorneys, on both sides of the aisle.)

[ken1953]

Let me throw this out. what if I was a member of a Klan group and I wanted to hire a person to take pics of a rally. The person comes and is Black, she refuses to take the photos, can the Klan sue for discrimination?

Switch this around..the black photographer shows up and they realize they've hired the wrong color. They fire the photog for being the wrong color...has the photog got the right to sue for discrimination, above and beyond what he/she lost for breech of contract???? hmmmmmmmmmmm....

[ken1953]

This is one of my biggest peeves. First of all, we in the United States are a nation of free peoples with the rights to be who we want to be and no one, not even the government has the right to put limits on us. The worst thing this country has is "Freedom of Religion" because we really don't have it. Well, that's a misnomer. You have freedom, but only if you believe in a "socially recognized" religion, similar to the tyranny that caused our forefathers leave England.
Why is religion even brought into the question of Gay Marriage. This is a legal question. Where is the seperation of Church and State in this question????? What is marriage? Marriage is a license or contract between to people protecting each party and giving them certain protections under the law!!! If I start a company with another man and enter into a contract...is that illegal? NO! So, why is a Marriage Contract illegal between 2 men or 2 women any different. It's not. It's nobody elses business what they do in their bedroom. Most heterosexual couples do things that are still considered illegal in most states and countries, including things gay couples do to each other...so people, get over it.
This Photographer lost a great opportunity to make some good money and meet some great contacts. Her bigotry lost her some integrity. Religious belief, imho, is not integrity, it's bigotry!!! Yes..I think NM overstepped their bounds and believe it will be overturned in higher courts. But I'm glad this photographer is being raked over the coals.
I hope my opinions don't turn any of you off as I respect all of you...but I have too many gay, straight, lesbian and bi friends and family to not say something. I support and fight for FREEDOM, and we can't have freedom if there is bigotry and hatred of any kind.

[mwfanelli2]

This is one of my biggest peeves. First of all, we in the United States are a nation of free peoples with the rights to be who we want to be and no one, not even the government has the right to put limits on us. The worst thing this country has is "Freedom of Religion" because we really don't have it. Well, that's a misnomer. You have freedom, but only if you believe in a "socially recognized" religion, similar to the tyranny that caused our forefathers leave England.
[FONT=Verdana][COLOR=#000000]Why is religion even brought into the question of Gay Marriage. This is a legal question. Where is the seperation of Church and State in this question????? What is marriage? Marriage is a license or contract between to people protecting each party and giving them certain protections under the law!!! ...

This is exactly the problem. Government has no reason whatsoever to be involved in marriage. Standard contract law covers the legal issues associated with two (or more) people living together. Get government out of the marriage business and return it to non-public organizations: let these organizations devise any rules they want.

[brmill26]

Ken, the government absolutely has the right to put limits on us... within limits Both of which are laid out in the Constitution. You are free, but you are not free to do anything at all. Let's everyone try to keep the rhetoric within reasonable limits here; we all have beliefs and I doubt anyone will be making any conversions over this forum.

Michael, whether we like it or not the fact is that marriages are licensed by the state, exactly the same as drivers. Marriage is a privilege as is driving. All states in the Union are set up that way. As long as that is the case, government may limit who has the right to marry (within limits). All states proscribe minors from marrying under a certain age, all states proscribe certain blood or legal relatives from marrying, and most states proscribe same sex marriage. All of those regulations are for moral and natural reasons.

Back to point, for both of you or anyone, this case, if upheld by an actual court, could mean you could be compelled to shoot something with which you did not agree. Talk about a limitation of freedom...

[ken1953]

Ken, the government absolutely has the right to put limits on us... within limits Both of which are laid out in the Constitution. You are free, but you are not free to do anything at all. Let's everyone try to keep the rhetoric within reasonable limits here; we all have beliefs and I doubt anyone will be making any conversions over this forum.

Michael, whether we like it or not the fact is that marriages are licensed by the state, exactly the same as drivers. Marriage is a privilege as is driving. All states in the Union are set up that way. As long as that is the case, government may limit who has the right to marry (within limits). All states proscribe minors from marrying under a certain age, all states proscribe certain blood or legal relatives from marrying, and most states proscribe same sex marriage. All of those regulations are for moral and natural reasons.

Hi BR...yes...limits are good when it comes to criminal acts. Our government has set the acts of gays and lesbians, et al, as illegal in the past and are too slow to correct the issue based on the "moral and natural" reasoning you elude to. Admittedly, my rhetoric is outside the normal boundaries, but that is because I believe so strongly outside the boundaries on this issue. FYI...I am totally "non-religious" and believe in no religion or any of their doctrines in any way shape or form. I am also not agnostic nor am I atheist as these terms imho only lend credence to religion. So, that said, my point was...GET CHURCHES OUT OF MARRIAGE. GET THE GOVERNMENT OUT OF THE BEDROOM. MAKE MARRIAGE WHAT IT WAS ALWAYS INTENDED TO BE...A PROTECTION FOR BOTH PARTIES IN A UNION!!!!! IMHO, this would probably stop much of the bigotry and hatred that caused the NM issue!!!!
As for your argument about marriage being a privilege, sadly to say...your probably right. But unlike a drivers license, only heterosexual couples are allowed to partake of the privilege. All others must live together without the protection of the law that is afforded to the lucky hetero's.
This will be my last comment on this issue in this forum...if it gets moved to off subject, I may comment more. Thanks everyone for letting me spew my rhetoric here.