Wednesday, October 28, 2009

Stuttering Discrimination Question

A reader of this blog emailed me with a legal question, since I did attend law school. I will keep him anonymous since I don't have his permission to cite him, but basically what he asked was, if a bar threw him out because they mistook his stutter for being overly intoxicated, could he sue the bar? Here was my reply, leaving out the greetings and formalities and adding some corrections:

A law suit would likely be unsuccessful for a few reasons. First, most law suits are about lost. In this case, you lost nothing except your pride. Second, although you could sue based upon an act of discrimination against you, it would likely fail because, when assessing the actions of a person who has "wronged" you, courts mostly use the "reasonable person" standard. Here is how it works:

Courts ask..."Would the reasonable person in the shoes of the other guy have done what he did?" If not, you would likely win the law suit. If yes, the other guy wins.

Here is one argument for the defendant: To a reasonable bartender who deals with intoxicated individuals every day in his job, it's not unreasonable that he might confuse someone with a stutter...with someone who is having a hard time communicating because he is drunk. The two people might look very similar to him and, given his responsibility to stop serving alcohol to someone who is very drunk, it might be reasonable for him to take the chance that you are lying about your stutter...and deny you further service. How would you expect him to know the difference? What if you were lying and he continued to serve you and then you drove your car drunk and killed a child. Could the bartender be liable for failing to cut off your alcohol? Possibly. It's been done before.

So, his actions might be deemed reasonable by a jury, given that, 1) he can't be expected to tell the difference between a drunk man and a stutterer who has been drinking and 2) he has an affirmative duty to the public to act responsibly in his position as a bartender.

That's the argument the bartender's lawyer might make...and it's pretty persuasive.

An argument for the plaintiff might sound like this:

Would the reasonable bartender have simply denied you further service based upon how well you did or didn't speak alone? A prudent bartender would inquire further, perhaps questioning the friends that were with him, to see if the stutterer's claims were valid. Given how society usually treats stutterers, the teasing and taunting they face, and the many comedians who parody them in their acts, and the disdainful manner they are portrayed in films and on television, it's reasonable to assume that this bartender was likely repulsed by the stutter and simply decided to treat him unfairly, and then tried to justify it by saying that the man was too drunk. What other evidence existed that he was too drunk? Did the man stumble about? Was his speech slurred? If not, why was he denied service? This bartender did not act in a prudent fashion because he based his accusations of drunkenness on flimsy evidence and the result is that my client was needlessly ostracized and discriminated against for a disability.

That argument might persuade some, but I think the former argument is stronger.

What do you guys think?


Ora said...

I agree with you... the former argument is stronger.

Stuttering Stanley said...

Thanks for the comment! :)

Ora said...

You're right - in a civil suit for damages, it's hard to make a case for significant damages. How can you assign a monetary value the embarrassment and anger of being thrown out of a bar. Of course, juries can and do do strange things. We've all heard of awards where the jury awarded $1 damages plus $400 million for pain and suffering, though usually reversed or substantially reduced on appeal.

A suit based on discrimination due to handicap/disability (or perception of handicap/disability, which I think is also included in the Federal statutes) is also problematic. I'm not sufficiently familiar with the laws and regulations to know what remedies they provide. And of course in addition the Federal laws/regulations there's a patchwork of state statutes and regulations, and even probably some local (municipal) statutes that are applicable in certain jurisdictions.

Thinking outside the box... maybe a suit for defamation - slander - if the bartender made false statements which damaged the guy's reputation.

There's no simple answer to the question, I think. If your reader wants to pursue it, he needs a lawyer who knows the law. He'd probably have to pay the lawyer upfront himself, because it's hard to imagine he'd find a lawyer who'd take this on a contingency basis.

Stuttering Stanley said...

Slander/defamation won't work either, because such a case requires that the person either 1) knew the accusation to be untrue, or 2) had a reckless disregard for the truth. Wrongly assuming he was drunk isn't reckless, in my estimation, simply because it wasn't unreasonable for him to draw that conclusion, given the number of people he likely serves any given night. Additionally, it wasn't a public announcement of any kind, I mean, how many people knew about what was going on besides maybe the few who were standing nearby? How could he objectively show that his reputation was damaged to the extent that his livelihood would be affected? :)

Ora said...

I didn't realize that mens rea was a requirement for defamation. (Mens rea in this case is essentially equivalent to actual knowledge of the falsity of the statement, right?) But you're right - see Wikipedia ( "In Gertz [1974], the Supreme Court also established a mens rea or culpability requirement for defamation; states cannot impose strict liability because that would run afoul of the First Amendment. This holding differs significantly from most other common law jurisdictions, which still have strict liability for defamation."

As to the "reckless disregard" standard, I know that it applies to public figures (NY Times v. Sullivan). But does it apply to private individuals as well? Say the bartender did not know the statement was false, but acted with reckless disregard for the truth. (And of course made the statement to someone else, which is also a requirement for defamation.) Could the bartender then be held guilty of slander?

I know that this is all hypothetical and speculative, and probably far removed from any value to your reader who wrote you... but I find it interesting to explore the issues.

Stuttering Stanley said...

Yes, I find the discussion very invigorating...which is what drew me to law school to begin with. And you're right...the "reckless disregard" part would likely only ever apply to public officials and celebrities.

romiarora said...

in today s world money talks so wether ur doin good or bad wid if ur willin2 spend money u wil surely win n ya i feel d bartender was rude n he cant jus throw any person who is drunk n rate him as a stutter.The bar tender shuld fin d information about d person about his stuttering and thn lead 2 a conclusion and d bartender shuld b aware of drunkers as he must face such ppl n ppl shuld b aware wid d problem of sttutterin.U can jus play around wid anybody s reputation n fool around with his image.