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 damages...money 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?