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I have a friend who has started offering lower rates to African-Americans, as her contribution to reparations. She is a psychotherapist in private practice. My loose understanding is that civil rights protections apply to "public accommodations."

Is this kind of discrimination legal or illegal?

Some light research seems to indicate that as a health care provider, her services would be considered "public accommodations" under the Americans with Disabilities Act, but would not be included as "public accommodations" under the Civil Rights Act and therefore, her "discriminatory" pricing policy would be allowable.

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    Please clarify if the therapist is offering a discount to a protected class, or is applying a surcharge to a protected class. Consider how this might differ from a movie theater (public accommodation) providing a discount on tickets for persons over 65. – BobE Jul 7 '18 at 19:17
  • Under federal law, this is irrelevant, since a surcharge and a discount are treated the same: it can't be granted / imposed on the basis of race. – user6726 Jul 8 '18 at 0:55
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This is largely a matter of state law. In California, for example, this would be plainly unlawful (my emphasis):

All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. (Unruh Civil Rights Act, California Civil Code section 51)

Other states may define "business" more narrowly, or exclude professional services.

Also, there is the question of professional ethics. Discriminating against a racial group will likely run afoul of the rules of the licensing board, the AMA, the APA, and other organizations.

Finally, remind your friend that every racist has what they regard as good reasons for their racism, and your friend is not special in that regard.

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State laws are often stricter than federal law when it comes to discrimination, so it depends on what state you are in. At the federal level, Title VI of the Civil Rights Act of 1964 may prohibit such discrimination. This part of the law pertains to entities that receive federal funding. The DoJ generously provides a mass of online reference materials pertaining to Title IV. As the Civil Rights Commission says, "this prohibition applies to recipients of federal assistance and subrecipients". It would then depends on whether any patients were receiving Medicare, Medicaid, or other federal funds to pay for treatment (or for that matter, whether the practice had received a federally-guaranteed loan). A person filing a complain need not know whether a healthcare provide receives federal money, and this link to the Coordination and Review section of the DoJ is intended to allow a person to alert the government to a potential offense. Alternatively, DHHS has a webpage for filing a discrimination complaint.

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As the other answers suggest, she could potentially fall afoul of anti-discrimination laws if this were judged on the basis of the skin color of her clients. A suit would require someone to actually file a complaint, however, as there is no proactive enforcement. So she could presumably do it for quite some time before a complaint arose.

One way she could get around this is to not discriminate on the basis of the racialized identity of the patient (which is illegal) but instead to have price discrimination on topics of discussion -which is legal.

So counseling on topics regarding being the victim racial discrimination would be at lower cost or free.

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