2

According to Wikipedia, running a lemonade stand is a business.

If a child has been instructed by his/her parents not to sell lemonade to a LGBT person, can the LGBT person sue the child's parents based on sexual-orientation discrimination? Or are home-based businesses exempt from having to serve everyone in the general public?

  • 3
    Why do you believe that a business, home-based or not, must serve everybody in the public? The supreme court has ruled otherwise – Ron Beyer Feb 21 '19 at 17:04
  • 3
    @Ron Beyer, That ruling was rather narrow. It didn't claim that vendors providing public services were allowed to discriminate against protected classes, nor did it resolve the issue of whether religious liberty or anti-discrimination laws take precedence in general. – Dan Bryant Feb 21 '19 at 17:11
  • 6
    @HRIATEXP, In the bakery case, the court chose to sidestep the thorny questions a bit and basically ruled that the baker wasn't treated fairly by the Colorado Civil Rights Commission because they showed animus in response to his religious liberty arguments. I don't want to speculate on your particular question, but just wanted to clarify that the ruling Ron brought up was more limited than claimed. – Dan Bryant Feb 21 '19 at 17:18
  • 3
    It seems discrimatory to me to rule that an athiest couldn't have a sincerely held belief. – IllusiveBrian Feb 21 '19 at 17:28
  • 4
    @HRIATEXP: Religious Freedom in the United States protects ones right to believe there is no God just as much as it protects ones right to believe in God. Or any notation in between and beyond. And the reverse has happened where shops run by LGBT people refused to make products advocating for things the owner disagrees with. – hszmv Feb 21 '19 at 18:02
6

There is no federal prohibition against sexual discrimination in public accomodations. Colorado has an applicable state law, which covers "any place of business engaged in any sales to the public", where "It is a discriminatory practice and unlawful ...to refuse, withhold from, or deny to an individual or a group, because of ...sexual orientation...the full and equal enjoyment of the goods...". No provision exempts lemonade stands. Churches etc. are specifically exempted: "'Place of public accommodation' shall not include a church, synagogue, mosque, or other place that is principally used for religious purposes". Sex discrimination is allowed "if such restriction has a bona fide relationship to the goods, services, facilities, privileges, advantages, or accommodations of such place of public accommodation", an argument that can't reasonably be made in the described case.

It is also not obvious that running a lemonade stand is a business (the courts will not admit unsubstantiated Wiki assertions as evidence). It would be relevant to wonder what constitutes a "business" under Colorado law. E.g. is a business license required?

In Colorado (US) law, it has not been definitively decided whether there can be a religious exception to the anti-discrimination law. Masterpiece Cakeshop was decided without answering that (the state showed clear religious intolerance in its handling of the case). We do not know how a similar case will be decided: Arlene's Flowers was handed back to the state court with the instruction "do it again" (with nothing more than a mention of Masterpiece Cakeshop). The court cannot establish certain beliefs and practices as "valid religions" (Establishment Clause); the proxy expression that is used is "deeply held belief", which includes atheism. The relationship of the issue to the First Amendment is uncertain.

| improve this answer | |
  • FWIW, most jurisdictions in Colorado require a business license for a lemonade stand (a provision often not enforced in practice) although some jurisdictions are creating legislative exemptions to this requirement. And if it is on a sidewalk open to anyone it would be a public accommodation. There is a harder issue regarding vicarious liability of parents that I discuss in my supplemental answer to yours. – ohwilleke Feb 22 '19 at 1:24
2

@user6726 has provided a solid answer to the question of whether this conduct, if carried out by an adult, would be actionable. This answer addresses the additional issue of a parent's liability for the actions of their children (assuming that the conduct is actionable, which is actually an unresolved question).

In general, parents do not have vicarious civil liability for the acts of their children. In other words, unlike an employer who is legally responsible for any on the job conduct of the employer's employees, a parent is not automatically responsible for any conduct of their child.

There are some exceptions to this rule, although most of them clearly do not apply in this situation. In Colorado, some of the main exceptions are that:

  • The head of a household is responsible for the automobile accidents cause by driving a car belonging to someone in the household, whether or not the head of household or the driver own the car. This is called the "family car" doctrine.

  • A person who provides alcohol to underaged persons is responsible for harm caused as a result of the intoxicated state of the underaged person (to oversimplify).

  • A person is responsible for "necessities" (e.g. food or utilities or medical care) purchased by a spouse or minor child or ward of that person on credit, even if that person was not otherwise legally competent to make the purchase or did not have permission to make that purchase.

  • A parent or guardian of a minor is responsible for providing for the "support" of a child (who is either a minor or in some cases a disabled adult) and may need to reimburse someone who provided that to their child despite not having a duty to do so. For example, if a parent leaves a child at home and is stuck in a blizzard for a week and a neighbor provides food and housing to the child in the meantime, the parent is obligated to reimburse the neighbor for the expenses incurred.

  • A parent or guardian in Colorado is statutorily responsible for vandalism or graffiti caused by a child or ward up to a certain statutory dollar threshold.

  • A parent or guardian is responsible for harm caused by the parent or guardian's negligent supervision of their child, but this liability is imposed only if the parent or guardian failed to exercise reasonable care to prevent the harm.

Absent an exception, a parent is not legally responsible for the torts, breaches of contract and statutory violations of a child. In particular, a parent is not responsible for the business debts or business related liabilities of a child unless they result from negligent supervision of the child. Directing a child not to serve someone at their business is not the kind of conduct that is actionable as negligent supervision (a typical negligent supervision cases might involve a parent who saw the child put arsenic instead of sugar into the lemonade and failed to do anything to prevent the child from selling it causing someone to drink it and suffer serious injuries).

So, in this case, none of these exceptions apply.

Therefore, in this case, if the business is found to be a business of the child, the parent has no liability for illegal discrimination of any kind in connection with the child's business. The child could be sued and a money judgment against the child could be recovered from the child's own money and property, but not from the parent's money and property.

In the scenario presented in this question, determining if the lemonade stand was actually the child's business, or was instead, the parents's business in which the child was employed, would be a close one.

On one hand, if the parent paid for all of the materials sold in the lemonade stand, that would argue in favor of the business being the parent's. The fact that the parent had a de facto ability to order the child to conduct the business in a particular illegal way also favors a finding that the business is the parent's business. If the business is the parent's business in which the child is employed, the parent has liability under the statute if there is liability.

On the other hand, if the child paid for the inventory with their own money and the direction received from the parent was perceived as non-binding advice rather than as an order directed at the child, there would be a good case to be made that the business was the child's rather than the parent's. If the business is the child's business, then the parent does not have liability even if the child has statutory liability.

In reality, in many cases, there will be some facts that support the argument that it is the parent's business and others that support the argument that it is the child's business and the judge or jury will have to determine which characterization is most strongly supported by the evidence presented.

| improve this answer | |
  • @ ohwilleke, those are some excellent points you bring up, especially whether it is the parent's or the child's business based on who paid for the inventory. It makes me wonder if the parents would be partially liable if their child used tap water to make the lemonade, considering that the parents paid for the tap water supplied to their home and thus paid for the water in the lemonade. – user22280 Feb 22 '19 at 3:58
  • 1
    @HRIATEXP One can imagine that factor being considered among many. But, the price of tap water is so de minimus (I pay something like $1 per 10,000 gallons in the arid West in a near desert), that it is unlikely that the source of the tap water would be a very important factor. – ohwilleke Feb 22 '19 at 4:02
  • @HRIATEXP After some research, I determined that water prices in metro Denver are actually closer to 28 cents to $1 per 100 gallons, which is still 1 cent per gallon or less. A typical children's lemonade stand serving would be half a pint (8 fluid ounces), which implies 16 servings per gallon. So, the contribution of tap water to the total cost of a typical lemonade stand's entire run would still be somewhere between a penny and a dime, which is still negligible compared to the other supply costs involved, and easily affordable for a little kid if anyone thought of it. – ohwilleke Feb 22 '19 at 15:54
  • @ ohwilleke, that's interesting, water is cheaper there than where I live. I'm now interested in finding out how much the average child-run lemonade stand makes in a day, its something that I may research today. – user22280 Feb 22 '19 at 16:42

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy