Emily LаBORE, Charging Party and Appellant, v. Michael C. MUTH, President Sylvester‘s Inc., Respondent and Appellee, and South Dakota Division of Human Rights, Dept. of Commerce and Regulation, Responding Agency and Appellee.
No. 17318.
Supreme Court of South Dakota.
Argued May 20, 1991. Decided July 24, 1991.
485, 486, 487, 488, 489, 490, 491
For these reasons I concur in result.
Danny R. Smeins, Britton, for respondent and appellee Muth.
Jeffrey P. Hallem Asst. Atty. Gen., Pierre, for responding agency and appellee; Mark Barnett, Atty. Gen., Pierre, on the brief.
AMUNDSON, Justice.
Emily LaBore (LaBore) appeals from a circuit court decision affirming a no probable cause determination issued by the State Division of Human Rights, Department of Commerce and Regulation (Department) in response to her charge of discrimination against Michael C. Muth (Muth) and Sylvester‘s Inc. (Sylvester‘s). We affirm.
FACTS
The facts of this case are undisputed. In May, 1989, LaBore initiated a civil action alleging a claim of defamation of character (slander) against Candyce Lehr and Lisa Stenvold, both whom were еmployees of Sylvester‘s. Sylvester‘s is a bar and restaurant located east of Britton, South Dakota, and Muth is its President. Prior to the commencement of the slander action, LaBore had been a frequent customer of Sylvester‘s. On June 18, 1989, when LaBore went to Sylvester‘s, she was told to leave or the police would be called. The reason she was told to leave the premises was that her presence in the establishment created an uncomfortable and tense situation for the employees and other patrons of the bar as a result of the pending slander suit against the two Sylvester‘s employees. There was no allegation that LaBore‘s conduct was unacceptable, that she caused any disturbances, or that she was acting in a disorderly manner while on the premises.
LaBore then brought a charge of discrimination before Department alleging that Muth and Sylvester‘s were guilty of adverse, unlawful, or unequal treatment regarding the availability of public accommodations, pursuant to
ISSUES
- Did Department and circuit court err in concluding that LaBore is not a protected person within the meaning of
SDCL 20-13-23 ? - Did the action of Sylvester‘s Inc., by and through its president Michael C. Muth, accord adverse, unlawful, or unequal treatment to LaBore with respect to the availability of services and facilities, the scope and equality thereof, or the terms and conditions under which the same are made available to her?
ANALYSIS
1. SDCL 20-13-23 .
LaBore contends that the decision of both Department and the circuit court that she is not a protected person within the meaning of
On appeal, LaBore argues that Department and circuit court erroneously interpreted the statute to exclude her from its protection. The construction and interpretation of a statute presents a question of law. In re Famous Brands, Inc., 347 N.W.2d 882, 884 (S.D.1984). “When we are called upon to evaluate questions of lаw, legal conclusions of both Department and the circuit court are fully reviewable.” Wessington Springs Educ. Ass‘n v. Wessington Springs School Dist. #36-2, 467 N.W.2d 101, 103 (S.D.1991) (citing Permann v. Department of Labor, 411 N.W.2d 113, 117 (S.D.1987)).
The statute reads:
It shall be an unfair or discriminatory practice for any person engaged in the provision of public accommodations because of race, color, creed, religion, sex, ancestry, disability or national origin, to fail or refuse to provide to any person access to the use of and bеnefit from the services and facilities of such public accommodations; or to accord adverse, unlawful, or unequal treatment to any person with respect to the availability of such services and facilities, the price or other consideration therefor, the scope and equality thereof, or the terms and conditions under which the same are made available, including terms and conditions relating to credit, payment, warranties, delivery, installation, and repair.
SDCL 20-13-23 .
In State ex rel. Ewing v. Prudential Insurance Co., 273 N.W.2d 111 (S.D.1978), we construed this section of the Human Relations Act in the context of an exclusion of benefits to unmarried persons for pregnancy and pregnancy-related disabilities under a group health insurance plan.1 In reaching our decision, we observed: “The legislature‘s policy is clear, i.e., to eliminate discrimination based upon race, color, creed, religion, sex, ancestry or national origin in the areas of employment, labor unions, housing, education, property rights, public accommodations and public services.
The Human Relations Act in general and
“Unfair or discriminatory practice” means any act or attempted act which because of race, color, creed, religion, sex, ancestry, disability or national origin results in the unequal treatment or separation or segregation of any person, or denies, prevents, limits, or otherwise adversely affects, or if accomplished would deny, prevent, limit, or otherwise adversely affect, the bеnefit or enjoyment by any person of employment, labor union membership, housing accommodations, property rights, education, public accommodations, and public services.
(Emphasis added). By definition an unfair or discriminatory practice must be an act or refusal to act based on, or “because of,” membership in one of the specified classes. This policy is further evidenced by the enacting language employed by the legisla-
AN ACT Entitled, An Act providing fоr equality of opportunity and prohibiting discriminatory practices based on race, color, creed, religion, sex, ancestry or national origin, with respect to employment, labor union membership, housing accommodations, property rights, education, public accommodations, and public services; prescribing the powers and duties of the state commission on human relations; and providing enforcement procedures and prescribing penalties and remedies for violations, and to provide an appropriation therefor, and to repeal
SDCL 1-31 .
1972 S.D.Sess.L. ch. 11 (emphasis added). There is no indication in the Human Relations Act that the legislature intended to prohibit any and all forms of discrimination, only those “discriminatory practices based on race, color, creed, religion, sex, ancestry [, disability] or national origin.”3 When called upon to construe statutes, this court may look to the legislative history, title, and the total content of the legislation to ascertain the meaning. In re Certification of Question of Law, 402 N.W.2d 340 (S.D.1987); Oahe Conservancy Subdistrict v. Janklow, 308 N.W.2d 559 (S.D.1981); Elfring v. Paterson, 66 S.D. 458, 285 N.W. 443 (1939).
LaBore‘s charge of discrimination did not assert that she was the victim of discrimination based on any of the classes set forth in the statute and listed on the complaint form. She does not contend that she is a member of any racial, ethnic, religious or other enumerated group, nor does she contend that she was asked to leаve based on her gender. Notwithstanding these admitted deficiencies, LaBore asserts that she does not have to fall within one of the classes enumerated by the statute to invoke the protection of
Specifically, LaBore contends that the second portion of the statute following the semicolon and using the disjunctive “or” indicates that the second part of the statute is an independent clause which stands separate and apart from the first half of the statute. She argues “it is reasonable to assume that, by including the [class membership] restrictions in the first half of the statute and setting it apart by a semicolon, a different, broader interpretation was intended to be given to the second half of the statute which, by its terms, applied to ‘adverse, unlawful or unequal treatment’ directed toward ‘any person.‘” For this construction of the statute, LaBore relies on Justice Henderson‘s dissent in Light v. Elliot, 295 N.W.2d 724, 725 (S.D.1980), in which he expressed his opinion that
[I]f the letter, intent and spirit of
SDCL 20-13-23 does not protect all persons against unfair or discriminatory practices in administration of public accommodations, the statute is by its limited application discriminatory. Consequently, such a limited application ofSDCL 20-13-23 would violate the Fourteenth Amendment to the United States Constitution, requiring states to insure equal protection and administration of their laws. The Human Rights statutes of this state are not just applicable to minorities, certain classes, or select individuals.
In Light, however, we declined to address the merits оf appellant‘s charge of discrimi-
Our review of the statute makes it clear that
It shall be an unfair or discriminatory practice for any person engaged in the provision of public accommodations because of race, color, creed, religion, sex, ancestry, disability or national origin, to fail or refuse to provide to any person access to the use of and benefit from the services and facilities of such public accommodations; or to accord adverse, unlawful, or unequal treatment to any person with respect to the availability of such services and facilities, the price or other consideration therefor, the scope and equality thereof, or the terms and conditions under which the same are made available, including terms and conditions relating to credit, payment, warranties, delivery, installation, and repair.
Each of the dependent clauses relates back to the provision prohibiting discrimination “because of” class membership. Thus, to establish a prima facie case under
The interpretation urged by LaBore is inconsistent with the legislative intent of the Human Relations Act as a whole. In addition to the express language of
Because we have concluded that LaBore failed to establish a prima facie case for a charge of discrimination against Muth and Sylvester‘s Inc., it is unnecessary to address the merits of LaBore‘s second issue. The decisions of Department and the circuit court are affirmed.
MILLER, C.J., and WUEST and SABERS, JJ., concur.
HENDERSON, J., dissents.
HENDERSON, Justice (dissenting).
Under South Dakota law, is discrimination restricted to discrimination based upon
Under South Dakota law, has the majority opinion forsaken a reasonable interpretation of the express language in
Has the majority opinion relied upon erroneously applied federal law? Yes.
Accordingly, I respectfully dissent.
Sylvester‘s, Inc. is a “public accommodation” as defined by
LaBore has been a regular patron of Sylvester‘s. At no time, while therein, has she engaged in conduct which would have been an annoyance to the other members of the public or the management.
The source of her problem stems from a slander suit that she filed against two employees of Sylvester‘s. The management refused to serve her and asked her to leave, as she was told it was an uncomfortable situation for her to remain in Sylvester‘s, and for her to be in contact with two of Sylvester‘s employees whom she was suing. Commission dismissed LaBore‘s complaint. LaBore responds that the portion of
Banishment from this public accommodation is meaningful to LaBore. She should not be humiliated or disgraced because she sued two of the workers for defamation. She is entitled to equal protection of the law. (Fourteenth Amendment to the United States Constitution). Apparently, under the reasoning of the majority opinion, Emily LaBore is not a “person.” I believe she is a “person.” You do not have to be a member of a minority race to be a “person.” You do not have to be Norwegian, Jewish or Italian to be a “person.” You do not have to be a Methodist or a Catholic to be a “person.” You can be an agnostic and still be a “person.” You can be a Hindu, in America, and you are still a “person.” To be a favored person, apparently you must belong to a certain favored class. Discrimination may exist only, by the majority opinion, by class. The United States Constitution centers on individual rights. Indeed, the Fourteenth Amendment was deliberately formulated to prohibit precisely such classificаtions. The Constitution must be color blind, religion blind, sex blind, ancestry blind, disability blind, national origin blind and class blind. We have, before us, a young, white, female “person” who is refused food or drink in a restaurant/cocktail lounge because, apparently, she had the audacity to retain counsel and bring suit for defamation. Having hired counsel, to protect her name, a right guaranteed to her under the state and national constitutions, she is now publicly disgraced by being refused service in a public accommodation. In 1748, de Montesquieu admonished: “The deterioration [of government] begins with the decay of the principles upon which it was founded.”
Do you believe that an individual in a society—such as America—millions strong—has worth? I do. Early generations were subjugated to the divine rights of Kings and Caesars. We Americans expressed that each individual had certain inalienable rights, among these being that all men [women] are created equal, and are endowed with the rights of Life, Liberty,
Under the terms of the two key statutes in South Dakota,
[O]r to accord adverse, unlawful, or unequal treatment to any person with respect to the availability of such services and facilities, the price or other consideration thereof, or the terms and conditions under which the same are made available, including terms and conditions relating to credit, payment, warranties, delivery, installation, and repair. (emphasis supplied).
If that is not clear enough, the second portion of
..., or otherwise adversely affects, or if accomplished would deny, prevent, limit, or otherwise adversely affect, the benefit or enjoyment by any person of employment, labor union membership, housing accommodations, property rights, education, public accommodations, and public services. (emphasis supplied).
Construction of a statute is a question of law. Petition of Famous Brands, 347 N.W.2d 882 (S.D.1984). Here, the majority construes one-half of the statute and holds the second half of the statute to be meaningless. All of the provisions of this statute are needed by each person in this state; the provisions are good; nothing is fair about them—nothing is good—if some are honored and some are dishonored.
Civil rights statutes should not have restrictive applications. We have, before us, a classic example of reverse discrimination. There is no doubt that the human rights statutes of this Nation were enacted to afford those rights and privileges to classes of people which were traditionally discriminated against. But it does not make common sense to hold that everyone else, who does not fit squarely in a class, is a fair target for discriminatory conduct.
Here, we have “sensitivities” of employees in public accommodation exalted and, supposedly, providing a lawful reason to refuse service; but what of the “sensitivitiеs” of this young, white lady who sits down and orders her dinner? Her “sensitivities” are totally disregarded. As an old fella sitting on a bench in front of a country store might well muse “it ain‘t right!”