The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In Fulton v. Dick's Sporting Goods, Inc., filed yesterday, an 18-year-old plaintiff is suing over Dick's refusing—based on his age—to sell him a rifle. Michigan law categorically prohibits age discrimination except where allowed by other provisions (which would include laws banning alcohol sales to under-21-year-olds, the federal law banning handgun sales by licensed gun dealers to under-21-year-olds, and the like):
Except where permitted by law, a person shall not:
(a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service [which includes retailers -EV] because of religion, race, color, national origin, age, sex, or marital status.
(b) Print, circulate, post, mail, or otherwise cause to be published a statement, advertisement, notice, or sign which indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service will be refused, withheld from, or denied an individual because of religion, race, color, national origin, age, sex, or marital status, or that an individual's patronage of or presence at a place of public accommodation is objectionable, unwelcome, unacceptable, or undesirable because of religion, race, color, national origin, age, sex, or marital status.
Plaintiff is seeking damages, injunctions, costs, and attorney fees. (Under the Michigan statute, sec. 37.2802, a court is authorized but not required to award costs and attorney fees to prevailing plaintiffs.) I don't know of any provision in Michigan law that "permit[s]" refusing to sell rifles or shotguns to 18-to-20-year-olds, so this seems like a winning claim, like the Oregon lawsuit against Dick's and Walmart that I blogged about yesterday.
My question: Doesn't Dick Sporting Goods have a legal department? I'd think a company with stores nationwide would realize that age discrimination might be illegal in some states, would quickly review what those states might be, and would then simply set up a policy that excludes them. True, the companies are presumably trying to make a public statement with their no-gun-sales-to-under-21-year-olds policy; but that statement shouldn't be much diluted by an exception for some states when the explanation for the exception is that they have to comply with the law. And now the news is shifting to "Dick's Sporting Goods being sued for illegal discrimination" instead of "Dick's Sporting Goods is taking a stand to try to prevent gun crime," which was presumably Dick's goal.
Nor are these some sorts of obscure laws that would be a surprise even to company lawyers. Perhaps some city and county ordinances might be, though I take it that retailers are aware that localities sometimes have special rules; but state antidiscrimination laws, including ones that reach far beyond federal law, are well-known, and the fact that different states have different rules is, too. It shouldn't be a surprise that, even if many states don't ban age discrimination in retail sales, a substantial minority of states does. And nationwide bricks-and-mortar retailers must have learned over the decades that they need to think about laws being different in different states.
Now perhaps I'm expecting too much—perhaps it's just that mistakes happen in business, and the failure to properly vet the policy is one of them. Or perhaps this wasn't a mistake, and Dick's deliberately thought that a blanket policy, even if it's illegal in some states, would get it much more public relations punch than a policy that excepted some states. Or perhaps the Dick's management has such a firm moral opposition to sales of rifles and shotguns to 18-to-20-year-olds that it doesn't mind a few lawsuits (though I suspect that, while some corporate managers are militantly opposed to selling guns, few would be fine with selling guns to 21-year-olds, but be so firmly opposed to selling to 20-year-olds that they'd deliberately violate the law as a result). In any case, this failure to take into account state antidiscrimination laws seemed like an odd business decision.