When Refusal to Provide Service to Protected Groups Is Not Wrongful Discrimination

CEPDISC Seminar by Daniel Statman

Info about event


Monday 14 November 2022,  at 14:00 - 15:30





Speaker: Professor Daniel Statman, Dept. of Philosophy, University of Haifa

Title: When Refusal to Provide Service to Protected Groups Is Not Wrongful Discrimination


The question of the relation between wrongful discrimination and the freedom of
conscience and religion has been the subject of many debates over the past decade
and has occupied both courts and the public. The most well-known legal case in that
regard is likely Masterpiece Cakeshop, in which a Colorado bakery owner refused to
bake a wedding cake for a homosexual couple and was sued for violating the State’s
Anti-Discrimination law. Recently, the Supreme Court of the U.S has agreed to hear yet
another Colorado case, 303 Creative llc v. Elenis, in which a website designer wanted to
post a message saying she will not design websites for same-sex weddings.
The purpose of our article is to point to a significant distinction between a refusal
to serve clients on the basis of their race, gender, sexual orientation, etc., and a refusal
to serve them because such service requires the providers to engage in activities or
projects to which they deeply oppose. We think the latter case, sometimes, might not
at all be discrimination. Importantly, we distinguish between a deep objection to the
content of the service or product requested and a rejection of the client because of her
How can a supplier prove that his or her refusal to serve a client belonging to a
“protected class” is based on the content of the product or service requested and not
on the client’s characteristics? We formulate a two-prong test that courts in the US
and UK have implicitly adopted. We ask, first, whether the supplier would refuse the
same service to a client not belonging to the protected class, and second, whether

the supplier would serve the same client (belonging to a protected class) with other
products and services. If the answer to both questions is positive, then the supplier’s
refusal is not wrongful discrimination because it shows an objection to the product or
service requested and not a rejection of the client. In practice, this test is not always
easy to apply. We therefore developed an epistemological model to substantiate the
conditions that may help providers persuade the courts that their refusal to serve a
client stems from the content of the request, not from the client’s identity.


Due to limited space please let us know if you wish to join by writing an email to: maj.carlsen@ps.au.dk, also possible to join on zoom.