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Local ordinance could be key in City Market discrimination flap

September 30, 2010
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A local ordinance prohibiting discrimination based on sexual orientation may give the city the right to take action against a cookie shop operating within Indianapolis City Market that declined to fill an order from a gay-rights group.
 
According to a series of reports from Fox59, the city is investigating whether Just Cookies last week discriminated against a customer when owners declined his request for a special order of rainbow-iced cupcakes for a “National Coming Out Day” event set for Oct. 7 at IUPUI.

Because sexual orientation is one of the categories in which discrimination is forbidden by city ordinance, the city may have the right to penalize the business, which could include a fine, said Michael Blickman, a partner in Indianapolis-based Ice Miller LLP’s employment practice.

However, it's unclear whether the ordinance extends those protections beyond an individual and to a group of people, he said.

“If a person walked up to Just Cookies, say a Latino, and [the business] said, ‘we’re not going to serve you,’ that would clearly violate the ordinance,” Blickman said. “What I don’t know is whether the ordinance extends to a group.”

John Haskin, a local employment discrimination lawyer with Haskin & Larue LLP, said the city ordinance protecting sexual orientation probably doesn't apply at all in this case because it deals only when discrimination is alleged in employment matters, such as the termination of an employee.

“So whether or not the cookie stand violated that ordinance is really questionable,” he said.

The city’s Office of Equal Opportunity is investigating the matter because Just Cookies is a tenant of a city-owned property, and is even considering revoking its lease.

City spokesman Robert Vane said the city was investigating the complaint but had made no decison.

“Our point is that Mayor Ballard wants to make clear that everyone is welcome in the Market,” Vane said. “The city owns the Market and we don’t want there to be a feeling that, because you have a certain belief, you’re not welcome.”

Absent a city ordinance, there would be no basis to argue discrimination, even against a business operating within city-owned property. That’s because neither state nor federal law prohibits discrimination based on sexual orientation, according to attorneys.

“And that is why the spotlight is on the Indianapolis ordinance,” Blickman said. “You might say it is on the cutting edge of anti-discrimination in relation to sexual orientation and gender identity.”

Other categories protected by the ordinance are race, color, religion, ancestry, age, national origin, disability and sex.

Still, most businesses have the right to refuse a customer, said Ken Yerkes, who leads Indianapolis-based Barnes & Thornburg LLP’s employment practice.

“Generally speaking, a private company can decide to whom it will or will not provide services,” he said.

The owners of Just Cookies, David and Lily Stockton, could not be reached for comment Thursday morning.

The Flying Cupcake on Massachusetts Avenue ultimately accommodated the cupcake request of the organizers of the IUPUI gay and lesbian event.
 

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