Dick's is Getting Sued...

[steve4102]

...for age discrimination.

Tyler Watson is a 20 year old that tried to buy a Ruger 10/22 at Disk's Sporting Goods in OR and was denied because he was under 21.

Watson is suing Dick's for age discrimination, OR law, ORS 659A.403 and ORS 659A.409.

News article here.
http://www.breitbart.com/big-governm...ng-sell-rifle/

The complaint here.
http://media.breitbart.com/media/2018/03/claims.pdf

What do you guys think? Frivolous or no?

[Lohman446]

NOT A LAWYER

I think its interesting and the state statutes might give it life. While others have told me federal statutes are generally worded in a manner that makes those over the age of 40 the protected class this may not be the case in state law. I imagine that writing exemptions to discrimination statutes is not necessarily on the forefront of anyone's mind as these are being passed.

Personally if a particular retailer does not want to sell to a firearm to an individual I do not think we should be pushing to "force" them to do it. I think it is entirely the wrong tactic. That does not speak to any "legs" this suit may or may not have.

[RETG]

I have an attorney friend from MT and he told me last week that some state laws might be able to be used for age discrimination for the sale of guns. He cited some eastern states such as NJ, but being from MT and practicing only in MT and ID he was not totally familiar with all states' laws.

I hope the guy wins. Even though, so long as the age remains legal for 70 and over, it does not restrict me from buying, when I served back in 'Nam I always hated the idea I was not treated as an adult, yet sent off to fight some politicians war.

[steve4102]

ORS 659A.403

1) Except as provided in subsection (2) of this section, all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is of age, as described in this section, or older.

(2) Subsection (1) of this section does not prohibit:

(a) The enforcement of laws governing the consumption of alcoholic beverages by minors and the frequenting by minors of places of public accommodation where alcoholic beverages are served;

(b) The enforcement of laws governing the use of marijuana items, as defined in ORS 475B.015 (Definitions for ORS 475B.010 to 475B.395), by persons under 21 years of age and the frequenting by persons under 21 years of age of places of public accommodation where marijuana items are sold; or

(c) The offering of special rates or services to persons 50 years of age or older.

(3) It is an unlawful practice for any person to deny full and equal accommodations, advantages, facilities and privileges of any place of public accommodation in violation of this section. [Formerly 30.670; 2003 c.521 §1; 2005 c.131 §1; 2007 c.100 §5; 2015 c.614 §27]

[steve4102]

ORS 659A.409

Except as provided by laws governing the consumption of alcoholic beverages by minors, the use of marijuana items, as defined in ORS 475B.015 (Definitions for ORS 475B.010 to 475B.395),by persons under 21 years of age, the frequenting by minors of places of public accommodation where alcoholic beverages are served and the frequenting by persons under 21 years of age of places of public accommodation where marijuana items are sold, and except for special rates or services offered to persons 50 years of age or older, it is an unlawful practice for any person acting on behalf of any place of public accommodation as defined in ORS 659A.400 (Place of public accommodation defined) to publish, circulate, issue or display, or cause to be published, circulated, issued or displayed, any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of the place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is of age, as described in this section, or older. [Formerly 659.037; 2003 c.521 §3; 2005 c.131 §2; 2007 c.100 §7; 2015 c.614 §28]

[5whiskey]

Tyler Watson is a 20 year old that tried to buy a Ruger 10/22 at Disk's Sporting Goods in OR and was denied because he was under 21.

The real question is, will the court allow it to continue on once he turns 21. At that point he will no longer be aggrieved. It would be fairly easy for dicks to hold out for a year without spending much, if any, money on legal fees.

Not saying there is no chance of the suit continuing after the kid turns 21... but a lot of civil suits end when the grievance is remedied.

[Lohman446]

I'm more interested in how individual states will attempt to rewrite discrimination statutes and how those rewrites will hold up to scrutiny.

[zukiphile]

There are several state codes that prohibit age discrimination more widely than federal code. The easy answer for Dicks is to comply with local law.

The real question is, will the court allow it to continue on once he turns 21. At that point he will no longer be aggrieved. It would be fairly easy for dicks to hold out for a year without spending much, if any, money on legal fees.

Not saying there is no chance of the suit continuing after the kid turns 21... but a lot of civil suits end when the grievance is remedied.

Where a problem is temporary but likely to recur, the temporary nature shouldn't keep a court from addressing the controversy. Were it otherwise, no abortion restriction could ever be successfully challenged; the state would just litigate the matter until birth.

[K_Mac]

I to am not a lawyer, but it is not only alcohol that is prohibited for those under 21. 20 year olds are not allowed to adopt a child, or rent a vehicle. They would not be able to gamble in most states, although it is up to the casino in others. Many elected positions are age restricted.

I don't think any rewrite of the law is necessary to legally prohibit gun purchases. We accept there is a difference between the maturity of most 18 and 21 year olds, and I would be very surprised to see Dicks or any other company found guilty of age discrimination for setting age requirements.

[rickyrick]

All I got to say is good luck, on the surface Oregon seems to have a law against it.
But
In Oregon,
Laws are followed or disregarded depending on political stance.

[steve4102]

I to am not a lawyer, but it is not only alcohol that is prohibited for those under 21. 20 year olds are not allowed to adopt a child, or rent a vehicle.

...but neither OR law or Federal law prohibits the sale or purchase of a long gun to a 18-19-20 year old. Dick's imposed this prohibition.

[K_Mac]

but neither OR law or Federal law prohibits the sale or purchase of a long gun to a 18-19-20 year old. Dick's imposed this prohibition.

My bet is OR or federal law does not prohibit adoption or car rental either.

[Lohman446]

K-Mac: are you certain you can't rent a car at 18 in Oregon? It seems a pretty integral premise to your argument.

[fredvon4]

For a long time now.... since 1973 when I was drafted and allowed to vote and allowed to buy a beer.... then soon after came changes to drinking age

I then started noticing all the various ages to exert ones various Rights.. as I moved from country to country and state to state

Marry
Contract
Emancipation
Abortion
Drive
Alcohol
Commercial license
Pilots license
Elected office
2nd amendment....IMO starts at BIRTH

seems to me, we in the USA, have NO Universal agreement on what an full citizen ADULT is

I much prefer Black and White Definitions backed by Law

I am a very strong States Rights guy...but do think there are many things that need to be UNIFORM Federally

14 year old can decide to abort a child
17 year old who got her pregnant is a Pedophile
35 year old Dad who slaps the be-jessus out of pregnant daughter (I do not advocate or condone) and causes miscarriage..is charged with murder

Tons of hypocrisy in our current system of definitions

[Frank Ettin]

Regarding discrimination generally:

1. Rights protected by the Constitution are essentially irrelevant when dealing with a non-governmental actor. As explained by the United States Supreme Court (Edmonson v. Leesville Concrete Company, Inc, 500 U.S. 614 (U. S. Supreme Court, 1991), emphasis added):

   ....The Constitution structures the National Government, confines its actions, and, in regard to certain individual liberties and other specified matters, confines the actions of the States. With a few exceptions, such as the provisions of the Thirteenth Amendment, constitutional guarantees of individual liberty and equal protection do not apply to the actions of private entities. Tarkanian, supra, 488 U.S., at 191, 109 S.Ct., at 461; Flagg Bros, Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). This fundamental limitation on the scope of constitutional guarantees "preserves an area of individual freedom by limiting the reach of federal law" and "avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed." Lugar v. Edmondson Oil Co., 457 U.S. 922, 936-937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982). One great object of the Constitution is to permit citizens to structure their private relations as they choose subject only to the constraints of statutory or decisional law. ....

2. In general, discrimination is not illegal. You do it all the time. Every time you decide to shop in this store rather than that, you have discriminated. Every time you decide to buy this rather than that, you have discriminated.
   
   
3. Businesses discriminate all the time too, and legally. Apple stores discriminate against people who want to buy a PC by only selling Apple computers. Many restaurant discriminate against Orthodox Jews or Muslims by not strictly following the dietary laws of those religions. Many restaurants also discriminate against persons not wearing shirts and/or shoes by not admitting them. Tiffany discriminates against poor people in the prices they charge. Businesses also discriminate whenever they hire one person instead of another who has applied for the job.
   
   
4. Discrimination is merely choosing one thing over another or rejecting a possible choice. Discrimination is the very essence of freedom and private property. It is the right to choose. It is the right to exclude. It is the right to decide how you want to use your property.
   
   
5. Discrimination is perfectly legal, unless some law makes it illegal. There are laws that make discrimination illegal on various, specifically identified and defined bases, illegal -- at least if you're a business open to the public or an employer or in some other specified category.
   
   
6. There are a slew of civil rights laws, federal and state. They define classes of persons from being discriminated against on certain bases, and they also address discrimination only in certain specified activities or transactions.
   
   
7. Most such laws prohibit discrimination on the bases of race, religion, and national origin. Most also protect one from being discriminated against on the basis of sex and, in many cases, sexual orientation. Certain civil rights laws also prohibit certain types of discrimination on the basis of age, if one is between age 40 and 70, or on the basis of disability. Sometimes there are overlaps and sometimes there aren't.
   
   
8. So a state law might prohibit discrimination in employment of the basis of age, but there might be no state law prohibiting discrimination on the basis of age in the renting of residential property.
   
   
9. And there are usually exceptions. While an employer might be prohibited from discriminatory hiring on the basis sex, a health club can refuse to hire a man to hand out towels in the women's locker room.

Now let's look at Watson's suit in Oregon. Watson’s suit alleges that Dick’s policy violates Oregon law against age-based discrimination for people 18 years and older in places of public accommodations. It appears that the suit is based on ORS 659A.403:

(1) Except as provided in subsection (2) of this section, all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is of age, as described in this section, or older.

(2) Subsection (1) of this section does not prohibit:

(a) The enforcement of laws governing the consumption of alcoholic beverages by minors and the frequenting by minors of places of public accommodation where alcoholic beverages are served;

(b) The enforcement of laws governing the use of marijuana items, as defined in ORS 475B.015 (Definitions for ORS 475B.010 to 475B.395), by persons under 21 years of age and the frequenting by persons under 21 years of age of places of public accommodation where marijuana items are sold; or

(c) The offering of special rates or services to persons 50 years of age or older.

(3) It is an unlawful practice for any person to deny full and equal accommodations, advantages, facilities and privileges of any place of public accommodation in violation of this section.

The only Oregon case law dealing with discrimination in public accommodations (Klein v. Or. Bureau of Labor & Indus., 289 Or App 507 (Or. App., 2017) suggests the law could reach the sale of goods by a retail business.

Oregon law is distinguishable from federal law (42 USC 2000a). Federal law prohibits only discrimination based on race, color, religion, or national origin, but the Oregon law also specifically includes age as a prohibited basis. It's also not clear from the language of the federal statute that "public accommodation" includes a retail store, but the limited case law in Oregon suggests that for the purposes of the Oregon statute a retail store is a public accommodation.

In general discrimination by a private business is not unlawful unless it has been explicitly prohibited by statute (or case law). But here we now have a state statute which specifically prohibits discrimination in a public accommodation on the basis of age and state case law which suggests that statute applies in the case of discrimination in the sale of goods by a retail business.

So while Watson's suit might not work under the federal Civil Rights Act, it might have a good basis under Oregon's broader anti-discrimination law.

[Frank Ettin]

Originally Posted by fredvon4

....I am a very strong States Rights guy...but do think there are many things that need to be UNIFORM Federally

14 year old can decide to abort a child
17 year old who got her pregnant is a Pedophile
35 year old Dad who slaps the be-jessus out of pregnant daughter (I do not advocate or condone) and causes miscarriage..is charged with murder

Tons of hypocrisy in our current system of definitions....

But that is a natural consequence of federalism.

States are sovereign, political entities. At the time of the founding of our nation each State or Commonwealth effectively ceded some measure of sovereignty to join with the others to become the United States. How much sovereignty each would cede was a central issue in hashing out the Constitution.

A fundamental attribute of government is what's known as police power:

The inherent authority of a government to impose restrictions on private rights for the sake of public welfare, order, and security.

The authority of States/Commonwealths is acknowledged (not conferred) by the Tenth Amendment to the United States Constitution:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Each State/Commonwealth has its own constitution as well. And since in the United States each State or Commonwealth has its own government in the form of a representative democracy, the people in each have the opportunity to influence what laws are adopted and how they are implemented.

Of course since the adoption of the Fourteenth Amendment and as the doctrine evolved of applying the Bill of Rights to the States through the Due Process Clause of the Fourteenth Amendment, that is yet another limiting factor on the exercise by States of their police power.

[fredvon4]

Thanks Frank

A lot to ponder

I do truly appreciate the hard work you do personally to look up these things and educate us

[K_Mac]

Lohman it appears most of the major car rental companies limit rental to 25 and over, although some will charge a surcharge of ~$25 a day for those between 21 and 25.

The central point of my argument is there is a difference between the development of 18 and 21 year olds, and it goes beyond a subjective measure of maturity. This is from the University of Rochester Medical Center website:

https://www.urmc.rochester.edu/encyc...ContentID=3051

It doesn’t matter how smart teens are or how well they scored on the SAT or ACT. Good judgment isn’t something they can excel in, at least not yet.

The rational part of a teen’s brain isn’t fully developed and won’t be until age 25 or so.

In fact, recent research has found that adult and teen brains work differently. Adults think with the prefrontal cortex, the brain’s rational part. This is the part of the brain that responds to situations with good judgment and an awareness of long-term consequences. Teens process information with the amygdala. This is the emotional part.

In teen’s brains, the connections between the emotional part of the brain and the decision-making center are still developing—and not necessarily at the same rate. That’s why when teens experience overwhelming emotional input, they can’t explain later what they were thinking. They weren’t thinking as much as they were feeling.

[KyJim]

The central point of my argument is there is a difference between the development of 18 and 21 year olds, and it goes beyond a subjective measure of maturity.

This argument is being made regarding application of the death penalty. The Supreme Court has flat out prohibited execution of anyone under18. Now, the defense bar is trying to push the cutoff to 21 years of age. Not saying which side is right or wrong, just that the debate about age and responsibility is widespread.

[Aguila Blanca]

This argument was going on at least as far back as the Vietnam conflict. Iwas over 21 when I enlisted, but most of the guys I served with were drafted at age 18. We all thought it highly unfair a guy could be drafted and sent to war but wasn't allowed to buy a beer.

[steve4102]

An 18 year old has also filed suit in MI against Dick's for refusing to sell him a long gun.

I checked to see if MI had age discrimination statutes similar to OR and all I could find was The Elliott-Larsen Civil Rights Act. Everything I read on this seems to indicate that this is a Work Place or Employment statute.

Anybody know if MI age discrimination laws are valid outside the work place and include goods and services?