Virginia McDonald's Bars Under-21-Year-Olds from Eating Inside. Is That Legal?

WJLA (Ida Domingo) reports that a Virginia McDonald’s put up a sign that states,

Due to repeated incidents of student violence, this McDonald’s location is temporarily closed for dine-in service to anyone under 21 years of age. This decision was made to protect our staff, our guests, and our community.

According to the story,

To enter, customers must ring a doorbell to be allowed entry by an employee. A spokesperson for the franchise said student violence and disrespectful behavior occur at least once a week, causing frustration among staff and customers.

“The fighting is a problem and they’re pretty brazen. The management tries to step in and these kids are pretty violent,” said longtime customer Robert Hancasky, who said he has frequented this McDonald’s for nearly 50 years. “They’re just trying to stop the violence because it’s not fair to any other customer who comes in for the sandwich, a hard-working person, they got to put up with a bunch of idiots.”

Despite the restrictions, customers under 21 can still use the drive-thru, order via a mobile app for curbside pickup, and dine inside if accompanied by a chaperone.

I sympathize with the management’s concerns, and with the concerns of the quoted customers. But my tentative thinking is that this violates Virginia public accommodations law, which provides,

A. As used in this section:
“Age” means being an individual who is at least 18 years of age.
“Place of public accommodation” means all places or businesses offering or holding out to the general public goods, services, privileges, facilities, advantages, or accommodations.

B. It is an unlawful discriminatory practice for any person … to … deny [or attempt to deny] any individual … any of the accommodations, advantages, facilities, services, or privileges made available in any place of public accommodation, or to segregate or discriminate against any such person in the use thereof, or to … display … any communication … to the effect that any of the accommodations, advantages, facilities, privileges, or services of any such place shall be refused … on the basis of race, color, religion, ethnic or national origin, sex, pregnancy, childbirth or related medical conditions, age, sexual orientation, gender identity, marital status, disability, or military status.

C. The provisions of this section shall not apply to a private club, a place of accommodation owned by or operated on behalf of a religious corporation, association, or society that is not in fact open to the public, or any other establishment that is not in fact open to the public.

D. The provisions of this section shall not prohibit (i) discrimination against individuals who are less than 18 years of age or (ii) the provision of special benefits, incentives, discounts, or promotions by public or private programs to assist persons who are 50 years of age or older.

E. The provisions of this section shall not supersede or interfere with any state law or local ordinance that prohibits a person under the age of 21 from entering a place of public accommodation.

The McDonald’s is a restaurant. It’s denying 18-to-20-year-olds some of the “accommodations, advantages, facilities, [and] services”—namely, the option of in-store eating—of the restaurant. This seems to be prohibited. Some state laws have been read as implicitly excepting discrimination that judges view as minor and reasonable. But here the law explicitly authorizes some age classifications, which counsels against courts reading  in an implicit exception for other age classifications. And beyond that, I know of no cases that read these statutes as implicitly allowing classifications that treat some covered attribute as a proxy for a tendency to engage in bad behavior. The whole point of these laws is precisely to require individualized decisionmaking about bad behavior, rather than allowing the use of such proxies.

The store can of course ban particular patrons, of whatever age, for “violence and disrespectful behavior.” But it can’t exclude all 18-to-20-year-olds because some are violent and disrespectful.

There are of course plausible arguments to be made about

• whether laws banning discrimination in public accommodations are generally a good idea;
• whether laws banning discrimination in retail sales are generally a good idea (for instance, federal law, which bans discrimination based on race, religion, and national origin in places of public accommodations, doesn’t apply to most retail stores, though it does apply to restaurants);
• whether laws banning discrimination in retail sales based on age are generally a good idea (most states don’t ban such discrimination, and neither does federal law); or
• what the cutoff age should be, if these laws do exist.

But under the law as it is, it’s hard for me to see how the reported actions by the Virginia McDonald’s are legal.

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