by KPMLAW | Jul 12, 2016 | KPMBlog, News, Uncategorized
Written by Chris Bergin Edited by Brian Cafritz Racial and Religious discrimination has been an issue in our country for generations. Gender, Age and Sexual Orientation discrimination, however, has become more of an issue in recent years. For Retailers and Restaurateurs who deal with the public at large, the issue is even more pronounced. On June 26, 2015—just about one year ago—the United States Supreme Court returned its landmark ruling in Obergefell v. Hodges holding that the United States Constitution guarantees same-sex couples the right to marry. In the immediate aftermath of this decision, some business owners actively protested the ruling by categorically refusing to provide services for same-sex weddings. In doing so, those same businesses, knowingly or not, opened themselves up to liability under public accommodation statutes. Although public accommodation statutes first appeared in the 50’s and 60’s to combat racial discrimination, they are rapidly evolving to combat sex discrimination, religious discrimination, and discrimination against the LGBTQUIA community. Restaurant and retail owners should understand these statutes to ensure compliance and mitigate risks. Generally speaking, property owners have a right to exclude anyone from their private property for any reason. There is, however, one major limitation on this general rule: federal, state, and municipal public accommodation statutes. These statutes prohibit private property owners who operate “public accommodations” from excluding customers on certain discriminatory grounds. For business owners, this raises two questions: (1) what qualifies as a public accommodation, and (2) who do public accommodation statutes protect? What Qualifies as a Public Accommodation? Under the federal public accommodation statute, a “public accommodation” is one of the following: Hotels and other...
by KPMLAW | May 24, 2016 | KPMBlog, News, Profiles, Uncategorized
AM Best, the oldest and most widely recognized provider of ratings, financial data and news with an exclusive insurance industry focus, recently featured KPM’s Brian Cafritz on their “Best’s Directories Insurance Law Podcast.” Brian has been closely following news and rulings related to restroom access for transgender individuals. Listen to the podcast here or view the transcript below. You can follow Brian on Twitter at @briancafritz. John Czuba: Welcome to the “Insurance Law Podcast,” the broadcast about timely and important legal issues effecting the insurance industry. I’m John Czuba, managing editor of Best’s Directory of Recommended Insurance Attorneys. We’re pleased to have with us today attorney Brian Cafritz from KPM LAW in Richmond, Virginia, with additional offices in Fairfax, Norfolk, and Roanoke, Virginia. Brian is a partner in the firm, and helped to expand the firm’s regional defense network. He focuses his practice on the defense of Fortune 500 companies that operate under large self-insured retentions. He co-founded the National Retail and Restaurant Defense Association to promote the education and communication channels of industry leaders and counsel. Brian was elected to the first two terms as the association’s first president. He is also the only Virginia attorney selected to IALDA, a defense network dedicated to the defense of the amusements and leisure industry. We’re very pleased to have you with us today, Brian. Brian Cafritz: Thank you very much, proud to be here. John: Today’s topic is on legal issues pertaining to transgender restrooms, and Brian this has been a very topical issue of late, can you comment on which states have been the most impacted? How common is...
by KPMLAW | May 24, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Jessica Relyea, Esq. Edited by Brian Cafritz, Esq. With the ubiquitous nature of social media, more and more retail and restaurant establishments are requiring confidentiality clauses in settlement agreements to contain strong penalties that deter a breach. In an effort to streamline litigation should a breach occur, those provisions often contain liquidated damages clauses, which state the parties agree a breach of confidentiality would result in a return of all settlement proceeds. This begs the question, is this provision enforceable? If a plaintiff breaches confidentiality, can you get the settlement funds back? The Supreme Court of Virginia has held, and the Eastern District of Virginia has recently reaffirmed, that parties “may agree in advance about the remedy resulting from a breach, including damages, but only when (i) the actual damages contemplated at the time of the agreement are uncertain and difficult to determine with exactness and (ii) the amount fixed is not disproportionate to the probable loss.” Job v. Simply Wireless, Inc., 2015 U.S. Dist. LEXIS 171535, *11 (E.D. Va. Dec. 22, 2015). A breach in confidentiality would be a good example of when actual damages are unknown, as the facts surrounding the breach are also unknown at the time the release is negotiated and executed. The bigger question for a restaurant or retail establishment to consider is whether or not the amount of damages is proportional to the probable loss. To help answer that question, Virginia courts will allow discovery into a liquidated damages clause to determine if the “stipulated damages are grossly in excess of the actual damages suffered by the non-breaching party.” O’Brian...
by KPMLAW | Apr 25, 2016 | KPMBlog, News, Uncategorized, Updates
The issue of transgender restrooms continues to evolve, and last week, the Fourth Circuit Court of Appeals in Richmond, Virginia became the first federal court to weigh in on the issue. The ruling comes in the case of G.G. v. Gloucester County School Board. The case has received a great deal of attention due to the recent controversial legislative enactments in North Carolina and other states, which have attempted to legislate which restroom transgender persons must use. G.G. was born female and when the vents of this lawsuit had taken place, had begun hormone therapy. G.G. legally changed his name to a traditionally male name and prior to his sophomore year, informed the school that he was a transgender boy. By all accounts, G.G. lived all aspects of his life as a boy. In late 2014, the Gloucester County School Board prohibited G.G. from using the male restroom in his high school. G.G. sued the School Board on the grounds that the school discriminated against him in violation of Title IX and the Equal Protection Clause of the Constitution, and he moved for a preliminary injunction to stop the school’s restroom prohibition. The District Court denied the injunction, holding that G.G. lacked sufficient evidence after it refused to consider hearsay expert testimony on the topic. It further held that using a unisex bathroom in the school was not unduly burdensome compared to the hardship to the other students caused by G.G’s presence in the men’s restroom. Finally, the District Court granted the School Board’s Rule 12(b)(6) Motion to Dismiss the Title IX allegations, claiming that requiring G.G. to use...
by KPMLAW | Feb 23, 2016 | KPMBlog, News, Uncategorized
Author: Brian Cafritz, Esq. By law, most states require restaurants or retailers to provide suitable restrooms for its guests. But which guest is permitted to use which restroom is becoming an issue that restaurants and retailers must ask themselves to avoid legal action related to discrimination or privacy violations. If your guest is transgender, what obligation does the restaurant or retailer have to provide a facility for that guest? What duty does the business have to protect its other guests from what may be an invasion of privacy? What should the business’ employees do when speaking to the transgender guest to resolve any confusion? While the issues of transgender equality, anti-discrimination, and privacy are currently focused on state-run government properties, public restrooms found in Retail and Restaurant establishments must take notice. Absent legislative enactment, what is a restaurant or retailer to do? The easy answer for restaurants and retailers is that single occupancy restrooms are preferred and should be made gender neutral. Indeed, this is legislated in some jurisdictions already (See the District of Columbia). For buildings that only have multiple occupancy restrooms, they can often be easily retrofitted for more privacy. Urinary dividers and/or stall doors and walls can be extended from ceiling to floor. Regardless of the physical layout of the restroom, employees of restaurants and retailers should be trained on handling this sensitive issue. The best practice is to allow guests to use restrooms of their sexual identification, rather than biologic gender. Employees should not openly prevent guests from using a restroom consistent with the guest’s sexual identity. Moreover, under no circumstances, should the employee take...
