What if a potential customer approaches you to do a type of photo shoot that you don’t normally do?
Let’s say you’re a newborn photographer and someone wants you to do family portraits or professional headshots. Or you’re a wedding photographer and you are asked to take pictures of someone’s kids. What if you’re asked to take boudoir pictures of a female but you are male, or vice versa? What if someone wants you to take pictures at their commitment ceremony or wedding but you’re not comfortable because they’re of a different religion, race or sexual orientation? When do you have the ability to turn down a potential or current client and when would doing so be illegal?
First, let’s be clear that you cannot be forced to take or perform a job that you don’t want to do. There may be consequences (legal, professional or reputation-wise), but you always have a choice.
Next, let’s talk about legal and illegal discrimination. Discrimination, per law.com, is “unequal treatment of persons, for a reason which has nothing to do with legal rights or ability” Not all discrimination is illegal, only discrimination against protected classes. These protected classes are defined by various federal, state and local laws.
The basic federally protected classes include: race, color, religion, national origin and disability. Additional protections are given due to age, sex, pregnancy, citizenship, familial status, veteran status, and genetic information. Always make sure you check your state and local laws because there may be other protected classes, like marital status, sexual orientation or gender identity. Some protections apply only in the workplace, but the basic classes apply to any “places of public accommodation” (state law can add to this list), which are both government-owned and private businesses offering services to the general public. Being a place of public accommodation doesn’t mean you have to serve everyone, but it does mean you can’t refuse service to some based on a protected status or class.
“But I don’t have a storefront.” “I only get clients by word of mouth.” It doesn’t matter. If you’re holding yourself out as a professional photographer, if you have a business license, if you’re taking deductions on equipment etc. for your taxes, the courts have held broadly that you are considered to be a business that serves the general public and you must comply with public accommodation laws.
So when can I say “no” to a client?
One way: they’re a member of a non-protected class. If you refuse service to someone because they’re rude, they have purple hair, they’re not wearing a shirt, or they can’t pay you, you’re likely not engaging in unlawful discrimination. This is because politeness, hair color, clothing status, and financial health are not protected classes.
If they are a member of a protected class you can still say “no” but the refusal cannot be arbitrary. You must have a specific interest in refusing service, like customer behavior, or health or safety of yourself or others. You also have to apply this refusal to everyone equally. For example, you can’t say you won’t photograph a disabled person in the nude but then accept non-disabled nude clients. But let’s say you’re a female photographer and you refuse to have nude male clients due to safety concerns, that would likely be a valid and lawful reason to refuse service.
Well, what about the First Amendment? Don’t I have the right to say what I want?
Technically, the First Amendment says that the government can’t stop you (with limited exceptions) from saying and writing what you want. It doesn’t mean that you can say or do whatever you want, however. You can have sincerely held beliefs but that doesn’t mean you have the right to refuse accommodation to others. The Civil Rights Act of 1964 was passed in part because people were routinely being refused hotel accommodations and restaurant service in much of the South due to their race. If you are a business serving the public (as opposed to a private club), you have to serve the whole public without discrimination based on membership in a protected class.
So what happens if someone approaches you with a request to do something different or that makes you uncomfortable? Let’s go back to some of the examples at the beginning.
You’re a newborn photographer and someone wants you to do family portraits or professional headshots. Are you refusing service based on a protected class? On the surface, no, but what if the family in question has unmarried or gay parents and you’re philosophically or religiously opposed to that? In that case make sure that you’re not being arbitrary and that you’re applying that policy to everyone. “I’m sorry; I’d love to, but I only photograph newborns.” And if you later change your mind and decide that you could photograph families or do headshots, that’s ok! Just make sure that you now extend those services to everyone who asks.
You’re a wedding photographer and you are asked to take pictures of someone’s kids. Again, you can politely refuse with an “I’m sorry; I’d love to, but I only photograph weddings.” Just make sure that you aren’t turning someone down in a protected class because of their identity within that class.
What if you’re asked to take boudoir pictures of a female but you are male, or vice versa? General refusal of service due to gender may be unlawful. But if you’re doing it for a specific and non-arbitrary reason, let’s say due to safety concerns, then you may have a lawful excuse.
What if someone wants you to take pictures at their commitment ceremony or wedding but you’re not comfortable because they’re of a different religion, race or sexual orientation? This may depend on where you are located. Religion and race are federally protected classes, but sexual orientation is not. Many states and localities have added sexual orientation to their list of protected classes, so you need to check this. Though not illegal, there have been several examples in the news over the last few years regarding the refusal to provide services due to sexual orientation. So although you may be legally in the clear, you may face public scrutiny for your decision, which is something to keep in mind.
To sum up:
No discrimination due to membership in a protected class, unless that refusal is non-arbitrary and applied equally. Don’t be afraid to consider an unusual request, however! Who knows, maybe by doing something different you’ll find a new stream of clients and a new passion for your work!