The oft-repeated standard that business owners are able to refuse service to anyone for any reason is not as clear cut as many photographers might desire.
Social, political, and personal values can complicate your business relationships, but that doesn’t mean they aren’t important.
The key questions are:
- When does impingement on your rights or even emotional health move beyond annoyance to a photographer needing to walk away from a client or an event?
- What are the human rights of photographers?
- Do you have to accept a job or follow through in every case?
- What rights do “work for hire” or contractors have in deciding to refuse to do specific types of work.
- How is this different from discrimination?
What is a human rights issue versus a simple conflict of fundamental beliefs between photographer and client?
A human rights issue is one that relates to discrimination in one area from a list of non-exhaustive categories such as sex, race, colour, ethnicity, language, nationality, and so on detailed in the Universal Declaration on Human Rights. The reality is that in the US and other western countries, most of what you will deal with as a business owner and photographer will not meet the threshold of a “human rights” issue – rather you are more likely to be dealing with a conflict of fundamental beliefs or even more likely, a confusion in communication.
Let’s be clear, we are threading a needle in talking about ideas that are sensitive and to determine the legal parameters and course of action, the exact scenario (and the relevant law relating to the facts of that scenario) matters to how you might proceed.
This is as much to do with nudity, criminal behavior and the rudeness of the clients. It doesn’t have to be a socially controversial topic. For example, how do you handle the bridal party members making unwanted advances, or the groom joking about how good he wanted to look in his updated dating profile image? What do you do if you notice clients are intoxicated, or are engaging in criminal behavior?
As a preventative, consider including a clause indicating that threatening, intimidating or harassing behavior is grounds to terminate the client/vendor relationship. Be sure to include a clause indicating that harassment or interference in you completing your job is grounds to leave the location. If you are a wedding photographer, include language to the effect that the Bride and Groom will not/cannot, hold you responsible for missed shots due to the actions of guests.
As a sidenote: shots of guests in your way may be humorous and in rare cases, may even make it into the album, but they can also serve as documentation supporting your clause.
Consult with your attorney about additional options in situations where you may feel unsafe or discriminated against. Consider if, and how, you might share your feelings with your clients about what specifically made you feel uncomfortable or unsafe – however, sharing these thoughts prior to delivering the images or products contracted may not be the wisest course of action, unless the actions of others rose to threatening or intimidating behavior that necessitated the photographer terminating the session or involved law enforcement.
So what about clients who ask you to take shots that you are uncomfortable with?
For example, you can refuse to photography nudity – as long as you have this as a blanket rule. You cannot provide this service for people of one race, ethnicity or sexual orientation but refuse for another.
What about those who do boudoir for one sex and not another – is that discrimination?
1st amendment rights and anti-discrimination laws need to be held in balance. You could offer boudoir only for women, and not men, but your stated reasoning cannot be purely because of gender. Is there a security or aesthetic reason for your choice? If this is about safety or because of expertise and artistic preference then it may be easier to defeat an argument that suggests you are discriminating on the basis of sex.
You will notice in the list of human rights above that sexual orientation was not listed.
This is because the UN Declaration of Human Rights is silent on this issue, and US law is not fully settled. Many US states do include sexual orientation in anti-discrimination law, but in the matter of private for-profit businesses refusing service where the law stands is not fully resolved.
In the case of a photographer based in New Mexico, refusing service to wedding clients because of their sexual orientation was a costly decision. The New Mexico Supreme Court in Elaine Photography v Willcock affirmed a decision against a photography studio that was sued after refusing to photograph a same-sex couple’s commitment ceremony in 2006, saying the First Amendment does not permit businesses that offer services for a profit to choose whom to serve.
In its opinion, the court said that refusing to photograph a same-sex couple’s commitment ceremony “is no different than refusing to photograph a wedding between people of different races.”
There is still a question about whether photography as art is protected under the first amendment – and thus refusal to offer service on the basis of personal belief is a matter of free speech. What is clear is that this is a hotly debated and unsettled area of law. There are currently cases waiting for a decision by the US Supreme court about whether they will hear the case, including the heavily covered case of the Coloradoan bakers who refused to bake a cake for a same sex wedding – which may or may not settle the question of art as protected speech.
The best cure is always prevention. Make sure your contracts include waivers and disclaimers that address intimidating, harassing, or threatening behavior and which outline clear reasons for termination of shoots for cause with no responsibility on your part. An additional way to approach this as a business owner is to establish a code of conduct for your business – remember that if you have formed a business that is considered a separate legal entity from you as a person these kinds of governance documents can be helpful for establishing standard operating procedures for your photography business and help you to think through ways to address worse case scenarios.
So too, listening to your instincts about what may or may not work is also good business practice. Here’s a sample email you can use for clients you don’t want to start working with for personal reasons:
Thank you for your inquiry.
Unfortunately, it looks like I won’t be able to accommodate you. Your project falls outside the scope of my expertise / I’m not taking on new clients/ I don’t have any availability on the dates you requested/ etc.
If you’d like, I’d be happy to refer other photographers to you. [Only make this offer if you know another photographer won’t have a problem working with them.]
Best wishes for your project.
If you do find yourself in a dangerous or uncomfortable situation, be sure to write down your recollection of what occurred as soon as possible – the same day is best. These contemporaneous memories may be helpful should you need to provide evidence.
Finally, practice self care.
Separating your business interactions from any emotional ramifications is important for your mental health. Responding business relationships while emotionally charged may be destructive for your business and for your own mental wellness.
Take time to put your concerns in writing and decide how to respond only when you’ve been able to calm down and process.