Can I Sue for Being Kicked Out of a Club, Neighborhood, or Online Group?
Yes, you may be able to sue a group if they kick you out because of, among other things, your race, religion, sex, national origin, or disability. Private groups can kick you out for any or no reason. However, if a seemingly private group is actually public enough to be considered a “public accommodation," the group cannot discriminate against you because of your membership in one of these protected classes.
One major hurdle you face is proving the private group is actually “public." An experienced civil rights lawyer would be able to help you gather evidence, give you legal advice, and aid you in determining whether it is in your best interests to pursue legal action.
Private Clubs in the U.S.
Private groups, such as exclusive clubs, have been around since the founding of our country. They were originally comprised of wealthy white men who sought to develop social, business, and political relationships. Protected as they are by the First Amendment's freedom of association, private groups were not bound by laws that applied to public accommodations (such as taverns). Their members were free to engage in all sorts of shenanigans, like gambling, that public accommodations couldn't.
During the 1800s and 1900s, people began forming groups for other purposes, such as charitable purposes. With this broadening of mission, and the progressive evolution of the cultural climate, membership in private clubs began to be extended to other races and sexes.
Private groups look very different today. You can find a private club devoted to virtually any subject, such as high school glee clubs, community college social fraternities and sororities, country clubs, fantasy football teams, and movies. They also don't typically meet in wood-paneled rooms; more often than not, they meet online, such as on social media (you may be a member of a Facebook group yourself).
A Fellowship of the Ring
Let's say Sam loves the works of fantasy author J.R.R. Tolkien. Sam joins a Lord of the Rings Facebook group. He's thrilled to share his enthusiasm with anyone who will listen. Sam constantly checks his notifications to see if someone has posted on the group's page. And he revels in the dozens of likes he gets when he posts a photo of his Limited Edition Ring (One ring to rule them all, one ring to find them, one ring to bring them all, and in the darkness bind them . . . ).
Everything is going swimmingly until, in one of his posts, he casually mentions that the trilogy speaks to him as a Catholic. The next day, he finds out that he's been kicked out of the group. He is stunned. Until he learns from one of the other group members that the admin has been angrily writing about how he kicked Sam out because he's Catholic.
Sam is really hurt. Getting kicked out of a Facebook group isn't the end of the world, but he loved the exchange he had with the other members. And he's proud to be Catholic. There's the principle of the thing.
Never fear — there may be something Sam can do about it.
Federal and State Anti-Discrimination Laws May Apply
The federal government and the states have laws that prohibit discrimination in “public accommodations." Title II of the Civil Rights Act of 1964 and the Americans with Disabilities Act create what are called “protected classes." You cannot be discriminated against under federal law based on your membership in one of the following protected classes:
- National origin
- Real or perceived disability
Most states have expanded this number of protected classes by enacting human rights acts. These acts also prohibit discrimination based upon your membership in the following classes:
- Sexual orientation
- Gender identity
In the above hypothetical, Sam was kicked out of the Facebook group because of his religion, a protected characteristic. He may be able to pursue legal action against the admin.
Sam starts his research with his old trusty friend, FindLaw. He reads up on lawsuits for civil rights violations and discrimination. The page includes links to all sorts of useful information. Sam thinks he understands all of this lawyer stuff pretty well, but he has a full-time job and is not quite prepared to tackle this on his own. He wisely decides to get help.
Sam talks to an experienced civil rights lawyer about suing the admin of the Lord of the Rings Facebook group. They tell him he has two particular challenges. The first is proving that the group is a “public accommodation." If the group isn't a public accommodation for purposes of the antidiscrimination statutes, it is free to discriminate until the cows come home.
What Is a Public Accommodation?
Generally speaking, a “public accommodation" is a place that offers goods or services to the general public. Some examples include:
- Movie theaters
- Post offices
- Small businesses
- Health care providers
- School district offices
- Public schools
- School clubs
Although private clubs are generally not considered to be public accommodations for purposes of anti-discrimination laws, courts generally construe these laws broadly because, well, discrimination is evil.
And courts don't just go by what the group claims it is. Instead, they look at a long list of factors to determine whether the so-called private group is actually public:
- The selectivity of the group in admitting its members
- The membership's control over the group's operations
- The history of the group
- The use of membership facilities by nonmembers
- The purpose of the club's existence
- Whether the club advertises for members or if membership is extended through private invitation
- Whether the club is for-profit or nonprofit
- Whether the group follows specific formalities (such as having meetings, written bylaws, etc.)
If these factors show that a group, such as the Facebook group, is really public, you may have a case. Note that there are exceptions for certain organizations that would seem to be public accommodations (like churches), but these exceptions wouldn't apply to Sam's situation.
A court would decide as a matter of law whether the Lord of the Rings Facebook group was a public accommodation. It's hard to say how a judge would rule, so Sam's feeling pretty glad right now that he is relying on an experienced civil rights attorney.
Exception: Removal for Offensive Behavior or Direct Threat to Public Safety
Be aware that there is an exception to statutory discrimination claims based on a group member's behavior. Generally speaking, even a public group can kick out a member for “offensive behavior" or if they pose a “direct threat to public safety."
For example, if Sam kept referring to one of the female group members as “Gollum," they could kick Sam out for being a jerk, regardless of whether he is Catholic. Similarly, if Sam were sexually harassing a group member, the admins could expel him as a threat to safety, even if the admin would otherwise discriminate against him.
But here, Sam wasn't being offensive or posing a threat to anyone. He was just existing and happened to be Catholic. Sam's behavior doesn't meet this exception.
It's worth mentioning another side issue. Suppose Sam's Facebook group is having an annual retreat this year in New Zealand, where the movies were filmed. Sam went last year, and it was great. He still wears the t-shirt all the time. He is anxious to go again this year, but we're not quite out of the coronavirus pandemic yet.
The group admins decide to institute a COVID-19 vaccination policy. Sam is fully vaccinated and boosted, but one of his friends is an anti-vaxxer. They could be barred from the retreat as a threat to public health. At least, that's what the admins could argue.
How to Prove Illegal Discrimination
Let's jump back to the lawyer's office. Say Sam makes it past the first challenge. The second is proving intentional discrimination. You can use two different types of evidence to prove intent: direct evidence and circumstantial evidence. Direct evidence is evidence that tends to prove a fact without the need to draw an inference. Circumstantial evidence doesn't prove a fact unless you draw an inference. Both can be equally powerful in court.
Let's see how this works. Say you see some guy named Clyde shoot someone else. You could tell a jury in court what you saw. Your testimony is direct evidence that Clyde killed someone. In contrast, say you walked into the room and saw Clyde standing over a body with a smoking gun in his hand. You could tell the jury what you saw, and the jury could infer from the smoking gun and Clyde's standing over the body with the gun in his hand that Clyde shot the other person. That is circumstantial evidence.
In Sam's case, proving intent is easy. He can rely on direct evidence. The admin essentially bragged to a friend that Sam was kicked out because he was Catholic. Sam could call his friend as a witness to testify as to what they heard. The admin's admission is direct evidence of intent. Easy.
Say the admin was more careful. Sam would need to rely on circumstantial evidence of the admin's intent. This would require some digging. If Sam was able to show that the admin kicked out every Catholic group member upon learning that they were Catholic, a jury could infer the admin's discriminatory intent from:
- The fact of Sam's expulsion
- The fact that all Catholics were expelled from the group
- The fact that Sam is Catholic
- The timing of Sam's expulsion in relation to the admin's learning that he is Catholic
See how powerful circumstantial evidence can be?
What Can You Get?
Let's say Sam's lawyer thinks he has a case, but he wonders if a lawsuit is worth it. What benefits can he get if he sues for intentional discrimination?
Here, Sam may be in luck. In a case like this, a court may be able to award “injunctive relief." An injunction is a court order that compels someone to do something subject to punishment. A court could issue an injunction requiring the admin to readmit Sam to the group and compel them not to discriminate against Catholics anymore.
Injunctive relief may be all Sam is looking for. If the admin violates the injunction, Sam's trusty lawyer could tell the court and the court might impose further penalties for contempt. If the judge gets really mad, they might refer the matter for criminal contempt proceedings. Law enforcement could send police officers to knock on the admin's door.
Sam also may be able to recover damages. Compensatory damages are intended to make you whole for any loss you may have suffered. Punitive damages are not intended to compensate you for loss; instead, they are intended to punish a wrongdoer for extreme or outrageous behavior and to deter them and others from doing the same thing. To get compensatory damages, you would need to show that you suffered financial loss because you were kicked out of the group. To get punitive damages, you would need to prove that the admin's behavior was extreme and outrageous.
Finally, attorneys' fees. In some states, such as California and Florida, you may be able to recover any reasonable fees you paid your lawyer to represent you in your discrimination case. In other states, such as Texas and New York, you can't recover attorneys' fees. So it depends on where you are.
A Lawyer Could Help You With Your Case
As you can see, proving intentional discrimination by a club, neighborhood, or online group is complicated and can be time-consuming. You may have to do a lot of digging to find the direct and circumstantial evidence you need to prove your case. And that's assuming you can persuade the judge that the private club is really a public accommodation subject to anti-discrimination laws.
We've mentioned a couple of times how helpful having an experienced civil rights lawyer on your side can be. We emphasize that again. A local civil rights attorney will know the law in your state and can advise you about whether they think you may have a case, what you may be able to recover, and whether a lawsuit is the best way to protect your legal interests.
As Tolkien wrote, “All's well that ends better!"