A. Customer Preference Discrimination in Public Accommodations Under Title II
Title II of the CRA proscribes discrimination by a commercial entity yielding to the racial preferences of its customers. It covers discrimination based on race, color, religion, or national origin by public accommodations “affecting interstate commerce,” which the law defines as hotels, motels, restaurants, theaters, gas stations, bars, recreation areas, and places of exhibition or entertainment. The law was enacted specifically to grant racial minorities full access to public facilities and precludes the owners of such facilities from justifying discrimination by arguing that customers prefer to be served by or share the premises with only individuals of a particular race. Hence, a restaurant would violate Title II if it succumbed to a customer request for a waiter of a race different from that of the one assigned.
Title II clearly prohibits customer preference discrimination, and while the norms and goals that structure Title II might, at first glance, appear applicable to the hospital context, the Act does not govern this practice because “hospitals are not listed among the establishments to which Title II applies.” Indeed, courts have uniformly held that Title II “sets forth a comprehensive list of establishments that qualify as a place of public accommodation and in so doing excludes from its coverage those categories of establishments not listed.” The “establishments covered by the federal statute do not include hospitals”; therefore, Title II cannot be understood to govern the practice of hospitals complying with patients' requests for physicians of the same race.