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New NYC Guidelines Say Bartenders Can No Longer Refuse to Serve Pregnant Women


Last week, the NYC Commission on Human Rights Legal Enforcement Guidance on Discrimination on released new guidelines under which bartenders and restaurant owners are specifically prohibited from refusing to provide alcohol to pregnant women.

Cue mass hysteria.

But this is actually a good thing – for pregnant women, non-pregnant women, and even non-women. I swear.

First, some background. This isn’t a new law. NYC (and tons of other places) has had laws that prohibit discrimination against pregnant women for quite a long time. These new guidelines simply clarified that “discrimination” means, among other things, “refusing to provide service to a patron.” Sidebar: The North Carolina legislature might want to take a trip up to the Big Apple to hear that one – because it seems to think that refusing service to certain groups of people is a great idea.

Laws prohibiting discrimination against pregnant women are important; without those laws, it would be legal for employers to fire a woman as soon as she became pregnant. And there are all sorts of other ways pregnant women could be victims of discrimination – from denial of health insurance coverage to loss of maternity leave. Plus, sneaky organizations that hate women sometimes try to mask wide-scale gender discrimination by making rules that apply to “people who are or could become pregnant,” hoping that no one notices that they mean “women.”

NYC’s new guidelines aren’t changing anything. They’re just reminding bars and restaurants that no one is allowed to discriminate against pregnant women. Not when that discrimination looks like selling someone a glass of Shiraz, and not when the discrimination looks like firing someone.

It’s easy to get caught up in a debate over whether the occasional glass of wine during pregnancy might be safe. But the issue here isn’t whether alcohol consumption is a good idea, or even if alcohol consumption during pregnancy should be illegal. Several states have statutes that criminalize alcohol consumption during pregnancy as “endangering the welfare of a minor.” And if the goal is to prohibit pregnant women from making their own choices about alcohol use, that’s the right way to do so. Just cut out the middleman and legislate the dangerous behavior. There’s no need to involve bartenders and restauranteurs. When private business are permitted to refuse service to a group of people based on their own beliefs, that’s discrimination.   And there’s no rational reason to believe that bartenders as a group have better judgment than pregnant women as a group.

Just to be clear, I’m with the American Academy of Pediatrics. I believe pregnant women shouldn’t consume alcohol. I also think there are lots of other people (those with heart disease, those with addiction problems, those operating heavy machinery, or those who work around kids) who also shouldn’t consume alcohol.

But I also have a nose that is sensitive to bullshit. And arguments that private businesses will make better health decisions for me than I’d make for myself just reek.

While we’re at it, I’d like to point out that there’s no logical basis to single out pregnant women (or even to single out alcohol consumption) for special treatment.   If we really think that New York City should have the final word on what people put in their own bodies, we should also be outlawing gestational consumption of caffeinated beverages, sushi, deli meat, aspirin, and artificial sweetener. And we should be legislating against alcohol consumption by male and female addicts, male and female cardiac patients, and male and female users of medication that interacts dangerously with alcohol.

There’s a way to legally regulate health issues that makes sense: regulate the consumption, and regulate it equally. The farther the law moves from the person actually doing what’s unhealthy, the more that law isn’t really about that action.

Americans have an obligation to be vigilant in guarding against discrimination, or risk undoing the important work of the Civil Rights Movement. That vigilance requires us to guarantee freedom even to those who may make choices with which we disagree. Refusing service to a group of people (a racial group, a religious group, a gender-based group) is already illegal. New York City was just reminding everyone.


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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos