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penceThere are auctioneers of virtually every religious tradition: Protestant, Catholic, Mormon, Jewish, Buddhist, Hindu … just to name a few, as well as many who are agnostic or atheist.

Relatedly, in the United States, religious freedom is … as referred to by the First Amendment to the Constitution [December 15, 1791:]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

As commonly interpreted, people and other business entities are free to practice their religion. For auctioneers, our questions today involve essentially two scenarios, which in a general sense are being discussed in the media as we speak (and in particular with Indiana Governor Pence Sunday, March 29.)

    1. Can an auctioneer — citing his religious beliefs — decline to work for a gay couple hoping to hire him to sell their home and contents?
    2. Can an auctioneer — citing his religious beliefs — decline to allow a gay couple to attend his auction of a home and contents?

Can an auctioneer decline to engage a client due to religious beliefs? Can an auctioneer decline a customer due to religious beliefs? For that matter, can an auctioneer decline to work for or with anyone?

More generally, can auctioneers discriminate in any fashion? Further, can a state make a law which allows people to treat (discriminate against) [other] people differently? Often the Equal Protection Clause of the Fourteenth Amendment to the Constitution [July 9, 1868] is cited:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Let’s take a look at the largest trade association in the United States: The National Association of Realtors (NAR) and the ethics standards to which members must subscribe:

REALTORS® shall not deny equal professional services to any person for reasons of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity. REALTORS® shall not be parties to any plan or agreement to discriminate against a person or persons on the basis of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity. (Amended 1/14)

REALTORS®, in their real estate employment practices, shall not discriminate against any person or persons on the basis of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity. (Amended 1/14)

What’s the governing theme of NAR’s policy? Members should not discriminate in any fashion in regard to any of these protected class — even if their religious beliefs conflict with that person or persons. Given NAR’s policy with over 1,000,000 members nationwide, why should a policy for auctioneers be materially different? In fact, many auctioneers are Realtor® members.

These protections involve specific classes of people. Can a Realtor® member refuse to list a home or represent a buyer because he is tall? Short? Has blue eyes? Technically yes, but of course such discrimination would likely lead to the injured party suggesting that rather than height or eye color, that a protected class was violated.

Certainly I’m not advocating that every auctioneer has to work for — as an agent — everyone who asks. If you are an auctioneer and your religious beliefs or other convictions make you uncomfortable doing an auction for a particular group or person — discuss that difference of philosophy with the prospective client and inform them you don’t see your relationship as a, “good fit.” Chances are if you don’t want to work for them, they won’t want to hire you either.

Otherwise, auctioneers may absolutely discriminate based upon circumstances with little risk of liability. Auctioneers can refuse to take on an auction where the seller has unrealistic expectations and/or not take on a client who desires a level of service exceeding that which the auctioneer can provide. Too, auctioneers can specialize (auctions of only certain types of items, or at certain price levels) thus discriminating based upon the seller’s property and/or value.

In response to a lawsuit, consistency would be important. You say you only take on auctions with expected sale prices of $1,000,000 or more? An unhappy prospective client finding that a certain other client in regard to a particular protected class with assets far less than $1,000,000 was accepted, but he with those same below-threshold assets was not, would not endear the court to the auctioneer’s side.

But, as far as customers, denying such the opportunity to bid or buy at your auctions seems extremely ill-advised; possibly a past thief, a past bad-check-writer or someone overly intoxicated or drugged with the heightened likelihood of disruption at the auction would deserve denial — coupled with the client’s knowledge and consent.

Lastly, many states and the Federal Government have laws known as “Religious Freedom” Acts [RFRA.] These acts largely provide only a defense to a claim of discrimination and not a license to do so without possible recourse (the Indiana law prohibits an applicant, employee, or former employee from pursuing certain causes of action against a private employer.) Thus, I would think the cost and inconvenience of a lawsuit would suggest to most auctioneers that discriminating against protected classes or otherwise recklessly for any reason would be foolhardy.

These more recent RFRA acts are hardly the first time religious freedom has been suggested to potentially treat people in a discriminatory fashion. And, it probably won’t be the last.

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix. Judge Leon M. Bazile, January 6, 1959

President Lyndon Johnson resolved when he signed the Civil Rights Act of 1964 that, “Invidious discrimination is wrong. And it doesn’t matter why someone wants to discriminate.” A good thought to remember.

Mike Brandly, Auctioneer, CAI, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, Keller Williams Auctions and Goodwill Columbus Car Auction. He serves as Adjunct Faculty at Hondros College of Business, Executive Director of The Ohio Auction School and Faculty at the Certified Auctioneers Institute held at Indiana University.