Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Sunday, March 6, 2011

Delaware Supreme Court Finds Telling Movie Audiences To Be Quiet While They Watch the Movie Is Ok (If You Tell Them All To Shhhh! At the Same Time)

The Delaware Supreme Court has affirmed an appellate court ruling that the Delaware Human Relations Commission's finding that a theater owner's request that members of an audience adhere to the theater's policy of maintaining quiet during the showing of the film violated the Delaware Equal Accommodations Law.

Section 4504(a) of the Equal Accommodations Act relevantly provides that:

No person being the owner, lessee, proprietor, manager, director, supervisor, superintendent, agent or employee of any place of public accommodation, shall directly or indirectly refuse, withhold from or deny to any person, on account of race, age, marital status, creed, color, sex, disability, sexual orientation or national origin, any of the accommodations, facilities, advantages or privileges thereof.

The Court said in part:

Before the show, the theater screen displayed messages reminding patrons to turn off their cell phones and to refrain from talking during the movie. Before the movie began, Stewart also made a live announcement to the same effect. He asked the patrons to turn off their cell phones, to stay quiet, and to remain seated throughout the movie. After that announcement, Stewart left the auditorium.

After Stewart left, Appellant Larry Bryant followed him outside and told Stewart that his remarks were not well-taken. Stewart immediately returned to the auditorium and apologized to the audience, explaining that he did not mean to offend anyone and that he was required to make the announcement under Carmike Cinemas' current policy.


In evaluating a claim of this kind, we are guided by the analytical framework articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green and adopted by this Court in Thompson v. Dover Downs, Inc. Under that analysis, once the plaintiff establishes a prima facie case of discrimination, the burden then shifts to the defendant to produce evidence of a legitimate, non-discriminatory reason for denying the plaintiff access. If the defendant produces such evidence, then the burden shifts back to the plaintiff to show by a preponderance of the evidence that the defendant's proffered reason was merely pretextual.

We conclude that the judgment of the Superior Court must be affirmed, because the Appellants have failed to establish a prima facie case of racial discrimination. Specifically, there was no showing of disparate treatment as between minority and non-minority audience members. Moreover, the Commission erred in concluding that Stewart's statement was racially motivated, because that conclusion rests on an improper application of the burden-shifting McDonnell Douglas analysis.

For DEAL purposes, disparate treatment occurs where a decision maker "simply treats some people less favorably than others because of their race, color . . . or [other protected characteristic]."  In disparate treatment cases, "[p]roof of motive to discriminate . . . is an essential element of the complainant's case."

Appellants here did not (and cannot) establish a prima facie case of discrimination, because the undisputed facts show that there was no disparate treatment as between the African-American and non-African-American members of the relevant audience. All audience members were treated the same way: all those who attended the Tyler Perry movie that night in the largest auditorium heard the Stewart announcement. The Appellants (who were African-American) were treated no differently from all other audience members in the auditorium, including other non-complaining African-Americans such as Lina Powell and Sharron Lowery, plus Caucasian and other non-minority attendees.

This was not a case where the Appellants were denied a public accommodation that was provided to other similarly-situated persons. By way of example, the treatment would be disparate had Stewart made the announcement only to the complaining Appellants, or only to the African-American audience members; but not to the rest of the audience. But that did not occur: all members of the audience, regardless of race or color, received the identical message. Therefore, Appellants failed to establish disparate treatment as between themselves and the other members of the audience.


Even if Appellants had established a prima facie case of racial discrimination (as the Commission concluded), the Superior Court's decision must stand, because the Commission misapplied the McDonnell Douglas burden-shifting rule. In concluding that Stewart's statement was "racially motivated," the Commission erred in two respects. First, the Commission erroneously found that Appellees had failed to introduce "credible evidence" of a legitimate nondiscriminatory reason for denying Appellants access. As the United States Supreme Court has explained, Appellees' burden is one of production, not persuasion. Appellees discharged their burden of production. The burden of persuasion, however, remains at all times with the complaining plaintiffs. Second, the Commission concluded—erroneously—that the Appellants had discharged their burden of persuasion on that issue.

Discussion from the blogosphere here and here.

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