I Don’t Want to Exclude Anybody

When Kramer tries to organize his New Years party for the year in 2000, he declines to include any underwater activities as not everyone will be able to breathe underwater and “he doesn’t want to exclude anybody.” Could Kramer exclude people who don’t breathe underwater from attending his party? Could Newman legally make the next Millennium Jerry-free?

Obviously, Kramer is doing the right thing to be as inclusive as possible. We would certainly love to be invited to his Millennium celebration. But does the law force him to do so? Based upon the Civil Rights Act of 1964, public accommodations are not allowed to discriminate against anyone on the basis “of race, color, religion, or national origin.” The law was later upheld by the Supreme Court.

Excuse me.

What this means is that if Kramer or Newman were operating a restaurant, hotel, retail store, or some other kind of area open to the public then he would not be able to discriminate based upon “race, color, religion, or national origin.” Excepted from the law, however, are private clubs and religious organizations.

Since both Kramer and Newman are private individuals, and are hosting private New Years parties, they are free to invite anyone they want without fear of breaking Civil Rights legislation.

I fear no reprisal.

But for the purposes of this discussion, let’s assume that they were hosting a public party open for anyone to attend – similar to if Kramer or Newman owned a bar and were charging a cover fee for attendance. Court Kramer host an underwater party, even if only part of the population could breathe underwater? The answer would depend on if if the ability to breathe underwater was specifically related to a particular race, color, religion, or national origin. This seems highly unlikely, however.

We could conduct a different analysis under the American with Disabilities Act of 1990 (the ADA), which mandated that public establishments provide reasonable accommodations to those with disabilities. These types of accommodations generally include wheelchair accessibility, guardrails, or brail on elevator doors. So if Kramer wants to host a party where it is a requirement to breath underwater, would this be discrimination under the ADA against those who can’t breath underwater?

Now, unfortunately, league rules prevent us from making you an offer...

Like so many Seinfeld episodes, this analysis has gone off the deep end. But we hope it has helped to teach you a little about the two major pieces of Civil Rights legislation passed in the last 70 years.

As for whether Newman could exclude Jerry from his party, the answer is almost certainly 100% yes. Newman has every right to exclude a particular individual from his party so long as he isn’t doing so based upon race, color, religion, or national origin. Nowhere in the episode does Newman state that he doesn’t want Jerry at the party because Jerry is a white man, or Jewish, or any classification that is protected under Federal law. Instead, Newman only wants to exclude Jerry because “the next millennium must be, Jerry-free.” While perhaps a little bizarre, this is not discriminatory behavior.

For me, the next millennium must be Jerry-free.

But what do you think? Does excluding water breathers or air breathers violate the Civil Rights Acts? Should Jerry be allowed to attend Newman’s party?

7 thoughts on “I Don’t Want to Exclude Anybody

  1. I suppose this opens the question of whether being unable to breathe underwater qualifies as a disability. Perhaps Kramer’s best course of action, if he really wanted to host a public event underwater, would be to provide scuba gear to accomadate the air-breathers!

    1. Agreed! Unclear if that would qualify as a disability. Always nice to make sure that everyone can participate!

  2. Well, sure. If “everyone” would be able to breathe underwater except for some, that could be considered a disability. My type 1 diabetes is considered a disability (though I definitely don’t feel disabled) and my reasonable accommodation is to be able to test my blood sugar if needed. Certainly allowing the use of a scuba mask for those that are unable to breath underwater would be a reasonable accommodation. In that instance, does Kramer have an obligation to provide masks?

    1. Likely not as the reasonable accommodation requirement would not extend to a private party such as Kramer’s New Years party.
      But if this situation were adjusted to Kramer as an employer, then perhaps

  3. If it’s a private party you can discriminate as you please. Who I’m friends with, and based on what principles that is, is a choice and not a right or a freedom of others. If I want to host a public party, at a public location by announcing it by sticking flyers in mailboxes and hanging signs on trees for everyone to see, and it explicitly says it’s gonna be a “piano playing challenge”, those that do attend but cannot play piano are free to watch and enjoy but if they feel bad about not being able to actively participate (because they can’t play piano) this is their problem. You knew what the party was all about, you were fully aware you didn’t qualify but still decided to show up. I didn’t stop you from taking part, you did by choosing an activity you knew you can’t practice. Nobody forced you to go there. If NASA has an “open day for public” shuttle launch do they need to accommodate the spectators with space suits and a rocket for each and everyone of them to fly to the moon? This is not even a legal question, it’s common sense.

  4. A great post (and a great website!). Is there a legal precedent for what is formally considered a disability? I’d assume that one can’t just call any limiting medical condition a disability; Otherwise, e.g., people with peanut allergies could sue Five Guys for excluding them.

    Finally, since there’s a lot of legal stuff going on here, hopefully you won’t mind a piddly correction: “breath” is the noun, “breathe” is the verb.

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