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FMG Law Blog Line

No Entry Without a Mask: Coverage for Discrimination?

Posted on: October 26th, 2020

By: Mallory Ball

More businesses are requiring masks or face coverings to protect their patrons and employees from COVID-19. Unfortunately, with the face-covering requirements, businesses are vulnerable to liability claims from patrons alleging they have been discriminated against by requiring them to wear a face covering. The allegations of discrimination may also include humiliation or mental injury as a result. In order to trigger coverage under the standard commercial general liability policy, the discrimination must fall within Coverage A (bodily injury) or Coverage B (personal and advertising injury). Even if the claims trigger coverage under Coverage A or B, there could be an exclusion under the policy that precludes coverage for the alleged discrimination.  

Depending on the jurisdiction and the policy, there might not be coverage for the discrimination claims. The general definition of bodily injury under the standard commercial general liability policy is “bodily injury, sickness or disease, including death resulting from any of these.” In some jurisdictions, mental injury is considered bodily injury. Thus, claims of discrimination with humiliation or mental injury in those jurisdictions might qualify as bodily injury. For the jurisdictions that do not consider mental injury as bodily injury, claims for mental injury resulting from discrimination probably would not trigger coverage under Coverage A of the standard commercial general liability policy. But, if the policy’s definition is broadened to include mental anguish, mental injury and/or humiliation, then there could potentially be coverage for the discrimination claims. Likewise, because discrimination is not one of the offenses in the general definition of personal and advertising injury, the discrimination claims would not fall under Coverage B. However, if the definition is broadened to include discrimination as one of the offenses, then there could potentially be coverage under the policy. Even if the claims do trigger coverage under Coverage A or B, some commercial general liability policies include a virus exclusion that might preclude coverage for discrimination claims arising from a face-covering requirement due to the coronavirus. Depending on the jurisdiction, other exclusions could apply as well such as for claims arising from the actual or alleged release or dispersal of pollutants.

With the increase in COVID-19 cases and winter around the corner, the face covering requirements are likely to remain in place for months. Although claims of alleged discrimination for not being allowed to enter a business without a face covering may increase as well, they are unlikely to be covered depending on the terms of the policy and the jurisdiction at issue.

If you have questions or would like more information, please contact Mallory Ball at [email protected].

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

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