dissenting.
Reasoning that an establishment’s music selection policy cannot serve as grounds for a discrimination claim, the majority concludes that the plaintiff cannot state a prima facie case of discrimination under the public accommodations provision of the Tennessee Human Rights Act (THRA). Because I do not agree with the proposition that a discrimination claim can never arise from these circumstances, I respectfully dissent.
Certainly, I agree with the principle that businesses have the right to target strategic markets by playing certain music, choosing particular decor, etc. Thus, the right to lawfully discriminate is both fundamental and unquestioned. In my opinion, however, there is a chasm of difference between invidious race-based discrimination and the innocent business-based attempt to appeal to a selected segment of the general market. Moreover, providing a cause of action for the former will not necessarily create a cause of action for the latter. The key distinction is intent, for only if a defendant is motivated by a racial animus may his or her acts be unlawful.
A violation of the public accommodations provision of the THRA occurs when a defendant denies or deters access to a place of public accommodation on the basis of race. Unlike the majority, I find it possible for the plaintiff to show that a discriminatory music selection policy actually had the effect of deterring access to Kicks Lounge by black patrons. It is conceivable to me that a defendant may succeed in the furtive goal of deterring access by black patrons through changes in the music selection.1 After all, if the change in music occurred only when black patrons were present, then it cannot possibly be said to affect all patrons equally. The fact that the changes may not affect other black patrons or may incidentally deter some non-black patrons, in my view, does not make the cause of action untenable. In sum, I am simply unwilling to foreclose this plaintiff, and all future plaintiffs, from obtaining relief from purposeful, invidious discrimination merely because the conduct in dispute appears facially neutral.
The intentional effort to deny full and equal enjoyment of a place of public accommodation because of race is a violation of the THRA, whether accomplished through the outright denial of access or through a more subtle and insidious method. To permit discrimination in public accommodations “in any form or to any degree would be a regression in the evolution of our society.” United States v. Glass Menagerie Inc., 702 F.Supp. 139, 142 (E.D.Ky.1988). Because this case is before the Court in the context of summary judgment, I do not address the ultimate question whether the plaintiff has satisfied his burden of persuasion. However, with *689respect to the issue whether the defendant commanded the plaintiff to participate in a discriminatory practice, i.e., the music selection policy, I would hold that the defendants are not entitled to summary judgment under Tenn.R.Civ.P. 56, and I would remand for a determination whether the plaintiff can establish a prima facie case.
Chief Justice ANDERSON joins in this dissent, and I am authorized to so state.
. This is true even if the music selection policy is based on false assumptions and erroneous stereotypes, such as the assumption that all individuals' tastes in music fall within racial boundaries. The question is whether the practice had a discriminatory purpose and effect, not whether the assumptions behind the practice are rational. Indeed, discriminatory practices generally are based on false assumptions and erroneous stereotypes.