The 'Masterpiece Cakeshop' Ruling's Guidance to Employers

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Andrew J. Hoag, of Fisher & Phillips.[/caption] Masterpiece Cakeshop v. Colorado Civil Rights Commission was an opportunity for the U.S. Supreme Court to provide the public and employers with a bright line for when the free exercise of speech or religion must yield to the state’s protection of the rights and dignities of gay persons. The case was an opportunity for the court to provide accommodation guidance. In 2012, Jack Phillips, a bakery owner and operator and self-professed devout Christian, told a same-sex couple that he would not create a cake for their wedding because of his religious opposition to same-sex marriage. The couple filed a charge with the Colorado Civil Rights Commission alleging discrimination on the basis of sexual orientation. The commission held that the bakery’s acts violated the couple’s rights. And the matter found itself in the U.S. Supreme Court. The “difficult” and “delicate” question presented to the court was whether Colorado’s state public accommodations laws required the bakery owner to create a wedding cake for a same-sex couple that violated the bakery owner’s sincerely held beliefs about marriage. Counsel for the bakery posited that such a requirement would violate the free speech or free exercise clauses of the First Amendment. The couple filed a charge with the state Civil Rights Commission contending that the owner’s refusal to create and sell a cake for the same-sex couple violated a state Anti-Discrimination Act. The commission determined that the bakery owner’s actions violated the act and ruled in favor of the same-sex couple. The Supreme Court noted that the commission’s treatment of the case “showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating [the bakery owner’s] objection” to creating a wedding cake for a same-sex couple. In large part, the Supreme Court’s decision avoided confronting the public accommodation and civil rights versus free speech and free exercise dichotomy. A resolution of this dichotomy could have had profound political, social and business implications. Evidencing the high-stakes nature of the issue, dozens of third parties filed amicus briefs on behalf of either of the parties. Justice Anthony Kennedy, writing for the majority, noted: “In this case, the adjudication concerned a context that may well be different going forward” and that the “outcome of cases like this in other circumstances must await further elaboration in the courts.” Because the court based its decision on case-specific rationale (commissioners who “demonstrated clear and impermissible hostility toward the sincere religious beliefs” of the baker), the case does not provide any certainty to employers with respect to policies or procedures for the intersection of public accommodations versus free speech or free exercise of religion. Employers should continue to consider the legal implications of these issues, with particular consideration of state laws concerning discrimination and public accommodations. Until the Supreme Court confronts this particular issue head-on, employers are left with little federal guidance and a patchwork of state legislation and case law. Since Masterpiece Cakeshop does not provide much guidance to lower courts, employers should continue to exercise caution in crafting policies regarding accommodation for both customers and employees. What is important for businesses to understand is though Masterpiece Cakeshop is oft classified as a win for business and the bakery’s owner, the court’s decision does not provide that philosophical objections to gay marriage necessarily trump the civil rights of gay persons. That said, the case is an opportunity for employers to remember that reasonable accommodations are often legally required whether for persons of various sexual orientation or sincerely held religious beliefs. Andrew J. Hoag is an associate in the Los Angeles office of Fisher Phillips. He can be reached at ahoag@fisherphillips.com.