Supreme Court Provides Little Guidance to Employers Traversing the Juncture of Civil Rights and Freedom of Expression

By Christine S. Coleman - McMahon Berger, P.C.

June 12, 2018

At a time when there is little settled law on the issue of LGBTQ protections under federal or state laws, many were anxiously awaiting the Supreme Court’s ruling in Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission, 584 U.S. ___ (2018), which provided the Supreme Court an opportunity to speak to these issues as well as how we should navigate through conflicting First Amendment Rights and civil rights statutes. Unfortunately, the case was decided on narrow grounds and there is little to take away from the Court’s ruling for employers or anyone else.

The case was filed by the Colorado Civil Rights Commission against a bakery after the baker, Jack Phillips, refused to bake a cake for a same sex couple’s wedding. The couple filed a charge of discrimination with the Colorado Civil Rights Commission alleging that Phillips violated the Colorado Anti-Discrimination Act, which makes it “a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or group because of . . . sexual orientation, . . . the full and equal enjoyment of the goods [and] services” of “any place of business engaged in any sales to the public and any place offering services . . . to the public.”

Phillips maintained that he had a First Amendment right to refuse making a custom wedding cake, in that requiring him to bake and decorate a cake for the same-sex couple would violate his freedom of speech as well as his freedom of religious expression.

The Commission and later the Colorado Court of Appeals both found in favor of the couple. Phillips appealed to the United Stated Supreme Court. The Supreme Court ruled in Phillip’s favor on June 4, 2018 finding that, because of comments in the Commission’s original decision which indicated that the Commission was biased against Phillips and/or his religious beliefs, the Commission’s original decision violated the Free Exercise Clause.

The Court made clear that the holding was limited to the facts of the case, stating that “[t]he outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.” Thus, business owners must understand that the Supreme Court’s ruling does not stand for the proposition that business owners can lawfully refuse to provide goods or services based on their religious beliefs.

The summation in the employment law context is that the case does not come close to clearing up the issue of whether sexual orientation or gender identity is a federally protected class. In order to avoid litigation, however, employers should avoid making employment decisions based upon an individual’s sexual orientation and gender identity.

In addition, employers should be aware of any applicable state and local laws prohibiting such discrimination and ensure that their anti-discrimination policies encompass all federal and applicable state and locally protected categories. Some states require employers to conduct incremental training on these policies, so employers should ensure they are in compliance with such state laws. Remember that routine training on these policies is a best practice even when it is not required by state law.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.