Let Them Eat Cake: Religious Accommodations, LGBTQ Rights and Other Workplace Implications of SCOTUS’ Masterpiece Cakeshop Decision

5 minute read | June.19.2018

In a highly anticipated ruling, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, U.S. Supreme Court ruled 7-2 in favor of a cake shop owner who refused to make a wedding cake for a same-sex couple because of his religious beliefs.  The case highlights the potentially conflicting intersection of religious freedoms and anti-discrimination laws; i.e. the right to hold sincere religious beliefs and the right to be treated equally and without discrimination based on one’s sexual orientation.

Although the case dealt with the relationship between a store owner and customer, similar situations may arise between employees and employers, emphasizing the importance of delicately balancing accommodating employees’ religious beliefs in the workplace while preventing discrimination and harassment based on other protected categories, such as sexual orientation or identity.

The case puts the potential clash between practicing one’s religious belief and sexual orientation discrimination directly in the public spotlight, which may result in employees’ heightened sensitivities and potential misinterpretations of the extent of those rights, and ultimately, litigation about those rights.  Although the Court narrowly confined its ruling to the facts of the case, employers should remain alert and establish best practices to avoid finding themselves in the crosshairs of discrimination lawsuits especially where: (1) the employer (or a co-employee) believes that practicing one’s religious faith somehow conflicts with how an employee expresses his or her sexual orientation or (2) where an employee’s religious accommodation request might affect other employees’ rights.

Religious Accommodation In The Workplace

Title VII and various state statutes prohibit discrimination on the basis of religion and require an employer to reasonably accommodate an employee’s sincerely held religious beliefs (including religious practices and expressions) in the workplace, as long as the accommodation does not cause an “undue hardship” for the employer. For example, once an employer is aware of an employee’s requested religious accommodation, it should engage in an interactive process to weigh both the employee’s request and its own business needs to evaluate whether the requested accommodation creates an undue hardship.

However, an employer is not required to grant any accommodation requested.  In evaluating whether the accommodation creates an undue hardship, an employer may assess how the requested accommodation might impact the employer’s business, including its customers or other employees.  For example, if an employee’s requested accommodation would severely hamper the company’s ability to do business, create a hostile work environment for other employees or conflict with other workplace laws, an employer may factor that into determining whether the requested accommodation is reasonable or unduly burdensome, including whether an alternative accommodation makes more sense.

Sexual Orientation Discrimination

The EEOC and at least two federal appellate courts (the Second and Seventh Circuits) have held that Title VII prohibits discrimination based on sexual orientation.  Many states, including California, do as well.  Employers may be faced with balancing their obligations not to discriminate based on sexual orientation with a requested religious accommodation.  While it is not entirely clear how the Supreme Court’s ruling will affect employer/employee relationships, the holding of Masterpiece Cakes is not that one person’s religious expression must be accommodated to the detriment of other employees’ rights – nor is it a hall pass for employers to discriminate against employees on the basis of sexual orientation.

A couple of appellate court decisions provide some guidance.  For example, in Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir. 2004), the Court of Appeals for the Ninth Circuit rejected a plaintiff’s religious discrimination claim after the plaintiff, a devout Christian, was terminated for posting demeaning messages in his cubicle intended to harm gay and lesbian employees in an effort to get them to “repent and be saved.”  The Court held that the employee’s proposed accommodation of either allowing him to post religiously motivated messages intended to demean and harass gay and lesbian co-workers, or the company deleting sexual orientation from its voluntarily adopted diversity and non-discrimination policy, would have posed an undue hardship on the employer.

Similarly, Altman v. Minn. Dep't of Corrections, 251 F.3d 1199 (8th Cir. 2001), the Court of Appeals for the Eighth Circuit rejected three employees' free exercise of religion claims, where they were disciplined for protesting the subject matter of a training program entitled "Gays and Lesbians in the Workplace" by silently reading their Bibles and copying scripture during the class.  The Court found that the employees’ religion did not require them to read the Bible while working and that exposure to disagreeable views during a short diversity presentation did not burden their free exercise of religion.

Because the Masterpiece Cakeshop case pushed sexual orientation discrimination into the forefront of public discourse, much like the #MeToo movement has done with sexual harassment cases, employers should ensure they have implemented and revised policies and practices to prevent and/or quickly address harassment and discrimination on the basis of sexual orientation.  Employers should also consider addressing sexual orientation discrimination as part of their anti-harassment prevention trainings.

In light of the Court’s ruling, it is more important than ever for employers to ensure they are up-to-date on applicable law and best practices for avoiding claims of discrimination on the basis of both failure to accommodate religious beliefs and sexual orientation.  Orrick will be monitoring how Masterpiece Cakeshop is applied and interpreted in forthcoming employment litigation.  For more information on how this case may affect your company, please contact an Orrick attorney.