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Employment takeaways from the Supreme Court’s decision in Masterpiece Cakeshop
By Lauren Harris, T. Christopher Bailey on June 7, 2018 at 2:50 PM

Person decorating a white wedding cakeOn June 4, 2018, the U.S. Supreme Court released its long-awaited decision in Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission, 584 U.S. ___ (2018), which examined whether a Colorado bakery violated that state’s Anti-Discrimination Act by refusing to bake a wedding cake celebrating a same-sex marriage ceremony. While a 7-2 majority of the court sided with the bakery, the much-anticipated decision left more questions unanswered than answered. The decision and concurring and dissenting opinions can be read here.

In 2012, bakery owner Jack Phillips refused to create a cake for the same-sex wedding of Charlie Craig and Dave Mullins. Phillips, a devout Christian, claimed that requiring him to create such a cake would violate the Free Exercise Clause of the First Amendment because it would require him to engage in conduct contrary to his deeply held religious beliefs. Phillips also claimed that the cakes he created reflected his artistic expression and, therefore, requiring him to create a wedding cake for a same-sex couple would violate his First Amendment right to free expression. Craig and Mullins filed a complaint with the Colorado Civil Rights Commission, and that commission concluded that Phillips violated Colorado’s Anti-Discrimination Act. A Colorado appellate court also ruled in favor of Craig and Mullins, and the case proceeded to the U.S. Supreme Court.

What did the court decide?

The Supreme Court ruled in favor of Phillips. While recognizing that protected religious and philosophical beliefs, as a general rule, cannot be used to deny protected persons equal access to goods or services under a neutrally applied public accommodations law, the court took issue with the Colorado Civil Rights Commission’s conduct in respect to Phillips’ religious beliefs. The court took note of comments from the commission that Phillips’ religious belief had no place in the public domain and another comment comparing Phillips’ religious beliefs to defenses of slavery and the Holocaust. The court also looked at the commission’s handling of three cases in which bakeries refusing to bake cases with anti-same-sex marriage messages were found not to have violated the law based on factors deemed irrelevant in Phillips’ case. Viewing the commission’s conduct as not neutral with respect to Phillips’ religious beliefs, the court concluded that the commission’s decision violated the Free Exercise Clause.

What did the court not decide?

Perhaps more important than the court’s ruling is what is not included in that decision. The court did not decide that business owners can lawfully refuse to provide goods or services based on deeply held religious beliefs. Although Justice Gorsuch authored a concurring opinion suggesting that Phillips’ conduct did not violate Colorado’s Anti-Discrimination Act, only Justice Alito joined that opinion. Similarly, the court did not decide whether Phillips could lawfully refuse to create a wedding cake for a same-sex wedding, although Justice Thomas (joined by Justice Gorsuch) authored a concurring opinion supporting Phillips’ position. By basing its opinion on the specific facts of this case, the court issued an opinion with a very narrow reach. As the court’s majority opinion noted,

The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue respect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.

What does this mean for employers and business owners?

Local, state and federal laws vary on the protections afforded to LGBTQ individuals in employment situations and public accommodations. Accordingly, businesses should familiarize themselves with their local public accommodations and employment laws when considering what services to offer and determining when they can be refused. There is also a general disagreement between the U.S. Courts of Appeals regarding whether Title VII can be extended to include sexual orientation and transgender status as protected categories under federal law. The EEOC and other government agencies have taken a hard-lined approach and argue that the various federal anti-discrimination employment laws do provide protections to the LGBTQ community. With so much uncertainty regarding what laws do and do not provide protection, what should employers do?

The short answer is, treat everyone equally and fairly. Here are a few tips to help establish a fair treatment framework:

  1. Maintain anti-discrimination policies that legally encompass all of the protected categories currently identified by applicable laws in your jurisdiction, and be prepared to update them on a regular basis. Ensure that your anti-discrimination policies include employee interaction with outside persons (customers, vendors, etc.) and vice versa.
  2. Establish a clear reporting process for discrimination and harassment complaints and train managers on how to recognize and respond to complaints appropriately. Ensure that the staff members charged with investigating complaints are thoroughly trained on how to do so.
  3. Conduct regular anti-discrimination and anti-harassment training for all employees. In fact, several states have recently enacted laws that requiring annual anti-harassment training for public and private employers.
  4. Be respectful and open to all opinions and beliefs, even those that may be unpopular. The Colorado Commission essentially lost its case because its representatives were openly hostile toward the baker’s beliefs.
  5. Check out our other blog posts and articles for helpful tips regarding specific anti-discrimination situations, including here and here.

If you have questions about the state of the law in your jurisdiction, how to draft or implement anti-discrimination policies and training or how the Supreme Court’s decision impacts your business, please contact one of the attorneys in our Employment & Labor department.

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