Chad Baruch Shareholder ,Johnston Tobey Baruch
SMALL BUSINESS MATTERS
Media coverage of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (also known as the “wedding cake” case) in the United States Supreme Court focused public attention on issues relating to religion in the workplace.¹ Unfortunately, some of the media coverage was inaccurate, resulting in substantial confusion about these issues.This article explains the basic rules of religious freedom in the workplace: what is allowed, what is not allowed, and what remains to be resolved.
Constitutional vs. Statutory Issues Initially, we have to distinguish between constitutional issues and statutory issues. Most Americans know that the First Amendment to the United States Constitution protects religious freedom.² But many people do not know that the First Amendment protects us only from the government—not from private individuals or employers. Under the First Amendment’s Free Exercise Clause, the government cannot (1) prevent us from practicing our religion, or (2) force us to practice a religion. But these rules apply only to the government.³ Because the First Amendment restricts only the government, most issues relating to religion in the workplace arise under statutory law. Statutory law refers to laws passed by the legislative branch of government (e.g. Congress). In the employment arena, the most important of these is a law passed by Congress called Title VII of the Civil Rights Act of 1964.⁴
Title VII applies to businesses that employ at least 15 people.⁵ Businesses that do not employ at least 15 people are not subject to Title VII, and cannot be suedfor religious discrimination or harassment under federal law. Additionally, Title VII includes an exemption for certain employers who are religious entities.⁶For example, a Catholic school can hire only Catholics to teach its religious studies classes.⁷
What Employers Are Allowed To Do Even employers subject to Title VII remain free to practice their own religious faiths so long as they do not require others to join along.⁸ Similarly, employers and employees are free to discuss their religious beliefs so long as they do not cross the line to harassment; indeed, federal law prohibits targeting speech in the workplace simply because it is religious in nature.⁹ As a result, nothing in Title VII prevents an employer from hosting optional religious meetings, study groups, or discussions—again, so long as they remain truly optional and do not result in different treatment of employees.
Businesses have wide leeway in determining the products they sell, manufacture, or serve, and the types of services they provide (but, as will be discussed below, the question of what to serve differs from the question of who to serve). For example, a Jewish kosher restaurant does not have to serve pork products. A vegetarian restaurant does not have to serve meat. A steak house can serve beef even though it means that some Hindus may not eat in the restaurant because of their religious beliefs. This principle can also extend to ideas and beliefs. For example, an African American baker would not be required to create a cake promoting the Ku Klux Klan.
What Employers Are Not Allowed To Do For businesses with at least 15 employees, Title VII prohibits religious discrimination and requires reasonable accommodation.
Religious Discrimination. An employer may not treat applicants or employees differently based on religious belief, and this prohibition extends to any term or condition of employment.¹⁰ Additionally, an employer may not harass employees based on religion.¹¹ For example, an employer may not make repeated derogatory and unwelcome remarks about an employee’s religious beliefs or practices.¹² Additionally, an employer has a duty under certain circumstances to protect its employees from harassment by co-workers; when an employer knows or should know of harassment by co-workers, the employer must act to stop the misconduct.¹³ This is especially true where the harassing co-worker is a supervisor.¹⁴
Reasonable Accommodations. The law requires that employers reasonably accommodate the religious beliefs of their employees so long as doing so will not cause more than a minimal burden on the operations of the employer’s business.¹⁵ For example, an employer should try to schedule around the Saturday religious observance of an Seventh Day Adventist employee,¹⁶permit a Muslim employee to wear a beard,¹⁷ or provide reasonable accommodations concerning uniform requirements.¹⁸ But no accommodation is required where it would be too costly, compromise workplace safety, or create a burden on other employees.¹⁹ So, for example, a restaurant might not be required to allow an employee’s beard—even for religious reasons—where doing so would undermine safe food handling.²⁰
What Remains To Be Resolved: The Wedding Cake Case As previously mentioned, the United States Supreme Court recently decided what many people refer to as the “wedding cake” case.²¹ The facts of the case are simple. Colorado passed an anti-discrimination law prohibiting discrimination based on a number of protected statuses, including sexual orientation, by businesses that sell to the public. A bakery owner refused to create and sell a custom cake to a gay couple because of their desire to use it in their same-sex wedding celebration. A Colorado court held that the baker violated the anti-discrimination law.²² The United States Supreme Court agreed to review the decision, heard oral arguments in December 2017, and narrowly decided the case on June 4, 2018, ruling in favor of the baker.²³
The baker made two arguments under the First Amendment—one under Freedom of Speech and the other under Freedom of Religion.
First, under Freedom of Speech, the baker argued that his design of custom cakes was a matter of artistic expression, and that an artist cannot be compelled under a state law to create art in conflict with his personal beliefs (remember, the First Amendment applies only to the government).²⁴ The baker’s freedom of speech argument is complex. It seems clear that a pro-choice baker cannot be compelled to design a cake saying, “Abortion is Murder” (like the earlier African American baker and KKK analogy). Whether the Colorado baker’s cakes rise to that level of expression—and whether Colorado has an interest important enough to regulate that expression—remains to be seen.
Second, under Freedom of Religion, the baker argued that forcing him to provide the cake would violate his religious beliefs; therefore, he should be exempt from compliance with Colorado’s anti-discrimination law.²⁵ The Supreme Court previously held that neutral laws that are not specifically designed to affect religion are allowed under the First Amendment (in other words, no one gets a religious exemption from a neutral law).²⁶ At least so far, courts have applied this ruling to hold that businesses offering services to the public cannot withhold them to same-sex couples on religious grounds.²⁷
The biggest problem for the baker was not about the message—it was about the use of the cake in the same-sex wedding celebration. He refused to sell any cake to the couple for use in their wedding. Indeed, he refused without even knowing what design the couple wanted on its cake.²⁸ And he admitted basing this refusal not on the content—or artistic expression—of the cake but on its use in a same-sex marriage ceremony.²⁹
The ruling could have had a substantial effect on businesses that create products involving some degree of artistic expression. Instead, the Court chose not to address the First Amendment issues of freedom of speech and religion.³⁰ Rather, it ruled in favor of the baker on the grounds that the Colorado Civil Rights Commission was hostile toward the baker’s First Amendment claims.³¹ However, the Court failed to decide the validity of those claims.³² Important questions in this area remain unresolved. Questions like: what expressive conduct by a business is sufficient to warrant constitutional protection? Is a hairdresser an artist? What about a nail salon technician? Also, the notion of “endorsement” is troubling. Does a worker at Kinko’s “endorse” a same-sex marriage simply by making photocopies of the wedding invitation? How about the limo driver who takes the couple to the ceremony? The implications for anti-discrimination laws are substantial.
Even with the Supreme Court’s ruling, courts will continue to face the difficult task of determining what is and what is not allowed in disputes over religion in the workplace. Sources ¹ Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018). ² U.S. Const. amend. I. ³ See id. ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .") (emphasis added). ⁴ 42 U.S.C. §§ 2000e – 2000e-17 (2017). ⁵ More precisely, it applies to companies once they have 15 or more employees for 20 or more calendar weeks in a year. 42 U.S.C. § 2000e (b) (2017). ⁶ 42 U.S.C. § 2000e-1(a) (2017). ⁷ See, e.g., Pime v. Loyola Univ. of Chi., 803 F.2d 351, 353–54 (7th Cir. 1986). ⁸ To ensure protection of this type of religious liberty, Congress enacted what is known as the Religious Freedom Restoration Act in 1993. 42 U.S.C. § 2000bb et seq. (2017____). See also generally Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). ⁹ See 42 U.S.C. § 2000e(a), (b) (2017). 42 U.S.C. § 2000e-2(a)(1) (2017); see also, e.g., Weiss v. Parker Hannifan Corp., 747 F. Supp. 1118, 1126–27 (D.N.J. 1990) (failure to promote due to religion); Venters v. City of Delphi, 123 F.3d 956, 970–71 (7th Cir. 1997) (termination due to religion). ¹¹ See Venters v. City of Delphi, 123 F.3d 956, 975-76 (7th Cir. 1997). ¹² See, e.g., Compston v. Borden, Inc., 424 F. Supp. 157, 160–61 (S.D. Ohio 1976). ¹³ Weiss v. United States, 595 F. Supp. 1050, 1057 (E.D. Va. 1984). ¹⁴ Katz v. Dole, 709 F.2d 251, 256 (4th Cir. 1983). ¹⁵ 42 U.S.C. §§ 2000e(j), 2000e-8(c), (2017); see also Shelton v. Univ. of Med. & Dentistry of New Jersey, 223 F.3d 220, 224 (3d Cir. 2000). ¹⁶ See, e.g., E.E.O.C. v. Ithaca Indus., 849 F.2d 116, 119 (4th Cir. 1988). ¹⁷ See, e.g., U.S. E.E.O.C. v. Elec. Data Sys., No. C83-151C, 1983 U.S. Dist. LEXIS 19293, at *3 (W.D. Wash. 1983). ¹⁸ See Religious Garb and Grooming in the Workplace: Rights and Responsibilities, U.S. Equal Employment Opportunity Commision, https://www.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm ¹⁹ See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84–85 (1977). ²⁰ See, e.g., E.E.O.C. v. Sambo’s of Georgia, Inc., 530 F. Supp. 86, 89–90 (N.D. Ga. 1981). ²¹ Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018). ²² Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 279 (Colo. 2015). ²³ Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018). ²⁴ U.S. Const. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .") (emphasis added). ²⁵ 26 Emp’t Div. v. Smith, 494 U.S. 872 (1990). ²⁷ Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013), cert. denied, 134 S. Ct. 1787 (2014); Gifford v. McCarthy, 137 A.D.3d 30 (N.Y. App. Div. 2016). ²⁸ Craig, 370 P.3d at 288. ²⁹ Id. at 282 n.8. ³⁰ Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018). ³¹ Id. ³² Id.