The Supreme Court ruled on June 30th in Creative LLC v. Elenis, No. 21–476 (6/30/23) that the First Amendment prohibits the state of Colorado, through its antidiscrimination statute, from forcing a website designer to create expressive designs speaking messages with which the designer disagrees. Although it is framed as a public accommodation case, this case, along with the Groff v. DeJoy, Postmaster General (600 U.S.___2023) religious accommodation case, may make it interesting for HR to deal with employees who do not want to work with other employees because of their religious beliefs. The Supreme Court opened the door for a litigious environment.
In Creative, Lorie Smith wants to expand her graphic design business, 303 Creative LLC, to include services for couples seeking wedding websites. But Ms. Smith worries that Colorado will use the Colorado Anti-Discrimination Act (CADA) to compel her—in violation of the First Amendment—to create websites celebrating marriages she does not endorse. She then filed a lawsuit seeking an injunction to prevent the State from forcing her to create websites celebrating marriages that defy her belief that marriage should be reserved to unions between one man and one woman.
CADA prohibits all “public accommodations” from denying “the full and equal enjoyment” of its goods and services to any customer based on his race, creed, disability, sexual orientation, or other statutorily enumerated trait. However, “public accommodations” is a broad term.
This case may seem similar to another Colorado case that was decided by the Supreme Court in 2018. In the Masterpiece Cakes case, David Mullins and Charlie Craig were planning their wedding reception and made an appointment to discuss a custom cake with Phillips. When he learned that Mullins and Craig were a couple, Phillips indicated that he did not design cakes for gay wedding celebrations but that he would be willing to sell them other prepared cakes or baked goods. The state’s Civil Rights Commission ruled that Phillips had to make the cake. Phillips sued Colorado, and the case made it to the Supreme Court, who then ruled in favor of Phillips, but on a narrow point, that there was an anti-religious bias by the Colorado Civil Rights Commission when it ruled against Phillips.
Although the Masterpiece Cakes case did not rule on the overlying issue of whether a business can invoke religious objections to refuse service to LGBTQ community, the Creative Case does. The Supreme Court ruled that the First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees. The Supreme Court stated that the First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply “misguided, and a government may not compel a person to speak its own preferred messages.”
Logically, the next step is whether employee communication can be regulated by the employer if the employee is expressing their First Amendment rights. Although in the past, employee communication had limited free speech protection, a case before the Supreme Court similar to the Creative and Masterpiece cases, could change the traditional rulings against unlimited free speech.
Under the National Labor Relations Act (NLRA), an employee has protected concerted activity if the employee is discussing working conditions and other labor relations matters. And when it comes to political expression, private employers may regulate political speech in the workplace without violating the law, although some state laws specifically protect political expression.
But now the question arises – if an employee objects to working with a coworker for religious reasons, what should the employer do? Can the employer discipline an employee for not doing so or do they now have to go through the religious accommodation approach of the Groff case? In effect, is the Supreme Court opening the door to what must be proved to be sincerely held religious beliefs to determine free speech that may be leading to discriminatory practices against other employees?
Employers should work with legal counsel to determine the approach to investigate whether the religious belief is sincerely held or simply stated to harass another employee. The Supreme Court in Groff stated that “[a] good deal of the EEOC’s guidance in this area is sensible and will, in all likelihood, be unaffected by the Court’s clarifying decision.” We’ll see how this plays out but expect a case before the Supreme Court on these issues in the future.
Source: Law360 6/30/23, SHRM 7/23/18, CPR News 6/4/18