July 12, 2023
Laura L. Rubenstein
You’ve heard by now that on June 30, 2023, in 303 Creative LLC v. Elenis the Supreme Court of the United States sided with the owner of a Colorado graphic design business when she refused to create a website for a gay couple. The issue involved whether applying a public-accommodation law to compel a business that chooses to serve the public to provide wedding website design services without discriminating against a same-sex couple violates the free speech clause of the First Amendment.
The Colorado Anti-Discrimination Act applies to businesses that choose to serve the public and not be discrimatory in doing so. However the owner of 303 Creative, argued, and the majority agreed, that she had a First Amendment right not to comply with the law because her services were “expressive,” “artistic,” and “customized” and she could not be compelled to provide such services for a wedding to which she was ideologically opposed.
On July 5, 2023, the Supreme Court in Groff v. DeJoy adopted a higher standard in interpreting when a religious accommodation can be denied. Gerald Groff, an Evangelical Christian and employee of the United States Postal Service, requested to have off on Sundays to observe the sabbath. He eventually resigned his position after being repeatedly disciplined for taking off on Sundays and then sued under Title VII of the Civil Rights Act claiming that he was wrongfully denied a religious accommodation. The Court held that employers are not required to provide religious accommodations that create an undue hardship, which is now defined as a “substantial” cost to the employer.
Since these decisions, employers have asked: Can employees with sincerely-held religious beliefs about same-sex marriage now receive a religious accommodation and refuse to work with a gay coworker? The simple answer is no.
First, the 303 Creative decision is limited to public accommodations and, more specifically, addresses the issue of forced speech of businesses that serve the public. The owner of 303 Creative refused to produce website content that contradicted her “biblical truth" because she believed marriage involved a union between a man and a woman.
Second, state and federal religious accommodation statutes are designed to enable individuals with sincerely-held beliefs to observe their religion and work. An employee cannot cite religious beliefs and simultaneously refuse to work.
An employer could consider transferring the employee to a different worksite as a reasonable accommodation, but if the transfer or some other accommodation requested would result in substantially increased costs to the employer, then such request(s) could be lawfully denied.
Ironically, continuing to employ someone who would knowingly discriminate against LGBTQIA+ workers and expose the company to discrimination lawsuits would likely result in substantial increased costs.
If you’d like to discuss any of these or other recent Supreme Court decisions, please reach out to any RKW lawyer.