Let Them Eat Cake: U.S. Supreme Court Admonishes Colorado Civil Rights Commission to Avoid Anti-Religious Bias

Q: Can an employer discriminate against members of the LGBT community on the basis of the employer’s religious beliefs?

A.  On June 4, 2018, the United States Supreme Court ruled in favor of a bakery that refused to bake a wedding cake ordered by a same sex couple because of the baker’s religious beliefs. The baker argued that requiring him to create a cake for a same-sex wedding would violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed, and that it would also violate his right to the free exercise of religion. The opinion was eagerly anticipated, as it was expected that the Court would provide some clarity on the question of whether an LGBT individual’s right to be protected from discrimination trumps an employer’s or business owner’s exercise of its sincerely-held religious belief.  The Court failed to address the substantive First Amendment issue, however, and instead focused its decision on the Colorado Civil Rights Commission’s failure to remain a neutral decision-maker.

In Masterpiece Cakeshop, Ltd, et al. v. Colorado Civil Rights Commission et al., a Colorado bakery owned and operated by a devout Christian refused to create a wedding cake for a same sex couple because of his religious opposition to same-sex marriages—marriages that Colorado did not then recognize.  The couple filed a charge with the Colorado Civil Rights Commission, pursuant to the Colorado Anti-Discrimination Act (CADA),which prohibits discrimination based on sexual orientation, not only in employment, but also in a “place of business engaged in any sales to the public and any place offering services . . . to the public.”  The Commission ruled in the couple’s favor, concluding that the shop’s actions violated CADA.  The Colorado state court affirmed the ruling.

The U.S. Supreme Court reversed the decision, however, siding with the baker. The Court focused on comments made by the Commission that were disparaging towards the baker’s religious beliefs, concluding that the Commission had failed to apply state laws in a manner that was neutral towards religion.  According to the Court, while “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” and that “the exercise of their freedom on terms equal to others must be given great weight and respect by the courts,” in ruling in favor of the same sex couple, the members of the Commission displayed open hostility towards religion.

The Court focused on comments by one commissioner during a public meeting on the case that “[f]reedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust… it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” The Court noted that:  “To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical – something insubstantial and even insincere. . . .  This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.”

The Court also observed the Commission’s difference in treatment between this case and the cases of other bakers, where the Commission upheld the bakers’ conscience-based right to refuse to bake cakes with anti-gay messages. The Court found that the Commission’s treatment of these cases was inconsistent, and reflect a bias against Masterpiece Cakeshop’s religious beliefs.  Accordingly, the Supreme Court held that the Commission’s treatment of the case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.

The Masterpiece Cakeshop case is a very narrow decision, and failed to address the underlying issue at stake – whether the First Amendment’s free exercise and free expression clauses protect the baker’s right to deny services to same-sex couples.  In fact, the Court concluded its opinion by stating that: “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 disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

Although we will have to wait for future decisions to address the underlying Constitutional issues at play in this case, the Court expressly reaffirmed that certain laws provide protection for LGBT individuals against discrimination, while also noting that these laws must be applied in a manner that is neutral toward religion.  Regardless of the narrow grounds upon which the Supreme Court decided this particular case, we recommend that employers treat sexual orientation and gender identity and expression as protected classifications.  The EEOC has issued guidance finding that Title VII’s protections against discrimination “based on sex” extend to LGBT individuals, and numerous Circuit Courts of Appeals have extended Title VII’s reach in this manner.   Moreover, state statutes and local ordinances in many jurisdictions expressly prohibit discrimination based on sexual orientation and gender identity.

Tracey E. Diamond

Kali T. Wellington-James

 

 

Supreme Court Upholds Validity of Employee Class Action Waivers

Q.  Can my company require its employees to sign an arbitration agreement mandating that they arbitrate all employment disputes, and limiting their ability to participate in a class action against the company?

A.  On May 21, in a 5-4 opinion, the U.S. Supreme Court ruled that arbitration agreements in which an employee waives the right to pursue his or her employment claims in a class or collective action are enforceable under the Federal Arbitration Act (FAA). The holding in Epic Systems Corp. v. Lewis, No. 16-285, resolves a circuit court split on whether class action waivers in arbitration agreements violate the National Labor Relations Act (NLRA). Justice Gorsuch delivered the opinion of the Court, rejecting three primary arguments made by employees to undermine the validity of class action waivers under the FAA.

For more information about this case, please click here.

-Tracey E. Diamond

 

Confronting Racial Bias in the Workplace-How to Avoid Becoming the Next Hashtag Movement

Q.  How do I help my company avoid unconscious bias in the workplace?

A.  A bias is a prejudice in favor of or against one thing, person, or group as compared with another. We all have biases. Biases can be based on any number of stereotypes, whether it is race, gender, age, national origin, religion, etc.  In a perfect world, individuals would not act on their biases, however, our world is far from perfect and employees can and do bring their biases to work.

When employees bring biases into the workplace, whether they are overt or subtle, the consequences can be damaging for the employer, especially in this social media age, when racial biases can and will be caught on camera and “go viral” almost instantly. A recent example of such racial biases resulting in racial profiling occurred in a Starbucks in Philadelphia on April 12, 2018, when two black men were arrested while waiting for a friend.  The police arrested the two men who, nine hours later, were released without being charged.  The arrest was videotaped by a bystander, who commented that the men did nothing wrong.  The incident resulted in protests in Philadelphia and a #boycottStarbucks hashtag that took on a trending life of its own.  Starbucks however, took swift action by terminating the store manager, apologizing to the two men, and announcing plans to close 8,000 U.S. locations for a day in May to provide a racial-bias education program.

A similar incident occurred recently at an LA Fitness facility in Secaucus, New Jersey, when three LA Fitness employees called the police on a black man, who was an active, paying member of the fitness club for no apparent reason, than believing that he did not belong there. LA Fitness immediately terminated the employees involved, issued a public apology and stated that it is exploring potential training content and opportunities to better train the staff.

Stories like these are not new, however, the platform to raise awareness of racial bias and profiling has expanded with social media. So the question remains, what can and should employers do to confront racial biases and avoid becoming the next #boycott{insert Company name} hashtag?

First and foremost, companies must educate, train, and re-train their employees. In industries that are open to the public, such as retail, for example, employers should regularly conduct racial bias training upon hiring as well as on an annual basis.  This is particularly important in industries with high turnover to ensure that all employees are receiving training.  To be most effective, the training should include real life scenarios that are applicable to the industry where employees can openly talk through how to handle certain issues.  Next, employers should make sure they have clearly defined policies on hand.  These policies should be reviewed during the training and be accessible for reference to all employees.

Even more important than having fair policies, employees must be taught how to consistently enforce such policies. For example, if a coffee shop has a policy that requires patrons to order food/coffee in order to use the internet, bathroom or remain on the premises (which Starbucks does not), this must be enforced by all stores and applied to all patrons, regardless of race, gender, national origin, etc.  If the company has concerns as to whether certain policies will be applied consistently, the most prudent approach is to discard that policy altogether.  Additionally, if a company enforces policies/restrictions regarding entering or remaining in a location open to the public, it should be clearly posted.

Even with the best training programs and clearest policies, a company may still end up on the wrong side of the racial bias equation. So what now?  What should a company do if one or more of their employees exhibits racial bias or profiling towards a customer or member of the public?  Even assuming that the incident does not “go viral,” employers should investigate any incident of alleged racial profiling, including reviewing any video footage and witness accounts.  If the allegations are confirmed, the employer must take corrective action.  In today’s society, there is a low tolerance for racial, ethnic or religious profiling, and failing to do anything other than termination (assuming the profiling is confirmed), could result in public backlash.  The response must be quick.  However, employers must balance the need for speed with the need to conduct a proper investigation.  Companies must also offer the individual who was the victim of profiling a sincere apology and consider including some type of monetary award, depending on the circumstances.  Additionally, employers should review their policies and take the opportunity to re-train employees and redistribute applicable policies.

Kali T. Wellington-James

Single Ageist Comment May Be Insufficient to Sustain Age Discrimination Claim

Q.  If a supervisor makes a comment about an employee’s age, will the company be liable for age discrimination?

A.  While ageist comments are never appropriate in the workplace, an Illinois federal court recently ruled that a single age-related comment was insufficient for an employee to prevail on an age discrimination claim.

In Maglieri v. Costco Wholesale Corp., No. 16-cv-7033 (N.D. Ill. Mar. 14, 2018), the plaintiff employee alleged, among other claims, discrimination and retaliation under the Age Discrimination in Employment Act (“ADEA”). The 54-year old plaintiff worked in a Costco bakery and was directly supervised by a 57-year old manager. According to the plaintiff, the manager repeatedly yelled at her in a “nasty” and “intimidating” voice about working faster. But according to a co-worker, the manager was mean and abrasive to all subordinates and would sometimes yell to motivate employees. The co-worker also testified, however, that she once recalled the manager stating she was “kind of surprised that [Costco] didn’t hire someone younger” when plaintiff was hired. All of the plaintiff’s performance reviews reflected the manager’s concerns with plaintiff’s work speed.  However, plaintiff was not terminated or demoted and did not otherwise experience a change in her job duties.

The ADEA protects employees age 40 and above from age-based discrimination in the workplace. Employers may not discriminate against employees in any manner on the basis of age, and employers may not retaliate against employees who oppose any practices made unlawful by the ADEA. The plaintiff in this case alleged that she was the victim of both discrimination and retaliation.

In order to prove an age discrimination claim, plaintiff needed to show that her employer subjected her to an adverse employment action (such as termination, change in job duties, or a hostile work environment) because of her age. As the Court noted, “not everything that makes an employee unhappy is an actionable adverse action.” Although the manager’s yelling and alleged abrasiveness could present a Human Resources problem, merely being mean or raising one’s voice does not constitute a violation of the law.

The Court observed that plaintiff did not suffer termination or a change in job duties and also concluded that plaintiff was not the victim of an age-based hostile environment. According to the Court, it is not enough that an employee subjectively believes an employer’s conduct to be discriminatory. To prevail on a hostile environment claim, a plaintiff must show that the complained of behavior was both subjectively and objectively offensive. The evidence in this case showed that there was only one comment about age (the manager’s comment that she was surprised Costco did not hire someone younger). The Court found that “this sole age-based comment, which was not directed at [plaintiff] and did not contain any prejudiced views or derogatory slurs, is not enough to establish that [the manager] harassed [plaintiff] . . . because of [her] age.”

The Court concluded that the manager’s criticism about “slowness” and “lack of urgency,” were not a veiled way of harassing plaintiff about her age. While the ADEA prohibits employers from relying on age as a proxy for an employee’s work-related characteristics—such as productivity—the ADEA does not bar employers from focusing on the work-related characteristics themselves. According to the Court:  “Not completing work quickly enough is a legitimate workplace criticism.”

Employers should be aware that a single comment that is discriminatory on its face, such as a racial slur, could be sufficient to establish a hostile work environment.  In fact, courts have concluded that such singular comments are sufficient to bring a claim under various state and federal employment discrimination laws.

Although the employer in the above-referenced case managed to avoid liability, all employers would be well-served to conduct non-discrimination and anti-harassment training in the workplace that focuses not only on age-based discrimination and harassment but also on other forms of harassment based on sex, race, disability, and other protected traits. Pepper Hamilton’s Labor and Employment Practice Group can conduct anti-harassment training sessions for both your managers/supervisors and rank and file employees. Contact a Pepper Hamilton Labor and Employment attorney to discuss how we can tailor a training program to the needs of your workforce.

Lee Tankle

Circuit Split on Sexual Orientation Discrimination Continues With New Second Circuit Opinion

Q.  Is sexual orientation a protected category under federal discrimination laws?

A.  It depends on what Circuit you are located in.  On February 26, the U.S. Court of Appeals for the Second Circuit (which exercises federal jurisdiction in Connecticut, New York, and Vermont), joined the Seventh Circuit (with jurisdiction over Illinois, Indiana and Wisconsin) in holding that sexual orientation discrimination is prohibited by Title VII of the Civil Rights Act of 1964.  Now there are two circuit court decisions ruling that sexual orientation is protected under Title VII.  These decisions conflict with at least one decision, of the Eleventh Circuit (with jurisdiction over Alabama, Florida and Georgia).

Many states and some cities and other municipalities have enacted laws that expressly and directly prohibit sexual orientation discrimination. There is, however, no federal law that directly outlaws this type of discrimination.  While we continue to wait for  Congress to act or the Supreme Court to take up a case for review, employers should consider treating sexual orientation as a protected class when making employment decisions and drafting employment policies.

For more details on this issue, click here.

Susan K. Lessack