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Cake Case Should Not Affect Employer Efforts to Eliminate Discrimination Against LGBT Employees

While the Supreme Court has not yet resolved the question of whether Title VII prohibits discrimination based on sexual orientation, I have previously noted in this blog that there are good legal — not to mention moral, and business, reasons — for employers to take steps to protect gay and lesbian employees and develop a culture that is welcoming to LGBT employees.

Yesterday’s Supreme Court decision in the Masterpiece Cakeshop case — which found that the Colorado Civil Rights Commission violated a baker’s free exercise rights under the Constitution when it fined him because he refused to bake a wedding cake for a gay couple — should not cause employers to reconsider their diversity efforts to protect gay and lesbian employees from discrimination or harassment.

First and foremost, the First Amendment does not protect employees of private employers. An employee does not have a constitutional right to refuse to provide services to a gay customer or to work with a transgender colleague if required to do so by his employer. The Cakeshop baker, in contrast, was a private business owner who claimed that the government had infringed on his right to free exercise.

Moreover, the Court’s ruling was very narrow and based largely on the fact that there was clear evidence in the record that the hearing commissioners disparaged the baker’s faith. Justice Kennedy made it clear that civil rights of LGBT persons are worthy of protection and “must be given great weight and respect by the courts.” Justice Kennedy also suggested that he might have affirmed the Colorado Commission’s decision had it given the baker’s request for a religious exception a “neutral and respectful consideration.”

Although some sources will undoubtedly characterize this ruling as requiring private employers place an employee’s religious beliefs above an LGBT employee’s or customers right to not be discriminated against, don’t be fooled; this was a narrow decision decided on procedural grounds.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.