The Masterpiece Cakeshop Case Is Significant For Employment Law Because The Laws At Issue Protects Employees Too

Carving out exceptions to a law that protects the public and employees from discrimination is not the direction we want to be headed in.

On its face, the Masterpiece Cakeshop case is styled as a case where an artist is asking that the Supreme Court not require the artist to do something against his beliefs. But in practice, it isn’t that simple. Because if a cake-baker is an artist, that means a lot of other people are artists too. And if they are artists, why can’t they too follow their conscience and be free from those pesky rules? And if there is an exemption for the average religious business owner when dealing with the public, why not when dealing with new hires? Yes, this is the slippery slope argument we all hated in law school. But the law at issue in the Masterpiece Cakeshop case, the one that this artistic baker thinks doesn’t apply to him, is the same law that protects employees in Colorado. Unfortunately, my example isn’t a stretch.

When Religion Meets Life

This case is really a combination of two issues: religious exemption and artistic expression. And it relies on the principle that religious freedom allows exemption from certain legal requirements.

When people think of “religious freedom” and businesses, they think of Hobby Lobby. Unfortunately, the Hobby Lobby case isn’t where this idea started. When religious institutions operate in commercial spaces, the lines become blurry. It is an easy step to extend those same exemptions or “freedoms” to an entity whose owners claim they, too, hold sincere religious beliefs. For example, if you work for a bakery that happens to be housed in a church, you may not be as protected as a consumer and as an employee as the patrons and employees at a bakery across the street in the shopping center. Religious establishments get special status.

However you feel about that, the Colorado cake-baker’s Supreme Court case may end up expanding some of the special status for religious institutions to the bakery across the street.

Faced with this reality, the cake-baker’s supporters have raised a lot of arguments in support of the “free market” lately on this issue. People say: well, if someone won’t make a cake for a gay person, the “market” will take care of it. I think these free market folks are all wrong, in both in the impact of the market on a discriminatory company, and in their convenient history amnesia.

The market doesn’t fix things. It didn’t fix the glaring inequalities based on gender and race that existed just half a century ago; laws did. And if the Masterpiece Cakeshop case is any indicator, many people are okay with returning back to those days, those pre-anti-discrimination law days, when gender or race had a very real impact in the choices one could make in everyday life, from where to buy groceries to what vocation one could pursue.

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Free Market Employee?

Believe it or not, sometimes people make the same “free market” arguments for employers. One of the arguments courts rely on to enforce noncompetes is that employees will simply leave their employer if they find the restrictions too onerous, so they should be allowed. The idea is that employees have “bargaining power” and employers will struggle to retain good talent if they use an inappropriate and overly restrictive agreement.

But as an employment lawyer and human being, I know that the balance of power is heavily stacked against the employee, just like it is against any minority or less affluent and traditionally discriminated group in the public accommodation setting. The so-called free market doesn’t stand a chance against discrimination. Employees need to survive, and life is expensive; employees will work where they can make a living. So they agree to a lot of things that aren’t in their best interest. I know this is true, because we have OSHA, the FLSA, and pretty much every single law ever created to protect employees.

It’s also how we got the Colorado law at issue in the Masterpiece Cakeshop case. Because employers and businesses discriminate against customers, applicants, and even current employees because of the protected categories of the law, including sexual orientation. Because employers and businesses will not just do the right thing, even with market pressures. Because for most of the history of the United States, whole groups were excluded from commerce and employment, and the market was okay with that.

But What About Religious Freedom?

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So do sincerely held religious beliefs not matter? I think that they should not trump the law in areas of anti-discrimination and public access. Because sincerely held beliefs can be wrong and damaging to society. And because at the end of the day, the Court can’t protect all sincerely held beliefs, and only those that are most popular will be protected. And that is a huge problem.

If you want to observe your religious beliefs at work, and that observation impacts how you treat the public, you should likely go work for a church that supports your beliefs. If this cake-baker wants to limit who he sells cakes to based on protected criteria because of his religious beliefs, he can’t be open to the public. Perhaps he needs to start some hybrid form of church and bakery? Churches (for the most part) don’t have to worry about protected categories. Now when you branch out to say, schools or hospitals, that’s when things get more tricky. But a bakery isn’t a hospital, so he could likely do some things with this hybrid model.

When you are an employee, sincerely held religious beliefs won’t get you out of a jam at work. And you shouldn’t be able to rely on them to avoid serving the public either, after you have opened a public business.

We will see soon if the Supreme Court agrees with me. But I don’t think carving out exceptions to a law that protects the public and employees from discrimination is the direction we want to be headed in. Because people, and companies, don’t just do the right thing on their own. We have centuries of history to prove it.


beth-robinsonBeth Robinson lives in Denver and is a business law attorney and employment law guru. She practices at Fortis Law Partners. You can reach her at employmentlawgurubr@gmail.com and follow her on Twitter at @HLSinDenver.