Freedom of Expression in the Workplace and Beyond: Can You Have Your Cake and Eat it Too?

06-27-2018

This term’s highly anticipated U.S. Supreme Court decision regarding the balance between business owners’ right to religious freedom of expression and consumers’ public accommodation rights without discrimination, reinvigorated the free speech in the workplace conversations and rekindled the considerations of religious expression in the workplace. While the Supreme Court decision in Masterpiece Cakeshop, LTD. v. Colorado Civil Rights Commission (2018), “did not provide the essential guidance hoped for on how to balance religious beliefs with the right of same-sex couples to equality in public life,”¹ it did draw renewed attention to the question of how much freedom of expression exists in the American workplace. Businesses continue to grapple with the balance of rights between expression, public accommodation and discrimination.

Get me up to speed …

In 2012, Charlie Craig and Dave Mullins, who lived in Colorado, wanted a cake to celebrate their upcoming marriage. Because same-sex marriage was not yet legal in their home state of Colorado, they intended to marry elsewhere and then celebrate at home. They approached Jack Phillips, owner of Masterpiece Cakeshop in Colorado, and requested a cake to celebrate their upcoming marriage. Mr. Phillips, a devout Christian, closes his shop on Sundays, and refuses to design custom cakes that conflict with his religious beliefs – for example, cakes that contain alcohol, have Halloween themes or celebrate a divorce. Further, Phillips believes that it was “God’s intention” that marriage “is and should be the union of one man and one woman.” Phillips refused to design a custom cake for Craig and Mullins same-sex wedding celebration service based on his religious beliefs and Colorado’s non-recognition of same-sex marriage. 

Colorado prohibits discrimination based on sexual orientation or race, color, sex, marital status, national origin, or ancestry in places of public accommodation. As a business open to the general public, Masterpiece Cakeshop is a place of public accommodation. Craig and Mullins filed a complaint with the Colorado Civil Rights Commission (CCRC) accusing Phillips of discrimination based on sexual orientation in violation of Colorado’s anti-discrimination laws. Phillips responded: “he could not in good conscious create a wedding cake that celebrates their marriage.”² The Agency ruled that Phillips’ refusal to provide a custom cake violated Colorado anti-discrimination laws and that Phillips had “no free speech right” to turn down Craig and Mullins’ request. The case was then appealed to the Colorado Court of Appeals who affirmed the Commission’s decision. The Colorado Supreme Court declined to the hear the case and Mr. Phillips appealed to the United States Supreme Court, which granted review of the case.

The Supreme Court’s writ of cert to hear this case triggered a storm of opinions on both sides and even created a split of opinions within the free speech community, resulting in more than 100 Amicus briefs filed. In summary, the implications were distilled into the following: a ruling for MasterpieceCakeshop could be sweeping, far beyond the “countless businesses” such as hair salons, tailors, architects and florists, that “use artistic skill when serving customers or clients.” On the contrary, a ruling for the CCRC would affirm that neutral civil rights laws are not directed at religious beliefs or practices, but rather equal treatment in the marketplace.

However, instead of focusing on those implications, the Supreme Court focused on statements made during the CCRC’s original hearings as the cornerstone of its ruling  and emphasized the lack of “neutral and respectful of consideration” for Mr. Phillips’ religious beliefs and the Commission’s “clear and impermissible hostility” toward Mr. Phillips’ beliefs as evidenced in their formal hearing records.³ The ruling was so limited in this case that it leaves businesses wondering what the limits are.
 
Is this decision a setback for Civil Rights?
 
Some might ask, “Didn’t the civil rights laws of the 1960s and public accommodation laws eliminate a business owner’s right to refuse service based on a discriminatory reason?" Think, restauranteurs denying service to persons of particular races or ethnicities … So, why is Mr. Phillips allowed to refuse service to this same-sex couple? Because he argued that his customized cake was a “work of art,” an “expression” of communication that went against his religious beliefs. He claims he would not deny gay customers service if they wanted other non-customized items prepared in his bakery but has the ability to refuse to “create” these works of art in conflict with his religious preferences. While some pundits pronounced the decision a “victory” for Phillips, the reality is that the court did not address the key question: “Whether applying Colorado’s public accommodations law to compel [Phillips] to create an expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment,”⁴ and instead held that the “underlying issues in this case must await further ‘elaboration in the courts’ and that these disputes should be resolved with ‘tolerance,” balancing sincere religious beliefs with the rights of gay persons to not be subjected to indignities when seeking goods and services.”⁵ Therefore, without further guidance, it would not be wise for businesses to refuse service to certain classes or groups of individuals based on the business leaders’ religious preferences. 

So, what’s a business to do?
 
Certain businesses continue to honor religious affiliations in business decisions. Those businesses, for example, choose to close on Sundays or Sabbath. These acts are permissible under our Constitution and laws because it is a business decision to refuse service indiscriminately to all people. Mr. Green, CEO, Founder and Owner of Hobby Lobby craft stores writes of his decision to close on Sundays, “We’re Christians, and we run our business on Christian principles. I’ve always said that the first two goals of our business are (1) to run our business in harmony with God’s laws, and (2) to focus on people more than money. And that’s what we’ve tried to do. We close early so our employees can see their families at night. We keep our stores closed on Sundays, one of the week’s biggest shopping days, so that our workers and their families can enjoy a day of rest.”⁶ This is a business decision that might cost a company, but it’s the decision of the closely-held business when they are open and closed to the public. It’s also notable that the U.S. Supreme Court ruled closely, but favorably, for Hobby Lobby in a landmark religious freedom case, stating that the Religious Freedom Restoration Act applies to privately owned businesses like Hobby Lobby, permitting them to refuse to provide certain drugs that may abort a fetus on the basis of religious objection.⁷ The decision, while narrowed to only the contraceptive mandate and not necessarily applicable to all insurance mandates, like blood transfusions or vaccinations, was a big statement for the rights of business owners to impart religious views in its business practices.
 
Other complicated issues for businesses include offering space for religious-affiliated events and activities. The Equal Employment Opportunity Commission (EEOC) guidance suggests: “If an employee needs to use a workplace facility as a reasonable accommodation, for example use of a quiet area for prayer during break time, the employer should accommodate the request under Title VII unless it would pose an undue hardship. If the employer allows employees to use the facilities at issue for non-religious activities not related to work, it may be difficult for the employer to demonstrate that allowing the facilities to be used in the same manner for religious activities is not a reasonable accommodation or poses an undue hardship. The employer is not required to give precedence to the use of the facility for religious reasons over use for a business purpose.”⁸ If the employer needs to determine what is considered a reasonable accommodation versus an undue hardship for a religious-based request, look to the EEOC guidance at https://www.eeoc.gov/policy/docs/qanda_religion.html. 

What the employer cannot do is to discriminate by determining that some religious groups can practice onsite and deny others. For example, an employer allowed a morning prayer group for a group of Christians but when a group of practicing Wiccans (Benevolent Witchcraft) asked for space to worship, the company denied the request.⁹

Businesses also grapple with holiday displays and religious expression in public communal spaces and personal work areas. Over the years, we’ve seen a sensitivity to recognizing various religious holidays and décor that acknowledges a variety of religious holidays as well as recognizing year-end functions as such and no longer designating those gatherings as a “Christmas party” but instead recognize the diversity of their workforce and plan events that are inclusive to most. In the 1980s and 1990s, the United States Supreme Court issued several opinions that guide today’s businesses on religious expression on business properties, but the jurisprudence provides more challenge than clarity.¹⁰ The cases in question involved public sector religious displays of nativity scenes and crèches but were decided on fact-specific determinations about what might or might not be displayed surrounding the creche, such as menorahs or other “symbols” also displayed nearby. Note that while the U.S. Supreme Court has held that decorations such as Christmas trees, wreaths, holiday lights, Santa Claus and reindeers are “secular” in nature and permissible as workplace décor, businesses are encouraged to recognize and value the diversity in its internal workforce and external visitors.

Suggestions for allowing religious expression and tolerance to be acknowledged in the workplace include:¹¹

• Attempt to avoid major projects and deadlines that conflict with major religious holidays;
• Engage in an open and considerate interactive discussion of reasonable accommodation, considering what could work instead of why it will not. The employer should consider the employee’s sincerity in his/her religious beliefs and not the validity of the alleged religion;¹²
• Be open to religious dress as an accommodation and do not allow client preferences (fear that clients might not be comfortable with a receptionist dressed in a Habib) or unwarranted expectations (such as prohibiting facial hair because of an appearance code and not a safety-related reason) to violate expression rights;
• Invite employees to decorate the office with ornaments and examples of trinkets that display their faiths and ethnic backgrounds;
• Initiate charitable events and activities instead of exchanging gifts on or around certain recognized holidays; and
• If possible, allow for several flexible holidays to allow employees time off to celebrate as they prefer.

All that said, freedom of expression in American workplaces is experiencing new challenges.  So-called “religious freedom” bills have been appearing in certain states but could be seen as veiled attempts at stifling same-sex marriage and gender identity freedoms. Workers are more freely expressing theological and religious preferences in workplaces and expecting greater accommodations. Attorney Robert E. Gregg reports that religious discrimination claims in workplaces are growing faster than sex and race discrimination.¹³ Further, in today’s polarized political climate, freedom of political views can also be a challenge. What’s a business’s right to promote or limit political speech, peaceably protest and/or impose political preferences in workers? In short order, and a topic that warrants its own article, political speech is not a protected category under federal law but may be covered under state statutes. Generally, employers are able to limit its workers’ political expression in the workplace but can’t deny service to the public who may have opposing political preferences (i.e., a customer who enters the business with a “Make America Great Again” hat cannot be denied service) while any action by the business owner to sway its employees or customers to a political persuasion is prohibited (i.e., paying overtime to employees who attend a pro-political rally on behalf of one party).

Let’s switch to workers’ rights …

The United States Department of Labor’s own guidance to its workforce presents some of the best guidance I have read: “Effective work environments are created and maintained through collegial professional relationships. It is not uncommon for colleagues to share information about their personal lives in developing and sustaining these relationships.”¹⁴ Generally, employees are permitted to engage in religious conversation and expression with coworkers to the same extent they may engage in comparable, reasonable private expression about subject matter not related to religious issues, such as sports or the weather. So long as an employee’s religious expression on his/her body or in a workspace does not interfere with the business’s ability to carry out its official business and mission, the employee should be permitted to continue the practice. For example, if an employee wears personal religious jewelry or displays a picture in his/her cubicle that doesn’t interfere with the essential functions of the job, then it should be acceptable and tolerated. A supervisor should not single out religious art or literature in the workspace for either negative or preferential treatment compared to all other art and literature in the same workspace.

However, proselytizing or evangelizing employees’ beliefs to influence others in the workplace regarding religious preferences may be uncomfortable and violate Civil Rights laws. This might include religious expression in official business communications, including email messages. Statements such as “Have a blessed day” or religious quotations or quotes from religious leaders under signature lines, may be considered “extraneous” and outside the business interests of the organization and may be banned by the employer.

Bottom line …

First Amendment “freedom of speech” Constitutional rights generally do not extend to private sector workplaces, but other interests might govern the employees’ ability to speak freely, including protected categories under anti-discrimination laws, punishment for different speech or action dissimilar to those around them, or protections under union laws or whistleblower protections. 
 
While religious expression can often be reasonably accommodated in the workplace, most experts suggest that the First Amendment right to free speech is non-existent. Nonetheless, employers should engage in an interactive discussion if an employee raises religious accommodation needs and should promote diversity, tolerance, and open-mindedness toward its employees and customers freedom to worship and express.