Last week, the Supreme Court unanimously agreed that Title VII of the Civil Rights Act of 1964 requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business. The next day, the Supreme Court concluded in 303 Creative LLC v. Elenis that the First Amendment superseded a state’s anti-discrimination law which would have forced a website designer who does not believe in same-sex marriage to create wedding websites for gay couples.
Since then, I’ve seen folks asking whether employees with sincerely-held religious beliefs about same-sex marriage can get a religious accommodation from their employer to refuse to work with a gay coworker?
They can’t.
There are many reasons why. I’ll give you four.
First, the 303 Creative decision is limited to public accommodations and, more specifically, forced speech of businesses that serve the public. The owner of 303 Creative wouldn’t produce content that “contradicts biblical truth” regardless of who orders it, as she believes marriage is a union between one man and one woman. As the Supreme Court noted, it would be like requiring “an unwilling Muslim movie director to make a film with a Zionist message” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would make films or murals for other members of the public with different messages.
Further establishing that this case is squarely about speech, 303 Creative’s owner confirmed that she was willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender and would gladly create custom graphics and websites for clients of any sexual orientation. Had she refused to work with same-sex couples, her case would have been open and shut and doesn’t make it to the Supreme Court.
Second, while refusing to work with an LGBTQ coworker has nothing to do with the First Amendment, private sector employees don’t have free speech rights at work anyway. For example, fans of the blog — hi, Dad — know that employees get fired regularly for doing racist, sexist, xenophobic, and other dumb stuff on social media. So, employees trying to use free speech as a reason not to work with LGBTQ coworkers won’t work.
Third, Title VII is an anti-discrimination statute. Congress didn’t design it to promote discriminatory acts like refusing to work with coworkers because of their sexual orientation, for example. Your business has an anti-harassment policy too. Like Title VII, I’ll bet it prohibits discrimination based on sex and sexual orientation.
Fourth, religious accommodation statutes like Title VII are designed to enable individuals with sincerely-held beliefs to observe their religion and work. An employee who cites religious beliefs and refuses to work with a coworker won’t be working.
But, Eric, wouldn’t a transfer allow that person to work? Perhaps. Except if no open position exists, any employer need not create one to accommodate an employee. How do I know? Because courts have consistently reached this conclusion under the Americans with Disabilities Act, where the undue hardship bar is set higher than under Title VII.
Even if there were a suitable open position, the Supreme Court’s religious accommodation ruling confirmed that an employer could refuse an accommodation if it would result in substantially increased costs in relation to the conduct of its business. Continuing to employ someone who would knowingly discriminate against LGBT workers and expose the business to discrimination lawsuits would result in substantial increased costs.
So suppose a religion exists that preaches shunning LGBTQ coworkers. Employees can’t use it as an excuse not to work with them.