Can’t We All Just Eat Cake and Get Along? 

When Business and Personal Beliefs Collide

 

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by Shannon S. Pierce and Brandi M. Planet

 

Lately, we cannot go more than a few news cycles without reports of business owners facing media backlash for business decisions that are based on personal beliefs. Whether it’s White House Press Secretary Sarah Huckabee Sanders being asked to leave a restaurant due to political differences or a baker declining to bake a gay couple’s wedding cake for religious reasons, some business owners are increasingly willing to let personal beliefs guide business decisions, even at the risk of negative publicity.

 

However, negative publicity, is not the only risk businesses could be inviting.

 

One area of risk lies in connection with employment matters. If a business owner’s sincerely held religious beliefs causes the business to avoid hiring applicants based on their membership in a protected class (e.g., individuals of a certain race, gender, or sexual orientation, or individuals who identify with a gender other than the gender of their birth), without proper business justification, liability for discrimination may result under state (and possibly federal) law.

 

Similar risks exist when customers are denied service. Contrary to popular opinion, businesses do not always enjoy carte blanche to refuse service to patrons. Rather, Nevada law prohibits certain types of discrimination in public accommodations, meaning that businesses who offer goods or services to the public cannot deny those goods and services due to (e.g., a patron’s sexual orientation or other protected classifications as noted above). While the recent Colorado baker decision from the U.S. Supreme Court confirms that a state’s protection of the LGBTQ community cannot extend so far as to signal animosity toward religion, proving that a state has ventured beyond merely enforcing its own anti-discrimination laws and into anti-religious sentiment may be an uphill (and expensive) battle.

 

To complicate matters further, even declining to take action based on personal beliefs can result in liability. Speaking hypothetically, if a gay or lesbian employee expresses discomfort at serving an overtly religious patron (or vice versa), over time, the lack of a response by the business owner could lead the employee to claim that a hostile work environment has resulted.

 

If both the employer and employee allow business decisions to be driven by personal beliefs and avoid taking sides when personal beliefs collide, can each lead to liability? The question becomes, how can businesses minimize risk? While each set of facts will differ, and while there is no fool-proof way to avoid liability in all circumstances, businesses should analyze factors including the following before denying employment or public accommodations based on personal beliefs.

 

  1. Is There Truly a Conflict? Business owners should examine whether the proposed action truly compromises personal beliefs (as opposed to merely causing discomfort). While some might agree that baking a cake for a gay or lesbian couple could be inconsistent with a devoutly-religious baker’s beliefs, outside of the unique context of religious wedding services, some businesses may have difficulty establishing that hiring or providing services to someone of a different belief system or lifestyle compels the business owner to violate religious creeds or other sincerely held beliefs.Without a genuine conflict, the risk of liability may increase.
  2. Is It Worth the RiskWith the prevalence of social media and other rapid news sources, a single patron denied service, or a single job opportunity denied, can spark local or even nationwide backlash. Especially for smaller businesses, the risk of picketing or brand boycotts may put into perspective whether the issue warrants potential business disruption. Perhaps there will be times when the risk is justified, but either way, businesses should carefully weigh potential outcomes before moving forward.
  3. Is There a Business Necessity Justifying the DecisionIn some cases, businesses may be able to offer (and the law may provide) justification for what might otherwise appear discriminatory. For example, Nevada’s public accommodation regulations expressly allow “differential pricing, discounted pricing or special offers” based on gender, if these differences are implemented for marketing purposes (hence, the “ladies drink free” events). If a business can provide a business justification—separate and apart from a personal belief system—that justifies the action being taken, this, too, may reduce risk.
  4. WWTLD (What Would the Lawyers Do?Finally, given the rapidly changing nature of laws concerning employment and public accommodations (which appear amplified by the current Administration’s attempt to enhance protections for the religious beliefs of business owners), businesses are advised to consult with experienced counsel to ensure that they remain up-to-date on the ground rules applicable to infusing personal beliefs into business decisions.

Shannon Pierce and Brandi Planet are practicing attorneys in the offices of Fennemore Craig. For the last 15 years, Shannon Pierce has represented businesses against claims of discrimination brought by employees and business patrons. Brandi Planet has spent nearly a decade litigating on behalf of companies on a variety of issues, including labor and employment.

 

 

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