By Meghan Droste, June 12, 2018

As you may know, June is Pride Month—a time to reflect on the history of the LGBTQ rights movement and to celebrate the advances we have made.  The timing is connected to the 1969 Stonewall riots in New York, which were a significant tipping point for the movement.  In addition to the upcoming parades and parties, LGBTQ rights are also in the news right now because of the Supreme Court’s recent decision in the closely watched Masterpiece Cakeshop v. Colorado Civil Rights Commission case.  Although the federal government generally is not in the business of baking cakes—please send me edible proof if I am wrong—the underlying issues in Masterpiece Cakeshop are related to issues that we might encounter in the federal sector.

Masterpiece Cakeshop centers on a Colorado baker’s decision not to bake a wedding cake.  Baker and shop owner Jack Philips refused to provide any custom cake for the wedding of same-sex couple Charlie Craig and Dave Mullins.  In response, Craig and Mullins filed a complaint with the Colorado Civil Rights Commission.  The Colorado Anti-Discrimination Act (“CADA”) prohibits discrimination in the provision of goods or services on the basis of sexual orientation (and several other categories), and Craig and Mullins asserted that Philips’ refusal fell squarely within this prohibition.  Philips argued that baking and decorating a cake for the wedding of an LGBTQ couple would amount to conveying a message of support for same-sex marriage.  He objected to same-sex marriage on religious grounds and therefore asserted that the application of CADA to him interfered with his free exercise of religion.  The Supreme Court ultimately decided the case on vary narrow grounds, focusing on the way the Colorado Civil Rights Commission reviewed and analyzed the case, and not on whether religious beliefs can excuse violations of anti-discrimination law.

Although the Commission has not issued a decision on the rights of cake bakers in the federal government, it has considered claims of religious discrimination by those who object to the celebration, or even discussion, of LGBTQ rights in the federal government.  Two decisions from recent years illustrate this point.  In Complainant v. Environmental Protection Agency, EEOC App. No. 0120150930 (May 19, 2015) and Felton v. Environmental Protection Agency, EEOC App. No. 0120161612 (July 12, 2016), EEOC addressed complaints that appear to be raised by the same employee.  This employee asserted that the agency discriminated against him on the basis of religion when he received an agency-wide email that referenced Pride Month, and when he received an agency-wide email regarding a voluntary training on civil rights and the LGBTQ community.  He had previously requested that the agency not send him emails regarding LGBTQ topics and claimed that the agency’s failure to abide by this request was a failure to provide a religious accommodation.  The agency dismissed his complaints for failure to state a claim.  The Commission upheld these dismissals, finding that the complainant was not an aggrieved person for purposes of Title VII.  The complainant did not suffer a loss, the emails were not sufficiently harassing to state a claim, and there was no allegation that receipt of the emails in any way burdened the exercise of his religion.  At the end of the day, the Commission was not persuaded by the assertion that having to acknowledge the existence of LGBTQ people and their rights represents a harm to someone, even if it conflicts with an employee’s religious beliefs. Droste@FELTG.com

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