With the increased attention on same sex marriage, employers face a dilemma: how to satisfy legal obligations to same sex couples seeking their services while at the same time accommodating employees whose religious beliefs are at odds with same sex marriage.
A bakery that refuses to sell a wedding cake, a photography studio that refuses to take photos, and stationer that refuses an order for invitations for a same sex couple may violate the law in Minnesota and the several other states that prohibit discrimination based on sexual orientation. In many cases these entities have an obligation to offer their services to those who seek them without regard to sexual orientation. Although a few legal challenges have been launched, as a practical matter, some same sex couples simply choose to take their business elsewhere rather than pursuing a legal claim.
On the other hand, an employee of a bakery, a studio, a stationer or any of the myriad of other wedding service providers may refuse to decorate the cake, take the photos or prepare the invitations based on the employee’s religious beliefs. When this happens, Title VII and many state counterparts obligate the employer to consider a “reasonable accommodation.” Much like the hospital that employs a nurse who refuses to assist in abortions or a pharmacist who won’t sell birth control pills the employer has an obligation to determine whether it can satisfy its legitimate business needs as well as the employee’s beliefs. Religious accommodation requests require a careful case-by-case analysis to determine if the employee’s job can be altered without imposing an undue burden on the employer. Each case turns on its own facts and circumstances—what works for a large employer may not work for a small one, and what works for the bakery may not work for the stationer. Nonetheless, an employer that does not take the time to consider what can be done, rather than simply refusing to change the way it has always done things, may face a claim of religious discrimination from its employee. Defending the claim can be expensive, time-consuming and subject the employer to publicity it might seek to avoid.