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Florist gets chance to show she was victim of ‘religious hostility’ after declining to provide wedding flowers for same-sex couple

June 26th, 2018  |  Joy Waltemath

By Joy P. Waltemath, J.D.

On June 25, the Supreme Court sent the case of a florist who refused, on religious grounds, to provide flowers for a same-sex wedding—and was found to have violated her state’s antidiscrimination law as a result—back to the Washington Supreme Court to reconsider its decision in light of Masterpiece Cakeshop v. Colorado Civil Rights Commission. In Arlene’s Flowers, Inc. v. Washington, the Court granted the petition for review, vacated the state high court’s judgment, and remanded.

Washington Supreme Court decision. In February 2017, the state supreme court had found in State of Washington v. Arlene’s Flowers, Inc. that the business’s refusal to sell wedding flowers to a same-sex couple was not protected by the state or federal constitutions. It was undisputed that the florist, who had sold flowers to the couple for years, is a Southern Baptist and her sincerely held religious beliefs include that marriage can exist only between one man and one woman. She said she could not sell flowers for the wedding because of “her relationship with Jesus Christ” and providing the arrangements would be tantamount to endorsing marriage equality for same-sex couples. Deeply hurt, one of the plaintiffs posted on Facebook that his favorite flower shop refused their business. The post drew media attention, resulting in offers of free flowers to the plaintiffs and threats against the defendant’s business.

The Washington Law Against Discrimination bars discrimination in “public … accommodation[s]” based on “sexual orientation.” The couple sued, as did the state attorney general’s office. The florist raised defenses, including that her actions were protected by constitutional guarantees of free exercise, free speech, and free association. Affirming judgment for the plaintiffs, the state high court explained, among other things, that the WLAD has no mandate to balance religious rights against rights of protected class members; the refusal to provide flowers did not express a message about the wedding, so was not protected speech; and the WLAD, as applied, did not violate her right to religious free exercise or to free association.

Masterpiece Cakeshop. Earlier this month, the U.S. Supreme Court decided Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, in which it found the Colorado civil rights commission violated the right of a cake shop owner/designer to the free exercise of religion by failing to consider, with the constitutionally required neutrality, his religious objections to creating a wedding cake for a same-sex wedding. The lack of neutrality was evident to the Court from commissioners’ comments disparaging the shop owner’s faith and likening it to the defense of slavery, and from the disparate treatment his case received compared to cases of other bakers objecting to making cakes with anti-gay messages. The 7-2 opinion was authored by Justice Kennedy.

Reversing the state court of appeals, the Supreme Court pointed out that our society has recognized that gay persons and gay couples cannot be treated as inferior, and “the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” Here, the Commission’s actions violated the cake shop owner’s constitutional rights. The majority explained that while Colorado law can protect gay persons in acquiring products and services on the same terms and conditions offered to other members of the public, the law must be applied in a manner that is neutral toward religion. The Commission’s treatment of the cake designer’s case showed elements of impermissible hostility toward the sincere religious beliefs motivating his objection to creating a cake celebrating a same-sex marriage.

Reaction. Following the Supreme Court’s order in Arlene’s Flowers, the Human Rights Commission, a national LGBTQ civil rights organization, released a statement: “The Supreme Court has simply asked the lower court to take another look at this case in light of their recent decision in Masterpiece, but they did not indicate there was anything wrong with the ruling,” said HRC Legal Director Sarah Warbelow.

“In Masterpiece, the Supreme Court found that the state of Colorado’s enforcement of its civil rights law was flawed due to perceived bias in the process; however, there is no indication that there were flaws in the application of civil rights law in Arlene’s Flowers. We view this decision as encouraging news that justice will prevail and the Washington State Supreme Court will again uphold the state’s non-discrimination laws ensuring LGBTQ people cannot be turned away from a business open to the public.”

Religious hostility? After Masterpiece was decided, UCLA law professor Eugene Volokh expressed some disappointment that the Supreme Court’s decision left almost all the “big questions” unresolved, including whether bakers have a First Amendment right to refuse to bake cakes for same-sex weddings, even if state law bans sexual orientation discrimination by such businesses. Volokh also posed a question echoed by others, pondering: “Does all this talk about government officials’ statements showing religious bias foreshadow the result in the so-called (rightly or wrongly) ‘Trump Travel Ban’ case, where the challengers are arguing that various statements by candidate Trump or President Trump show that the restrictions on travel from certain countries were motivated by religious hostility?”

However, on June 26, the High Court appeared less concerned about questions of “religious hostility” when it upheld the Trump administration’s third iteration of a travel ban in Trump v. Hawaii. In that case, one of the assertions by the challengers was that the primary basis for the ban was religious animus against Muslims. At the heart of the case was a series of statements made by President Trump and his advisersm both during the campaign and since the president took office. But the Court found that the issue was not whether to denounce Trump’s statements, but the significance of those statements in reviewing his presidential directive, “neutral on its face,” addressing a matter within the core of executive responsibility. In so doing, the Court said it must consider not just the statements of a particular president, but also the authority of the presidency itself.

So, as to those comments expressing impermissible religious hostility: We really don’t care, do we?

The Court’s order granting certiorari, vacating, and remanding is Dkt. No. 17-108, Arlene’s Flowers, Inc. v. Washington, June 25, 2018.


Check out our Check-in!

May 30th, 2018  |  Pamela Wolf

Please consider this a personal invitation to join me on June 6 at 1 PM Central (2 PM Eastern) as I moderate a panel of labor and employment law experts who will share their insights on how the EEOC, the DOL, and the NLRB currently are handling their enforcement mandates, and what employers need to know about this state of affairs.

The one-hour webinar, Check-In: EEOC, DOL, and NLRB Compliance—A Labor and Employment Law Roundtable, will explore:

• The current compliance environment
• Federal agency enforcement priorities
• Practical guidance for navigating tricky compliance issues
• Best practices for avoiding common pitfalls

We’ll also be going through three scenarios that take a “real life” look at some of the issues that employers may be facing. Tune in to find out what Eric Meyer, Partner, FisherBroyles, LLP; Tasos C. Paindiris, Principal, Jackson Lewis P.C.; and Jonathon Watson, Associate, Sherman & Howard L.L.C., have to say about these scenarios and what practical guidance they have to offer.

To learn more about the free webinar that offers 1 CLE credit, click here.


An Epic infringement on the ‘right to work’

May 25th, 2018  |  Lisa Milam

This is gnawing at me, as we sit here sandwiched between two significant Supreme Court labor decisions.

The Epic Systems Corp. v. Lewis decision issued earlier this week emphatically allows employers to impose mandatory, individual-and-not-class arbitration as a condition of employment, notwithstanding any NLRA-endowed right of employees to engage in protected, concerted activity.

The impending Janus v. AFSCME, Council 31 decision, most prognosticators expect, will hasten the demise of “fair share” fees, if not the demise of the public employee unions that rely upon them. These fees have been prohibited by 27 states already under the guise of “right to work” legislation (in August, Missouri may become the 28th).

These “right to work” laws are premised on the notion that no worker should be compelled to join a union as a condition of employment–or to pay a union for the services they are compelled to provide to non-members. As a matter of scope, the problem is fairly limited—as of 2017, only 6.5 percent of private-sector workers are unionized, whether by choice or compulsion, and the number of unionized workplaces decreases steadily every year.

By comparison, 53 percent of employers require their employees to consent to mandatory arbitration, take-it-or-leave-it, and as Justice Ginsburg quite reasonably predicts in her Epic Systems dissent, that number will now rise sharply.

These arbitration provisions are framed as “agreements,” of course, two equal parties mutually deciding to resolve their disputes outside of court. If the employee doesn’t wish to “agree,” he or she is free to work elsewhere, as one management attorney reminded me this week.

But where are they to work, if a majority of employers compel them to give up their day in court?

If a worker wishes to avoid unionization, the overwhelming majority of workplaces remain open to him. For a worker wishing to preserve her right of access to the courts, more than half the nation’s workplaces are foreclosed. And she will have far fewer options, soon enough.

Compulsory unionism or compulsory arbitration? Which is the bigger deprivation of the “right to work”?


Too many regulations? Burdens and costs vs. protections and net economic benefits

May 23rd, 2018  |  Pamela Wolf

On May 23, the House Education and the Workforce Subcommittee on Workforce Protections held a hearing on “Regulatory Reform: Unleashing Economic Opportunity for Workers and Employers.” Most of the invited witnesses tended to see regulations as costly and burdensome to employers. However, one witness cited the worker safety and the economic upsides of federal regulations.

“Not all regulations are bad, but today’s hearing will explore the benefits of responsible regulatory reform, how regulatory costs can be controlled to allow for the continued growth of the nation’s economy, and the importance of Congress and the administration continuing to collaborate on a regulatory reform agenda,” Chairman Bradley Byrne (R-Ala.) said in his opening statement.

Small businesses say they are hit hardest. In a press release, the Subcommittee noted that according to the National Federation of Independent Business (NFIB), nearly half of small businesses view regulation as a “very serious” or “somewhat serious” problem.

Echoing that sentiment, Karen R. Harned, Executive Director of the NFIB Small Business Legal Center said, “Overzealous regulation is a continuous concern for small business. The uncertainty caused by future regulation effectively acts as a ‘boot on the neck’ of small business—negatively impacting a small business owner’s ability to plan for future growth, including hiring new workers.”

Harned also observed, “When it comes to regulations, small businesses bear a disproportionate amount of the regulatory burden . . . The small business owner is the compliance officer for her business, and every hour that she spends understanding and complying with federal regulation is one less hour she has available to service customers and plan for future growth.”

Compliance costs. Dr. Douglas Holtz-Eakin, President of the American Action Forum, contrasted the Obama Administration’s regulatory regime with the Trump Administration’s efforts to remove the compliance costs suffered by American businesses large and small. “The Obama Administration finalized a costly regulation at the average rate of 1.1 per day, and the cost of complying with those regulations added up to $890 billion—according to the agencies themselves that issued the regulations, he said. “That cost is an average stealth tax increase of over $110 billion a year.” Holtz-Eakin said.

“New regulatory cost burdens fell by more than two-thirds—from an average $110 billion per year during the Obama Administration to $30.6 billion in 2017,” Holtz-Eakin observed. “And the vast majority of those costs originated from rules published in the last few days of the Obama Administration.”

Correcting workplace safety culture. “Burdensome and confusing obligations on our employers often do nothing to improve jobsite safety, but instead stifle our workforce and ignore insightful input from our industry experts,” Ryan Odendahl, Chairman of the Associated Builders and Contractors National Safety Committee and President of the construction firm Kwest Group, told the Subcommittee. “Congress and this administration have already taken important steps toward correcting the workplace safety culture, including this Committee’s important work to repeal the controversial ‘Volks’ Rule.”

“The construction industry continues to see the benefits that have come from a common-sense regulatory agenda and pro-growth tax policies that have allowed us to hire and train more workers and reinvest in our businesses and communities,” Odendahl concluded.

What about protecting workers? Heidi Shierholz, Director of Policy at the Economic Policy Institute, previously the Chief Economist at the U.S. Department of Labor, explained how regulations “play an essential role in protecting workers—ensuring safe workplaces and fair pay and protecting workers’ rights to organize and join a union so they can bargain collectively with their employers.”

Shierholz explained that while safety regulations may require substantial upfront investments in safety equipment, “those investments pay off over the long term through a reduction in illnesses like lung cancer and through lives saved over decades.” She also noted that “the need for the safety equipment creates jobs for the people producing the equipment.”

Net benefit to the economy. In addition, research shows that federal regulations provide a large net benefit to the economy, according to Shierholz. “Rhetoric attacking regulations generally alleges that regulations are overly burdensome for employers and cost jobs, and opponents of regulations routinely emphasize the costs associated with regulations while ignoring their benefits. However, research shows that federal regulations in fact provide an overall net economic benefit and that they have a modestly positive or neutral effect on employment.”

Shierholz pointed to an Office of Management and Budget (OMB) report finding that during the Obama administration, from January 21, 2009, to September 20, 2015, the estimated annual net benefit (benefits minus costs) of major federal regulations was between $103 and $393 billion. “In other words, federal regulations are providing a net benefit to society of over $100 billion per year,” she said. “And these numbers are consistent with prior OMB reports. OMB reviewed major regulations from 2000 to 2010 and estimated that the average annual benefit of major regulations is about seven times the cost.” Shierholz said these findings are even more significant in light of studies showing that government regulators generally overestimate costs, and many benefits are never monetized, but almost all costs are.


SCOTUS: No right to class actions under NLRA

May 21st, 2018  |  Lisa Milam

In one of the most significant employment decisions in years–and a critical blow to employees seeking to resolve employment disputes on a class or collective basis, or in a court of law, for that matter–a divided U.S. Supreme Court has held that the National Labor Relations Act (NLRA) does not endow employees with the right to pursue class action lawsuits. The Federal Arbitration Act (FAA) strongly favors the arbitration of disputes, including employment-related disputes, and the FAA instructs federal courts to enforce arbitration agreements according to their terms, including terms mandating individualized proceedings. Therefore, employers are free to compel employees, as a condition of employment, to agree to waive the right to file suit and to force them instead into arbitration–and to require that such arbitration proceed on an individual, not classwide basis.

The issue arises most frequently in the context of wage-hour claims, for which damages are typically too insignificant on a per-employee basis to warrant the prohibitive costs of individual judicial pursuit. Plaintiffs had briefly entertained the notion that, where other impediments to compulsory arbitration proved fruitless, the NLRA might offer recourse. But the High Court majority took the wind from those sails in a majority opinion authored by Justice Neil Gorsuch, the Court’s freshman jurist. “Union organization and collective bargaining in the workplace are the bread and butter of the NLRA, while the particulars of dispute resolution procedures in Article III courts or arbitration proceedings are usually left to other statutes and rules—not least the Federal Rules of Civil Procedure, the Arbitration Act, and the FLSA. It’s more than a little doubtful that Congress would have tucked into the mousehole of Section 7’s catchall term an elephant that tramples the work done by these other laws; flattens the parties’ contracted-for dispute resolution procedures; and seats the Board as supreme superintendent of claims arising under a statute it doesn’t even administer.”

Justice Thomas filed a separate concurring opinion. Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, dissented–largely on policy grounds. “The policy may be debatable,” Gorsuch conceded, “but the law is clear.”

The case is Epic Systems Corp. v. Lewis, No. 16–285, May 21, 2018.