Did The Supreme Court Just Make It Legal To Discriminate?

As I'm sure you've heard unless you've been in outer space for the past couple weeks, the Supreme Court ruled that a person who thinks she might want to have a web designer business (but who has never actually designed a website in said business) could refuse to design a website for a gay marriage that she was never actually asked to design. SMH. Let's put aside the issue of whether this should have been a case in the first place, and deal with the question that is on everyone's mind: 

Is it legal to discriminate now?

Answer: Well, no. Not really. But maybe. Sigh.

The actual ruling says this: "Held: The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees." Seems not so bad, right? And it has nothing to do with hiring and firing, so it has no express immediate effect on employment discrimination laws. But the decision does open the door to future interpretations that are pretty bad.

The interesting part of this ruling is that it isn't based on religion. The Court didn't say people can use their religion to discriminate. At least not yet. Well, at least not in this particular opinion. Instead, they based it on free speech.

So people are asking me, can I post a sign on my business that says, "We don't hire bigots or homophobes"? The answer is probably, but you probably could have done that before this decision. What you (probably) can't do is post a sign that says, "We don't hire evangelicals." And in places like my county which prohibits political affiliation discrimination, you (probably) can't post a sign saying, "We don't hire Republicans."

The fake web designer in this case swore up and down that she would accept business from LGBTQ customers, and that her only problem was with gay marriage websites. Do we believe her? Heck no. She doesn't even have an active web designer business yet, and the only alleged customer who asked about a gay marriage site is straight and says it never happened. But still. The Court focused not on discrimination against LGBTQ people, but on this: "Ms. Smith’s belief that marriage is a union between one man and one woman is a sincerely held conviction." They also focused on the fact that her alleged profession is creative one that is "expressive in nature."

So let's look into the future and assume she actually will eventually have a real website design business. Let's assume she will be so busy she needs staff. What will happen if a gay website designer who is married to a person of the same sex applies? Can she say that the business reflects her personal expression and her sincere beliefs prohibit her from endorsing gay marriage  by hiring such a person? Probably a stretch, but I can see it happening. Can she hire the person but say that her sincere beliefs prohibit her from providing insurance to his spouse? Very possible (see the Hobby Lobby case).

How will this case apply to employment law in the future? Well, I have some strong suspicions about how evangelical employers will try to apply it. But what about other employers? What if your beliefs are similar to those of The Chosen? What if your sincere belief is that those who deliberately misgender must, forever after or until they relent, be called by the opposite gender, and those who refuse to use non-binary pronouns, must forever after or until they relent, be referred to as they/them. Can you ask in interviews about the person's beliefs on pronouns and misgendering? Maybe. If so, can you automatically disqualify anyone who says their religion requires the opposite? Hmm. Unclear. If you hire them when they admit that they deliberately misgender due to their sincere beliefs, when you forever call them by the gender opposite that on their birth certificate can they claim sex or religious discrimination? Possibly.

As you can tell, I have lots of questions about this case and how it will apply to employment law in the future. Questions such as:

• Can a man whose sincere belief says women belong in the home now refuse to work with women?
• Can a woman whose sincere belief says that Black people are under the "Curse of Ham" and are thus inferior pay Black employees less than white ones? (This excuse was used to justify slavery).
• Can an employer whose sincere belief is that women are suited only to secretarial work refuse to hire female truck drivers?

This "sincere belief" stuff cuts both ways.

• Can an employer whose sincere belief is that anyone who voted for Trump is ethically deficient refuse to hire Republicans?
• Can a woman whose sincere belief is that anyone who believes that abortion should not be allowed in cases of rape, incest, and for the health of the mother is unfit to lead anyone refuse to grant a promotion to Catholics?
• Can a man whose sincere belief is that anyone who supports book banning is unfit to teach refuse to hire evangelical teachers?

I think these questions will be answered soon. The answer under the law a year ago is no to all of the above. But now, apparently anything goes. So hold onto your hats and just assume things will get crazy before they settle down.

Right now, employment discrimination is still mostly illegal. But that could change. Be ready.