On July 16, Time (the publisher I once knew as Time Magazine) posted an article titled “The Implications of the Supreme Court’s 303 Creative Decision Are Already Being Felt.” The article says that in the first few days after the U.S. Supreme Court handed down its decision in 303 Creative LLC v. Elenis, a hairdresser in Michigan publicly stated (in a now-deleted Facebook post), “If a human identifies as anything other than a man/woman, please seek services at the local pet groomer. You are not welcome at this salon. Period.”
After describing that post, the article went on to provide (1) quotes from law professors and advocacy groups claiming that many people will interpret 303 Creative as a “green light” to discriminate against the LGBTQ+ community, (2) data from the U.S. Department of Homeland Security about increased threats of violence against the LGBTQ+ community, and (3) references to nearly 500 state laws (passed or proposed) targeting transgender care and drag.
Although the full impact of 303 Creative will take several years to measure as courts grapple with defining its contours, the decision has triggered strong reactions on both sides of the aisle.
But, for the right here and right now, I can give you 2.6 million reasons why employers need to be vigilant about keeping 303 Creative in perspective.
Yerkes v. Ohio State Highway Patrol
On August 8, a federal district court jury awarded Stacey Yerkes a total of $2.6 million in compensatory damages, back pay, and front pay for her claims of discrimination and retaliation against the Ohio State Highway Patrol.
Ms. Yerkes, a lesbian, had been employed by the Highway Patrol for 24 years before she was compelled to resign. Throughout her employment, Ms. Yerkes received favorable evaluations, awards, and commendations. (Note to self. Carefully review the termination of any long-term employee whose personnel file glows in the dark.)
Beginning in 2017, Ms. Yerkes was targeted and criticized for minor infractions that other officers frequently engaged in without comment. According to the testimony of her retired supervisor, Ms. Yerkes also was subjected to derogatory comments from multiple supervisors, including calling her “butch” and asking “if she was trying to be a girl” when she wore makeup. (Bright neon note to self. Try to avoid going to trial when one of the plaintiff’s star witnesses is her former supervisor.)
After enduring months of this conduct, Ms. Yerkes filed a charge of discrimination. Within days of doing so, two of the supervisors who had made derogatory comments about Ms. Yerkes complained that she had a tattoo, which violated the State Patrol’s appearance policy. Ms. Yerkes got the tattoo several years earlier and kept it covered with a medical sleeve. When her captain ordered her to remove the sleeve so that he would be able to see the tattoo, Ms. Yerkes refused.
The alleged violation of the appearance policy and refusal to remove the sleeve were reported to the human resources department. After a two-day investigation that did not include any inquiry into Ms. Yerkes’ claims of discrimination, HR recommended that she either be terminated or required to sign a Last Chance Agreement. The terms of that Agreement included a demotion, the removal of her tattoo, withdrawal of her pending charge, and a waiver of the right to file any future charges about past State Patrol actions.
Ms. Yerkes rejected the offer, resigned, claimed that she had been constructively discharged, and filed her lawsuit. (Final note to self. A two-day investigation followed by a draconian Last Chance Agreement is not likely to get you out of harm’s way.)
Real world potential implications of 303 Creative for employers
In the order denying the State Patrol’s motion for summary judgment, and sending the case to trial, the judge correctly held that “discriminating against Yerkes [with respect to her employment] because of her sex and sexual orientation is a violation of [the law].” Nothing in 303 Creative changes that. It is still a violation of the law to discriminate against an employee based on sexual orientation or gender identity.
Nonetheless there will be many employees, perhaps including front-line supervisors, who have strong negative beliefs about members of the LGBTQ+ community. They may object to same-sex marriage. They may object to the use of certain preferred pronouns. Most importantly, and like the hairdresser in Michigan, what little they know about 303 Creative may cause them to believe that members of the LGBTQ+ community have fewer employment law protections than they had previously.
They do not. Employers need to be vigilant in ensuring that employees are not subjected to discrimination or mistreatment based on sexual orientation or gender identity.
That said, the Supreme Court’s decisions this summer in 303 Creative and Groff v. DeJoy indicate that if an employee’s disapproval is based on a sincerely held religious belief, the employer will have to at least try to accommodate the employee’s religious belief. These situations will be very fact-specific, but generally they might require an employer to consider accommodations like excusing an employee with a sincere religious objection from displaying rainbow insignia or actively “affirming” Pride Month. It might include allowing an employee to address nonbinary or transgender coworkers without using pronouns at all. But these SCOTUS decisions do not change employers’ obligations to prevent and promptly remedy any harassment, discrimination, or wrongful treatment in the workplace.