Sex, religion and discrimination
When you can't have your cake and decorate it
With The Great British Bake-Off an international obsession, it's perhaps not so surprising that cake has emerged as 2018's hot topic in discrimination law, with a high-profile case in the US Supreme Court and now a judgment from the UK Supreme Court in the so-called 'gay cake' case.
The case arose when an individual, Mr Lee, ordered a cake from Ashers Bakery in Northern Ireland and asked the bakery to decorate with a slogan and picture in support of gay marriage (currently not legally recognised in Northern Ireland). The bakery refused, and Mr Lee brought a claim for discrimination in the provision of goods and services, both on the basis of sexual orientation and political opinion (the latter under a law only applicable in Northern Ireland, not the rest of the UK).
The Supreme Court held that the bakery's refusal was not unlawful discrimination. In relation to the sexual orientation claim, it held that the reason for the refusal was not Mr Lee's sexual orientation, nor that the bakery believed he was closely associated with other gay people, but that the owners of the bakery disagreed with gay marriage on religious grounds. Mr Lee had argued that this was associative discrimination, because the gay marriage campaign was directly linked to sexual orientation. The Supreme Court disagreed, effectively saying that the link needs to be stronger for an associative discrimination claim.
In relation to the political opinion claim, the Court agreed that the reason for the bakery's refusal was Mr Lee's political opinion supporting gay marriage, but held that discrimination law had to be interpreted in line with the European Convention on Human Rights (which protects freedom of expression and freedom of belief). As a result, the Court held that discrimination law could not force the bakery to supply a cake bearing a message with which the owners fundamentally disagreed, describing this as 'compelled speech'.
As with previous cases where religion and sexual orientation clash, this case has been highly controversial. Unfortunately, from a discrimination law perspective, it has created more heat than light. The case leaves it very unclear what circumstances can give rise to an associative discrimination claim. We know from previous cases that being closely related to another person having the protected characteristic (e.g. having a disabled child) can be the basis for this type of claim, and we know that the Supreme Court found the link in this case to be too indirect, but we do not know where the boundary lies. It's also unclear how the concept of 'compelled speech' operates in discrimination law. Only further cases (or possibly legislation) will resolve these issues. For now, employers and service providers need to be alive to potential associative discrimination issues and take a cautious approach.
If you would like any further information, please contact Head of Employment Jane Amphlett.