When the U.S. Supreme Court ruled that the U.S. Constitution prohibits states from banning gay marriage last year, many people who oppose same-sex marriage for religious reasons began worrying that the newly recognized constitutional right to gay marriage would conflict with their right to religious freedom. As a result, several state legislatures have enacted “religious freedom laws,” which generally provide statutory protections for people who refuse to act contrary to their deeply held religious beliefs. Religious freedom laws in North Carolina, Georgia, Indiana, and Mississippi have caused controversy in recent months, with proponents of these laws arguing that they are necessary to protect religious freedom and opponents arguing that these laws are legalized discrimination. Unfortunately, the conflict between religious freedom laws and the ever-expanding recognition of gay rights is far from over and will almost certainly spill into the workplace and create difficulties for employers. 
Tenets of religious freedom laws
Generally, religious freedom laws provide that all persons (which may include for-profit businesses) have the right to the free exercise of their chosen religion and that any person whose exercise of religion is burdened may assert religious freedom as a claim or defense in judicial or administrative proceedings. Most employers are familiar with the idea of making an accommodation for an employee’s religious beliefs, but religious freedom laws are different because they go beyond requiring accommodations for employees’ religious practices and prohibit employment practices that burden employees’ religious expression. Because many of the laws are new, there is not much guidance on how they apply in the workplace.
To understand the issues religious freedom laws will likely cause, let’s take a look at an example. Let’s say your employee, Samantha, is gay. She has recently married her partner, and her office is covered with wedding pictures. Her manager, Don, is a conservative Christian who fundamentally opposes gay marriage. Don has told Samantha several times that he disagrees with her lifestyle and with her “flaunting” it with pictures. Initially, Samantha let the comments slide, but recently, she complained to you. You warned Don not to discuss personal matters with Samantha, but they continue to argue to the point that they cannot work together.
What if Samantha quits and sues you for sex discrimination? The Equal Employment Opportunity Commission (EEOC) is currently pursuing federal litigation to expand the reach of Title VII of the Civil Rights Act of 1964 to include sexual orientation discrimination. Thus, if Samantha files an EEOC charge against you, it is possible the agency would pursue her claim. Could you assert a religious freedom law as a defense?
The answer depends on whether you, as the employer, are protected by your state’s religious freedom law. Some religious freedom laws limit their protections to individuals or religious organizations, while others provide that employers and for-profit businesses have religious freedom rights. If your state extends religious freedom protections to for-profit businesses, you could assert religious freedom as a defense or possibly even a counterclaim against Samantha. If your state limits its protections to individuals, you could not use the law as a defense against Samantha’s claims.
State law vs. Title VII
The larger issue is whether a state religious freedom law would trump Title VII‘s prohibition against sex discrimination. Assuming the courts find that Title VII prohibits sexual orientation discrimination, state religious freedom laws would likely be preempted by Title VII. But what if an employee files suit under state antidiscrimination law? It is difficult to say what the result would be.
What if you fire Don, and he sues you? Some religious freedom laws allow an individual to file a claim alleging his right to exercise his religion was burdened. Theoretically, that means Don could sue you for burdening his right to exercise his religion. While you could assert compliance with Title VII as a defense to Don’s state-law claim (assuming Title VII prohibits sexual orientation discrimination), it is not clear whether that defense would be successful. It is also unclear whether Don could sue Samantha individually.
Let’s suppose you decide to fire Don and his manager, Skip, refuses to fire him. Skip believes firing Don would violate your state’s religious freedom law, and you have to fire Skip, too. You guessed it! Skip may be protected as a whistleblower under state law for refusing to participate in an act he reasonably believes is against the public policy of your state (firing Don).
Things can get even more complicated when you go beyond hiring and firing. What if the employer is a grocery store and an employee who works in the bakery refuses to make a cake for a same-sex couple’s anniversary? Would a religious freedom law prohibit the grocery store from disciplining the employee? Would the employee be able to sue her employer for burdening her right to religious expression? Moreover, with an issue like refusing to bake a cake, would Title VII preempt state law?
At this time, the answers to those questions are anything but clear. The good news is, the same old tried-and-true advice still applies to these scenarios. If Don refuses to stop making comments about Samantha’s lifestyle, make sure that each remark is documented in his personnel file and that he is warned of the consequences of failing to comply with the company’s harassment policy. Discipline Don because Samantha has indicated that she does not wish to discuss her lifestyle with him, not because of the religious content of the communications. As for Samantha, make sure you have a clear policy on harassment, including harassment based on sexual orientation, with multiple avenues for making a complaint. Train managers and employees on the policy, and make sure you can prove they were trained. If you receive a complaint, investigate it carefully and thoroughly. Lastly, because the law in this area is unsettled, be cautious and move slowly in disciplining employees after discussing your options with counsel.
Bottom line
The bottom line is that religious freedom laws will cause conflict with the ever-expanding legal protections available to LGBT employees. Currently, the law is unsettled on what religious freedom laws require and how they will interact with other laws. One thing is certain though: 
The federal government and 20 states already have religious freedom laws in place, and at least six other states are considering implementing such laws. Therefore, you are going to have to deal with these issues sooner or later. Make sure your policies and training records show that you are ready.
Brent E. Siler is an attorney in Butler Snow LLP‘s labor and employment practice group in the firm’s Memphis office. He may be reached at brent.siler@butlersnow.com .