Washington businesses urge state’s highest court not to carve out exception to Washington’s anti-discrimination law

Affiliate: ACLU of Washington
March 6, 2019 2:15 pm

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Several prominent Washington businesses and business associations are urging the state supreme court not to carve out an exception to the Washington Law Against Discrimination (WLAD) that would allow an employee of a business to refuse to serve someone based on their personal beliefs.

In a friend-of-the-court brief filed on March 5, 2019, in Ingersoll v. Arlene’s Flowers, the businesses describe the many ways that a diverse, inclusive, and welcoming workforce and society is good for business and for society. The brief also describes how undermining the WLAD would expose businesses to liability from both customers and employees.

The case arose from an incident of discrimination in 2013. While planning their wedding, Curt Freed and Robert Ingersoll were refused service by Arlene’s Flowers in Richland because they are gay. The ACLU represents Freed and Ingersoll in their lawsuit against the florist for violating their rights.

The broad exception proposed by the florist and her lawyers would render unenforceable non-discrimination policies designed to ensure that all customers have access to a business’s goods and services. Employees who can argue that their job responsibilities convey an expressive message, or that they have a compelling religious reason for denying service, could refuse to serve any number of people.

“This would put businesses that want all people to have access to their goods and services in a Catch-22,” said Lisa Nowlin, ACLU of Washington staff attorney.

A business whose individual employees discriminate against its customers based on their individual religious beliefs may find itself sued by those customers, as in this case. But a business that doesn’t permit its employees to discriminate could also find itself sued by its employees, or even potential employees.

In the case at hand, the Washington Supreme Court unanimously found in February 2017 that the Richland florist violated the state’s anti-discrimination and consumer protection laws when she refused to sell flowers to the couple for their wedding.

In June 2018, the U.S. Supreme Court vacated the Washington State Supreme Court’s decision and remanded the case back to the Washington Supreme Court to be reconsidered in light of the U.S. Supreme Court’s decision in Masterpiece Cakeshop. In Masterpiece Cakeshop, the Supreme Court underscored the validity of laws prohibiting discrimination but ruled for the Colorado bakery based on concerns about anti-religious bias by a state civil rights commission. In that decision, the Court made no indication that the lower courts ruled incorrectly in Ingersoll v. Arlene’s Flowers and made no decision on the case’s merits.

The brief was filed by Bruce E. H. Johnson, Kenneth E. Payson, and Jennifer K. Chung, of Davis Wright Tremaine LLP, Amanda Beane and Nitika Arora, of Perkins Coie, LLP.

It was signed by Adrift Hotel, Amazon, Brooks Sports, Inc., Elliot Bay Book Company, Expedia Group, Kaiser Permanente Washington, Microsoft, RealNetworks, Inc., Salesforce, Zillow Group, 98point6 Inc., Broadway Business Improvement Area, Capitol Hill Chamber of Commerce, Economic Development Alliance of Skagit County, and Greater Seattle Business Association.

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