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For Want of a Cupcake? Bakery’s Refusal to Serve Same-Sex Couples is Found in Violation of Colorado’s Anti-Discrimination Act

August 27, 2015

On August 13, 2015, in a unanimous decision, the Colorado Court of Appeals affirmed a May 2014 finding from the Colorado Civil Rights Commission that a bakery’s policy of turning away same-sex couples who requested wedding cakes violates Colorado’s Anti-Discrimination Act (“CADA”). CADA prohibits discrimination based on sexual orientation, which is not a protected class under Title VII. Unlike Title VII, CADA applies to Colorado employers of any size.

In 2012, a same-sex couple requested that Masterpiece Cakeshop make a cake for their wedding reception. The bakery owner denied the couple service, citing his religious beliefs and the store’s policy to deny service for same-sex wedding cakes. The couple filed a complaint with the Colorado Civil Rights Division (CCRD) alleging that the bakery violated Colorado state law prohibiting businesses from refusing service based on factors such as race, marital status or sexual orientation. The CCRD found that the bakery discriminated against the same-sex couple in violation of Colorado law. The bakery appealed the decision to the Colorado Civil Rights Commission, who affirmed the CCRD’s finding that the refusal to serve a same-sex couple constituted discrimination based on sexual orientation in violation of Colorado law. The Colorado Court of Appeals agreed and held that “discrimination on the basis of one’s opposition to same-sex marriage is discrimination on the basis of sexual orientation.” The bakery said it will likely appeal the ruling to the Colorado Supreme Court.

Regardless of religious liberties, refusing to provide services for same-sex marriages and couples is risky business in Colorado. Colorado employers should take time now to review their written and actual day-to-day policies to ensure their customers are not being subject to discriminatory practices under CADA. The importance of doing so cannot be overstated, with CADA, effective January 1, 2015, now allowing for possible compensatory and exemplary damage awards.

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