Case law: Business refusing order because customer wanted slogan on product the owners disagreed with is not discriminatory
A Northern Irish bakery describing itself as a ‘Christian business’ did not discriminate against a gay customer when it refused his order to decorate a cake with images and slogans that were not illegal, but were against its directors’ religious beliefs, the Supreme Court has ruled.
This update was published in Legal Alert - November 2018
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A Northern Irish bakery cancelled a gay customer’s order for a cake decorated with an image and words supporting gay marriage, saying it was against their genuine and deeply held religious beliefs that marriage can only be between a man and a woman. The customer was a member of a voluntary group set up to increase visibility of the lesbian, gay and bisexual and transgendered community in a positive manner. The cake decoration was to include the name of the organisation, and the slogan ‘Support Gay Marriage’. The cake was for an event to celebrate progress in a highly public political campaign to introduce same-sex marriage in Northern Ireland. The customer claimed direct discrimination on grounds of his sexual orientation and religious and/or political beliefs.
There is direct discrimination if someone is treated less favourably than another person because of a ‘protected characteristic’, such as sexual orientation or beliefs. Other protected characteristics are gender, age, being or becoming a transsexual person, race (including colour, nationality, or national or ethnic origin), disability, religion or belief (or lack of it), marital status (including civil partnership), pregnancy or childbirth.
One form of direct discrimination is ‘associative’ discrimination. This occurs when a person is treated less favourably not because they themselves have a protected characteristic, but because someone else with whom they have a sufficient association does (for example, when someone is treated less favourably because they have a disabled relative).
The bakery said it did not discriminate against the customer on grounds of either his sexual orientation or his political beliefs, but because the requested message on the cake was contrary to its owners’ religious beliefs. It said it would have cancelled an identical order from a straight customer, irrespective of their political beliefs. The bakery said it did not know at the time that the customer was gay, or what his political beliefs were.
The Northern Irish Court of Appeal ruled earlier that there had been ‘associative discrimination’. It said the reason that the customer had been treated less favourably was because the slogan on the cake related to gay and bisexual people – it was those groups whose political beliefs included a belief in gay marriage. Refusing the order therefore discriminated against the customer because he was associated with people of a particular sexual orientation and particular political belief.
The Supreme Court has overruled that ruling. It said that the bakery did not refuse to provide goods and services to the customer because of his sexual orientation when it refused to supply a wedding cake with the slogan ‘support gay marriage’ on it. Nor did it (or the owners) discriminate on the grounds of religious or political belief, and there had been no associative discrimination because there had not been a sufficient association between the customer and particular persons with those protected characteristics.
It also relied on human rights laws which protect people from being forced to express a political opinion they do not believe in.
The Supreme Court ruled, therefore, that the bakery had not been directly discriminatory on grounds of either sexual orientation or political belief.
- Businesses should think carefully before refusing customer orders if it is arguable that the refusal is because of a protected characteristic of the customer, or that there has been associative discrimination – but otherwise they are free to refuse the order.
Case ref: Lee v Ashers Baking and Ors No.  UKSC 49
Please note: An article published in the December 2016 edition of Legal Alert covered this case at an earlier stage in the legal process.
Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.
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