The Equal Employment Opportunity Commission (EEOC) filed a lawsuit this month accusing grocery giant The Kroger Company of violating Title VII of the Civil Rights Act of 1964. The suit stems from Kroger’s alleged refusal to accommodate two former Christian employees, aged 72 and 57, who wanted religious accommodations so they would not be required to wear an apron embroidered with a blue, red, and yellow heart, which they believed represented advocacy for the LGBTQ community. Both employees were fired in 2019.
In the complaint, attorneys for the EEOC quoted a letter from one of former employees: “I have a sincerely held religious belief that I cannot wear a symbol that promotes or endorses something that is in violation of my religious faith … I respect others who have a different opinion and am happy to work alongside others who desire to wear the symbol. I am happy to buy another apron to ensure there is no financial hardship on Kroger.”
The flag representing LGBTQ pride comes in a variety of styles, the most recognizable of which is a simple rainbow flag. The Kroger heart does not include the majority of colors in the rainbow flag, and advocates of the LGBTQ community have stated that the Kroger heart does not evoke LGBTQ pride. It is unclear in the complaint whether Kroger ever intended the heart emblem to symbolize LGBTQ solidarity. However, the former Kroger employees felt that wearing the Kroger apron would violate their religious commitments by advertising advocacy for the LGBTQ community.
Reasonable Accommodation
Requesting religious accommodation is a protected activity. An employee must make the employer aware of both the need for an accommodation and that it is requested due to a conflict between religion and a workplace policy.
Once an employee informs an employer that a sincerely held religious belief, practice, or observance conflicts with a work requirement, Title VII requires the employer to offer a reasonable accommodation unless doing so would pose an undue hardship.
An accommodation would pose an undue hardship if it would cause more than a de minimis cost to the operation of the employer’s business. Some costs considered are monetary or the burden on the conduct of the employer’s business. For example, courts have found undue hardship where the accommodation diminishes efficiency in other jobs or infringes on other employees’ job rights. If there is a dress policy that conflicts with an employee’s religious beliefs or practices, the employee may be granted an exception to the policy as a reasonable accommodation.
If the employer does not grant the employee’s accommodation, but instead provides an alternative accommodation, the employee must cooperate by attempting to use the employer’s proposed accommodation to meet the religious needs in question.
Kroger might have been able to avoid a lawsuit if it had given its employees aprons without the heart design or if it had offered an alternative design. However, there can be limited situations in which an employer believes the need for dress uniformity is so important that modifying the work attire would pose an undue hardship. These situations are judged on a case-by-case basis.
Determining Sincerity
Employers usually will not have reason to question whether the practice at issue is religious or sincerely held, but if the employer truly doubts the basis for the accommodation request, it is entitled to inquire into the facts and circumstances of the employee’s claims.
Some factors that might undermine an employee’s assertion that he or she sincerely holds a specific religious belief are: whether the employee has behaved in a manner inconsistent with the declared belief, whether the timing of the request raises suspicion, and whether the employer has reason to believe the accommodation is not sought for religious reasons.
Some Lessons for Employers
The litigation between Kroger and its former employees may have been the result of unclear communication or mixed signals. How can an employer avoid misunderstandings or misperceptions in the workplace and ensure that everyone’s rights are being protected? Here are some tips:
- Be clear about your culture. Your workplace should clearly define important values and commitments in an employment handbook, through new employee orientation, and through additional means, such as posted notices or incorporating discussion of culture into the work day.
- Regularly train your workplace. Familiarize your management and workers with your business’s policies and procedures on a regular basis. Training around workplace harassment is key, but trainings also provide a good opportunity to review other policies and to reiterate your company’s values.
- Seek to understand. Once an employee requests an accommodation, try to understand the employee’s perception and experience of their sincere religious, ethical, or moral beliefs. Ensure that you take adequate time in reviewing an accommodation request. Ask the employee respectful and thoughtful questions and do some research if you need to.
- Communicate clearly. When you respond to an employee’s concern over a policy, do so by clearly explaining the purpose of the policy and how it aligns with mission and values. For accommodations, clearly explain the contours of what you are offering and why and reiterate that you are open to ongoing discussion on the matter as necessary.
- Be flexible. Allow for some degree of flexibility in dress code policies and other workplace regulations. This flexibility will enable you to provide accommodations as needed.
- Fairness is key. Employees who have less common religious beliefs deserve the same consideration as those from lesser known traditions and are equally protected under the law. Treating some groups less favorably than others when it comes to religious accommodation could expose your business to liability. Take steps to ensure unconscious biases are not guiding you into danger and that all members of management are on the same page.
- Always demonstrate respect. More than anything, people want to know they are respected at work. If you doubt an employee’s sincerity in asking for an accommodation or believe a worker is misguided, use a calm, respectful tone in communicating your concerns and try to proactively offer solutions that work for everyone.
As always, connect with experienced employment counsel should you be faced with a difficult religious accommodation personnel situation.