Meyers, Roman, Friedberg & Lewis has a Coronavirus Response Team. Contact Jon Hyman to help with how your business should
continue to respond to this national emergency.


Tuesday, September 22, 2020

“Religious freedom” ≠ freedom to discriminate (but sometimes it must be accommodated anyway)


The EEOC has sued an Arkansas Kroger after it fired two of its employees for allegedly objecting to its new dress code that required employees to wear an apron that contained rainbow-colored heart insignia. 

According to the EEOC, the women believed the insignia endorsed LGBTQ values, which contradicted their personal religious beliefs. As an accommodation, one offered to cover the insignia and the other offered to wear a different apron without it. The EEOC says that Kroger refused their accommodation requests, disciplined them, and ultimately fired them.  

According to Delner-Franklin Thomas, district director of the EEOC's Memphis District Office, "Companies have an obligation under Title VII to consider requests for religious accommodations, and it is illegal to terminate employees for requesting an accommodation for their religious beliefs. The EEOC protects the rights of the LGBTQ community, but it also protects the rights of religious people."

I have two thoughts about this case.

First, employers should not require employees to wear logos, emblems, or insignia that go against an employee's personal values. Whehter it's an LGBTQ rainbow, or a Black Lives Matter button, or a MAGA hat, employees have the right to their own belief structures, and employers should not force, under threat of termination or otherwise, employees to don something with which they do not agree or which offends them.

Secondly, covering this best practice under the broad shroud of religious liberty is dangerous. It's a slipperly slope between the religious freedom to refuse to wear rainbow insignia, to firing an LGBTQ employee, to firing an Afircan-American employee, all in the name of "it's against my religious beliefs." 

Still, sometimes, however, an employer must find the reasonable middle ground, and in this case, if the EEOC's allegations are correct, this employer did not find it. I am drawn back to the words of former EEOC Commissioner Chai Feldblum, who wrote the following on this issue two years ago, in a piece entitled, What I Really Believe About Religious Liberty and LGBT Rights.

Respecting religious organizations and people, and respecting LGBT organizations and people (including religious LGBT organizations and people) will result in different answers in different circumstances, and the law should reflect that.… When dealing with individuals, the government should respect a statement by a religious person that complying with a non-discrimination law or some other law will place a burden on that person's religious beliefs, unless there is a good reason to believe that statement is false. If there is a way to accommodate the person and still achieve the compelling purpose of the law, the government should do that. If there is no way to accommodate the person, and still ensure that the compelling purpose of the law is achieved, then the accommodation should not be made. That is what nuance means.

Ms. Feldblum advoates for an eminently reasonable middle ground. Sometimes the path of least resistance is not only the easiest thing to do, but its also the legal thing to do. In this case, it seems as if this employer failed on both accounts.

* Photo by Chris Johnson on Unsplash