Photo by Natalia Rosa on Unsplash
During this week’s Supreme Court confirmation hearings for judge Amy Coney Barrett, who is also a member of the conservative Christian community People of Praise, concerns are being expressed about how the nominee might rule on questions involving religion and the workplace. Given this, at least one recent case, which centers on the government suing the grocery giant Kroger for religious discrimination, is worth our consideration.
In 2019 Kroger, as a symbol of its support for the LGBTQ community, added the rainbow flag to the aprons its employees are required to wear. Two employees complained, citing religious discrimination against their Christian beliefs, and asked for an accommodation. Instead, they claim, they were fired. Last month, the Equal Employment Opportunity Commission (EEOC) filed suit against Kroger on behalf of the employees.
The Fair Labor Standards Act allows employers to mandate that employees wear a uniform. But, under Title VII of the Civil Rights Act of 1964, employers must make a reasonable and good faith effort to accommodate employees who believe the uniform they are required to wear contradicts their religious beliefs. The EEOC lawsuit alleges that Kroger did not make the effort to accommodate the employees, one of whom suggested she be permitted to cover the flag with her name badge. Allegedly, Kroger said, “no.”
Another possible accommodation that apparently was not offered: allow objecting employees to wear aprons without the flag. This option, of course, would need to have been offered to all employees to avoid perceptions of favoritism. Now, it’s possible that Kroger considered this option and decided that too many employees would take it, thus undermining the company’s efforts (and considerable expense) in support of the LGBTQ community. Further, the EEOC claims that it attempted to resolve the matter through its conciliation process, but without success. Hence the lawsuit.
Today, it’s common for major corporations to use their public relations, marketing, and philanthropic dollars to support traditionally marginalized communities, especially those that are the targets of discrimination, which is certainly the case for the LGBTQ community. Given the ever expanding diversity of customers and employees, this makes good business sense. At the same time, most companies understand and respect their employees’ legal right to display religious symbols on their person while at work, so long as those symbols aren’t a safety hazard or an attempt to disrespect, upset, and/or antagonize colleagues and customers.
But, a clear line must be drawn when an employee or employer uses their religious beliefs as an excuse for discrimination, bigotry, and intolerance; this includes deliberately attempting to hide, remove or deface the symbols of other religions and/or marginalized communities. So, in the Kroger case, the company made the right call by refusing to allow the employee to cover the flag with their name badge.
Still, Kroger could have accommodated the employees another way; by allowing them to wear aprons without the rainbow flag while encouraging any employee who wanted to wear aprons with the flag to do so. Of course, this accommodation might become problematic if employees started to discriminate and/or harass each other based on who was wearing the flag apron, or not. But, regardless of who was wearing what, nothing prevents Kroger from displaying rainbow flags or signage in support of the LGBTQ community throughout their stores.
Corporate discrimination, intolerance and forcing employees to wear uniforms displaying symbols in support of or against any social cause or religion is troubling and disrespectful. But it can be reasonably argued that it’s equally as troubling and disrespectful when a company discriminates against their employees based on the owners’ religious beliefs. This is what happened after a 2014 landmark decision, Burwell v. Hobby Lobby, where the Supreme Court held that “closely held” companies could deny their employees access to birth control.
In today’s marketplace, with an ever-increasing diversity of employees and customers, we at the Center for Respectful Leadership urge leaders everywhere to seek to understand, work through, and accommodate others in good faith and as best they can.
In this case, Kroger could have chosen to create a workable accommodation for its employees while still supporting the LGBTQ community. But instead, they now have a federal lawsuit to defend against and a negative hit on their brand. It didn’t have to be this way.
