We’ve heard a lot about LGBTQ issues in the workplace this year, including the Supreme Court’s landmark June ruling in Bostock v. Clayton County. However, a September 14, 2020 lawsuit filed by the EEOC against Kroger in Arkansas raises a different workplace issue relating to the LGBTQ community: does an employer have to accommodate the religious beliefs of employees who believe LGBTQ practices violate their sincerely held religious beliefs?
The case arises out of two employees in an Arkansas Kroger who refused to wear an apron with a rainbow logo that they believed showed advocacy for LGBTQ rights. One employee offered to wear a different apron; the other offered to cover up the rainbow logo. Both employees follow a literal interpretation of the Bible and believe homosexuality is a sin. The suit alleges that, after the employees refused to wear the apron with the rainbow logo, they were disciplined and ultimately fired.
As sensitive political and social justice issues continue to surface in the workplace, the EEOC’s suit raises interesting questions. Under Title VII of the Civil Rights Act of 1964, an employer has an obligation to make reasonable accommodations to an employee’s sincerely held religious beliefs. However, an employer need not make an accommodation that imposes an “undue hardship” on the employer. Unlike the ADA, the employer has a relatively low burden to establish undue hardship: it need only show that the requested accommodation imposes “more than a minimal burden on operation of the business.”
As the Kroger case evolves, I’ll be curious to see what led to the discharge of these employees. For example, did they reasonably believe the apron had a logo supporting LGBTQ rights on it? Were other employees allowed to wear different aprons? Did Kroger offer any alternatives to these employees? And what were the grounds for their discipline and terminations? In any event, this is a yet another example of the “sticky wicket” employers must navigate as they try to accommodate competing personal, political and religious values in the workplace.