Accommodating an employee’s sincerely held religious beliefs can be tricky. In EEOC v. Kroger, a court in Arkansas gives some guidance on how to handle these claims.

The case law surrounding religious failure-to-accommodate claims is pretty well-settled.  First, the employee must show that a workplace rule conflicts with his or her sincerely held religious belief. Second, the employee must inform the employer of the conflict. Third, the employee has to be disciplined for failing to comply with the conflicting workplace rule. But what if there is a conflict about what the workplace rule really means and whether it is connected to any sort of religious belief? The court in Arkansas has now said that such an issue may be up to a jury.

The Mystery of the Colorful Heart

In 2018, Kroger launched a company initiative entitled “Our Promise.” The campaign had four prongs: 

1.  Everyone friendly and caring 

2. Everything fresh 

3.  Uplift every way

4.  Improve every day 

So far, so good. These four ideals were represented by four concentric hearts of different colors. In mid-2018, Kroger announced a new uniform policy: store employees would wear a blue apron with the Kroger logo and the Our Promise heart symbol. Kroger sent out a video and card to all employees explaining the apron and what each color of the heart meant.

By April 2019, supervisors at the Kroger in Conway, Arkansas, began distributing the new aprons that included the Our Promise heart. Several employees complained about the multicolored heart symbol because they believed that it supported or promoted the LGBTQ community. Some employees covered up the heart with their nametag. Some refused to wear the apron at all. At least one employee colored in the heart with a red marker. Kroger told employees they could not alter the apron and they could not refuse to wear it.

Request for Religious Accommodation

Two employees told their supervisors that they would not wear the apron with the heart symbol because their religion prohibited them from “advertising that Kroger supported LGBTQ.” Kroger disciplined both employees for failing to comply with the dress code. After these disciplinary actions, both employees wrote to their supervisor seeking a religious accommodation — they wanted to wear aprons that did not include the heart symbol. The supervisor told the employees that the heart symbol was part of the Our Promise initiative and had nothing to do with sexual orientation or gender identity. Kroger determined that there was “nothing to accommodate,” because the symbol had no connection with the LGBTQ community. The employees continued to refuse to wear the aprons with the heart and were eventually terminated for violating company policy. 

The employees filed EEOC charges, and the EEOC issued a determination that Kroger had violated Title VII’s prohibition against religious discrimination. The EEOC filed suit on behalf of both former Kroger employees for both discrimination and retaliation.

It Does Not Mean What You Think It Means

Kroger moved for summary judgment on both the discrimination and retaliation claims. While it did not dispute that the two employees believed that homosexuality is a sin and that they could not support or promote it, Kroger pointed out that Kroger’s dress code (and the Our Promise heart symbol) did not violate that belief. Kroger argued that it was objectively unreasonable to believe that the multicolored heart symbol supports and promotes the LGBTQ community. They pointed to the evidence of what the heart actually stood for — which had nothing to do with the LGBTQ community. Therefore, according to Kroger, the dress could not be a conflict with the employees’ religion. 

The court disagreed. Recent United States Supreme Court precedent holds that a court could not decide that there was no conflict where the plaintiff sincerely believed there was. The Court stated that regardless of what Kroger intended for the heart symbol to mean, at this stage of the proceeding the fact that the employees objected to being seen as supporting homosexuality was the important inquiry. A jury would have to determine whether it was objectively reasonable for customers to think that the multicolored heart was an LGBTQ symbol. 

Kroger also argued that allowing the employees to be excepted from the dress code would cause it undue hardship and therefore the case should be dismissed. The Court also felt that this question was one for the jury. 

The court granted summary judgment to Kroger on the employees’ claims of retaliation. The court held that when an employer denies an employee’s claim for religious accommodation and then terminates the employee because he or she did not comply with the conflicting policy, that employee can bring a failure-to-accommodate claim, but not a retaliation claim, simply for failing to comply.

Should We All Just Stay Away from Symbols?

To be clear, this opinion is based on specific facts and is from one federal judge. The decision does not preclude Kroger from arguing at trial that the employees misunderstood the meaning of the symbol. However, this case does show some of the difficulty that surrounds religious accommodation issues. Courts tend to give employees the benefit of the doubt on the sincerity of their religious belief. This opinion also shows that the undue hardship defense may be difficult to win. Overall, this opinion shows that good dialogue with employees on workplace practices early on may nip future claims in the bud.