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EEOC Kroger Suit Shows Rift at Border of Religious Rights, Bias

Dec. 2, 2020, 11:16 AM

An EEOC religious discrimination lawsuit against Kroger Co. has sparked internal and external debate over whether religion can, or should, be used as a tool by the agency to potentially impinge upon the rights of LGBT workers, and those who belong to other legally protected categories.

Two grocery workers claimed that wearing an apron embroidered with a small multi-colored heart—part of the Kroger uniform—violated their religious belief that homosexuality is a sin. The U.S. Equal Employment Opportunity Commission sued on their behalf in September.

That Arkansas federal court filing sparked an intra-agency debate over whether the commission was advocating intolerance in the guise of protecting workers’ rights, a schism laid bare in correspondence obtained by Bloomberg Law.

This lawsuit doesn’t open the doors for religious justification for other forms of bias, EEOC General Counsel Sharon Gustafson said in response to concerns broached by an EEOC attorney identified in the exchange only as “Markus.”

“An employee who wants to berate, offend, or refuse to work with other employees is quite different from an employee who wants to be left alone to do their job,” Gustafson said in an Oct. 6 emailed response to her staff. “Nothing in the Kroger case will facilitate discrimination in the workplace. The Charging Parties in Kroger were not harassing their fellow employees. They were simply asking to be permitted to do their jobs without being required to espouse positions contrary to their religious beliefs.”

Her view runs counter to some civil rights groups’ interpretation of the agency’s stance.

The EEOC’s legal position opens up the question of whether religious liberties should trump other workplace protections, according to Sunu Chandy, legal director of the National Women’s Law Center.

The agency’s arguments also might be on shaky ground, according to academics and management attorneys, given that Kroger claims the logo doesn’t indicate support of the LGBT community—in fact, the grocery store has a separate logo for that, and it doesn’t require employees to display it.

“It’s giving a red carpet to employers that want religious objections or practices to take precedence over all of the other kinds of civil rights, without regard to harm to third parties or other coworkers, and this is out of sync with how these rights must be balanced,” Chandy said. “It really leads me to ask a lot of questions about what this lawsuit is all about. What was it trying to signal to larger communities?”

Alliance Defending Freedom, a Christian non-profit organization that advocates for religious freedom, applauded the agency’s stance “against Kroger’s blatant religious discrimination.”

“Americans are tired of false accusations of bigotry,” John Bursch, ADF’s senior counsel and vice president of appellate advocacy, said in an email. “No one should be forced to express something that they do not believe; that’s true no matter what side of the aisle you’re on.”

The EEOC declined to comment on the Gustafson/Markus exchange.

The lawsuit, and consequent scuffles, also speak to a larger debate on the balance of religious liberties and LGBT worker protections, at a time when the EEOC is being closely watched for any stance it may take on the matter.

“An employer’s permitting illegal discrimination (including in the form of harassment) against an employee in a protected group is a very different thing from an employer’s requiring employees to affirmatively say things or to take actions that violate their religious consciences,” Gustafson told her staff.

Agency Argument

The Kroger store in Conway, Ark., failed to accommodate the sincerely held religious beliefs of employees Brenda Lawson and Trudy Rickerd, the EEOC alleges in the complaint, and disciplined and terminated the workers because of their beliefs. The two workers believed the embroidered heart represented support for the LGBT community, according to the agency.

Markus had argued to Gustafson that there isn’t a “difference, under EEOC’s current interpretation of the law, between a sincerely held religious belief that ‘homosexual acts are sins’ and a sincerely held religious belief that the Jews killed Christ or that the religiously ordained condition of Blacks should be one of slavery,” according to the papers obtained by Bloomberg law.

While the general counsel responded that there are circumstantial differences between those scenarios, civil rights groups believe the agency’s legal approach is opening a gateway through which others can follow.

“Think about the next time when they say, ‘A same-sex couple is getting rung up in my line, I’m not going to take care of them,’” NWLC’s Chandy said of a hypothetical situation in which a same-sex couple is waiting in a grocery store check-out line. “This seems to be going down a road that is incredibly dangerous.”

In Gustafson’s response to Markus, she used the example of an employer requiring a Jewish employee to wear a Christian cross, which she says would be a violation of Title VII.

“The employer may not force the employee to espouse—through the wearing of symbols or otherwise—beliefs that he does not espouse and that contradict his religious convictions,” the Kroger general counsel said.

Kroger Responds

Kroger, however, has said that the symbol on the apron doesn’t indicate support of the LGBT community. The company has a separate “Kroger PRIDE logo” that serves that purpose, according to the grocery store.

The logo the workers refused to wear is known as the “Kroger’s Promise” logo, comprised of concentric hearts, embroidered in four colors, each one symbolizing a specific company value, according to the grocer’s answer to the complaint, filed on Nov. 23.

Dark blue stands for friendly and caring service; yellow represents a commitment to providing fresh goods; red reflects a commitment to uplifting service, and light-blue illustrates the grocer’s commitment to daily improvement, according to the filing

“Notably, the symbol is not a rainbow,” it said then. The company declined to comment on pending litigation.

That explanation could compromise the agency’s stance, according to Robin Shea, a partner with management firm Constangy Brooks, Smith & Prophete LLP, who said she’s “generally in favor” of religious accommodations. The first question asked about religious accommodations is whether a worker has a sincerely-held religious belief.

“I think that pertains to the belief itself, as opposed to thinking a company logo looks too much like an LGBT symbol,” Shea said. “I’m not sure that sincerely-held part carries that far.”

Chandy also said that if the expression in question were explicitly supportive of the LGBT community, there would “at least be a conversation.”

“But with this tiny little heart that doesn’t even mean that, I find this is really poor use of EEOC resources,” she said.

The ADF’s Bursch said the U.S. Supreme Court has “repeatedly emphasized that the belief that marriage is between one man and one woman is based on honorable religious premises and is held in good faith by reasonable and sincere people.” His emailed response didn’t address the agency’s litigation strategy in particular, nor Kroger’s response.

New York University School of Law professor Shirley Lin said the agency would have uncovered in the investigation and conciliation stages that the workers objected to wearing the apron “based upon a misunderstanding.”

“But now, without saying so in the complaint, the plaintiffs are essentially asking for a right not to wear a logo based on a subjective belief, even if that belief is untethered from objective facts,” she said in an email. Lin researches workplace accommodations, and previously litigated on behalf of civil rights plaintiffs.

“The position means anyone in a future case could insinuate religion as a way to silence or exclude disfavored groups from the workplace, regardless of whether the ability to abide by their own beliefs was actually affected at all,” Lin said.

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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