The U.S. Equal Employment Opportunity Commission has filed a lawsuit against the grocery store chain Kroger, claiming that a store in Arkansas violated federal law when it fired two women who refused to wear the company apron with a gay and transgender rainbow symbol on it.
The women believed wearing the apron would endorse gay and transgender values that violated their sincerely held religious beliefs and so refused and suggested alternatives. The lawsuit raises an important question: Is it illegal to require a dress code that espouses one belief system and that potentially violates the sincerely held religious beliefs of the person wearing it? On the heels of the Supreme Court’s decision in Bostock v. Clayton, in which the ruling protects gay and transgender people from discrimination under Title VII of the Civil Rights Act of 1964, these cases combining social justice issues, religious freedom, and the law are becoming increasingly prevalent.
Kollman and Saucier, a firm that specializes in employment law, described the legal rub thus: “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.’”
In this case, it’s important to understand why or how Kroger thought the best and legal course of action was to terminate the employment of these two people rather than simply allow them to wear the company apron without the rainbow. Hypothetically, if this would have happened and a gay or transgender employee complained about discrimination, surely, Kroger could explain that reasonable accommodations have been made per Title VII. Such a complaint hardly seems like it would hold up in a court of law.
In an email, Hiram Sasser, executive general counsel for the First Liberty Institute, told me, “This is one of the most important religious liberty cases going on right now in the country. Companies like Kroger must be held accountable so that people of faith can continue to survive in the workplace.”
While this case does not specifically involve a gay or transgender person like Bostock did, it demonstrates something conservatives were afraid might happen when they saw the ruling: If gay and transgender expressions are protected in the workplace, how far does that go? If someone disagrees, as the Kroger employees did, is the gay or transgender employee or employer more protected? Aren’t both beliefs supposed to be protected under the law?
John Hirschauer described this potential dilemma in National Review in June, writing, “In the wake of Bostock, what these restrictions will entail for religious employees is unknown. Will an employee who displays iconography associated with a religion that opposes same-sex marriage be complicit in creating a ‘hostile work environment’ for LGBT employees, and thus subject to termination by an employer looking to shield himself from liability?” Hirschauer continues, “If someone misgenders Caitlyn Jenner at the watercooler, are they creating a hostile work environment for transgender employees?”
Delner Franklin-Thomas is the district director of the EEOC’s Memphis District Office, which has jurisdiction over Arkansas, Tennessee, and portions of Mississippi. In a statement about the case, Thomas said, “The EEOC protects the rights of the LGBTQ community, but it also protects the rights of religious people.”
The Kroger Company is the largest supermarket by revenue in the United States and the second-largest general retailer. Even under the Bostock ruling, surely, this successful grocery store chain can adapt to and understand that a pluralistic route is best in a democracy. If the law holds that belief systems and expressions of said beliefs warrant equal protections, Kroger and other employers must determine a simple, consistent way to accommodate that without discrimination. If not, we will soon find ourselves awash in a bevy of social justice-related lawsuits, and I fear the losers will be people of faith.
Nicole Russell (@russell_nm) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is a journalist who previously worked in Republican politics in Minnesota.
