Kroger agreed to pay $180,000 to settle a case brought by the Equal Employment Opportunity Commission (“EEOC”) alleging discrimination and retaliation against two former employees who refused to wear a heart symbol they believed demonstrated support for the LGBTQ community.
According to the case, both women believe in the literal interpretation of the Bible and have a sincerely held belief that homosexuality is a sin. In 2019, Kroger instituted changes to the dress code requiring all employees to wear a new apron with a four-colored heart logo embroidered on the top left. Both employees held a “good faith belief” that the new logo represented support for and endorsement of the LGBTQ community.
In 2019, Kroger debuted “Our Promise,” which was a “new marketing campaign, including a new logo, symbol, slogan, brand color pallet, advertising campaign, and brand identity.” The heart symbolized “Kroger’s commitment to providing friendly and caring service, fresh goods to customers, uplifting service, and improving every day.”
Kroger revised its dress code to require store associates to wear an apron with the “Our Promise” symbol (although some associates were exempt).
One employee requested as an accommodation to wear a name tag over the heart. She told her employer, “I am requesting a reasonable accommodation of this dress code with regard to my religious belief … I am simply asking to wear my name badge over the heart logo.”
The other employee offered to wear an apron she agreed to purchase at her expense. She told her employer, “I have a sincerely held religious belief that I cannot wear a symbol that promotes or endorses something that is in violation of my religious faith … I respect others who have a different opinion and am happy to work alongside others who desire to wear the symbol. I am happy to buy another apron to ensure there is no financial hardship on Kroger.”
Both women were denied their requested accommodations, and then ultimately disciplined and fired for non-compliance with Kroger’s established dress code.
Kroger admitted that the employees requested the religious accommodations, and that those accommodations were denied because the symbol was not advocating for the LGBTQ community. Kroger also alleged that it would be an undue hardship to grant the accommodation. Kroger admitted the employees were disciplined and terminated for violation of their dress code when the employees refused to wear the aprons displaying the logo.
The EEOC filed a federal lawsuit against Kroger for alleged violations of Title VII of the Civil Rights Act, which prohibits discrimination based on race, gender, national origin, color and religion.
In litigation, Kroger admitted it did not accommodate the employees because there was “nothing to accommodate.” The “Our Promise” symbol was not intended to have any connection to the LGBTQ community.
In refusing to dismiss the case as a matter of law, in part, the court held, “While I understand that Kroger’s position is that this is not an LGBTQ symbol, the subject employees recognize it as such, and it is likely to be seen likewise by the public. Regardless, wearing it is objectionable to these employees, and because of that, under Title VII, they have a federally granted right not to wear it unless the company can show such a strong interest in forcing it that the company’s interest over-rides the employees’ religious liberty.”
Kroger contended that it was objectively unreasonable to believe that the “Our Promise” symbol supports and promotes the LGBTQ community, and because of that there was no conflict between the dress code and the employees’ religious beliefs.
Rejecting this position, the court held, “Regardless of what Kroger intended for its Our Promise symbol to mean, [the employees] object to being seen as supporting or promoting homosexuality. So, the real question would be whether it was objectively reasonable for [the employees] to believe that other people (i.e., customers) would think that the multi-colored heart was a pro-LGBTQ symbol. And a rational juror could go either way on that question.”
Employees have a right to a reasonable accommodation for religious beliefs. The employer should not question the reasonableness of that belief, but should only provide a reasonable accommodation unless doing so creates an undue burden. These should not be emotional questions, but legal ones.
In this case, accommodating the employees would have been simple and reasonable.
Anytime an employer creates a symbol or image, it needs to consider whether the image could be construed contrary to its intentions.
Hanover County Public Schools recently apologized for creating an image on teacher T-shirts that some complained resembled a swastika, even though that was not the intention.