Kroger settles religious discrimination dispute over ‘rainbow’ symbol

MARK GORMUS/TIMES-SHIPPING

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 which they felt showed their support for the LGBTQ community.

As the case may be, both women believe in the literal interpretation of the Bible and sincerely believe 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-color heart-shaped logo embroidered on the upper left. Both employees believed in good faith that the new logo represented support and endorsement from the LGBTQ community.

In 2019, Kroger launched “Our Promise”, which was a “new marketing campaign, including a new logo, symbol, slogan, brand color scheme, advertising campaign and brand identity”. The heart symbolized Kroger’s “commitment to providing friendly and thoughtful service, fresh produce to customers, uplifting service, and to getting better every day.”

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Kroger has revised its dress code to require store associates to wear an apron with the “Our Promise” symbol (although some associates are exempt).

An employee requested as an accommodation to wear a name tag over the heart. She told her employer, “I request a reasonable accommodation of this dress code with respect to my religious belief…I simply request to wear my name badge over the heart logo.”

The other employee offered to wear an apron which she agreed to buy at her own expense. She told her employer, “I have a sincere 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 hold a different opinion. and I am happy to work alongside others. who wish to wear the symbol. I am happy to buy another apron to make sure there is no financial hardship for Kroger.

The two women were refused the requested accommodation, then were finally disciplined and fired for not respecting the dress code established by Kroger.

Kroger admitted that employees requested the religious accommodations and that those accommodations were denied because the symbol did not champion the LGBTQ community. Kroger also alleged that it would be an undue hardship to grant the accommodation. Kroger admitted that employees were disciplined and fired for violating their dress code when employees refused to wear the aprons displaying the logo.

The EEOC has filed a federal lawsuit against Kroger for alleged violations of Title VII of the Civil Rights Act, which prohibits discrimination based on race, sex, national origin, color and religion.

In litigation, Kroger admitted it failed to accommodate employees because there was “nothing to accommodate.” The “Our Promise” symbol was not intended to have any connection to the LGBTQ community.

Refusing to dismiss the case as a question of law, in part, the court said, “While I understand Kroger’s position is that it is not an LGBTQ symbol, the employees affected the recognize it as such, and it is likely to be seen as such by the public. Either way, wearing it is objectionable to such employees, and because of this, under Title VII, they have the right , granted by the federal government, not to wear it unless the company can show such a strong interest in forcing it that the company’s interest outweighs the employees’ “religious freedom.”

Kroger argued that it was objectively unreasonable to believe that the “Our Promise” symbol supports and promotes the LGBTQ community, and because of this, there was no conflict between the dress code and employees’ religious beliefs.

Rejecting this position, the court said, “Regardless of what Kroger intended its Our Promise symbol to mean, [the employees] object to being perceived as supporting or promoting homosexuality. The real question would therefore be whether it was objectively reasonable to [the employees] to believe that other people (i.e. customers) would think the multicolored heart was a pro-LGBTQ symbol. And a rational juror could go either way on this issue.

Employees are entitled to reasonable accommodation for religious beliefs. The employer should not question the reasonableness of this belief, but should only provide reasonable accommodation unless it creates an undue burden. These questions should not be emotional, but legal.

In this case, accommodating the employees would have been simple and reasonable.

Whenever an employer creates a symbol or image, they must consider whether the image could be interpreted contrary to their intentions.

Hanover County Public Schools recently apologized for creating an image on teachers’ T-shirts that some say resembled a swastika, even though that was not the intention.

Karen Michael is a lawyer and president of Richmond-based Karen Michael PLC and author of “Stay Hired”. She can be contacted at [email protected]

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