36 | EEOC-INITIATED LITIGATION: 2023 EDITION ©2023 Seyfarth Shaw LLP specific restrooms, the court found that such policies comported with Title VII because they applied evenly to heterosexual and homosexual activity, did not “treat one sex worse than the other,” and therefore did not discriminate “because of sex.” 64 In addition to the direct challenges to the Bostock fallout described above, the EEOC has also started to address this conflict in its more “routine” litigation. In a surprising development, and despite the EEOC’s consistent defense of LGBTQ rights, 2022 saw the EEOC take the side of employees who claimed that they were discriminated against based on their religious belief that homosexuality is a sin. In EEOC v. Kroger Limited Partnership,65 the EEOC brought a lawsuit on behalf of two employees who were terminated because they refused to wear an apron that prominently displayed a multi-colored heart symbol that the employees believed supported and promoted the LGBTQ community. The EEOC alleged that the terminations were a form of religious discrimination because the employees had sincerely held religious beliefs that homosexuality is a sin and that they were prohibited by their religion from supporting or promoting it. The EEOC also alleged that the employer had unlawfully refused to grant the employees the accommodations they requested, including placing their nametag over the heart or being allowed to purchase and wear an apron without the heart. The employer insisted that the multi-colored heart had no relation to the LGBTQ community whatsoever, and the record evidence in the case showed that significant thought had been put into the symbol, along with the marketing and branding goals it was meant to accomplish, none of which related to LGBTQ issues. But the charging parties were not convinced and ultimately were terminated because they refused to wear the apron. The court noted that the first prong of proving a prima facie failure-to-accommodate case required the EEOC to show that the employee’s sincerely held religious beliefs—i.e., the religious observances and practices that are manifestations of that belief—conflicted with the employer’s workplace rule.66 The employer argued that the EEOC had failed to show how wearing the apron would actually conflict with the charging parties’ religious beliefs since it had nothing to do with LGBTQ issues. The employer conceded that the court could not sit in judgment of the objective reasonableness of the employees’ sincerely held religious beliefs that homosexuality is a sin. But it argued the court can and should apply an objective-reasonableness standard to determine whether there is a conflict between the dress code and the employees’ beliefs, arguing that it was objectively unreasonable for the employees to believe that the heart symbol supported and promoted the LGBTQ community.67 The court relied on recent Supreme Court decisions in Burwell v. Hobby Lobby Stores, Inc. and Fulton v. City of Philadelphia to hold that these two issues, the question of “religious belief” and the “conflict” question, were too bound up with each other to separate them in the way the employer suggested: “Subjecting the ‘conflict’ question to an objective-reasonableness review would inevitably subject some aspect of the employee’s religious beliefs, practices, or observances to the same standard. And we know that isn’t allowed.” 68 According to the court, the meaning of the Supreme Court’s recent religious liberty decisions was that, once the court concluded that the employees sincerely believed that wearing the heart symbol would violate their religion, it was not allowed to subject those beliefs to any further scrutiny.69 Although that was enough to decide the case in the EEOC’s favor, the court went on to find that there was enough evidence in the record that would allow a rational juror to conclude that the employees reasonably believed the heart symbol indicated support and promotion of the LGBTQ community because the employer had made no effort to explain its meaning to the public: “Recall also that there was no campaign to explain the meaning of the multi-colored heart to customers or other non-employees. Essentially, the meaning of the Our Promise symbol was left up to the imagination and interpretation of each particular customer who saw it.” 70 64 Id. at 34-35. 65 EEOC v. Kroger Ltd. P’ship, No. 4:20-cv-1099-LPR, 2022 WL 2276835 (E.D. Ark. June 23, 2022). 66 Id. at *11. 67 Id. at *12. 68 Id. at *14. 69 Id. 70 Id. at *15.
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