Balancing Employee Religious Freedom in the Workplace with Customer Rights.pdf

7/23/2019 Balancing Employee Religious Freedom in the Workplace with Customer Rights.pdf

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Balancing Employee Religious

Freedom in the Workplacewith Customer Rightsto a Religion-free

Retail Environment

RONALD J. ADAMS

ABSTRACT

In October of 2009, Trevor Keezer was terminated byHome Depot for refusing to remove a pin from his

uniform declaring One Nation under God, Indivisible.Mr. Keezer, a cashier with Home Depot, contended thatthe button he had worn for over one year before anyaction was taken by his employer expressed his supportfor American troops and his Christian faith. Were theactions taken by his employer warranted or was Mr.Keezer the victim of arbitrary religious discriminationunrelated to job performance? Religion is becoming anincreasingly polarizing issue in the workplace, forcing

retail managers to balance the respective interests ofemployees, coworkers, and patrons of retail establish-ments. And from all indications, if legislation pending inCongress is enacted, maintaining the balance will

become more problematic.

Ronald J. Adams is a Professor Emeritus of Marketing, Coggin School of Business, University

of North Florida, Jacksonville, FL. E-mail: [email protected].

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Business and Society Review 117:3 281306


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O

n October 23, 2009, Trevor Keezer, a 20-year-old cashierat a Home Depot store in Central Florida, was terminatedfor wearing a button on his uniform proclaiming One

Nation under God, Indivisible. Mr. Keezer had worked at HomeDepot for approximately 19 months; he had worn the button forover one year before any action was taken by his employer.However, when he began reading his Bible during his lunch

break, he was advised that he would have to remove the button.Mr. Keezer was offered a company-approved button that saidUnited We Stand. He refused the companys proposed accom-modation and was subsequently fired for violating Home Depots

dress codea code that the company described as a blanketpolicy, which is long-standing and well-communicated to HomeDepot associates. Mr. Keezer, whose 27-year-old brother is sched-uled for a second tour of duty with the National Guard in Iraq,responded: [i] feels kind of like a punishment, like I was pun-ished for just loving my country.1 Mr. Keezers lawyer, KaraSkorupa, said she planned to sue Home Depot, alleging that Mr.Keezer was, indeed, the victim of religious discrimination. Inter-

estingly, there have been no reports of complaints by Keezerscoworkers or by Home Depot patrons, nor have there been anypublished issues with his job performance. As Ms. Skorupanoted, [i]ts not like he was out in the aisles preaching topeople.2

Public reaction to Keezers firing was immediate, intense, andmixed. Indeed, some 230 responses to the incident were reportedin The Palm Beach Post, an area newspaper.3 Representative of the

varied responses to Home Depots firing of Keezer are the following

comments posted on the newspapers blog:

Funny-I believe Home Depot takes all American currencythat says in God We Trust-sounds like an old fashioned non

violent boycott of Home Depot is in order-pass it on!!Have the nimrods at home depot ever heard of the First

Amendment?This country is in trouble when a person is terminated forwearing a [an] symbol just because the words under God

are on it. Are they going to ban the United States flag nextbecause of what it stands [sic] for?

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Seriously people? It is about freedom of religion and freedomof speech. Remember our country was founded on peoplefleeing religious persecution! . . . God will bless this young

man for sticking to his values and his faith.Good; its work not a church. Keep your religion at home orin your church and out of my face.No sympathy here . . . he had 6 days to follow the companyspolicy. And the supervisors that liked it dont make companypolicy. Gods house of worship is a Church not a HomeDepot.

Thank you Home Depot . . . time to put these religiouszealots where they belong.Unemployed

Well, let God give him a job somewhere else. What gives thismoron the right to shove his religious opinions down ourthroats.

The Christians have clearly overstepped their boundaries.Home Depot has every right to fire this right wing facist [sic].

As the lay reactions to Trevor Keezers firing demonstrate, there arestrong, varied opinions regarding the place, if any, of religion in

retail environments. Clearly, there are important interrelated legal,moral, political, and financial issues surrounding religious rightsand discrimination that are becoming increasingly difficult forretail managers to balance. Estreicher and Gray point to threefactors, or trends, that have worked to exacerbate the problemsmanagers face today in accommodating religion in the workplace:first, immigration has led to an increase in religious diversity in the

workforce; second, religion and religious issues have become moreacceptable or open topics for discussion and; third, the events of

September 11, 2001 (9/11) have led to some tensions, workplaceconflict, and lawsuits between Muslims and non-Muslims, as wellas between advocates and opponents of the Afghan and Iraq mili-tary operations.4 Regarding the reaction to the events of 9/11specifically, between September 11, 2001 and December 11, 2005,the U.S. Equal Employment Opportunity Commission (EEOC)received 2,459 charges of discrimination based on religion-Muslim, double the rate for the comparable time period beginning

June 11, 1997.5

Similarly, as reported by Traster, the EEOC saw a32.5 percent overall increase in religious discrimination claims

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religion as a force in the workplace. As described by Spoor,. . . people who were once best described as religious separatistshave learned to use increased political action to promote Christian

religious values in what is seen as an amoral, increasingly secularsociety.7 Dating back to the emergence of the religious right in theelection and subsequent reelection of Ronald Reagan in the 1980s,it is apparent that as the American workforce becomes morediverse and as fundamentalist Christians grow more willing to fightto protect their rights of religious expression, the potential forlawsuits will continue to grow.8

Religious discrimination poses very real questions and dilem-

mas regarding balance among various stakeholders: balancing therights of employees to protect and express their beliefs with therights of coworkers to work in environments where they are notdisadvantaged or pressured by the religious views and practices ofother employees with the rights and interests of owners to protectfinancial performance with the rights of patrons to shop in

business environments free of religious pressure. Ethically, thisproblem of balancing diverse, interdependent stakeholder inter-

ests poses a true moral dilemma. Employees should not beexpected to check their rights and beliefs at their employers door(i.e., as in a religion-free zone) nor should they be allowed toexpress and practice their beliefs to the detriment of others.Conversely, managers and/or patrons have no right to imposetheir religious values on employees; the imposition of religious

values and/or the unwarranted restriction of religious practicescan clearly result in harassment and/or contribute to a hostile

work environment, both of which are prohibited under law.

This article will briefly examine the current-day legal contextof religious discrimination, with particular emphasis on cases

where public contact is involved as, for example, in the case ofTrevor Keezer. The article will begin with a very brief history ofTitle VII provisions and current EEOC guidelines and will thenconclude with a discussion of the thorny issue of customerrights. The position of this article is simply that retailers havea moral obligation to provide their patrons with retail environ-

ments free of religious pressure or solicitation while simulta-neously protecting to the fullest extent possible the rights of



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A THUMBNAIL SKETCH OF THE LEGAL CONTEXT9

Title VII of the Civil Rights Act of 1964 protects employees fromvarious forms of discrimination, including discriminatory actionsbased upon race, color, religion, sex, or national origin.10 Spe-cifically, with respect to religion, Title VII prohibits the following:

Disparate treatment of employees based upon their religiousbeliefs or practices, including differential treatment pertainingto recruitment, hiring, promotion, assignments, discipline,compensation, or benefits;

Harassment of employees because of their religious convic-tions or practices;

Denial of reasonable accommodations for religious practicesor beliefs if these accommodations would not impose unduehardships on employers; and

Retaliation against employees or applicants because of theirreligious beliefs or practices, including their attempts at legalremedies in cases of alleged discriminatory actions.

Although simple in concept, in practice, difficulties arise. Perhapsmost basic is the question of defining religion.11 Simplydescribed, the courts have defined religion broadly to include boththeistic (god-based) and nontheistic moral or ethical beliefs asto what is right and wrong which are sincerely held with thestrength of traditional religious views.12 Religion is thus definedto include not only traditional, institutionalized religion (e.g., Prot-estant, Catholic, Islam, etc.), but all aspects of religious obser-

vance and practice as well as belief. For purposes of Title VII, a

religion need not be part of a formal church, based on or derivedfrom the belief in a higher power or deity, nor must it be widelyheld: [a] belief is religious for Title VII purposes if it is religiousin the persons own scheme of things . . . (and) religion typicallyconcerns ultimate ideas about life, purpose, and death . . .13

The problem of definition facing employers (and the courts) iswell-described by Prenkert and Magid:

. . . feelings motivated by inner conscience, even if they

comply with no known religious organization, may warrantprotection under Title VII . . . Religious beliefs, then, are

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nature is not necessary for the individual to hold a belief asreligious. In fact, the only constraint on an employee underthe Guidelines is that the religious practice or observance

must be sincere.14

It is important to note that not all strongly held beliefs areprotected. Specifically, social, political, or economic philosophies,as well as mere personal preferences, are not protected, and

what may be protected for one individual may not be covered foranother:

Determining whether a practice is religious turns not on thenature of the activity, but on the employees motivation. Thesame practice might be engaged in by one person for reli-gious reasons and by another person for purely secularreasons. Whether or not the practice is religious is there-fore a situational, case-by-case inquiry.15

Title VII requires that if a practice or observance qualifies forprotection (i.e., is deemed to be religious within the meaning of

the statute), employers must make reasonable accommodationsso long as the accommodation does not impose an undue hard-ship on the employer. Typical or common methods of accommo-dation include, among others, the following16:

Changes in employee work schedules to accommodate reli-gious holidays, participation, or observances;

Changing the employees job tasks or assignments, includinglateral transfers;

Making exceptions to dress and/or grooming codes; Allowing prayer, proselytizing, or other forms of religious

expression in the workplace.

Historically, businesses have been afforded rather robust protec-tion in accommodating employees religious demands. In a land-mark case, Trans World Airlines v. Hardison,17 the U.S. SupremeCourt held that an undue hardship exists if an employer is

required to bear more than ade minimuscost in accommodatingan employee. This ruling might well be regarded as a victory for



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employees preferred accommodations19 nor are they requiredat present to offer accommodations that impose more than aminimum hardship.20

REASONABLE ACCOMMODATION: THE WORKPLACERELIGIOUS FREEDOM ACT

Dating back to the late 1990s, there have been repeated attemptsby Congress and state legislatures21 to strengthen current religiousprotections available to employees. At the federal level, the Work-place Religious Freedom Act (WRFA), first introduced in 1997,represents an attempt by Congress to strengthen the reasonableaccommodations and undue hardship standards established bythe court in the Hardisondecision.22 Senator John Kerry of Massa-chusetts, cosponsor of the original bill and subsequent legislativeefforts, stated that the WRFA, which would amend Title VII to bringreligious protections more in line with the Americans with Disabili-ties Act (ADA), was an attempt to achieve proper balance betweengovernment restrictions on the establishment of religion (under the

Establishment Clause of the First Amendment23) and the curtailingof religious observances and expression.24

As originally proposed in 1997, the WRFA would have requiredthe following changes in Title VII protections25:

Undue hardship would be redefined to mean an accommo-dation requiring significant difficulty or expense, effectivelynullifying the de minimus standard adopted by the SupremeCourt in the Hardison decision.

Employers would be held to a much higher burden of proof inmaking a case for undue hardship by demonstrating thatproposed accommodations would result in the inability of theemployee to perform essential job functions.

For an accommodation to pass the test of reasonableness,any conflict between employment conditions and religiousobservances or practices would have to be removed.

Employers could not prevent employees from using general

leave to accommodate religious observances. Employer defenses against employee accommodations calling

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The WRFA would clearly have the effect of increasing employerobligations under Title VII:

Rather than finding an undue hardship wherever a deminimus cost arose, the WRFA would permit employers todecline to make requested accommodations only if theyshowed that they would incur identifiable increased costs,either in the form of lost productivity or in the cost ofretaining, hiring, or transferring employees. In addition, the

WRFA would ratchet up an employers obligations in accom-modating an employee by requiring the employer to modifyany job requirement that did not affect the essential func-

tions of the job.26

The WRFA continues to attract broad bipartisan support in boththe House and the Senate, and the bill has received widespreadendorsement from a number of organizations, including the

American Jewish Committee, Baptist Joint Committee, ChristianLegal Society, General Conference of Seventh Day Adventists, andthe National Association of Evangelicals. Proponents argue that

the WRFA would return the law to what Congress intended byapplying similar standards for determining what would constitutean undue hardship to an employer as already found in otherimportant protections for workers such as the Americans withDisabilities Act and would balance both the respect that religionmust be afforded with the needs of employers to have reliable andproductive workplaces.27

The WRFA has not, however, been without critics. Most notable,perhaps, has been the objections registered by the American Civil

Liberties Union (ACLU). In an open letter to Congress in 2007, theACLU strongly urged members of Congress to oppose the WRFA,arguing that the bill as written at that time would threatenimportant rights of religious minorities, racial minorities, women,gay men and lesbians, and persons seeking reproductive healthcare and mental health services.28 The ACLU contended the bill

was overbroad and would likely harm critical personal and civilrights.29 It was also argued, importantly, that the bills reliance

on essentially financialparameters may result in real difficultiesfor employers and may mask or obscure other important consid-



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indeed, be difficult if not impossible to measure identifiable costsin establishing an undue hardship: [t]he harmful effect of aparticular accommodation on another person might be difficult to

express in specifics such as loss of productivity or financial lossesrelative to the size of the employer.30 In sum, there may well bereal differences in the identification and measurement of the typesof costs borne by employers dealing with physical disabilities (asin disability cases) versus religious observances and practices; theanalogy or parallel between the ADA and the WRFA is far fromperfect. A similar argument was advanced by the Secular Coali-tion for America in 2008 in respect to an earlier version of WRFA

house bill 1431 (HR 1431) in a letter sent to members of theHouse subcommittee considering the bill:

The Workplace Religious Freedom Act will empower individu-als to use its religious freedom protections as a weaponagainst co-workers and clients who do not hold or share theirreligious beliefs . . . As written the legislation would encour-age employees to ignore employer policies prohibiting reli-gious proselytizing in the workplace, religious condemnation

of co-workers, and inserting religion into secular workplacepractices and activities. The courts have already seen thesetypes of cases and ruled against them, but HR 1431 putsthese precedents into question.31

Interest in strengthening workplace protections against religiousdiscrimination continues. In 2010 Senator John Kerry (D-MA)reintroduced legislation as the WRFA of 2010 (S. 4046) in theSecond Session of the 111th Congress. The bill, cosponsored by

Senator Orin Hatch (R-Utah), would have amended Section 701(j)of the Civil Rights Act of 1964 and was more tightly focused thanprevious versions upon restrictions pertaining to garb, grooming,and scheduling, issues commonly at the center of religious dis-crimination cases.32 Under the bill, employers would face muchhigher hurdles in accommodating employees. As in earlier ver-sions, the de minimus standard established in Hardisonwould bereplaced with the requirement of showing significant difficulty or

expense on the conduct of the employers business in making acase for undue hardship (again, along the lines of ADA criteria).

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requirements was removed, and accommodations requiring thatemployees be segregated from coworkers or the general public(e.g., customers or clients) would not be allowed. Employees

would be allowed much wider latitude with respect to time off forreligious observances or participation, grooming, and wearing ofreligious apparel. Although the bill died in committee, it seemscertain that the WRFA, or something very similar, will againsurface in the near future.33

RELIGIOUS DISCRIMINATION AND PUBLIC CONTACT

As reflected in the Trevor KeezerHome Depot incident describedearlier, contact with customers or clients is often an important,problematic issue in religious discrimination cases. Trevor Keezerinsisted on wearing a button on his uniform expressing his reli-gious views while serving patrons at Home Depotsome of whomclearly may not have shared his sentiments (as was evident incertain of the comments posted in the opening section of thisarticle). The dilemma facing employers at organizations such as

Home Depot where employees are in contact with the public is atwo-faceted one: to deny an employee such as Trevor Keezer theprivilege of wearing a button expressing his Christian convictionsis to limit his right to express his religious beliefsbeliefs thatmay be at the very core of his personal identity.34 By the samelogic, however, patrons and clientssimilar to coworkersalsohave rights, including, arguably, the right to be free from religiousexpression, symbolism, censure, solicitation, and/or proselytiza-

tion. And importantly, adverse customer or client reaction toreligious expression may negatively impact organizational perfor-mance: for example, profitability, market share, or the ability toprovide a needed, possibly critical, service. Several cases beardirectly upon the issue of religious accommodation and organiza-tional performance, including image:

InLena M. Johnson v. Halls Merchandising, Inc., the employee,Lena Johnson, was terminated because of her practice of

prefacing nearly every sentence she spoke with the phrase[i]n the name of Jesus Christ of Nazareth.35 Management



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consistent with the legitimate and reasonable interests ofher employer, specifically, to operate a retail business so asnot to offend the religious beliefs or non-beliefs of its custom-

ers. Ms. Johnsons motion for summary judgment againsther employer was denied on appeal.

In Christine L. Wilson v. U.S. West Communications,36 Ms.Wilson was discharged for her refusal to remove an antiabor-tion button from her clothing depicting a graphic picture of afetus. Although this case did not involve direct contact withcustomers or clients, it is noteworthy because of its similarityto the Trevor Keezer incident described previously. Ms.

Wilson, a Roman Catholic, made a religious vow that shewould wear an antiabortion button until there was an end toabortion or until [she] could no longer fight the fight. She

wore the button at all times and she believed that removing itwould compromise her vow and cause her to lose her soul.Coworkers complained, and there were clear and significantdisruptions at work; some employees threatened to walk offthe job unless she removed the button. Management offered

Ms. Wilson three possible accommodations: wear the buttononly in her work cubicle and not when she was in contactwith other employees; cover the button while at work; or weara different button with the same antiabortion message but

without the photograph. Ms. Wilson refused and she wasfired. She subsequently sued U.S. West, alleging that hertermination constituted religious discrimination. Ms. Wilson

was denied relief in the district court, a decision that waslater upheld in the circuit court of appeals. The appeals court

concluded Ms. Wilsons demand that she be allowed to wearonly the specific button at issue, uncovered, would requireU.S. West to allow her to impose her beliefs as she choosesand her insistence on wearing a particular depiction of a fetusas part of her religious beliefs is antithetical to the concept ofreasonable accommodation.

In November of 1996, Lee Ray Banks and Marcus Hortonbrought action against Service America Corporation alleging

religious discrimination when they were fired for greetingcustomers with phrases such as praise the Lord and God

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were responsible for serving food to GM employees. BothBanks and Horton were union members covered by theseniority provisions contained in the collective bargaining

agreement. Approximately 3,000 GM employees were servedeach day in a fast food-like atmosphere. Food serviceemployees were trained to greet customers in an appropriateand friendly fashion by saying such things as hello, whatcan I get for you today? The religious greetings used byBanks and Horton, greetings that emanated from their deep-seated sincerely held religious belief, were deemed inappro-priate by Service America management and they were advised

to desist. When they refused, they were terminated. Manage-ment offered no accommodation, arguing that none waspossible and that the practices in question were completelyincompatible with job requirements. There was a record ofcustomer complaints, including a complaint from an employee

who served as a GM liaison with the food service contractor.In response to the lawsuit, Service America moved forsummary judgment, a motion that was ultimately denied. In

reaching its conclusion, the court noted that while Title VIIdoes not require an employer to offer an accommodation nordoes it require an employer to allow an employee to imposehis or her religious views on others, there is a requirementthat the defendant must do more than rely on hypotheticalsor speculation about probable hardships. Once the employeeshave made a prima facie showing of a religious conflict, the

burden shifts to the employer to show that it was unablereasonably to accommodate the plaintiffs religious needs

without undue hardship . . . (and) defendant has not demon-strated as a matter of law that plaintiffs blessings, or thegrumblings of the recipients thereof, imposed undue hardshipon Service Americas operations or materially disrupted its

work routine. In EEOC v. Red Robin Gourmet Burgers,38 the employer, Red

Robin Gourmet Burgers, had an employee appearance policythat required that body piercings and tattoos not be visible.

The employee, Edward Rangel, a server in the restaurant,practiced Kemetecism, a religion with roots in ancient Egypt.



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contended it would be a sin to intentionally cover them inaccord with his employers policy. Although Mr. Rangel hadthe tattoos when he was hired and worked for six months

with no customer or employee complaints, he was firedwhen a new manager saw them. Even though the employeeexplained the reason for the tattoos to management andrequested an exemption from the dress code, no accommoda-tion was offered. A company official was on record as statingsubsequent to his firing that the company has Christian

values and that Red Robin seeks out that all-American kidfrom the suburbs for its server positions, not those with that

urban kind of experience. The court denied Red Robinsmotion for summary judgment, holding that the companyfailed to show either that it made a good faith effort toreasonably accommodate the employee or that accommodat-ing the employee would result in undue hardship. Hypotheti-cal hardships based on unproven assumptions typically fail toconstitute undue hardship. The case was settled by consentdecree in which Red Robin management agreed to revise its

policies and educate managers on issues of religious discrimi-nation and accommodation. The company settled with theemployee for $150,000.

In the case of Daniel Lorenz v. Wal-mart Stores,39 theemployee, Mr. Lorenz, was terminated for violating Wal-martsdress code. Mr. Lorenz was employed originally as a cashierand later as an overnight stocker. After several months on the

job, he began wearing a priests shirt and collar to work.Occasionally, he also wore a Muslim headdress, or kaffiyeh,

and a chain around his waist with multiple crosses, a neck-lace with a crucifix, and various symbols attached to hisperson, including anarchy and peace symbols. After receivingcustomer complaints about his attire, he was advised by hissupervisor that his priestly attire did not comply with thestores dress code and could not, therefore, be worn at work.He was permitted to retain the headdress. Mr. Lorenz arguedthat his religious beliefs necessitated the wearing of a priest

shirt and a crucifix and he refused to comply with his super-visors order. He was subsequently fired for violating the

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claim for religious harassment or failure to provide religiousaccommodation was dismissed on appeal.

Finally, a case that parallels the experiences of Trevor Keezer

at Home Depot involved Kimberly Cloutier and Costco Whole-sale Corporation (Costco).40 Ms. Cloutier was a member ofthe Church of Body Modification (CBM), an organization ofapproximately 1,000 members who participate in such prac-tices as piercing, tattooing, branding, cutting, and bodymanipulation. Contained in the CBM mission statement is theencouragement for its members to grow as individualsthrough body modification . . . (and to be) confident role

models in learning, teaching, and displaying body modifica-tion. In March of 2001, approximately four years after she

was hired, Costco revised its dress code to prohibit all facialjewelry, aside from earrings. On June 25, 2001, Ms. Cloutierand another employee were advised that they would have toremove their facial piercings (eyebrow piercings) in order tocomply with the dress code. Ms. Cloutier informed her supe-rior that the piercings were part of her religion and she felt

that the call to be a confident role model required that herpiercings be visible at all times. By way of accommodation,Costco suggested she either cover the piercings with a

bandage or replace the jewelry with plastic retainers while atwork. She refused the accommodations, arguing that the onlyreasonable accommodation would be to excuse her from Cost-cos dress code. Costco responded that this accommodationwould interfere with its ability to maintain a professionalappearance and would thereby create an undue hardship for

its business. The EEOC determined that Costcos actionswere in violation of Title VII and that Cloutiers refusal toremove her facial jewelry at work was religiously based andthat there was no evidence that allowing her to wear the

jewelry would have constituted an undue hardship. Ms.Cloutier subsequently filed suit against Costco in federal dis-trict court alleging a Title VII violation. Costco petitioned thecourt for summary judgment on the discrimination claims.

The court found that Costco had met its burden of showingthat it had offered Ms. Cloutier a reasonable accommodation



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court where, among other issues, Ms. Cloutier contended thatCostco had not met its burden of showing undue hardship.Ultimately, the circuit court affirmed the decision of the dis-

trict court and Ms. Cloutiers discrimination claim failed. It isof interest to note the latitude the court granted the employeron the issue of hardship, suggesting that Costco could proveundue hardship without any empirical basis, that is, it wasnot necessary for Costco to provide data relating to the costsof proposed accommodations that were never put intopractice.41

A relatively common theme running through cases where publiccontact is an issue as, for example, in the case of a cashier orsales representative, is the impact of the employees religiouspractices or observances on the image or reputation of the busi-ness. In the Cloutier case, for example, Costco management wasconcerned that Ms. Cloutiers piercings would detract from theprofessional image it was seeking to convey to its clientele. Insupport of Costcos position (and, perhaps, dress and groomingcodes in general), ample evidence exists in the retailing literature

documenting important relationships between image and organi-zational performance; image, of which employees are an impor-tant component, is a key determinant of effective retail positioningand profitability.42 Similar arguments could be made for issuesother than grooming and appearance; employee greetings andremarks (e.g., have a blessed day) and/or attempts at prosely-tization clearly impact customer perceptions of retail organiza-tions and may, to the extent that image is functionally related to

organizational performance (e.g., patronage), positively or nega-tively impact profitability.

DISCUSSION

In her provocative book The Divine Right of Capital, authorMarjorie Kelly makes the following poignant observation about

employee rights and freedom in the modern-day corporation:. . . in the legal construct of the corporation itself, employees

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sentatives to take their side, no say in governance, no freespeech, no jury to hear their case. Those are democraticfreedoms, and they stop at the company door.43

Although Ms. Kellys focus is primarily upon economic issues andgovernance, it is but a short step to the issue of religious freedom.

When the Civil Rights Act of 1964 was enacted, it was clearly theintent of Congress to establish in the law that the rights ofemployees, including the right to religious expression, do notstop at the company door; the rights of private property do nottrump basic civil rights of workers.44

Dating back to the 1960s, appropriately, the focus of regulatoryagencies and the courts has been primarily upon protecting thereligious rights of employees from restrictions imposed by employ-ers, coworkers, customers, and arbitrary, and often discrimina-tory, company policies.45 And as noted at the outset, this task of

balancing employee religious rights with the rights of other stake-holders is becoming more complex and difficult. Increasing diver-sity in both the workforce and among customers coupled withintensified polarization over religious issues in post-9/11 Americaand an expansive interpretation of religion by the courts have allcombined to make religious discrimination in the workplace acenter stage issue in corporate America. This is particularly prob-lematic in cases involving public contact where an objectiveassessment of the impact of an employees religious practices isdifficult, if not impossible to measure with precision. And withsome justification, there is strong indication from the courts thatemployers may not be afforded the same latitude in the future as

in the past in making claims of undue hardship based upon merespeculation or hypotheticals; it may well be insufficient to merelyclaimorassertthat an employees appearance, remarks, or obser-

vances detract from the companys image to the detriment of theorganization.46 Furthermore, given the strong likelihood thatfederal legislation along the lines of the WRFA will be enacted inthe near future, as is already the case in some states, the rela-tively low, employer-friendlyde minimusstandard will be replaced

with a much higher threshold for reasonable accommodation ofemployee religious observances and practices.

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not come without a price. What has perhaps been largely over-looked to date is the price paid by customers for the religiousobservances of employees and, in some cases, employers or

owners. As harmless as the Trevor Keezer example may seem inretrospect, his insistence upon proclaiming his religious convic-tions in a public sphere could be viewed as harmful or detrimen-tal to the interests of Home Depot patrons. Through hispronouncement of Christian ideals, Mr. Keezer was, arguably,imposing his views upon Home Depot customers. It is no imagi-native stretch to see, for example, how persons of the Muslimfaith might well take offense at Mr. Keezers Christian proclama-

tions made in veiled support of the U.S. military. Nor would it behard to imagine how pro-choice patrons would be seriouslyoffended by antiabortion proclamations similar, for example, tothe objections registered by coworkers in the Christine Wilsoncase cited earlier.47

Certainly, there are differences between customer and employeerights. The most basic, perhaps, is the notion attributed earlier toMarjorie Kelly that employees are captives of the workplace with

relatively few options and limited power: that is, abide by employerrules or go home. Customers, by contrast, have far greaterlatitudethey can take their business elsewhere if offended byemployee and/or company practices; patrons are not captive. It

would seem, however, that this defenseIf you dont like it, takeyour business elsewheresuffers from the same faulty reasoningas was used by some retailers in the height of the civil rightsmovement to defend discriminatory practices by asserting that theyreserved the right to refuse service to anyonea privilege incor-

rectly derived from a narrow interpretation of the rights of privateproperty. Indeed, it was clearly established as early as 1877 by theU.S. Supreme Court in Munn v. Illinois48 that when private propertyis devoted to a public use, as in retail sales, it is subject to publicregulation; it becomes affected with a public interest. Implicit inthe concept of public interest is the important idea that there are

both monetary and nonmonetary costs associated with restrictionson patronage and with the imposition of religious practices.

Persons of color who were denied access to retail establishmentswere, indeed, penalized economically when they were forced to

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were on the outside looking in. Analogously, a similar argumentcould be made regarding the imposition of religion on retailpatrons. There may well be economic implications, particularly to

the firm; for example, scheduling costs associated with accommo-dating religious observances or adverse customer reactions (e.g.,lost patronage) to proselytization attempts by employees. And as inthe case of racial discrimination in the 1960s, there may well benoneconomic costs as well. Although the context is different, theimplications for customer rights are analogous: in the 1960s,persons of color had the right to patronize retail establishments oftheir choosing, private ownership notwithstanding, and arguably,

retail patrons today have the right to be spared, should they sochoose, the overt religious proclamations, proselytization, symbol-ism, and practices of employees and/or owners. When an employeeimposes his or her religious views on customers in a public setting,individual privacy is infringed upon and compromised.

In conclusion, there can be no question as to the importance,relevance, and moral rightness of protecting employee rights toreligious accommodation. Employees should not be expected to

leave their religious convictions at their employers door. Andthere can be no question as to the moral necessity of managersmaking good faith efforts at meaningful, substantive religiousaccommodations, relying where possible on objective, defensiblemeasures rather than subjective, hypotheticals. However, in apluralistic society, there are, by definition, multiple stakeholders

where religious observances and practices are concerned.Employees have rights but so do their coworkers, their employers,and importantly, the customers and clients they interact with.

Maintaining an equitable balance between and among interre-lated, often conflicting, interests of these diverse stakeholders

where privacy is often of paramount importance represents amoral and legal challenge of ever-increasing complexity.

NOTES

1. Associated Press, 2009, Worker: I was fired for wearing Godbutton, msnbc.com, http://www/,smnc/,sm/cp,/id/33505354.ns/



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3. Palm, T. C., 2009, Home Depot employee fired for wearing under

God flag button, The Palm Beach Post: Treasure Coast Talk, http://www.

tcoasttalk.com/2009/10/23/home-depot-employee-fired-for-wearing-

under-god-flag-button/, accessed February 28, 2011.

4. Estreicher, S., and Michael J., Religion and the U.S. workplace,

Human Rights 33, 3 (2006): 1720,24, http://www.americanbar.

org/publications/human_rights_magazine_home/irr_hr_summer06_

estreichergray.html, accessed April 20, 2011.

5. Sinnar, S., 2005, Trends in post-9/11 backlash employment dis-

crimination, Lawyers Committee for Civil Rights of the San Francisco

Bay Area, Presentation for the National Conference on Equal Employment

Opportunity Law, http://www.bna.com/bnabooks/ababna/eeo/2006/sinnar.pdf, accessed April 20, 2011.

6. As reported in Garnett, R., and Clay, J. M., 2011, Workplace

religious discrimination, Caesars Hospitality Research Summit 2011,

Paper 8, http://digitalcommons.library.unlv.edu/hhrc/2010.june2010/

8, accessed May 9, 2011.

7. Spoor, J., Go tell it on the mountain, but keep it out of the office:

religious harassment in the workplace, Valparaiso University Law

Review31 (1997): 979.8. Ibid., p. 982.

9. Much of the information in this section is taken from The U.S.

Equal Employment Opportunity Commission, 2008 Questions and

answers: Religious discrimination in the workplace, http://www/eepc/

gpv/policy/docs/qanda_religion.html, accessed July 26, 2010. And/or

from the, 2008, EEOC compliance manual, section 12: Religious discrimi-

nation (number 915.003), http://www.eeoc.gov/policy/docs/religion.pdf,

accessed July 26, 2010.

10. 42 USC 2000e-2(a)(1) (2000).

11. Perhaps the landmark contemporary cases in establishing the

meaning of religion are Seeger v. United States and the United States v.

Welch, both conscientious objector cases. In both these cases, the court

moved beyond traditional, narrow definitions of religion to define reli-

gion to include any deeply held belief that becomes of ultimate

concern to an individual. See Collier, S. D., Beyond Seeger/Welsh:

Redefining religion under the constitution, Emory Law Journal 31

(1982): 981.12. EEOC Compliance Manual, Section 12-1, Coverage, A. Definitions,

299RONALD J. ADAMS


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14. Prenkert, J. D., and Magid, J. M., A Hobsons choice model for

religious accommodation, American Business Law Journal 43 (2006):

479.

15. EEOC Compliance Manual, Section 12-1, Coverage, A. Definitions,

at n. 9, p. 9.

16. For detailed examples of accommodations, see What are common

methods of religious accommodation in the workplace? in The U.S.

Equal Employment Opportunity Commission, 2008, Questions and

answers: Religious discrimination in the workplace, http://www/eepc/

gpv/policy/docs/qanda_religion.html, accessed July 26, 2010, n. 9.

17. Trans World Airlines v. Hardison (1977), 432 U.S. 63, 84.

18. Ruan makes a compelling argument that the courts have been farmore accommodating and protective of religious expression in the public

sphere than in the workplace: In the public sphere, courts allow many

flowers to bloom. Nativity scenes next to menorahs, as well as Ten

Commandments displays with historical (rather than exclusively reli-

gious) significance are allowed to flourish in the public domain. However,

in the workplace, the Supreme Court has allowed employers to restrict

religious expression. Legislative efforts to protect religious expression

have been stymied by judicial refusal to protect such expression mean-ingfully. This stems from courts predisposition toward viewing accom-

modation as an entirely different concepts than nondiscrimination,

viewing the former fare more skeptically than the latter. Ruan, N.,

Accommodating respectful religious expression in the workplace, Mar-

quette Law Review92, 1(2008): 4.

19. The relevant decision regarding employee preferences is Ansonia

Board of Education v. Philbrook(1986), 479 U.S. 60. In Ansonia, the court

held, [n]either the terms nor the legislative history of 701(j) supports

the Court of Appeals conclusion than an employers accommodation

obligation includes a duty to accept the employees proposal unless that

accommodation causes undue hardship on the conduct of the employers

business. An employer has met its obligation . . . when it demonstrates

that it has offered a reasonable accommodation to the employee.

20. For an excellent perspective on the issue of balancing employee

and employer rights where religious expression is at issue, see Ruan, N.,

Accommodating respectful religious expression in the workplace, at n.

17. The author observes that under the currentde minimusdoctrine, thebalancing of employers rights against the rights of the employee to



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dates religious observers, the presumption should favor the worker, or at

least the test should be one of fair balancing, not a strong presumption

that employers and coworkers need not bear any inconvenience at all . . .

the courts have not followed this mandate, (pp. 2021).

21. For example, on May 29, 2011, the Oregon House of Representa-

tives passed the Oregon Workplace Religious Freedom Act (WRFA), which

ensures employees of Oregon businesses will be able to practice their

religion freely. The bill is currently awaiting the governors signature

before becoming state law. Proponents argue that the narrowly tailored

Oregon bill will serve as a model for a federal amendment to Title VII. See

Oregon passes Workplace Religious Freedom Bill, Adventist Review

17CN (2011), http://www.adventistreview.org/article.php?id=2654,accessed April 12, 2011.

22. Gawlik, G. J., The politics of religion: Reasonable accommoda-

tions and the establishment clause: an analysis of the Workplace Reli-

gious Freedom Act, Cleveland State Law Review 47 (1999): 249280.

23. The controversy surrounding Title VII protections for religion,

generally, and WRFA amendments, specifically, is caught up in issues

pertaining to First Amendment constitutional guarantees. In lay terms,

legislative efforts to protect religious observance and practice may beconstrued as running afoul of the First Amendments establishment

clause, that is, Congress shall make no law respecting the establishment

of religion. In effect, efforts to protect the religious practices of certain

employees to the disadvantage of others, including coworkers and,

perhaps, customers could be construed as illegally promoting the estab-

lishment of a religion. The relevant criteria, or test, used in such a

determination where there is a constitutional challenge is commonly

referred to as the Lemon test (from the Supreme Courts decision in

Lemon v. Kurtzman, [1971], 403 U.S. 602). As articulated by then Chief

Justice Burger, the Lemon test is composed of three prongs, which

legislation must meet in order to pass constitutional review: first, the

statute must have a secular legislative purpose; second, its principal or

primary effect must be one that neither advances or inhibits religion; and

third, the statute must not foster an excessive government entanglement

with religion. Chief Justice Burgers opinion in Lemonis available online

through the Cornell University Law School Legal Information Institute

at http://www.law.cornell.edu/supct/html/historics/USSC_CR_0403_0602_ZO.html, accessed June 2, 2011.

301RONALD J. ADAMS


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Religious Freedom Act, Cleveland State Law Review47 (1999): 249280,

260.

25. Ibid.

26. Estreicher, S., and Michael J., Gray, religion and the U.S. work-

place, Human Rights 33, 3 (2006): 1720,24, n. 3. http://www.

americanbar.org/publications/human_rights_magazine_home/irr_hr_

summer06_estreichergray.html, accessed April 20, 2011.

27. Institute for Public Affairs, (undated) The Workplace Religious

Freedom Act: Critical legislation for the American community,

http://www.ou.org/public/statements/bg/wrfa.htm, accessed April 12,

2011.

28. Fredrickson, C., 2007, ACLU Letter Urging Members of Con-gress to Oppose the Workplace Religious Freedom Act, http://www.

aclu.org/religion-belief/aclu-letter-urging-members-congress-oppose-

workplacereligiousfreedomact, accessed May 25, 2011.

29. In 2007, the American Civil Liberties Union (ACLU) clearly sup-

ported a more focused bill protecting the religious practices of employees:

Congress should replace WRFA with more narrowly drafted legislation

that bolsters only the requirements imposed on employers to accommo-

date the scheduling of leave time for the observation of religious holidaysor for the wearing of religious apparel or a beard or hairstyle. Not only

would a narrowly drafted bill address most of the problems actually

experienced by employees denied religious accommodations, but it also

would be a constitutionally sound approach to legislation. Based on our

review of 25 years of Title VII religious accommodation federal decisions,

we conclude that the vast majority of the religious accommodation claims

that are denied by employers fall into these three categories . . . The

ACLU found that claims for the scheduling of time off for religious

holidays or the wearing of religious clothing or a beard together made up

83 of the 113 reported federal decisions since 1977 through the end of

2002 in which the employee lost his or her claim to a reasonable

accommodation. Ibid.

30. Ibid., p. 258.

31. Posted by Mehta, H., Secular Coalition for America, 2008, Fri-

ently atheist: Workplace Religious Freedom Act (HR 1431), http://

friendlyatheist.com/2008/02/20workplace-religious-freedom-act-hr-

1431/, accessed April 27, 2011.32. The text of S. 4046, Workplace Religious Freedom Act of 2010,



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33. See, for example, Bohn, L. E., 2010, Workplace Religious

Freedom Bill finds revived interest, Huffington Post: Religion, July 3:

13, http://www.huggingtonpost.com/2010/05/03/workplace-religious-

freed_n_561560.html, accessed April 12, 2011.

34. The importance of religious expression to individual identity is

well-described by Ruan: [w]hat we choose to wear, what we do to our

skin and hair, what adornments we decide to put onthese are all

expressions that reflect particular intrinsic characteristics of core parts of

ourselves that are normally not meaningfully filtered . . . these expres-

sions reflect who people are, what they believe, and in what category they

hold their beliefs. Religious expressions in particular can communicate

many deeply held views . . . In many instances, these expressions cannotbe changed, at least not without altering the core of ones identity . . .

religious identity (and consequently its expression) is an integrated part

of ones self . . . Much like it is difficult for the majority racial group to

understand the primary importance of racial identity to a person in a

minority race group, secularists often do not understand the commitment

a believer has to her own religious identity. Asking religious believers to

suppress or deny their religious identity can be likened to the closeting of

certain sexual orientations . . . (and) While closets should be unnecessaryin either case, tolerant society members should be compelled to protect

those who are put to an untenable choice between following their faith

and avoiding backlash from non-adherents. Ruan, N., The justices find

religion: Why the Supreme Court ought to expand religious accommoda-

tion rights, Selected Works: From the Selected Works of Natiya Ruan

(2008): 67, http://works.bepress.com/nantiya_ruan/1, accessed May

23, 2011.

35. Lena M. Johnson,Plaintiff, v. Halls Merchandising, Inc., Defendant

(1989), no. 87-1042-CV-W-9, U.S. District Court for the Western District

of Missouri, Western Division, January 17, 1989.

36. Christine L. Wilson, Appellant, v. U.S. West Communications

(1985), no. 94-2752, U.S. Court of Appeals, Eighth Circuit, decided July

10, 1995, http://bulk.resource.org/courts.gov/c/F3d.1337.94-2752.

html, accessed May 23, 2011.

37. Lee Ray Banks and Marcus L. Horton, Plaintiffs, v. Service

America Corp., Defendant (1996), Civil Action no. 96-2083-KHV, U.S.

District Court, D. Kansas, November 21, 1996.38. EEOC v. Red Robin Gourmet Burgers, Inc. (2005), No. C04-

303RONALD J. ADAMS


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Commission, Press Release, 2005, Burger chain to pay $150,000 to

resolve EEOC religious discrimination suit, http://www.eeoc.gov/

newsroom/release/9/16/05.cfm, accessed June 7, 2011.

39. See Daniel Abraham Lorenz, Plaintiff-appellant, v. Wal-mart Stores,

Inc., Defendant-appellee (2007), U.S. Court of Appeals for the Fifth

Circuit, 225 Fed. Appx. 302 (5th Cir. 2007).

40. Kimberly M. Cloutier, Plaintiff, Appellant, v. Costco Wholesale

Corp., Defendant, Appellee (2004), 390 F.3d 126 (1st Cir. 2004),

Docket Number: 04-1475, http://vlex.com/vid/kimberly-cloutier-costco-

wholesale-36494007, accessed March 2, 2011.

41. As to the hypothetical nature of hardships, the court reasoned

as follows: [s]he [Ms. Cloutier] asserts that she did not receive com-plaints about her facial piercings and that the piercings did not affect her

job performance. Hence, she contends that any hardship Costco posits is

merely hypothetical and therefore not sufficient to excuse it from accom-

modating her religious practice under Title VII . . . [However,] [i]t is

axiomatic that, for better or for worse, employees reflect on their employ-

ers. This is particularly true of employees who regularly interact with

customers, as Cloutier did in her cashier position. Even if Cloutier did

not personally receive any complaints about her appearance, her facialjewelry influenced Costcos public image and, in Costcos calculation,

detracted from its professionalism . . . Costco has made a determination

that facial piercings, aside from earrings, detract from the neat, clean

and professional image that it aims to cultivate. Such a business deter-

mination is within its discretion. Ibid, n. 40.

42. Perhaps the seminal work attesting to the importance of store

image, or personality, was provided by Pierre Martinneau in which he

described image as the way in which the store is defined in the shoppers

mind. Martinneau suggested that image is composed of both afunctional

(i.e., objective factors such as merchandise assortment, layout, and loca-

tion) and apsychological component. The latter is composed of, among

other attributes, friendliness and helpfulness of store personnel and

attractiveness or dcor. For an excellent discussion of the meaning,

importance, and measurement of store image, see Samli, C. A., Store

image definition, dimensions, measurement, and management, in Retail

Marketing Strategy: Planning, Implementation, and Control, (New York:

Quorum Books, 1989), 175191.43. Kelly, M., Liberty for me, not for thee, in The Divine Right of



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44. Regarding religion, specifically, this same point is made by Ruan

when she pointed to three converging issues facing the courts: . . . (1)

workplaces are increasingly sites of important expression; (2) workplaces

are increasingly sites of broad religious diversity; and (3) employers

cannot expect workers to cover or sever their religious identities at their

door. Ruan, N. Accommodating respectful religious expression in the

workplace, Marquette Law Review 92, 1(2008): 31, at n.18.

45. Given the inherent imbalance of power between employers and

employees, clearly most of the emphasis has been upon protecting the

rights of employees; for example, the constitutional guarantees afforded

employees to express their religious beliefs in the workplace. Less

obvious, perhaps, is the premise that these same protections extend toemployers, for example, an employers right to religious expression in the

workplace when employees complain that the religious expression is

harassing. As noted by Kaminer, . . . an employers right to religious

expression is directly protected by the Free Speech and Free Exercise

Clauses of the United States Constitution and not by Title VII . . .

because of the power differential between employers and employees,

courts tend to view an employers religious expression as inherently more

coercive than the religious expression of employees. Kaminer, D. N.,When religious expression creates a hostile work environment: the chal-

lenge of balancing competing fundamental rights, Journal of Legislation

and Public Policy 4 (20002001): 81, p. 86.

46. A relevant case demonstrating the wide latitude afforded employ-

ers is Elizabeth Anderson v. USF Logistics, Inc. (2001), 274 F. 3d 470 (7th

Cir. 2001). Ms. Anderson was a follower of the Christian Methodist

Episcopal faith. It was her practice to close many transactions with

clients with the phrase have a blessed day, which she would commonly

write on the bottom of sales invoices. Mark LaRussa, a customer who

served as a Microsoft liaison with USF Logistics, complained to Ms.

Andersons supervisor that he found the blessed day reference to

be inappropriate. Ms. Anderson was reprimanded and subsequently

instructed to limit the blessed day reference to her coworkers and to

refrain from using the phrase with USF Logistics customers. Ms. Ander-

son subsequently filed for injunctive relief, claiming that the restriction

violated her religious freedom as protected by Title VII. In petitioning for

injunctive relief, Ms. Anderson argued that USF Logistics had not met itsburden of demonstrating that she imposed her religious beliefs on

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companys relationships with its customers. The court disagreed and

denied injunctive relief. It is noteworthy that the court concluded that

Ms. Anderson had been reasonably accommodated and that USF Logis-

tics was under no obligation to show that the employee actually imposed

her religious views on a customer to the detriment of the organization: [a]

religious practice that does not actually impose religious beliefs upon

others can still be restricted if it impairs and employers legitimate

interests, as long as it is reasonably accommodated. On appeal, the

circuit court affirmed the lower courts ruling, http://openjurist.org/

274/f3d/470/elizabeth-anderson-v-usf-logistics-inc, accessed July 28,

2010.

47. Christine L. Wilson, Appellant, v. U.S. West Communications(1985),no. 94-2752, U.S. Court of Appeals, Eighth Circuit, decided July 10,

1995, http://bulk.resource.org/courts.gov/c/F3d.1337.94-2752.html,

accessed May 23, 2011, at n. 36.

48. Munn v. Illinois (1877), 94 U.S. 113.



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Balancing Employee Religious Freedom in the Workplace with Customer Rights.pdf