Image is Everything: Corporate Branding and Religious Accommodation in the Workplace

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There is growing tension in the law between an employee’s right to religious expression in the workplace and an employer’s countervailing right to cultivate its corporate image. The existing case law provides little meaningful guidance to employers
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    (󰀶󰀹󰀹) ARTICLE IMAGE IS EVERYTHING: CORPORATE BRANDING AND RELIGIOUS ACCOMMODATION IN THE WORKPLACE D ALLAN F.   F LAKE †   There is growing tension in the law between an employee’s right to religious  expression in the workplace and an employer’s countervailing right to cultivate its  corporate image. The existing case law provides little meaningful guidance to  employers and employees faced with this con󿬂ict. Not only do outcomes vary from  court to court, but the analysis and reasoning underlying these decisions are often inconsistent, and sometimes contradictory. I argue that because a company’s image is one of its most valuable assets, courts should more closely scrutinize religious  accommodation claims that interfere with a company’s ability to control its image.  Such enhanced scrutiny does not require a break from Supreme Court precedent; rather, it requires stricter adherence thereto. I offer three recommendations for how  courts can recalibrate their analyses of religious accommodation cases involving  corporate image concerns. These recommendations should help produce a more balanced case law that better harmonizes with Supreme Court precedent, while  providing employers and employees greater clarity in navigating this sensitive and  complex issue. I NTRODUCTION  ............................................................................. 󰀷󰀰󰀰   I.   R  ELIGION AND W ORK IN M ODERN A MERICA  .............................. 󰀷󰀰󰀳   A.    America’s Changing Religious Landscape  ........................................󰀷󰀰󰀳   B.   The Prominence of Religion in the Workplace  .................................. 󰀷󰀰󰀵   C.   The Con󿬂ict Between Work and Religion  ....................................... 󰀷󰀰󰀹   II.   T  HE P ARAMETERS OF R  ELIGIOUS A CCOMMODATION L AW  ........ 󰀷󰀱󰀰   †  Visiting Assistant Professor of Sociology, Brigham Young University; J.D., University of Michigan Law School; B.S. and M.S., Brigham Young University.    󰀷󰀰󰀰 University of Pennsylvania Law Review  [Vol. 󰀱󰀶󰀳: 󰀶󰀹󰀹 III.   T  HE P OWER OF C ORPORATE I MAGE  ......................................... 󰀷󰀲󰀰   IV.   K  EY C ASES W EIGHING R  ELIGION A GAINST I MAGE  .................... 󰀷󰀲󰀴   A.   Cases Favoring Image over Religion  ............................................... 󰀷󰀲󰀵   B.   Cases Favoring Religion over Image  ............................................... 󰀷󰀳󰀳   C.   The EEOC’s Interpretation of the Case Law  .................................. 󰀷󰀴󰀳   V.   R  ECOMMENDATIONS AND P OTENTIAL I MPACT   ........................... 󰀷󰀴󰀵   A.    A True De Minimis Standard  ...................................................... 󰀷󰀴󰀵   B .    A Uniform Standard of Proof   ....................................................... 󰀷󰀴󰀸   C.   Greater Employer Deference  .......................................................... 󰀷󰀵󰀱   D.    Potential Impact  .......................................................................... 󰀷󰀵󰀲   C ONCLUSION  .................................................................................. 󰀷󰀵󰀳   I NTRODUCTION  Several high-pro󿬁le companies have recently come under 󿬁re for refusing to accommodate their employees’ religious expression in the workplace out of concern that such accommodations would compromise the companies’ public image. Abercrombie & Fitch, 1  Costco, 2  Home Depot, 3  Wal-Mart, 4  and Disney  5  are just some of the companies to have taken this position. Disney was recently embroiled in a highly contentious lawsuit with a Muslim ex-employee, who lost her job as a hostess at a Disneyland café for insisting on wearing a hijab, or headscarf, at work in violation of Disney’s dress code. 6  The employee rejected as unreasonable Disney’s attempts to accommodate her by either allowing her to wear a hat on top of her hijab or 1    See generally  EEOC v. Abercrombie & Fitch Stores, Inc. (  Abercrombie IV  ), 󰀹󰀶󰀶 F. Supp. 󰀲d 󰀹󰀴󰀹 (N.D. Cal. 󰀲󰀰󰀱󰀳); EEOC v. Abercrombie & Fitch Stores, Inc. (  Abercrombie III  ), No. 󰀱󰀰-󰀳󰀹󰀱󰀱, 󰀲󰀰󰀱󰀳 WL 󰀱󰀴󰀳󰀵󰀲󰀹󰀰 (N.D. Cal. Apr. 󰀹, 󰀲󰀰󰀱󰀳); EEOC v. Abercrombie & Fitch Stores, Inc. (  Abercrombie II  ), 󰀷󰀹󰀸 F. Supp. 󰀲d 󰀱󰀲󰀷󰀲 (N.D. Okla. 󰀲󰀰󰀱󰀱), rev’d on other grounds , 󰀷󰀳󰀱 F.󰀳d 󰀱󰀱󰀰󰀶 (󰀱󰀰th Cir. 󰀲󰀰󰀱󰀳),  cert.  granted , 󰀱󰀳󰀵 S. Ct. 󰀴󰀴 (󰀲󰀰󰀱󰀴); EEOC v. Abercrombie & Fitch Stores, Inc. (  Abercrombie I  ), No. 󰀰󰀸-󰀱󰀴󰀷󰀰, 󰀲󰀰󰀰󰀹 WL 󰀳󰀵󰀱󰀷󰀵󰀸󰀴 (E.D. Mo. Oct. 󰀲󰀶, 󰀲󰀰󰀰󰀹). 2    See generally  Cloutier v. Costco Wholesale Corp., 󰀳󰀹󰀰 F.󰀳d 󰀱󰀲󰀶 (󰀱st Cir. 󰀲󰀰󰀰󰀴).   3    See generally  Brian Skoloff,  Fla. Man Says Home Depot Fired Him Over God Button , USA T  ODAY   (Oct. 󰀲󰀸, 󰀲󰀰󰀰󰀹, 󰀹:󰀳󰀴 AM), http://usatoday󰀳󰀰.usatoday.com/money/workplace/󰀲󰀰󰀰󰀹-󰀱󰀰-󰀲󰀸-home-depot-god_N.htm,  archived at  http://perma.cc/R󰀷󰀴W-N󰀸S󰀷. 4    See generally  Lorenz v. Wal-Mart Stores, Inc., No. 󰀰󰀵-󰀰󰀳󰀱󰀹, 󰀲󰀰󰀰󰀶 WL 󰀱󰀵󰀶󰀲󰀲󰀳󰀵 (W.D. Tex. May 󰀲󰀴, 󰀲󰀰󰀰󰀶),  aff’d , 󰀲󰀲󰀵 F. App’x 󰀳󰀰󰀲 (󰀵th Cir. 󰀲󰀰󰀰󰀷). 5    See generally  Complaint, Boudlal v. Walt Disney Corp., No. 󰀱󰀲-󰀰󰀱󰀳󰀰󰀶 (C.D. Cal. Aug. 󰀱󰀳, 󰀲󰀰󰀱󰀲), 󰀲󰀰󰀱󰀲 WL 󰀳󰀲󰀶󰀷󰀵󰀴󰀲. 6    Id.  at 󰀳-󰀴.    󰀲󰀰󰀱󰀵]  Image Is Everything 󰀷󰀰󰀱 to work in the rear of the café, where she would have no contact with customers. 7  There exists an inherent tension in the law—played out daily in workplaces across the United States—between an employee’s right to religious expression and an employer’s countervailing right to cultivate the corporate image of its choosing. Thomas Jefferson famously declared religious freedom “the most inalienable and sacred of all human rights.” 8  On the other hand, the Court of Appeals for the D.C. Circuit has observed: “Perhaps no facet of business life is more important than a company’s place in public estimation. That the image created by its employees dealing with the public   .   .   .   affects its relations is so well known that we may take  judicial notice of an employer’s proper desire to achieve favorable acceptance.” 9  Although the right to religious expression and the right to establish a favorable corporate image are both highly regarded, neither right is absolute. Title VII of the Civil Rights Act of 󰀱󰀹󰀶󰀴 requires employers to accommodate employees whose religious beliefs con󿬂ict with some element of their job duties, unless doing so would cause “undue hardship on the conduct of the employer’s business.” 10  In cases where employers claim that a religious accommodation would cause undue hardship by damaging their corporate image, courts struggle to strike the proper balance between an employee’s right to religious expression and an employer’s right to control its image. Not only do outcomes vary from court to court, but perhaps more disconcertingly, the analysis and reasoning underlying these decisions is often inconsistent and, in some cases, contradictory. 11  Particularly troublesome are the disparate levels of proof courts require for an employer to establish that an accommodation would adversely affect its image and therefore impose undue hardship. For example, Costco prevailed on summary  judgment by contending, with little supporting evidence, that it would be unduly burdensome to accommodate an employee’s request to leave her religiously mandated facial piercings uncovered, because such piercings detracted from the “neat, clean and professional image” that the company aimed to present. 12  By contrast, Abercrombie & Fitch has been on the losing end of summary judgment in four cases involving challenges to its 7    Id.  at 󰀴. 8  Thomas Jefferson, Freedom of Religion at the University of Virginia, in  T  HE C OMPLETE  J EFFERSON  󰀹󰀵󰀷, 󰀹󰀵󰀸 (Saul K. Padover ed., 󰀱󰀹󰀴󰀳). 9  Fagan v. Nat’l Cash Register Co., 󰀴󰀸󰀱 F.󰀲d 󰀱󰀱󰀱󰀵, 󰀱󰀱󰀲󰀴-󰀲󰀵 (D.C. Cir. 󰀱󰀹󰀷󰀳). 10  󰀴󰀲 U.S.C. § 󰀲󰀰󰀰󰀰e(    j) (󰀲󰀰󰀱󰀲). 11    See  analysis of cases cited infra  Part IV. 12  Cloutier v. Costco Wholesale Corp., 󰀳󰀹󰀰 F.󰀳d 󰀱󰀲󰀶, 󰀱󰀳󰀶-󰀳󰀷 (󰀱st Cir. 󰀲󰀰󰀰󰀴).    󰀷󰀰󰀲 University of Pennsylvania Law Review  [Vol. 󰀱󰀶󰀳: 󰀶󰀹󰀹 “Look Policy,” notwithstanding the fashion retailer’s abundant expert and lay witness testimony that granting religious-based exemptions would interfere with its meticulously crafted image. 13  These incongruous results have left employers and employees alike wondering when Title VII requires a religious accommodation that con󿬂icts with an employer’s corporate image and when it does not. This Article focuses on the con󿬂ict between an employee’s right to religious expression and an employer’s right to establish and maintain the image of its choosing. I argue that the existing case law provides little meaningful guidance for employers and employees facing this con󿬂ict. Because a company’s image is one of its most valuable assets, courts should more closely scrutinize religious accommodation claims that interfere with a company’s ability to control its image. I offer three recommendations for how courts can recalibrate their analyses of religious accommodation claims that do not require any break from Supreme Court precedent and could help to produce a clearer, more balanced case law. Part I examines America’s changing religious landscape and, more speci󿬁cally, what these changes mean for the workplace. Part II addresses the ongoing struggle between Congress, the courts, and the U.S. Equal Employment Opportunity Commission (EEOC) to reach a consensus on the types of religious accommodations required under Title VII. Part III explores the power of corporate image and how frontline employees in particular can directly in󿬂uence outsiders’ perceptions of the employer through both their appearances and actions. Part IV analyzes the most important cases involving claims of image-based undue hardship—highlighting the need for a more consistent and uni󿬁ed approach to weighing religious expression against corporate image. Part V provides recommendations for ways courts might analyze corporate image cases in a more uniform, practical manner to generate case law that strikes the appropriate balance 13    See generally  cases cited  supra  note 󰀱. In  Abercrombie I  , the district court denied Abercrombie’s summary judgment motion, No. 󰀰󰀸-󰀱󰀴󰀷󰀰, 󰀲󰀰󰀰󰀹 WL 󰀳󰀵󰀱󰀷󰀵󰀸󰀴, at *󰀴 (E.D. Mo. Oct. 󰀲󰀶, 󰀲󰀰󰀰󰀹), but the jury ultimately decided in favor of the company. Jury Verdict,  Abercrombie I  , No. 󰀰󰀸-󰀱󰀴󰀷󰀰 (E.D. Mo. Dec. 󰀴, 󰀲󰀰󰀰󰀹), ECF No. 󰀸󰀴. In  Abercrombie II  , the district court granted partial summary  judgment against Abercrombie, 󰀷󰀹󰀸 F. Supp. 󰀲d 󰀱󰀲󰀷󰀲, 󰀱󰀲󰀸󰀷 (N.D. Okla. 󰀲󰀰󰀱󰀱), but the appellate court reversed on other grounds. 󰀷󰀳󰀱 F.󰀳d 󰀱󰀱󰀰󰀶, 󰀱󰀱󰀴󰀳 (󰀱󰀰th Cir. 󰀲󰀰󰀱󰀳) (ruling that no fact issue persisted as to whether Abercrombie knew of the plaintiff’s religious con󿬂ict with its dress code prior to its hiring decision, as the plaintiff never informed Abercrombie beforehand that her practice of wearing a hijab stemmed from her religious beliefs and that she therefore would require an accommodation),  cert. granted , 󰀱󰀳󰀵 S. Ct. 󰀴󰀴 (󰀲󰀰󰀱󰀴). In  Abercrombie III   and  Abercrombie IV  , the district courts granted partial summary judgment against the company.  Abercrombie IV  , 󰀹󰀶󰀶 F. Supp. 󰀲d. 󰀹󰀴󰀹, 󰀹󰀷󰀱 (N.D. Cal. 󰀲󰀰󰀱󰀳);  Abercrombie III  , No. 󰀱󰀰-󰀳󰀹󰀱󰀱, 󰀲󰀰󰀱󰀳 WL 󰀱󰀴󰀳󰀵󰀲󰀹󰀰, at *󰀱󰀷 (N.D. Cal. Apr. 󰀹, 󰀲󰀰󰀱󰀳).    󰀲󰀰󰀱󰀵]  Image Is Everything 󰀷󰀰󰀳 between religious expression and corporate image and provides employers and employees with greater clarity in navigating this sensitive and complex issue. I.   R  ELIGION AND W ORK IN M ODERN A MERICA  The relationship between religion and work in the United States is becoming increasingly strained due to two signi󿬁cant developments. First, the religious characteristics of the workforce are becoming more complex as a result of broader changes in the American religious landscape. Second, religious expression in the workplace is becoming more commonplace, as traditional barriers between work and religion continue to erode in response to a variety of social forces. This Part examines how changes in the religious characteristics of the workforce and growing presence of religion at work have transformed the American workplace into a tinderbox for religious con󿬂ict. A.    America’s Changing Religious Landscape The role of religion in the workplace continues to evolve as a result of broader shifts in the American religious landscape. Although religion remains a prominent 󿬁xture of American society, the ways Americans are choosing to express—or not express—their religiosity are changing. Particularly noteworthy is the decline in formal religious affiliation, 14  the increasing diversity of religious sects, 15  and the growing number of Americans who switch religious affiliations. 16  These broader social patterns mean religion in the workplace looks much different today than just a few years ago. It is therefore imperative that employers understand these changes and adapt their policies and practices accordingly. The most remarkable trend in American religiosity is the rising percentage of adults who do not affiliate with any particular religion. While the vast majority of Americans—over eighty percent—profess a belief in God, 17  the number who do not identify with a speci󿬁c religion continues to grow at a rapid pace. One-󿬁fth of the U.S. public and one-third of adults under age 14   P EW F ORUM ON R  ELIGION &   P UB .   L IFE ,   P EW R  ESEARCH C TR  .,   “N ONES ”  ON THE R  ISE :   O NE - IN -F IVE A DULTS H AVE N O R  ELIGIOUS A FFILIATION  󰀹 (󰀲󰀰󰀱󰀲),  available at  http://www.pewforum.org/󿬁les/󰀲󰀰󰀱󰀲/󰀱󰀰/NonesOnTheRise-full.pdf. 15   P EW F ORUM ON R  ELIGION &   P UB .   L IFE ,   P EW R  ESEARCH C TR  .,   U.S.   R  ELIGIOUS L ANDSCAPE S URVEY  ,   R  ELIGIOUS A FFILIATION :   D IVERSE AND D YNAMIC  󰀱󰀰-󰀱󰀲 (󰀲󰀰󰀰󰀸). 16    Id.  at 󰀵. 17  T  OM W.   S MITH , B ELIEFS ABOUT G OD A CROSS T  IME AND C OUNTRIES  󰀸 (󰀲󰀰󰀱󰀲),  available at  http://www.norc.org/PDFs/Beliefs_about_God_Report.pdf.
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