Firing for Wearing a Personal Pin, When the Pin Says “One Nation Under God, Indivisible”

This AP story reports:

A former cashier for The Home Depot who has been wearing a “One nation under God” button on his work apron for more than a year has been fired, he says because of the religious reference….

The American flag button Keezer wore in the Florida store since March 2008 says “One nation under God, indivisible.”

Earlier this month, he began bringing a Bible to read during his lunch break at the store in the rural town of Okeechobee, about 140 miles north of Miami. That’s when he says The Home Depot management told him he would have to remove the button.

Keezer refused, and he was fired on Oct. 23, he said….

A Home Depot spokesman said Keezer was fired because he violated the company’s dress code.

“This associate chose to wear a button that expressed his religious beliefs. The issue is not whether or not we agree with the message on the button,” Craig Fishel said. “That’s not our place to say, which is exactly why we have a blanket policy, which is long-standing and well-communicated to our associates, that only company-provided pins and badges can be worn on our aprons.”

If, as Home Depot says, Keezer was fired because only company-provided pins and badges could be worn, then that’s not religious discrimination as such. The question is whether it would be a violation of an employer’s duty (under Title VII of the Civil Rights Act of 1964) to provide reasonable religious accommodations — to (1) give religious employees special exemptions from generally applicable job requirements (2) if the requirements interfere with an employee’s “religious observance and practice” and (3) such an exemption doesn’t impose “undue hardship on the conduct of the employer’s business,” 42 U.S.C. § 2000e(j).

My sense is that Keezer does not view the button as religious observance and practice, but rather sees it as a political statement (albeit one with an appeal to religion within it). And an employer only has to reasonably accommodate religious practices — or perhaps deeply felt conscientious obligations — and then only when they have been so represented to the employer when the employee asked for the accommodation. So Home Depot is probably off the hook. Home Depot may have to accommodate the wearing of a yarmulke, a beard, or an unobtrusive cross necklace, even if such behavior would violate neutral grooming rules. (I say “unobtrusive,” because at some point Home Depot might plausibly argue that accommodating religious displays will pose an undue hardship; and some employers, such a police department, might argue the same even with modest such displays, see, e.g., Daniels v. City of Arlington (5th Cir. 2001).) But it need not do the same for items, even those that mention God, if they don’t constitute religious observances or practices.

On the other hand, if Keezer was really fired because he was reading the Bible (which seems unlikely), then that likely would be outright discrimination based on religious practice, and thus a Title VII violation.

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