Image is everything: corporate branding and religious accommodation in the workplace.

• Author: Flake, Dallan F.
• Position: Introduction into IV. Key Cases Weighing Religion Against Image, p. 699-725

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 conflict. 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.

INTRODUCTION I. RELIGION AND WORK IN MODERN AMERICA A. America's Changing Religious Landscape B. The Prominence of Religion in the Workplace C. The Conflict Between Work and Religion II. THE PARAMETERS OF RELIGIOUS ACCOMMODATION LAW III. THE POWER OF CORPORATE IMAGE IV. KEY CASES WEIGHING RELIGION AGAINST IMAGE A. Cases Favoring Image over Religion B. Cases Favoring Religion over Image C. The EEOC's Interpretation of the Case Law V. RECOMMENDATIONS AND POTENTIAL IMPACT A. A True De Minimis Standard B. A Uniform Standard of Proof C. Greater Employer Deference D. Potential Impact CONCLUSION INTRODUCTION

Several high-profile companies have recently come under fire 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 cafe 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 to work in the rear of the cafe, 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 1964 requires employers to accommodate employees whose religious beliefs conflict 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 "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 conflicts with an employer's corporate image and when it does not.

This Article focuses on the conflict 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 conflict. 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 specifically, 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 influence 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 unified 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

between religious expression and corporate image and provides employers and employees with greater clarity in navigating this sensitive and complex issue.

1. RELIGION AND WORK IN MODERN AMERICA

   The relationship between religion and work in the United States is becoming increasingly strained due to two significant 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 conflict.

   1. 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 fixture 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 specific religion continues to grow at a rapid pace. One-fifth of the U.S. public and one-third of adults under age thirty are religiously unaffiliated today--the highest percentages ever in Pew Research Center polling. (18) Between 2007 and 2012 alone, the percentage of unaffiliated adults jumped from just over fifteen percent to approximately twenty percent of the U.S. population. (19) Significantly, however, nonaffiliation does not necessarily equate to nonbelief. Two-thirds of unaffiliated adults say they believe in God, more than half report often feeling "a deep connection with...