Dive Brief:

• An Arkansas Kroger store engaged in religious discrimination when it refused to exempt two employees from a dress code that required they wear a rainbow heart logo, the U.S. Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit (Equal Employment Opportunity Commission v. The Kroger Co. dba Kroger Store No. 625, No. 4:20-cv-1099 (E.D. Ark., Sept. 14, 2020)).
• The federal agency said the women, who have a sincerely held religious belief that homosexuality is a sin, refused to wear their required apron, which featured an embroidered rainbow heart. The women believed that the logo represented support for the LGBT community and requested an accommodation such as permission to cover the logo with a name tag or to personally buy a different apron, according to the complaint. Kroger declined the requests and the women were ultimately fired for refusing to comply with the dress code.
• EEOC alleged the company's actions amounted to religious discrimination and retaliation, in violation of the Civil Rights Act of 1964. A Kroger spokesperson said via email that the company does not comment on pending litigation. 

Dive Insight:

Employers are allowed to establish a dress code that applies to all employees or employees within certain job categories, but there are some exceptions, according to the EEOC. In creating a dress code, employers must also ensure that they do not discriminate based on protected characteristics, such as race, religion or national origin. 

Notably, the laws that prohibit disability and religious accommodation also require accommodations. If a dress code conflicts with an employee's disability or religious practices, and the employee requests an accommodation, the employer may need to consider a change or exemption, unless doing so would result in undue hardship. EEOC has said that in questions of religious accommodation, undue hardship is generally defined by courts as a "more than de minimis" cost on the operation of the employer's business.

Legal experts previously told HR Dive there is a trend toward dress codes with general, minimal mandates, rather than a detailed list of requirements. Employers are increasingly telling employees to "dress professionally," for example, without getting into a lot of details. Such broad policies can help in preventing bias claims, sources said. If a uniform is required, legal experts suggest that employers tell workers that the uniform is needed but to prepare supervisors for accommodation requests.

In the wake of the U.S. Supreme Court's decision June 15 that it is illegal to discriminate in the workplace based on sexual orientation or gender identity, some companies have adopted policies to support transgender and gender non-conforming employees. TIAA, for example, updated its dress code and restroom policies to support inclusion, including more protections for privacy, gender pronoun of choice and restroom accessibility.