balancing employee religious freedom in the workplace with

Balancing Employee ReligiousFreedom in the Workplace

with 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 hisuniform 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, forcingretail 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 willbecome more problematic.

Ronald J. Adams is a Professor Emeritus of Marketing, Coggin School of Business, Universityof North Florida, Jacksonville, FL. E-mail: [email protected].

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Business and Society Review 117:3 281–306

© 2012 Center for Business Ethics at Bentley University. Published by Blackwell Publishing,350 Main Street, Malden, MA 02148, USA, and 9600 Garsington Road, Oxford OX4 2DQ, UK.

On 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 lunchbreak, he was advised that he would have to remove the button.Mr. Keezer was offered a company-approved button that said“United We Stand.” He refused the company’s proposed accom-modation and was subsequently fired for violating Home Depot’sdress code—a 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. Keezer’s 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 Keezer’scoworkers or by Home Depot patrons, nor have there been anypublished issues with his job performance. As Ms. Skorupanoted, “[i]t’s not like he was out in the aisles preaching topeople.”2

Public reaction to Keezer’s firing was immediate, intense, andmixed. Indeed, some 230 responses to the incident were reportedin The Palm Beach Post, an area newspaper.3 Representative of thevaried responses to Home Depot’s firing of Keezer are the followingcomments posted on the newspaper’s blog:

Funny-I believe Home Depot takes all American currencythat says in God We Trust-sounds like an old fashioned nonviolent boycott of Home Depot is in order-pass it on!!Have the nimrods at home depot ever heard of the FirstAmendment?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?As a former Marine, as of today, I also will no longer shop atthe unpatriotic “Home Dumpo.”

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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 youngman for sticking to his values and his faith.Good; it’s 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 company’spolicy. And the supervisors that liked it don’t make companypolicy. God’s house of worship is a Church not a HomeDepot.Thank you Home Depot . . . time to put these religiouszealots where they belong.UnemployedWell, 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 Keezer’s firing demonstrate, there arestrong, varied opinions regarding the place, if any, of religion inretail 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 theworkforce; second, religion and religious issues have become moreacceptable or open topics for discussion and; third, the events ofSeptember 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 beginningJune 11, 1997.5 Similarly, as reported by Traster, the EEOC saw a32.5 percent overall increase in religious discrimination claimsover the 10-year period between 1997 and 2007.6 Consistent withthese developments is the increasing political importance of

283RONALD J. ADAMS

religion as a force in the workplace. As described by Spoor,“. . . people who were once best described as ‘religious separatists’have learned to use increased political action to promote Christianreligious 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 inbusiness 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 employer’s 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 religiousvalues and/or the unwarranted restriction of religious practicescan clearly result in harassment and/or contribute to a hostilework environment, both of which are prohibited under law.

This article will briefly examine the current-day legal contextof religious discrimination, with particular emphasis on caseswhere 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 ofemployees in customer contact positions to freedom of religiousexpression and practice.


A THUMBNAIL SKETCH OF THE LEGAL CONTEXT9

Title VII of the Civil Rights Act of 1964 protects employees fromvarious forms of discrimination, including discriminatory actions“based 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, areligion 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 person’s 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 theycomply with no known religious organization, may warrantprotection under Title VII . . . Religious beliefs, then, arethose defined by the individual claiming the belief. An affili-ation with or membership in an organization of a religious

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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 observancemust 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, andwhat 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 employee’s 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 ofthe 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 employee’s 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 isrequired to bear more than a de minimus cost in accommodatingan employee. This ruling might well be regarded as a victory forbusiness, effectively limiting the reach of Title VII claims of reli-gious discrimination.18 Employers are neither forced to accept


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 Hardison decision.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 theEstablishment 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 “generalleave” to accommodate religious observances.

• Employer defenses against employee accommodations callingfor reassignments or schedule changes based upon violationsof established seniority systems would be disallowed.

287RONALD J. ADAMS

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, theWRFA would ratchet up an employer’s 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 theAmerican Jewish Committee, Baptist Joint Committee, ChristianLegal Society, General Conference of Seventh Day Adventists, andthe National Association of Evangelicals. Proponents argue thatthe 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 CivilLiberties 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 billwas “overbroad and would likely harm critical personal and civilrights.”29 It was also argued, importantly, that the bill’s relianceon essentially financial parameters may result in real difficultiesfor employers and may mask or obscure other important consid-erations. For example, in the case of proselytization of coworkersor other third parties such as customers or patients, it may,


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 toexpress 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 WRFAhouse 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 condemnationof 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 bySenator 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 Hardison would bereplaced with the requirement of showing “significant difficulty orexpense on the conduct of the employer’s business” in making acase for undue hardship (again, along the lines of ADA criteria).Further, an accommodation would not be considered “reasonable”unless the conflict between religious practices and employment

289RONALD J. ADAMS

requirements was removed, and accommodations requiring thatemployees be segregated from coworkers or the general public(e.g., customers or clients) would not be allowed. Employeeswould 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 Keezer–Home 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 Depot—some 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 asHome 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 beliefs—beliefs thatmay be at the very core of his personal identity.34 By the samelogic, however, patrons and clients—similar to coworkers—alsohave 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:

• In Lena M. Johnson v. Halls Merchandising, Inc., the employee,Lena Johnson, was terminated because of her practice ofprefacing nearly every sentence she spoke with the phrase“[i]n the name of Jesus Christ of Nazareth.”35 Managementargued successfully that Ms. Johnson’s beliefs and practicescould not be reasonably accommodated in a fashion that was


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. Johnson’s 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.” Shewore 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 offeredMs. 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 butwithout the photograph. Ms. Wilson refused and she wasfired. She subsequently sued U.S. West, alleging that hertermination constituted religious discrimination. Ms. Wilsonwas denied relief in the district court, a decision that waslater upheld in the circuit court of appeals. The appeals courtconcluded Ms. Wilson’s 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 allegingreligious discrimination when they were fired for greetingcustomers with phrases such as “praise the Lord” and “Godbless you.”37 Banks and Horton were food service employeesat a General Motors (GM) facility, who, among other duties,

291RONALD J. ADAMS

were responsible for serving food to GM employees. BothBanks and Horton were union members covered by theseniority provisions contained in the collective bargainingagreement. 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 advisedto 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 employeewho 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. Inreaching 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, theburden shifts to the employer “to show that it was unablereasonably to accommodate the plaintiff’s religious needswithout 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 America’s operations or materially disrupted itswork routine.”

• In EEOC v. Red Robin Gourmet Burgers,38 the employer, RedRobin 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.Mr. Rangel had two tattoos circling his wrists, which repre-sented his servitude to Ra, the Egyptian sun god, and he


contended it would be a sin to intentionally cover them inaccord with his employer’s policy. Although Mr. Rangel hadthe tattoos when he was hired and worked for six monthswith 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 kid’from the suburbs for its server positions, not those with ‘thaturban kind of experience’.” The court denied Red Robin’smotion for summary judgment, holding that the company“failed 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 itspolicies 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-mart’sdress code. Mr. Lorenz was employed originally as a cashierand later as an overnight stocker. After several months on thejob, he began wearing a priest’s 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 thestore’s 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 priestshirt and a crucifix and he refused to comply with his super-visor’s order. He was subsequently fired for violating thestore’s dress code. Mr. Lorenz sued, alleging that he waswrongfully terminated because of his religious beliefs. His

293RONALD J. ADAMS

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

• Finally, a case that parallels the experiences of Trevor Keezerat 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 rolemodels in learning, teaching, and displaying body modifica-tion.” In March of 2001, approximately four years after shewas 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 feltthat 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 abandage 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-co’s dress code. Costco responded that this accommodation“would interfere with its ability to maintain a professionalappearance and would thereby create an undue hardship forits business.” The EEOC determined that Costco’s actionswere in violation of Title VII and that Cloutier’s refusal toremove her facial jewelry at work “was religiously based” andthat there was no evidence that allowing her to wear thejewelry 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 accommodationof her religious practice, and Costco’s motion was granted.The lower court’s decision was then appealed to the circuit


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. Cloutier’s 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 employee’s religiouspractices or observances on the image or reputation of the busi-ness. In the Cloutier case, for example, Costco management wasconcerned that Ms. Cloutier’s piercings would detract from theprofessional image it was seeking to convey to its clientele. Insupport of Costco’s position (and, perhaps, dress and groomingcodes in general), ample evidence exists in the retailing literaturedocumenting 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 toorganizational 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 aboutemployee rights and freedom in the modern-day corporation:

. . . in the legal construct of the corporation itself, employeesgenerally have no due process, no right to privacy, no pro-tection against unreasonable search and seizure, no repre-

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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. Kelly’s 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 not“stop 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 ofbalancing 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 employee’s 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 asin the past in making claims of undue hardship based upon merespeculation or hypotheticals; it may well be insufficient to merelyclaim or assert that an employee’s appearance, remarks, or obser-vances detract from the company’s 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-friendly de minimus standard will be replacedwith a much higher threshold for reasonable accommodation ofemployee religious observances and practices.

While there can be no question as to the importance of pro-tecting religious freedom in the workplace, this protection does


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 orowners. 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. Keezer’s 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 withrelatively few options and limited power: that is, abide by employerrules or go home. Customers, by contrast, have far greaterlatitude—they can take their business elsewhere if offended byemployee and/or company practices; patrons are not captive. Itwould seem, however, that this defense—“If you don’t like it, takeyour business elsewhere”—suffers 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 anyone—a 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 areboth 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 topatronize less efficient retail businesses. However, they were alsopenalized psychologically; they were marginalized—in effect, they

297RONALD J. ADAMS

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 tothe 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 toleave their religious convictions at their employer’s 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 stakeholderswhere 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 stakeholderswhere 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 ‘God’button,” msnbc.com, http://www/,smnc/,sm/cp,/id/33505354.ns/business-local_business/, accessed April 25, 2011.

2. Ibid. at n. 1.


3. Palm, T. C., 2009, “Home Depot employee fired for wearing ‘underGod’ 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): 17–20,24, 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 FranciscoBay Area, Presentation for the National Conference on Equal EmploymentOpportunity 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, “Workplacereligious discrimination,” Caesar’s 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

Review 31 (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 andanswers: Religious discrimination in the workplace,” http://www/eepc/gpv/policy/docs/qanda_religion.html, accessed July 26, 2010. And/orfrom 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 courtmoved beyond traditional, narrow definitions of religion to define reli-gion to include any “deeply held belief that becomes of ‘ultimateconcern’ 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,at n. 9, 6.

13. Ibid., 8–9.

299RONALD J. ADAMS

14. Prenkert, J. D., and Magid, J. M., “A Hobson’s choice model forreligious 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 commonmethods of religious accommodation in the workplace?” in The U.S.Equal Employment Opportunity Commission, 2008, “Questions andanswers: 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 far

more accommodating and protective of religious expression in the publicsphere than in the workplace: “In the public sphere, courts allow manyflowers to bloom. Nativity scenes next to menorahs, as well as TenCommandments 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 restrictreligious expression. Legislative efforts to protect religious expressionhave 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 Review 92, 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 courtheld, “[n]either the terms nor the legislative history of § 701(j) supportsthe Court of Appeals’ conclusion than an employer’s accommodationobligation includes a duty to accept the employee’s proposal unless thataccommodation causes undue hardship on the conduct of the employer’sbusiness. An employer has met its obligation . . . when it demonstratesthat it has offered a reasonable accommodation to the employee.”

20. For an excellent perspective on the issue of balancing employeeand 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 current de minimus doctrine, thebalancing of employer’s rights against the rights of the employee toreligious expression “has been weighted too heavily against employees’rights . . . Because the law protects religious expression and accommo-


dates religious observers, the presumption should favor the worker, or atleast the test should be one of fair balancing, not a strong presumptionthat employers and coworkers need not bear any inconvenience at all . . .the courts have not followed this mandate,” (pp. 20–21).

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 theirreligion freely.” The bill is currently awaiting the governor’s signaturebefore 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): 249–280.

23. The controversy surrounding Title VII protections for religion,generally, and WRFA amendments, specifically, is caught up in issuespertaining to First Amendment constitutional guarantees. In lay terms,legislative efforts to protect religious observance and practice may beconstrued as running afoul of the First Amendment’s “establishmentclause,” that is, Congress shall make no law respecting the establishmentof religion. In effect, efforts to protect the religious practices of certainemployees 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 adetermination where there is a constitutional challenge is commonlyreferred to as the “Lemon test” (from the Supreme Court’s decision inLemon v. Kurtzman, [1971], 403 U.S. 602). As articulated by then ChiefJustice Burger, the Lemon test is composed of three “prongs,” whichlegislation must meet in order to pass constitutional review: first, thestatute must have a secular legislative purpose; second, its principal orprimary effect must be one that neither advances or inhibits religion; andthird, the statute must not foster “an excessive government entanglementwith religion.” Chief Justice Burger’s opinion in Lemon is available onlinethrough the Cornell University Law School Legal Information Instituteat http://www.law.cornell.edu/supct/html/historics/USSC_CR_0403_0602_ZO.html, accessed June 2, 2011.

24. Gawlik, G. J., “The politics of religion: ‘Reasonable accommoda-tions’ and the establishment clause: an analysis of the Workplace

301RONALD J. ADAMS

Religious Freedom Act,” Cleveland State Law Review 47 (1999): 249–280,260.

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

place,” Human Rights 33, 3 (2006): 17–20,24, 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 ReligiousFreedom 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 legislationthat 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 onlywould a narrowly drafted bill address most of the problems actuallyexperienced by employees denied religious accommodations, but it alsowould be a constitutionally sound approach to legislation. Based on ourreview of 25 years of Title VII religious accommodation federal decisions,we conclude that the vast majority of the religious accommodation claimsthat are denied by employers fall into these three categories . . . TheACLU found that claims for the scheduling of time off for religiousholidays or the wearing of religious clothing or a beard together made up83 of the 113 reported federal decisions since 1977 through the end of2002 in which the employee lost his or her claim to a reasonableaccommodation.” 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,”http://www.govtrack.us/congress/billtext.xpd?bill=s111-4046, accessedApril 14, 2011.


33. See, for example, Bohn, L. E., 2010, “Workplace ReligiousFreedom Bill finds revived interest,” Huffington Post: Religion, July 3:1–3, 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 iswell-described by Ruan: “[w]hat we choose to wear, what we do to ourskin and hair, what adornments we decide to put on—these are allexpressions that reflect particular intrinsic characteristics of core parts ofourselves that are normally not meaningfully filtered . . . these expres-sions reflect who people are, what they believe, and in what category theyhold their beliefs. Religious expressions in particular can communicatemany deeply held views . . . In many instances, these expressions cannotbe changed, at least not without altering the core of one’s identity . . .religious identity (and consequently its expression) is an integrated partof one’s self . . . Much like it is difficult for the majority racial group tounderstand the primary importance of racial identity to a person in aminority race group, secularists often do not understand the commitmenta believer has to her own religious identity. Asking religious believers tosuppress or deny their religious identity can be likened to the closeting ofcertain sexual orientations . . . (and) While closets should be unnecessaryin either case, tolerant society members should be compelled to protectthose who are put to an untenable choice between following their faithand avoiding backlash from non-adherents.” Ruan, N., “The justices findreligion: Why the Supreme Court ought to expand religious accommoda-tion rights,” Selected Works: From the Selected Works of Natiya Ruan

(2008): 6–7, http://works.bepress.com/nantiya_ruan/1, accessed May23, 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 Districtof 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 July10, 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. C04-1291JLR, 2005 WL 2090677 (Western District of Washington, August 29,2005). For a concise summary, see U.S. Equal Employment Opportunity

303RONALD J. ADAMS

Commission, Press Release, 2005, “Burger chain to pay $150,000 toresolve 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 FifthCircuit, 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 reasonedas follows: “[s]he [Ms. Cloutier] asserts that she did not receive com-plaints about her facial piercings and that the piercings did not affect herjob performance. Hence, she contends that any hardship Costco posits ismerely hypothetical and therefore not sufficient to excuse it from accom-modating her religious practice under Title VII . . . [However,] [i]t isaxiomatic that, for better or for worse, employees reflect on their employ-ers. This is particularly true of employees who regularly interact withcustomers, as Cloutier did in her cashier position. Even if Cloutier didnot personally receive any complaints about her appearance, her facialjewelry influenced Costco’s public image and, in Costco’s calculation,detracted from its professionalism . . . Costco has made a determinationthat facial piercings, aside from earrings, detract from the ‘neat, cleanand 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 storeimage, or “personality,” was provided by Pierre Martinneau in which hedescribed image as “the way in which the store is defined in the shopper’smind.” Martinneau suggested that image is composed of both a functional

(i.e., objective factors such as merchandise assortment, layout, and loca-tion) and a psychological component. The latter is composed of, amongother attributes, friendliness and helpfulness of store personnel andattractiveness or décor. For an excellent discussion of the meaning,importance, and measurement of store image, see Samli, C. A., “Storeimage definition, dimensions, measurement, and management,” in Retail

Marketing Strategy: Planning, Implementation, and Control, (New York:Quorum Books, 1989), 175–191.

43. Kelly, M., “Liberty for me, not for thee,” in The Divine Right of

Capital: Dethroning the Corporate Aristocracy, (San Francisco, CA:Berrett-Koehler Publishers, Inc., 2001), 69–79.


44. Regarding religion, specifically, this same point is made by Ruanwhen she pointed to “three converging issues” facing the courts: “. . . (1)workplaces are increasingly sites of important expression; (2) workplacesare increasingly sites of broad religious diversity; and (3) employerscannot expect workers to cover or sever their religious identities at theirdoor.” Ruan, N. “Accommodating respectful religious expression in theworkplace,” Marquette Law Review 92, 1(2008): 31, at n.18.

45. Given the inherent imbalance of power between employers andemployees, clearly most of the emphasis has been upon protecting therights of employees; for example, the constitutional guarantees affordedemployees to express their religious beliefs in the workplace. Lessobvious, perhaps, is the premise that these same protections extend toemployers, for example, an employer’s right to religious expression in theworkplace when employees complain that the religious expression isharassing. As noted by Kaminer, “. . . an employer’s right to religiousexpression is directly protected by the Free Speech and Free ExerciseClauses of the United States Constitution and not by Title VII . . .because of the power differential between employers and employees,courts tend to view an employer’s religious expression as inherently morecoercive 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 (2000–2001): 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 (7thCir. 2001). Ms. Anderson was a follower of the Christian MethodistEpiscopal faith. It was her practice to close many transactions withclients with the phrase “have a blessed day,” which she would commonlywrite on the bottom of sales invoices. Mark LaRussa, a customer whoserved as a Microsoft liaison with USF Logistics, complained to Ms.Anderson’s supervisor that he found the “blessed day” reference tobe inappropriate. Ms. Anderson was reprimanded and subsequentlyinstructed to limit the “blessed day” reference to her coworkers and torefrain from using the phrase with USF Logistics customers. Ms. Ander-son subsequently filed for injunctive relief, claiming that the restrictionviolated her religious freedom as protected by Title VII. In petitioning forinjunctive relief, Ms. Anderson argued that USF Logistics had not met itsburden of demonstrating that she imposed her religious beliefs oncoworkers or customers nor had USF Logistics demonstrated that the useof the phrase disrupted the workplace environment or damaged the

305RONALD J. ADAMS

company’s relationships with its customers. The court disagreed anddenied injunctive relief. It is noteworthy that the court concluded thatMs. 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 uponothers can still be restricted if it impairs and employer’s legitimateinterests, as long as it is reasonably accommodated.” On appeal, thecircuit court affirmed the lower court’s 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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