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Exclusive: Labyrinthine Zoning Rules Restricted Homeless Shelters During the Pandemic



Labyrinthine Zoning Rules Restricted Homeless Shelters During the Pandemic

#Labyrinthine #Zoning #Rules #Restricted #Homeless #Shelters #Pandemic

When Interfaith Sanctuary purchased an old Salvation Army building on State Street near downtown Boise, Idaho, in early 2021, it seemed like a dream come true. Everything about the property made it a perfect fit for the nonprofit’s new emergency homeless shelter.

The only thing the organization needed to turn that dream into a reality was a conditional use permit from the city. That required talking to the neighbors. And that proved to be a problem.

The visceral opposition of nearby residents to Interfaith Sanctuary’s shelter plans turned what should have been a permitting process of a few months into a bitter conflict that stretched out for over a year and put the entire project in jeopardy.

“We are stuck,” Jodi Peterson-Stigers, the executive director of Interfaith Sanctuary, told Reason in February. “All of these hopes and dreams are written. The architects have designed the whole thing. We have a contractor. We have complete estimates. We have a security team. We have everything we need to move forward except for the conditional use permit.”

The loss of the new shelter building would be a real blow to Interfaith Sanctuary and the people it serves.

Even before COVID-19, the organization had been bumping up against the limits of what it could do with its existing cramped emergency shelter. The sudden appearance of a deadly infectious respiratory virus didn’t help the situation.

“We use every nook and cranny and this pandemic has made it very difficult,” says Peterson-Stigers. The shelter had to slash its capacity from 164 people to 140 just to allow some modicum of social distancing.

A temporary influx of federal homeless funding, however, allowed the heretofore privately funded Interfaith Sanctuary to house those displaced from the shelter at a rented out Red Lion hotel. Soon enough, it had placed over 100 people there.

Being able to give people their own rooms where they could stay 24/7 was a huge blessing, says Peterson-Stigers. The range of health care Interfaith Sanctuary could provide to ailing, elderly clients expanded dramatically. Guests weren’t having to roam the streets all day. Parents didn’t have to raise their kids in a crowded, dormlike setting.


The improvements she saw in people’s health and well-being sent Peterson-Stigers looking for a new, larger shelter location that could support the same number of people and level of care after the outfit’s temporary federal funding dried up. In early 2021, Interfaith Sanctuary purchased the Salvation Army building and surrounding two-acre lot for $2.4 million. It was a bargain then. The city’s white-hot real estate market makes it a practical steal now.

The building itself was three times as large as its current shelter, meaning the organization would be able to give families and hospice patients their own rooms. It was close to downtown, which meant it was close to the people it serves and the services they need.

Most importantly, it was one of the few available properties in the city whose zoning allowed for an emergency shelter. All the nonprofit needed was that conditional use permit, and then Interfaith Sanctuary could get to work on the remodeling.

In Boise, and most of the rest of the country, obtaining a conditional use permit requires applicants to notify nearby property owners of their plans, go through a public hearing, and secure the approval of the local zoning board. The process gives the neighbors a lot of opportunities to complain, which they did in Interfaith Sanctuary’s case.

Peterson-Stigers says the initial neighborhood meeting on the permit application was a disaster. People said that the shelter would bring drug users and criminals to the area. Parks would become overrun. Kids wouldn’t be able to play outside.

Interfaith Sanctuary agreed to more rounds of public engagement. These eventually morphed into a city-sponsored task force intended to study the appropriateness of the organization’s planned shelter site.

In January 2022, neighborhood opponents managed to derail the project entirely by convincing Boise’s Planning and Zoning Commission to deny Interfaith Sanctuary’s permit application. The organization was forced to appeal to the city council. After a marathon set of hearings over multiple days in late April, the council voted 4–2 to approve the shelter. That was a victory for Interfaith Sanctuary. But it doesn’t give the organization back the time it spent waiting for permission to perform its charitable work.

The pandemic has posed a special challenge for homeless shelters, the people who run them, and the people who stay there. Crowded indoor shelters seemed almost designed to increase COVID-19 transmission. Many shelter residents chose to live on the streets instead.

In response, many of America’s churches and charitable organizations looked for safer ways to provide housing. Some of these efforts were aided by emergency pandemic funding from the federal and state governments. Yet even when one arm of the state was lending a helping hand, the other was bringing down the hammer on private parties trying to help the most vulnerable.

No comprehensive counts exist of how many homeless people died during the pandemic or how many died of COVID-19. Cities that do track these figures saw homeless deaths increase anywhere from 50 percent to 300 percent.

As the pandemic swept across the country, churches and other social organizations wanted to move quickly to help people find shelter. But labyrinthine rules around land use and building permits made doing so incredibly difficult, and in some cases effectively impossible. Zoning fights and permitting delays are often downplayed as unimportant burdens on well-heeled developers. But this was something else entirely: a direct threat to the poor and vulnerable.


Missing the Point in Time

In early April 2020, one of San Francisco’s first serious COVID-19 outbreaks swept through the city’s largest homeless shelter, Multi-Service Center South. Of the 150 people staying or working at the shelter at the time, 70 tested positive for the virus.

“Unfortunately, we have a situation that we knew could potentially happen in one of our congregate living settings,” said Democratic Mayor London Breed at an April 10 press conference. But, she argued, “we know it could have been worse.”

Multi-Service Center South had a maximum pre-pandemic capacity of 340 people. In the weeks prior, the city had already been in the process of moving residents out of the shelter and into private hotel rooms where the virus would have less of a chance of spreading. Other residents, per the San Francisco Chronicle‘s reporting, took matters into their own hands and moved out onto the streets.

Activists criticized Breed for moving too slowly to get people out of the city’s shelters. Yet San Francisco’s experience was fairly typical.

At the very beginning of the pandemic, there were few tools available for preventing the transmission of COVID-19. Federal ineptitude meant masks and tests were in short supply. Vaccines were still on the drawing board.

That meant the country relied on social distancing to stop the spread—a challenge anywhere, but especially in homeless shelters that typically packed many people into congregate, dormlike facilities.

Public health regulations gave shelters little choice. Complying with the Centers for Disease Control and Prevention’s social distancing guidance meant some shelters had to reduce their capacity by as much as 50 percent. Others closed completely. The result was a sudden “decompression” of the existing, pre-pandemic shelter system.

In January 2020, 82.6 percent of traditional facility-based shelter beds nationwide were occupied. By January 2021, at the height of the pandemic, the occupancy rate had dropped to 71.4 percent. Where did all those people go?

One answer is that they simply moved out onto the street. “Clients regularly reported that they preferred to remain unsheltered rather than congregating indoors due to a fear of contracting the virus,” says the Department of Housing and Urban Development (HUD) in its 2021 Annual Homeless Assessment Report.

We’ll never know how many people lost shelter altogether. HUD, citing health concerns, waived the requirement that recipients of federal homelessness funding perform “Point in Time” counts of the number of unsheltered people in their jurisdiction.

Another answer is that they moved into hotels and motels, often funded through government aid. The March 2020 $2.2 trillion Coronavirus Aid, Relief, and Economic Security (CARES) Act included a massive $5 billion bump to federal homelessness spending. The bulk of that, $4 billion, was poured into HUD’s preexisting emergency solutions grants program.


The Federal Emergency Management Agency also issued guidance allowing its “public assistance” grants to be spent on providing “non-congregate shelter.”

Some of the state and local organizations that received these funds devoted a good chunk of them to renting out and staffing up motel and hotel rooms. The near-total collapse in business and tourist travel had left the hotels largely vacant, and individual rooms allowed people to isolate.

By late June 2020, California’s Project Roomkey—the first large-scale effort to turn hotels into housing for the homeless—had placed over 10,000 people in hotel rooms.

Using individual rooms also relieved some regulatory red tape. Peterson-Stigers said that the private settings allowed Interfaith Sanctuary to provide its clients at the Red Lion hotel with hospice care—something the group couldn’t do in its congregate shelter because of federal medical privacy regulations.

Other guests benefited from not being outside and exposed to the elements all day. Instead, they had a safe and secure place to store their things, and a fixed address to travel to and from appointments. Parents had a much easier time enforcing rules or putting the baby down for a nap.

Once again, data on how many hotel rooms were used as homeless shelter space are spotty. HUD reports 33,259 of these voucher beds were in existence in January 2021, more than double the number that existed in 2020. But not every jurisdiction included its hotel beds in the count of available shelter beds it reported to HUD.

These voucher beds ended up housing 11.3 percent of sheltered homeless people in 2021. But they didn’t absorb everybody coming out of a decompressing shelter system. Another 6.5 percent were housed in “other beds” located in churches and other facilities not traditionally used as shelters—a 15 percent increase from 2020, according to HUD.

It’s likely a lot more people would have been sheltered in these nontraditional arrangements had it not been for the obscene amounts of red tape placed on churches and charitable organizations trying to give someone a warm bed for the night.

No Good Deed

The primary reason Boise’s Interfaith Sanctuary purchased its State Street property was the potential it offered the organization to scale up its charitable work. The larger building and surrounding lot would allow it to provide more services to more people.

But that scale would become a focal point of neighborhood opposition. As the approval process dragged on, opponents of Interfaith Sanctuary’s new location suggested an alternative. Instead of one big shelter, why not scatter several smaller ones around the city? That way, Interfaith Sanctuary could provide more focused care to shelter residents while reducing the impacts on the neighborhoods the shelters were in.

This alternative plan turned out to be impossible to implement. In response to the controversy its shelter plans had kicked off, Interfaith Sanctuary had agreed to a request from Boise Mayor Lauren McLean to delay its permit application so that a “Better Shelter” task force—made up of city staff, neighborhood representatives, and homeless advocates—could be assembled to vet alternatives.


At one meeting, task force facilitator Jen Schneider, a Boise State University professor of public policy, presented a spreadsheet of 56 possible alternative shelter sites identified by a city-commissioned real estate survey.

Schneider noted that only four of Boise’s 24 zoning categories, covering about 7 percent of the city’s zoned land, allowed for shelters. That meant only 17 of the 56 potential shelter sites the city’s survey had turned up were viable.

Only five of those 17 properties were the right size to host a shelter, and three of those were already in the process of being bought by other parties. That left two properties available: a vacant lot behind a Walmart and another empty parcel owned by the county highway agency that wasn’t for sale.

Both were inferior to the property that Interfaith Sanctuary already owned. To acquire them, the organization would also have had to buy at the top of Boise’s booming post-pandemic real estate market. That’s a tall order for a privately funded nonprofit.

Boise’s city limits encompass 85 square miles. That there were only three feasible properties that could play host to a homeless shelter underscores just how difficult it is for churches and nonprofit providers even to find land where their charitable work is allowed.

A sudden, massive influx of federal funding and the near-overnight collapse of business and tourism travel made the housing of homeless people in hotels during the pandemic possible. This still wouldn’t have been practical without equally rapid zoning reforms.

The National Alliance to End Homelessness praises states such as California and Oregon for running model hotel-to-shelter conversion programs. The success of both programs, the organization notes, required legislation exempting these conversions from normal zoning regulations. Private parties trying to serve the homeless outside of state and federally funded or administered programs often had to contend with the full realm of land use regulations.

Making matters worse is the fact that homeless services often don’t fit neatly into the uses permitted by a city’s zoning codes. They aren’t quite commercial activities. They’re not residential either. Churches and charitable nonprofits were often blindsided by zoning officials’ determination that their shelter or soup kitchen wasn’t allowed to operate on their property.

Take the case of Free Methodist Church in Gloversville, New York. In the months before the pandemic, the church had worked to convert a former YMCA building it owned in the city’s downtown into a cold weather shelter.

In February 2020, however, a city official informed Free Methodist Pastor Rich Wilkinson that the YMCA building’s commercial zoning prevented it from being used as a shelter.

The trouble was that Gloversville’s code was silent on whether cold weather shelters were allowed in commercial zones. This kicked off a two-year back-and-forth between Wilkinson and the city.


Wilkinson argued that a shelter was similar enough to commercial zone-compliant rooming houses and hotels that it should be allowed. This argument failed to move officials who voted against issuing his church a permit. They also denied his church’s application for a zoning variance.

These delays didn’t make Gloversville’s weather any warmer. Anyone looking to escape the sub-zero temperatures of an upstate New York winter was forced to migrate to surrounding counties where shelter was available.

“All it is, is a line in the city code that is keeping people from sleeping in the warmth,” Wilkinson says. “It’s ridiculous to me that anybody would allow people to sleep in the cold when there’s a place where they could come inside and get warm.”

St. Timothy’s Episcopal Church in Brookings, Oregon, faced similar pandemic care hurdles. For decades, the church had provided free meals two days a week alongside other religious congregations in town. When the pandemic hit, those other churches shut down their soup kitchens. Not St. Timothy’s. The church’s pastor, Bernie Lindley, decided to expand the church’s meal service to six days a week to pick up the slack.

The expanded number of days that the church was serving meals and the fact that it was the only soup kitchen left in town soon turned it into something of a gathering place for the area’s homeless and indigent. At the city’s urging, the church also agreed to host a “safe parking” site where people with nowhere to sleep except their vehicle could legally park overnight. That brought even more people around.

This all boiled over into a conflict with St. Timothy’s neighbors. In April 2021, 30 Brookings residents sent a letter asking the city to “reconsider allowing vagrants to continue to live and congregate at St. Timothy’s Church.”

In response to that petition, city staff did some research. They discovered that soup kitchens—by virtue of being regulated by state health authorities, like commercial restaurants—had actually been prohibited in the city’s residential zones all along. And all churches in Brookings, including St. Timothy’s, were in residential zones.

In October 2021, the Brookings City Council passed a new ordinance allowing organizations to provide “benevolent meal service” two times a week in residential areas, provided they get a conditional use permit.

On paper, this ordinance legalized soup kitchens that were otherwise prohibited by the city’s zoning code. In practice, it meant that the Brookings City Council was imposing new requirements on the church’s heretofore unregulated meal services.

“What we’re doing is what churches do. Churches feed people,” Wilkinson told Reason in November 2021. “To tell a church that they have to be limited in how they live into the Gospel of Jesus Christ is a violation of our First Amendment right to freely practice our religion.”

In January 2022, the Episcopal Diocese of Oregon—with the help of the Oregon Justice Resource Center and the law firm Stoel Rives—sued the city of Brookings. The pending lawsuit argues that the city’s ordinance violates the religious liberty protections of the U.S. Constitution’s First Amendment and the federal Religious Land Use and Institutionalized Persons Act. Wilkinson’s Free Methodist Church also has an active lawsuit against Gloversville.


Both are examples of churches whose charitable activities were made illegal on technical grounds. Following the letter of the law didn’t stop other shelter operators from being dragged through hell.

Just Four Parking Spaces

Long before the pandemic-caused exodus from the shelter system, the Silicon Valley community of Palo Alto, California, had a large, obvious unsheltered homeless population.

“In a place like Palo Alto, where condos start at $1.5 million, there’s literally someone who’s living out of their car or on the street on every single block, in every single neighborhood,” says Chris Kan, a genetics researcher and Palo Alto resident. “It’s a problem everyone in the area knows and everybody wants to do something about.”

For that reason, Kan’s Unitarian Universalist Church of Palo Alto (UUCPA) and other religious organizations lobbied the city to pass a “safe parking” ordinance that would permit willing churches to devote their parking spaces to overnight stays by vehicles and their owners.

In January 2020, the city council unanimously approved an 18-month pilot program letting churches set aside up to four safe parking spaces. The idea was to start off slow. If things worked out well, the city could consider allowing nonreligious institutions to host safe parking sites, and potentially permit more than four cars as well.

The program passed just in time for the pandemic. But just because these safe parking sites were legal didn’t make them easy to set up.

Unlike neighboring cities with safe parking programs, Palo Alto’s ordinance required churches to get a special permit to open one. City officials had the power to reject a permit application if they thought a parking site would adversely affect surrounding residents’ health, safety, and welfare. An approved application could also be appealed to the city council, which is exactly what happened to Kan’s application.

He says his church was ready to file an application at the beginning of 2020. The pandemic disrupted those plans. City offices, like most workplaces, were closed down or went remote. City staff suddenly had responsibility for administering a lot of new emergency programs.

This delayed things for months. Eventually in February 2021, the UUCPA had its application accepted. In May, it received provisional approval from Palo Alto’s planning director.

Instead of starting the operation, however, that approval just led to more delays. In June, the low-income senior living facility next door—ironically built on land donated by the UUCPA in the 1960s—appealed the permit.

That kicked off more rounds of public engagement, which got heated quickly. Kan says some of the opposition they faced was from people with a misunderstanding of how the site would be managed and who would be allowed to stay there. Those folks, he says, proved reachable. Others were flatly opposed.


“Palo Alto, on a ‘not in my backyard’ scale, is probably a nine out of 10,” he says. “There was honestly just a group that, come hell or high water, weren’t going to agree to it no matter what we did. That was just a political reality.”

With the help of groups like the NAACP and the League of Women Voters, the UUCPA was able to rally support and get its application approved by the city council in October 2021. Its safe parking site is operational today. Kan says it’s mostly been at capacity since it started.

That was a happy ending for the UUCPA and the people the group is now serving. But it came almost two years after the safe parking program was first approved.

“This is literally four passenger cars,” says an exasperated Kan. “It’s four people in four cars that’s in the back of a parking lot that’s being professionally monitored by social workers and police.”

The sheer amount of process that cities layer onto the provision of homeless services is certainly burdensome. It’s often unreasonable. It can even be unconstitutional, says Diana Simpson, an attorney with the Institute for Justice.

She references the U.S. Supreme Court’s 1985 decision in City of Cleburne, Texas v. Cleburne Living Center, Inc., which struck down a local requirement that hospitals serving the “feeble-minded” obtain a special permit.

Regulations have to be a rational means of pursuing a legitimate governmental interest. And in Cleburne, the Supreme Court decided that requiring special permits for a hospital just because it was serving the mentally ill wasn’t rational. Rather, the Court determined that the permit requirement at issue was motivated by prejudice against the disabled, and, therefore, was a violation of the Equal Protection Clause of the 14th Amendment.

“Land use decisions have to be about the use, not the people,” explains Simpson.

Theoretically, the Cleburne decision should provide significant protections to people trying to set up facilities servicing the homeless. But time and again, the discretionary processes of governments heavily geared toward public input often mean that those homeless shelters receive more de facto scrutiny than would a similar use, such as a hotel.

“The problem with this conditional use requirement, and this repeats all over the place, is neighbors don’t want it. The town gets shy and says you can go somewhere else, but there’s nowhere else to go,” says Simpson.

The Institute for Justice has sued on behalf of several homeless shelters that have been denied conditional use permits—recently winning one case in North Wilkesboro, North Carolina.


Despite Supreme Court precedent, these lawsuits are typically an uphill battle. Lower courts give extreme deference to a government’s rationale for its regulations. Simpson says that the courts have also generally treated Cleburne as a unique one-off decision that’s not neatly applicable to similar cases.

Shelter providers themselves are sometimes loath to sue—either for lack of resources or a fear of souring their relationship with a local government they have to interact with on a daily basis. The result is that the rights of homeless service providers, and the people they serve, are often ignored.

Nowhere To Go

On the most immediate level, the months or years churches spend getting permits or securing a scrap of land where their charitable work is legal is time they’re not spending on their missions.

The people they would have fed or sheltered during that time have to look for help elsewhere or go without it. The time and resources they do sink into getting permission comes at the expense of productive work they could be doing.

The opportunity costs of that lost time were particularly acute during the pandemic when so many people were in need.

“We could have helped elderly folks who were isolated because of the pandemic,” says Kan. He estimates the UUCPA spent a thousand volunteer hours just getting its safe parking permit. “We could have worked with kids who didn’t have the best internet. There were a lot of programs we could have put that energy into.”

Excessive regulation also suppresses organizations’ willingness to provide shelter and other services to the homeless in the first place. Palo Alto’s safe parking ordinance was backed by a number of city churches interested in participating in such a program. Most looked at what the UUCPA went through and said “heck no.”

The chilling effects of discretionary, public input–heavy approval processes also come with a personal cost. People just trying to do good have to face a lot of vitriol and opposition from their community.

“There’s no escaping this conversation in this town,” says Interfaith Sanctuary’s Peterson-Stigers. The zoning fight didn’t stop the nonprofit’s day-to-day work. But it did take an emotional toll, transforming efforts to help the needy and the vulnerable into a bureaucratic slog that put the organization at odds with the government and much of the community. “I hate the work that I’m being asked to do right now that feels very political.”



Exclusive: Rudy, Rudy, Rudy –




WASHINGTON, DC - NOVEMBER 19: Rudy Giuliani speaks to the press about various lawsuits related to the 2020 election, inside the Republican National Committee headquarters on November 19, 2020 in Washington, DC. President Donald Trump, who has not been seen publicly in several days, continues to push baseless claims about election fraud and dispute the results of the 2020 United States presidential election. (Photo by Drew Angerer/Getty Images)

#Rudy #Rudy #Rudy

Rudy Giuliani was viciously attacked Sunday at a ShopRite grocery store on Staten Island he told The New York Post. It’s a wonder he made it out alive. “All of a sudden, I feel this ‘Bam!’ on my back,” Giuliani said. “I don’t know if they helped me not fall down, but I just about fell down, but I didn’t.” There was a “tremendous pain in my back,” Rudy told the Post.

So much pain, he told WABC talk radio, “somebody shot me,” and, “Luckily, I’m a 78-year-old who is in pretty good shape. If I wasn’t, I would have hit the ground and probably cracked my skull.” He was so concerned about the possibility of other 78-year-olds being menaced in grocery stores that he was compelled to call the cops on the rogue grocery store worker who so brutally attacked him. “I mean, suppose I was a weaker 78-year-old and I hit the ground, cracked my skull, and died,” Giuliani recounted. 

Thanks to the wonder of security cameras, you can see the brutal attack for yourself.


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Exclusive: Majority Opposed to Supreme Court Abortion Ruling –




Compelling Television

#Majority #Opposed #Supreme #Court #Abortion #Ruling

A new poll from NPR/PBS NewsHour/Marist finds Americans opposed to the Supreme Court decision to overturn Row v. Wade by a 56% to 40% margin, with a plurality strongly opposed and Democrats getting more energized to vote.

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Exclusive: Religious Accommodation Claim Over Objections to Having to Wear Multi-Colored Heart Symbol Can Go to Trial –




Religious Accommodation Claim Over Objections to Having to Wear Multi-Colored Heart Symbol Can Go to Trial

#Religious #Accommodation #Claim #Objections #Wear #MultiColored #Heart #Symbol #Trial

From Judge Lee Rudofsky’s opinion Thursday in EEOC v. Kroger Ltd. Partnership I (E.D. Ark. June 23, 2022):

This case arises from Kroger’s termination of two employees. The Equal Employment Opportunity Commission alleges that these terminations amount to religious discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964. Kroger disagrees.

The two employees at issue—Brenda Lawson and Trudy Rickerd—worked at a Kroger store in Conway, Arkansas. They were fired after refusing to follow the new employee dress code established by Kroger. That new dress code required most store employees to wear an apron that prominently featured a multi-colored heart symbol [pictured above -EV]. Lawson and Rickerd felt that the multi-colored heart symbol supported and promoted the LGBTQ community. That was a problem for Lawson and Rickerd because they both have sincerely held religious beliefs that homosexuality is a sin and that they cannot support or promote it.

After being reprimanded for their refusal to follow the dress code, but before termination, Lawson and Rickerd each requested a religious accommodation from Kroger. Lawson requested that she be allowed to place her nametag over the multi-colored heart. Rickerd requested that she be allowed to purchase an apron without the multi-colored heart on it. They both told Kroger that the failure to allow such accommodations (and continued discipline regarding this dress-code issue) would be religious discrimination.

Kroger neither granted the requested accommodations nor suggested any other potential accommodations. Instead, Kroger attempted (on multiple occasions) to explain to Lawson and Rickerd that the multi-colored heart symbol had no relation to the LGBTQ community whatsoever. Lawson and Rickerd were unpersuaded and continued to refuse to display the symbol. After multiple rounds of discussions and discipline, Kroger fired both women for refusing to comply with the dress code. After Lawson and Rickerd complained to the EEOC, the EEOC brought suit against Kroger….

The lawsuit was chiefly premised on the statutory requirement that employers exempt employees even from neutral, generally applicable workplace rules if (to oversimplify slightly),

  1. “the employee’s sincerely held religious belief conflicted with the employer’s workplace rule” and
  2. the employer can’t “show that accommodating the religious observance or practice would have created an ‘undue hardship on the conduct of the employer’s business.’”

The court began by noting that the sincere belief requirement could be satisfied, under the Court’s precedents, even if the employer says the heart symbols were unrelated to gay pride, so long as the employee sincerely believed they were; and here, “Kroger concedes that Lawson and Rickerd sincerely believe that wearing the Our Promise symbol violates their religion.” And the court added,

In any event, even if Kroger was right that the conflict question included an objective-reasonableness component, there’s evidence in the record that would allow (but not require) a rational juror to conclude that the EEOC has proven prong one. That is, a rational juror could conclude that Lawson and Rickerd reasonably believed that wearing the multi-colored heart would communicate support for and promotion of the LGBTQ community…

Regardless of what Kroger intended for its Our Promise symbol to mean, Lawson and Rickerd object to being seen as supporting or promoting homosexuality…. [A] rational juror could go either way on that question.

At least ten (and possibly as many as twenty) other employees in the same store thought the Our Promise symbol communicated support for or promotion of the LGBTQ community…. [T]here was [also] no campaign to explain the meaning of the multi-colored heart to customers or other non-employees. Essentially, the meaning of the Our Promise symbol was left up to the imagination and interpretation of each particular customer who saw it. Indeed, there is evidence of non-employees concluding that the multi-colored heart was a pro-LGBTQ symbol.

The more people who saw the multi-colored heart the same way Lawson and Rickerd saw it, the harder it becomes to say that no rational juror could find Lawson and Rickerd’s view to be reasonable. Given the number of people in this case who came to the same conclusion as Lawson and Rickerd did, the Court would be reticent to declare this view unreasonable as a matter of law.


The court also concluded that there was a jury question as to whether Kroger could have exempted Lawson and Rickard without “undue hardship.” It cited the Eighth Circuit standard:

Any hardship asserted, furthermore, must be real rather than speculative, merely conceivable, or hypothetical. An employer stands on weak ground when advancing hypothetical hardships in a factual vacuum. Undue hardship cannot be proved by assumptions nor by opinions based on hypothetical facts. Undue hardship requires more than proof of some fellow-worker’s grumbling…. An employer … would have to show … actual imposition on co-workers or disruption of the work routine.

And it went on to reason:

Kroger argues that accommodating Lawson and Rickerd (and potentially other employees) would have had a more than de minimis impact on Kroger’s branding, business image, and customer relations. Kroger says that granting the requested accommodations would have “undermined the real meaning of the Our Promise symbol” by “giving credence to [the employees’] false assertion that Kroger intended the Our Promise symbol to promote LGBTQ rights” and “endors[ing] the religious belief.” Kroger also says that accommodating Lawson and Rickerd would have “undermine[d] Kroger’s commitment to customer relations and deprive[d] Kroger of free branding.”

On the record in this case, a rational juror could find that accommodating Lawson and Rickerd (and potentially other employees) would have had no effect or next-to-no effect on Kroger’s branding or business image…. [First, p]roviding a religious accommodation to an employee does not signal an employer’s agreement with the employee’s beliefs that created the need for the accommodation. Still, it is theoretically possible that someone could mistakenly consider Kroger’s accommodation of Lawson and Rickerd to be the company’s acknowledgement that its Our Promise symbol was related to the LGBTQ community. But that theoretical possibility is speculative. And it is even more speculative that enough people would share this view—and change their behavior because of it—to result in any hardship to the conduct of Kroger’s business.

As to Kroger’s concern about its “commitment to customer relations” being “undermine[d],” a rational juror could conclude on this record that the requested accommodations would have had no impact on the company’s commitment or its employees’ commitment to customer relations. One of Kroger’s corporate representatives testified that it was “not important for [Kroger’s] customers to know what Our Promise is.” Instead, the Our Promise symbol was used to remind employees of Kroger’s customer-service philosophy. Moreover, the multi-colored heart symbol was not the only way Kroger instilled customer-service values in its employees. There was the inscription on the back of the apron that Kroger made sure employees would see “when they put [the apron] over their head every day.” And Maxwell posted signs in the employee break room that explained the Our Promise campaign, symbol, and Kroger’s commitment to customer service….

Kroger did not require its divisions to adopt the Our Promise symbol. If the Our Promise symbol was important to the conduct of Kroger’s business, one would expect the company to require its use….

Kroger’s final argument in this category—that the requested accommodations would “deprive[ ] Kroger of free branding”—fares no better. The Our Promise symbol does not bear Kroger’s name or any other similar company-identifying logo. The Our Promise symbol has not been marketed to customers….

Kroger also contends that it would have incurred additional financial costs because it “would have had to purchase new aprons for the associates who refused to wear the Our Promise symbol.” But Lawson did not ask for a new apron at all. Lawson asked only that she be allowed to cover the multi-colored heart with her nametag. And Rickerd specifically offered “to buy another apron to ensure there is no financial hardship on Kroger.” So, it certainly doesn’t appear that Kroger would have incurred any additional financial costs had it granted the religious accommodations….

Kroger argues that the requested accommodations would have “caused a substantial disruption in Kroger’s workplace and created potential liability for Kroger against harassment suits from LGBTQ employees.” … Kroger certainly has provided evidence from which a rational juror could conclude that granting the requested accommodations would have led to disruption in the workplace. Primarily, that evidence consists of the disruption that did occur at the store around the time of the distribution of the aprons.

Essentially, Kroger’s read of the record is that something akin to a civil war broke out in the Conway store. Kroger says that Lawson, Rickerd, and the other objecting employees had “discussions with their co-workers [that] led to most employees in the store knowing that [they] refused to wear the uniform because they regarded homosexuality and participation in the LGBTQ community as a sin.” According to Kroger, this offended “members of the LGBTQ community and their allies” and “led to polarization within the workplace, which witnesses described as ‘pretty divisive’ and ‘causing some controversy,’ ‘a major issue,’ ‘an uproar,’ ‘a split,’ and impacting employee comfort.” Peace only came, according to Kroger, once it was clear that Kroger would strictly enforce its dress code.

The problem for Kroger—at the summary judgment stage—is that its reading of the record is not the only plausible one. A rational juror could conclude that the extent and duration of the workplace disruption was significantly less intense. Maxwell (the Store Leader) testified that, while Lawson and Rickerd “did have some support from other associates,” he “wasn’t aware of any” “division” in the Conway store. Judy (on whom Kroger partially relies for its workplace-disruption argument) testified that he did not think it fair “to say this issue split the store.” Indeed, if all reasonable inferences are drawn in favor of the EEOC, the only specific instance of a disruption in the workplace that Kroger points to—the red-marker-and-rainbow-tape incident—could be viewed as being entirely resolved in as little time as an hour or two.

There is no evidence of a meaningful reduction in employee productivity. There is no evidence of a meaningful increase in employee absenteeism. There is no evidence that workplace disruption impacted Kroger’s profits in any way. A rational juror could see all of this as normal workplace friction that was easily resolved by management with no real impact to the business. Further, a rational juror could conclude that granting the requested accommodations would not have caused any additional impacts, even if the workplace friction was marginally prolonged.


Indeed, even if the workplace disruption was as bad as Kroger makes it out to be, Kroger would still not be entitled to summary judgment. As the EEOC emphasizes in its briefing, “it is the accommodation that must cause the disruption when asserting undue hardship.” A rational juror could conclude that the workplace disruption had little (or nothing) to do with Lawson and Rickerd at all, much less with their requests to cover the multi-colored heart or buy a new apron without the multi-colored heart…. It is easy to conclude that the disruption would have taken place in the absence of Kroger accommodating Lawson and Rickerd. That’s because the disruption did occur in the absence of the accommodations. As to whether granting the accommodations would have prolonged or reignited the disruption, there’s little evidence one way or the other. So, a rational juror could find the prolonged-or-reignited-disruption thesis to be speculative.

Kroger’s disruption argument extends beyond employee conflict. Kroger says customers learned about the employees’ views of the Our Promise symbol and began to complain about the symbol themselves. The only evidence of customer complaints comes from the declarations of Maxwell and Assistant Store Leader Kaela Goodnight. Maxwell tells about a single interaction he had with a customer …. Goodnight’s declaration is essentially the same, with the exception that she speaks of “multiple” interactions ….

A rational juror could conclude that the burden on Kroger from these interactions was de minimis. Neither Maxwell’s nor Goodnight’s statements (nor any other piece of evidence) proves that Kroger lost any of the complaining customers’ business. Neither statement (nor any other piece of evidence) proves that Maxwell or Goodnight spent a significant amount of time explaining the Our Promise symbol to these customers such that non-de minimis inefficiencies occurred. Instead, a rational juror could conclude that (1) more than one customer complained about the multi-colored heart, (2) Maxwell or Goodnight took a brief moment each time to explain what the Our Promise symbol means, and (3) nothing further occurred….

Kroger’s last remaining argument is that accommodating Lawson and Rickerd would have exposed Kroger to legal liability for fostering a hostile work environment or allowing Lawson and Rickerd to harass other employees. That’s a non-starter. All the accommodations would have done was allow Lawson and Rickerd to forego wearing the Our Promise symbol. That is not the stuff of harassment or hostile work environment claims.

This is so even though other people know why Lawson and Rickerd wanted an accommodation—i.e., that they don’t want to endorse homosexuality. Whether such a view is good or bad, right or wrong, it does not constitute harassment or create a hostile work environment. Other concerns Kroger might have—such as the potential for intolerant discussions of LGBTQ issues among workers—are not directly related to the accommodation itself and can be addressed if or when they occur….

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