The biggest mistake employees make is to talk about their claim when they are in an employment dispute with their employer. Many employees take a losing stand against their employers because they make statements that undermine their potential claim. Trevor Keezer, the Home Depot employee who was fired for wearing a “One Nation under God, indivisible” button, illustrates this point.
Keezer began work at the Home Depot in March 2008 as a cashier. During his employment, he wore a button with an American flag and the phrase “One Nation under God, indivisible.” Keezer says that none of his managers voiced any problem with the button until early October, 2009. Interestingly, that was around the time that Keezer began bringing a Bible to work to read during his lunch break. Keezer claims that his button (which he had worn for 19 months) became a problem only after he brought his Bible to work.
Home Depot denies Keezer’s allegations. Home Depot says that its “dress code policy states that we do not allow non-company buttons regardless of their message or content to be worn on aprons or other clothing to ensure a consistent policy for all associates.” Home Depot asked Keezer to remove the button pursuant to that policy. Keezer refused. The Company states that “after numerous discussions with Mr. Keezer over the course of several weeks, [it] offered him the option of wearing [its] current Home Depot ‘United We Stand’ pin that showcases [ ] military support.” Keezer did not want to wear that button. He preferred his own button because “you can’t have country without God. Every pin they showed me had no ‘God’ on it or anything.” On October 23, 2009, Home Depot terminated Keezer’s employment for violating the company’s dress code.
Since his termination, Keezer has hired an attorney and is planning to sue Home Depot for religious discrimination. Keezer also has been speaking to the media. Keezer’s more recent comments have consistently supported a religious discrimination theory, stating that Keezer wore the button as an expression of his Christian faith. But, that was not always the case. Keezer has made widely reported statements to the press attributing his termination to his love of country making statements such as “I was just doing what I think every American should do, just love my country” and “It feels kind of like a punishment, like I was punished for just loving my country.” Keezer stated, in an interview with Fox News, “I felt like I was punished for supporting my brother, the troops, and veterans. I just love this country and I don’t see how it’s American to make me take off a pin that represents so much.” Keezer does not have a viable lawsuit against Home Depot unless his claims are about religion. Those statements hurt Keezer’s impending religious discrimination lawsuit, because those statements do not connect Home Depot’s conduct to religion.
There is no law that prohibits private employers from terminating employees for making statements about politics, war, or “love of country.” The First Amendment does not apply to private employers. The only law that may be applicable is Title VII which protects an employee’s sincerely held religious beliefs and practices. But, determining what actions and expression constitute a sincerely held religious belief can be tricky. Courts have struggled with distinguishing between a strong personal belief and a sincerely held religious belief for decades. That distinction will no doubt be a central issue in Keezer’s religious discrimination lawsuit.
Is wearing a button that says “One Nation under God, indivisible” a personal belief or a religious belief? Home Depot has already characterized Keezer’s conduct as a personal belief, telling the media that “expressing such personal beliefs is simply not allowed.” And, Keezer has made some statements that play into the personal belief/personal preference argument. Keezer stated that he preferred to wear his own button. He also stated in an interview that he wanted to wear his button because “as a Christian and as a citizen of America, you know, it is time that we stand up for our country and quit being pushed around by everybody else.” Those statements make it seem as though Keezer’s reasons for wearing the “One Nation under God, indivisible” button stemmed from personal beliefs and preferences rather than religious requirements or dogma. The Supreme Court has consistently held that philosophical and personal belief is not enough. The Equal Employment Opportunity Commission explained that “beliefs are not protected merely because they are strongly held. . . . Social, political, or economic philosophies, as well as mere personal preferences, are not ‘religious’ beliefs protected by Title VII.”
Although this is not a criminal situation, the words of the Miranda warning are instructive: Anything you say can and will be used against you. Trevor Keezer’s statements have not irreparably damaged his religious discrimination claim. But, some of his statements can and will be used against him. And, some of his statements have made his lawsuit and his attorneys’ work more difficult. An employee steps into a legal arena when he or she contemplates suing an employer. The legal arena is complex and its requirements are specific, narrow, and precise. Few employees know those requirements. Talking without knowing the legal requirements of your desired claim can cause you to lose that claim. Employees are better served by leaving the talking to their attorneys.