Employers pushing toward diversity in the workplace are now encountering push-back from employees on the religious right. These employees contend that diversity policies requiring them to "value" concepts with which they fundamentally disagree for religious reasons impinge upon their Title VII religious rights. Two recent cases illustrate the positions of both sides on this issue and the narrow ground employers must walk between the two.
In Peterson v. Hewlett-Packard (9th Cir. 2004) a 21-year employee with satisfactory job performance objected to Hewlett-Packard's diversity posters which, among other things, displayed pictures of Hewlett-Packard employees above the caption "gay." Peterson, who described himself as a "devout Christian," claimed that he had a duty "to expose evil when confronted with sin." He took it upon himself to display at his workstation passages from the Bible that condemn homosexuality. Hewlett-Packard met with Peterson and explained that this biblical verses he posted were hurtful and in violation of Hewlett-Packard's anti-harassment policy which prohibited "comments or conduct relating to a person's race, gender, religion, disability, age, sexual orientation or ethnic background that fail to respect the dignity and feeling [sic] of the individual." Peterson acknowledged that the passages were "intended to be hurtful" because "you cannot have correction unless people are faced with truth." Peterson explained that he hoped his gay and lesbian co-workers would read the passages, repent, and be saved. He proposed that he would take down the biblical passages if Hewlett-Packard would take down its "gay" posters. Hewlett-Packard refused and gave Peterson time to think about his actions but when he ultimately refused to modify his conduct, Hewlett-Packard fired him for insubordination. Peterson sued alleging disparate treatment and failure to accommodate his religious beliefs.
The Ninth Circuit held that although homosexuality is not a protected classification under Title VII, "Hewlett-Packard's efforts to eradicate discrimination against homosexuals in its workplace were entirely consistent with the goals and objectives of our civil rights statutes generally." It went on to point out that Hewlett-Packard's posters were not intended to be hurtful, whereas Mr. Peterson's scriptures were posted with that intent. The Court held that Peterson was discharged not because of his religious beliefs but because he violated the company's harassment policy and was insubordinate in disregarding the company's instructions to remove his "demeaning and degrading postings" from his cubicle.
The Court also rejected Peterson's failure to accommodate claim noting that Hewlett-Packard convened at least four meetings with Peterson to explain the reasons for its diversity campaign and allow him to fully explain his reasons for his postings. The Court held that Peterson's insistence that Hewlett-Packard remove the gay posters from its workplace was unreasonable. According to the Court, this demand created an undue hardship for Hewlett-Packard because it would have inhibited its effort to attract and retain a "qualified, diverse workforce." The Court further found that Title VII does not require an employer to accommodate an employee's desire to impose his religious beliefs upon his co-workers, nor does an employer need to accept burdens that would result from allowing actions that "demean or degrade, or are designed to demean or degrade, members of its workforce." The Court therefore upheld Peterson's discharge.
In contrast, on April 1st, 2004, a federal judge in Denver awarded nearly $150,000 to a former AT&T Broadband employee who was fired after refusing to sign the company's diversity policy. In Buonanno v. AT&T Broadband (D. Colo. April 1, 2004), Judge Marcia S. Krieger held that AT&T's discharge of Albert Buonanno violated his civil rights. Buonanno refused to sign AT&T's diversity policy which required him to "respect and value the differences in all of us." Buonanno claimed that he could not value homosexuality and any religious beliefs other than Christianity. Buonanno contended that he could respect and value the individual and he agreed not to discriminate against his fellow employees, but God's word said to him that certain things were sinful and he could not, therefore, value those things.
In making her decision, Judge Krieger ruled that AT&T's policy "went too far" and failed to accommodate Buonanno's religious beliefs. She therefore awarded Buonanno back and front pay and lost 401K matching funds, plus emotional distress and pre-judgment interest totaling $146,269. 00.
These two cases illuminate the narrow path between diversity and religious tolerance that employers must trod. On the one hand, an employer certainly has the right to prohibit conduct that is disruptive or hurtful in its workplace. At the same time, employers may not force employees to adopt value statements that may be inconsistent with employees' religious beliefs. Employers must keep these concepts in mind when implementing and enforcing diversity policies, particularly those that include broader protections than those in Title VII.
*article courtesy of David Barton of Quarles & Brady.