Conflicts Between Religion and Other Discriminatory Prohibitions, Quirky Question # 58

Quirky Question # 58:

I read with interest your last question about a company’s obligation to accommodate an individual’s religious beliefs, assuming that it would not cause an undue hardship to the employer.  We have a slightly different problem.  One of our employee’s religious beliefs would appear to be in conflict with our anti-discrimination prohibitions.

Acknowledging the changing composition of our workforce and customers, our company instituted a diversity initiative.  As part of that effort, we display posters of some of our diverse employees (an African American, a woman, a Hispanic, an older employee, a disabled employee, and a Gay employee who is very active in our GLBT efforts).

Shortly after the posters were displayed, a long-term employee placed a quotation from the Bible in an overhead bin in his cubicle in large letters.  The quoted passage stated:  “If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination; they shall surely be put to death.”

Co-workers who sit by or have to pass by the employee’s cubicle have complained about the quotation as being contrary to the diversity and anti-harassment policies of the company.  They correctly point out that displaying this Bible quotation also appears to be in conflict with Minnesota’s prohibition of discrimination based on sexual orientation.  When we approached the individual, he explained that he is a devout Christian who believes he must expose homosexuality as evil.

What recommendations do you have for resolving the conflict between our company’s obligations to prevent sexual orientation discrimination and our company’s obligation to accommodate different religious beliefs.

Dorsey’s Analysis:

As addressed in last week’s Quirky Question, Title VII, as well as the parallel state anti-discrimination statutes, prohibit discrimination on the basis of religion.  The proscription against religious discrimination involves two separate obligations: a) companies may not discriminate against employees on the basis of their religion (disparate treatment claims); and b) companies have an obligation to accommodate their employees’ sincerely held religious beliefs (accommodation claims).  Last week, I discussed the religious accommodation concept.  Here, however, as you point out, the potential religious accommodations conflict with other obligations imposed upon your company.

Many states, including Minnesota, have statutes that prohibit discrimination on the basis of sexual orientation.  Further, independent of state laws, most of the largest and mid-size corporations in this country have policies prohibiting discrimination on the basis of sexual orientation.  In short, the type of quotation displayed by your employee conflicts with state law and sound corporate policies.  In my view, in this context, corporations are fully justified in terminating employees who are unwilling to remove these types of anti-Gay statements from their work spaces.

Out of an abundance of caution, however, companies should follow the prescriptions of the courts and the EEOC guidelines before making the discharge decision.  First, explore with the employee displaying the bigoted statement why it is being displayed.  If he advises you that his actions reflect a “sincerely held” religious belief, you need to move to the next step of the analysis.  (Of course, if he tells you that he simply hates homosexuals and does not tie his antipathy to “sincerely held” religious beliefs, your rights to discipline or discharge him are even more unfettered.)  Second, assuming your employee’s beliefs are religiously linked, you need to explore whether you can accommodate these beliefs.  As I discussed last week, however, your accommodation obligations are not substantial.  If the accommodation would cause your company even a minimal “undue hardship,” the accommodation does not have to be made.

There are many ways in which you can demonstrate that allowing this hateful message to be displayed (whether based on a Biblical passage or not) would be harmful to your company.  The message violates state law, at least in Minnesota and a number of other states.  The message violates your company’s policies.  The message is contrary to your company’s diversity initiative.  The message is hurtful to employees, both heterosexual and homosexual.  The message is divisive and counter-productive to a harmonious and effective workforce.  If displayed in an area where your customers and/or vendors have access, your message also may offend representatives of those groups and may adversely affect your company’s relationships with these third parties.

The bottom line is that allowing hateful, hurtful messages to be displayed in your workplace (regardless of which group is targeted) adversely affects your company’s profitability.  For these reasons (and undoubtedly others as well) your company should be able to demonstrate easily that allowing the Biblical quote to be displayed would constitute an “undue hardship” for your company.

I recommend, therefore, that you discuss with your employee whether he is willing to remove the quotation from his work area.  If he is not willing to remove the offensive material, impose discipline.  If you want to help the employee understand the seriousness of your concerns, you could consider progressive discipline.  For example, you could suspend him without pay for a defined period of time.  If that action does not convince your employee that you view his actions seriously, and he still insists on displaying this Bible quote, you would be justified in terminating him.  If he later sued on the basis of religious discrimination, your company should prevail.

Several years ago, a similar case was presented to the Ninth Circuit, Peterson v. Hewlett Packard, 358 F.3d 599 (9th Cir. 2005).  In Peterson, a case arising out of the District of Idaho, a Hewlett-Packard employee displayed a number of virulently anti-Gay Biblical quotes in his cubicle, all within the view of other company employees.  Peterson, who characterized himself as a “devout Christian” acknowledged that he the quotations were “intended to be hurtful.”  (Apparently, there were other sections of the Bible that he somehow overlooked.)  Peterson claimed that he hoped his Gay and Lesbian colleagues would see his message, “repent and be saved.”  Hewlett Packard met with Peterson, explored whether it could accommodate his religious beliefs, discovered that Peterson would not agree to the removal of the quotations, and terminated his employment, both for violating the company’s policies and for insubordination.  The District Court granted the company’s summary judgment motion in Peterson’s disparate treatment and failure to accommodate religious discrimination claims.  The Ninth Circuit affirmed.

With respect to the failure to accommodate claim, the Ninth Circuit pointed out that an accommodation need not be made where the accommodation “would result in discrimination against [  ] co-workers or deprive them of contractual or statutory rights.”  Further, the court emphasized that Title VII’s prohibition against religious discrimination “does not require an employer to accommodate an employee’s desires to impose his religious beliefs upon his co-workers.”  This observation holds true regardless of which religious zealot is desirous of imposing his set of beliefs upon his co-workers.

Note that the EEOC has recently published an informative “Fact Sheet” relating to religion and Title VII, in which the EEOC addresses a number of questions and answers about religious discrimination.  See, http://www.eeoc.gov/policy/docs/religion.html .

Finally, another way to consider this question is to substitute another issue in the message that was displayed and evaluate whether there would be any serious debate about the outcome.  For example, if an employee posted a message in his or her cubicle that anyone who married someone of another race should be put to death, claiming that this sentiment was based on his or her religious beliefs, there would be little tolerance for the expression of this idea.  Or, if an employee communicated the sentiment that a young woman should be killed if she marries someone other than the marriage partner selected for her by her parents, again there would be immediate rejection of this message as completely unacceptable.  The same immediate rejection should apply when an employee is asserting that individuals with a different sexual orientation should be “put to death,” regardless of whether he links this sentiment to his religion.

My last observation is that the train has left the station with respect to protecting individuals on the basis of sexual orientation.  State laws prohibit discrimination against these individuals.  It is likely that federal legislation will pass in the next Congress prohibiting sexual orientation discrimination.  Most responsible companies have established policies regarding sexual orientation discrimination, and are working hard to ensure their workforces are both diverse and tolerant.  Employers are well within their rights in insisting that their employees get on board, regardless of those employees’ religious beliefs.

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