When Types of Discrimination Compete for Legal Recognition
Should Anti-Gay Religious Practices Be Accommodated in the Workplace?

By SHERRY F. COLB
Wednesday, Jan. 14, 2004

In a recent decision, the U.S. Court of Appeals for the Ninth Circuit rejected claims of religious discrimination by a self-described devout Christian. The case is of note because it pits two sets of antidiscrimination interests against each other.

First, there is an interest in avoiding discrimination based on sexual orientation. Second, there is a right to have one's religious faith accommodated in the workplace even when one's beliefs preach intolerance.

The case of Peterson v. Hewlett Packard Co. arose when, in an effort to increase tolerance at the workplace, Hewlett-Packard Co. ("HP") put up posters of African-American, Hispanic, Caucasian, elderly, and gay employees, with the caption "Diversity is Our Strength." Employee Richard Peterson found the poster of the gay man offensive to his religious views. In response, he put up a counter-poster with various Biblical passages condemning homosexuality. The poster, placed inside his cubicle, was visible to co-workers and clients.

HP repeatedly asked Peterson to take down the poster, but to no avail. After several failed attempts at arriving at a mutually satisfactory resolution of the conflict, HP ultimately fired Peterson. The firm argued that allowing an employee's visible, anti-gay messages to remain in place would unduly undermine its efforts to foster a diverse and tolerant workplace.

Peterson sued. He claimed that in requiring him to take down his poster, HP had violated the law against religious discrimination. Eventually, the case reached the Ninth Circuit, which ruled against the plaintiff.

A Right to Accommodation For Employee Religious Practices

At first glance, Peterson's claims of religious discrimination seem so far-fetched as to merit no discussion at all. The evidence unequivocally indicated that it was the anti-gay content of the plaintiff's poster -- not the fact that it quoted from the Bible or referenced Christianity -- that led HP to demand its removal. Had an atheist employee put up a poster saying "Fear the Queer" and "Sodomy Stinks," there is every reason to think that HP would have reacted exactly as it did to the plaintiff's behavior.

However, the main federal workplace anti-discrimination law, known as Title VII, complicates the picture. Under the statute, an employee can treat all employees alike and nonetheless be liable for religious discrimination. Employers have an affirmative legal obligation to reasonably accommodate employees' religious practices, unless such accommodation would inflict an undue hardship upon the employer's business.

Consider an example. Three employees each refuse to work on Sunday, in violation of the employer's new rules. One of the three does so in order to attend services at his church. The second volunteers at a suicide hotline on Sundays, when the most troubled callers require the skill that she alone brings to the job. The third takes care of his sick grandmother on Sundays, because no one else in the family will do it.

Under Title VII, only the first employee has a right to accommodation, while the latter two may be fired without event. Federal law, in other words, gives the religious employee "special rights" that are unavailable to everyone else.

Is There a Right to Post Condemnation of Homosexual Practices?

Peterson alleged that he had a religious duty to "expose evil when confronted with sin" and therefore to provide moral guidance to his co-workers so that they would turn away from homosexuality. Though the court expresses some skepticism about this claim of religious obligation, it nonetheless accepts its truth for purposes of ruling. In this column too, we will accordingly accept its truth.

On this assumption, as long as the tolerance posters remained in place, the plaintiff would have been violating his religion if he had not posted his "rebuttal" to the message that homosexuality is okay.

Nevertheless, the Ninth Circuit found that compelling HP to tolerate the cubicle poster would impose an undue hardship on the employer. The court was quick to note, however, that fostering tolerance will inevitably generate some ruffled feathers, and that not every expression of disapproval for the diversity posters could legitimately qualify as an undue hardship. The poster in question nonetheless went too far.

The Balancing Necessary When an Employee's Religion Preaches Intolerance

The court's balancing highlights the conflict that can emerge both here and elsewhere in society when the "culture wars" play themselves out.

Tolerance is a secular value that is, for many religious people, a blessing that ideally allows everyone to practice and believe as she wishes without being persecuted for it. Indeed, many people have immigrated to this country to escape religious orthodoxy and associated oppression (ranging from second class status to outright genocide) elsewhere. When religious people view tolerance as their friend, then there is no conflict. "Live and let live" allows everyone to thrive, provided that those whose lifestyles differ do not interfere with one another's freedom.

The conflict arises when one's religious faith requires vocal and active intolerance of behavior that is otherwise accepted (or at least permitted) in the surrounding society.

For example, if John Doe practices a religion that prohibits him from seeing women's legs (other than those of his wife), he might feel the need to pressure women in public to cover their legs, and he may even yell at those who wear shorts or otherwise expose themselves to him. If such "modesty" were a general -- though sexist - norm, of course, then Doe's attitudes would generate little controversy. (Men or women who expose their genitals in public, for instance, are violating the law as well as many religious -- and secular -- sensibilities.) When such is not the case, however, religious intolerance of the secular can become a serious problem.

This should not be surprising, because to some extent, fundamentalist opposition to sexual freedom greatly resembles its historically ubiquitous antecedent - religious opposition to other religions. Catholics in Europe persecuted Protestants; Protestants in England persecuted Catholics; and Christians everywhere persecuted Muslims and Jews. When people believe without question that they are following the one righteous path, it is predictable (if unfortunate) that other paths - whether motivated by religion or secular considerations - can ignite rage, condemnation, or worse on the part of the believer.

The Ninth Circuit Court of Appeals handled the conflict well. It made clear that while every person is entitled to her own views, whether religious or secular, no one has the right to persecute other people at work in the name of her religion.

Recognizing that absolute harmony at work is an unrealistic aspiration, visible and hostile postings at the office make other people feel unwelcome and foster a "hostile environment" in the office. It is this sort of environment - incidentally - that anti-religious fervor has been known to generate as well (and which the Civil Rights Act itself specifically addresses).

The Solution to Competing Victimization: Erring on the Side of Tolerance

For many of us, the notion of an oppressed person persecuting another oppressed person is difficult to assimilate. And when we do encounter it - such as when a member of a minority religion persecutes a member of a minority sexual orientation -- we are not quite sure how to handle it.

For an employer such as HP, the dilemma is especially acute, because HP can be held responsible both for permitting religious workers to create an environment hostile to gay men and lesbians, and for firing or otherwise disciplining religious employees who attempt to practice their faith by expressing opposition to homosexuality.

Under such circumstances, the desire or legal obligation to accommodate diversity can lead to something of a Catch-22.

The best solution is to act as HP did and to encourage such actions, as the Ninth Circuit did, by dismissing the plaintiff's case on summary judgment. Both represent an embrace of tolerance over religion when the two conflict irreconcilably.

Religion indeed has a special place in our nation's history and constitutional traditions, and it has a similarly significant role in preserving freedom more generally. But part of that history is an objectionable practice of elevating Christianity in general, and Protestant approaches in particular, above all else.

Many non-Christians in the U.S. - whether adherents of other religions or secularists - tire of the arrogance with which some devout Christians attempt to force their views of right and wrong on the rest of the population. Tolerance may ultimately be antithetical to the absolutism that often animates strong religious commitments. But to the extent that it is, absolutism must give way to the rights of other law-abiding citizens to exist and flourish as equals in our society.


Sherry F. Colb, a FindLaw columnist, is a professor at Rutgers Law School in Newark.

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