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Protections for religious expression and sexual orientation dont have to be mutually exclusive.
Sex and religion. These subjects are such lightning rods for controversy that we often avoid them in casual or social settings. But they are colliding in such forceful and confusing ways in the workplace that employers can no longer afford to look the other way.
A few recent cases capture the difficulties employers face when religion and sexual orientation meet head-on at work. Ask yourself how you would react to these situations:
In the first case, Peterson v. Hewlett-Packard Co. (9th Cir., No. 01-35795, Jan. 6, 2004), the employee’s supervisor removed the Bible verses because their presence violated the company’s antiharassment policy, which protects sexual orientation. The employee and his managers met at least four times to discuss the issue but were unable to agree on terms that were acceptable to both parties. The employee would agree not to post the verses again, but only if the employer would agree to remove the “gay” posters. Ultimately, the employee was fired for insubordination.
The employee sued, but the employer prevailed at trial and on appeal. According to the 9th U.S. Circuit Court of Appeals, it was evident that the employee “was discharged, not because of his religious beliefs, but because he violated the company’s harassment policy by attempting to generate a hostile and intolerant work environment and because he was insubordinate.” As to the religious accommodation claim, the court said, “the only accommodations that Peterson was willing to accept would have imposed undue hardship upon Hewlett-Packard.”
The second case, Buonanno v. AT&T Broadband (D. Colo., No. 02-CV-778, April 1, 2004), took a different turn. The employee said he could not agree to value beliefs or conduct that are contrary to the Bible without denying his faith, which he refused to do. He also stated that he would not discriminate or harass any employee on any basis. Even so, the employer did not attempt to clarify the handbook language in any way that might have allowed the employee to sign the statement in good conscience. The employee refused to sign the statement, and his employment was terminated.
The court upheld the employee’s claim that the company failed to accommodate his religious beliefs. “[H]ad AT&T gathered more information about Buonanno’s concerns before terminating his employment, it may have discovered that the perceived conflict between his beliefs and AT&T’s policy was not an actual conflict at all, or that if a true conflict existed, it was possible to relieve that conflict with a reasonable accommodation,” the court said. The court awarded the employee approximately $150,000 in back pay, front pay and emotional distress damages. At press time, the ruling had not been appealed.
Although the employer ultimately prevailed in one of these cases, both must be chalked up as losses in terms of employee relations. The employers lost satisfactory employees, spent time and money in litigation, and very likely suffered lasting wounds to workplace morale.
The way to avoid losses of this nature is to combine positive and inclusive employee relations practices with a firm grasp of the governing legal principles.
Employers who seek to balance religion and sexual orientation concerns in the workplace need to be aware that federal law does not afford these two characteristics equal protection.
For example, religious discrimination and harassment are barred by federal law—specifically, by Title VII of the Civil Rights Act of 1964. According to a fact sheet from the Equal Employment Opportunity Commission (EEOC), this means, among other things, that employers:
In addition, employers must reasonably accommodate employees’ sincerely held religious beliefs or practices and must take steps to prevent religious harassment of employees. By contrast, the legal protection for sexual orientation is less sweeping. Although there are ongoing efforts to amend Title VII to encompass sexual orientation, currently there is no federal law that expressly prohibits discrimination against or harassment of individuals on that basis. However, some federal courts have allowed sex discrimination claims on the theory that plaintiffs were discriminated against or harassed for failure to conform to gender stereotypes. (For an example, see the article on Smith v. Salem in this month’s Court Report.)
On the local level, 14 states and the District of Columbia have enacted laws that protect all workers from sexual orientation discrimination, and 11 more forbid public employers from discriminating on that basis, according to The State of the Workplace for Lesbian, Gay, Bisexual and Transgender Americans 2003, published by the Human Rights Campaign Foundation’s WorkNet project (HRC WorkNet).
In addition, more than 2,500 private and public employers have written policies prohibiting workplace discrimination based on sexual orientation, according to HRC WorkNet.
Companies that don’t already have sexual orientation antiharassment policies are being encouraged by employment attorneys to add them. For example, Philadelphia employment lawyer Michael S. Cohen, of Wolf, Block, Schorr and Solis-Cohen, wrote in his firm’s recent newsletter: “With the risk of potential liability under Title VII looming, employers who have not already adopted policies protecting employees from sexual orientation discrimination, and who do not address these issues in supervisory training and employee education, would be well advised to do so.”
So, while there is no national legal consensus regarding discrimination or harassment based on sexual orientation, there is a growing body of law and company policy that confers that protection. Increasingly vocal advocacy for workplace equity for gay, lesbian, bisexual and transgender (GLBT) persons, the push for domestic partner benefits, and workplace fallout from the legalization of gay marriage will keep sexual orientation on HR’s shortlist of employee relations issues for the foreseeable future.
Focus on Behavior, not Belief
Asked to help employers chart a course between the Scylla of sexual orientation and the Charybdis of religious belief, EEOC assistant legal counsel Dianna Johnston and attorney adviser Jeanne Goldberg forecast relatively clear sailing for employers that take a lesson from the Peterson and Buonanno cases.
For example, the employer’s disciplinary action in the Peterson case was legally acceptable because it sought to address the employee’s conduct, which violated company policies that barred harassment based on sexual orientation.
In Buonanno, on the other hand, the employee prevailed because the employer was “doing something more than [regulating] how to behave,” says Goldberg. “The wording [of the policy] was such that the employee had a legitimate claim that he was being asked to subscribe to certain beliefs, as opposed to a code of conduct.”
But, Goldberg cautions, every case is different, and different facts could drive a different result. Even when employers attempt to regulate conduct rather than belief, they must accommodate employees’ religious expression, unless doing so causes undue hardship.
“To the extent you allow people to engage in other personal expression, they should be allowed to engage in religious expression, but only to the point where it bumps up against the rights of other employees or the employer’s rights,” Johnston says.
If employers learn an employee’s religious expression is unwelcome, they are obligated to step in, says Johnston, and should stop the conduct before it becomes severe and pervasive. To the extent that a proselytizing employee, for example, claims a right to religious accommodation, courts have recognized that it might be an undue hardship for the employer to expose itself to a religious harassment claim by the target of the religious expression.
But one person’s objections don’t necessarily authorize the employer to tell the proselytizing employee, “Don’t talk to anybody about this,” Johnston warns. The employer can ask the employee to refrain from the topic with the particular objecting employee.
Still, the EEOC has not staked out an official agency position as to where protected religious expression and accommodation end and where religious harassment begins. Johnston and Goldberg, who track legal developments in this area, base their comments on basic Title VII case law principles involving nondiscrimination, accommodation and harassment.
“We have been working on trying to develop some guidance on religion in general, but I don’t know when that will come to fruition,” Johnston says.
Communicate and Be Flexible
When employees object on religious grounds to policies that ban discrimination or harassment on the basis of sexual orientation, it is important to explain the business reason for the policies and to affirm that they are not designed to change a person’s religious beliefs, says Daryl Herrschaft, deputy director for HRC WorkNet, a national source of information on laws and policies surrounding sexual orientation and gender identity and expression in the workplace.
Explain that the policy is intended “to foster an atmosphere where people of different backgrounds can work together to beat the competition,” says Herrschaft. “The question is, ‘Are you going to do what you need to do to perform your job? What your beliefs are outside your job is not really our concern here.’ ”
Jonathan A. Segal, a partner in the Philadelphia office of Wolf, Block, Schorr and Solis-Cohen, represents employers and agrees that “employers are on substantially safer ground when they try to regulate conduct than when they try to regulate belief.” But Segal believes employers are even better off when they restrict—rather than prohibit—conduct.
For example, a sign proclaiming religious beliefs posted on an employee’s office door, where all can see it, is different from one that hangs discreetly at the employee’s desk. And a positive expression of one’s religious beliefs is different from one that condemns others’ beliefs. A cross on the desk is positive, Segal points out, but a sign proclaiming that people who do not believe in Jesus will go to hell is negative.
The Peterson case involved negative expression: The employee admitted he posted the biblical verses to make gays uncomfortable so they would change their beliefs. In such situations, Segal suggests, ask employees: “Is there an alternative way you can express your religious views without making a negative statement about another party?”
If the employee says his belief is to condemn homosexuality, then the question is whether the employer can accommodate that belief without undue hardship.
In such situations, says Segal, the employer could respond by saying: “We can make reasonable accommodations to enable you to express your views, but it would be an undue hardship to allow your personal views to trump our diversity program.”
The employer can take this position even in the absence of an explicit policy, but will be in a stronger position if it has such a policy, Segal says, adding: “Courts are going to be reluctant to say that employers have to override their diversity policies.”
In diversity training, Segal says employers should talk about the importance of valuing differences, but also recognize that people have different values. He also advises flexibility when employees object on religious grounds to diversity training about sexual orientation. Require the employees to attend, he says, but allow them to engage in silent protest.
Meeting of the Minds
Lucretia C. Clemons, an attorney in Philadelphia with the corporate diversity practice of Ballard Spahr Andrews & Ingersoll LLP, has dealt with diversity issues throughout her career: She started in HR, then took on a role as a corporate diversity manager before becoming an attorney.
Clemons emphasizes the importance of the interactive process when balancing religious concerns against sexual orientation. “You are dealing with peoples’ religious beliefs,” says Clemons. First, you have to identify “the belief that they are seeking to have accommodated,” she says. “You can’t work to the solution until you know what the actual issue is. You have to ask: ‘What is it about your interactions here that requires accommodation?’ ”
Is the issue, “I can’t work with people who are gay”? Or is it, “I don’t want to see gay pride posters all over the place”? “If it really is, ‘I can’t work with people who are gay,’ then the answer probably is, ‘Then you can’t work here,’ ” she says.
If it’s something short of that, Clemons says, “The one who takes the hardest line appears to be the loser.” Peterson lost against Hewlett-Packard because his only acceptable accommodation posed an undue hardship to the company. In contrast, Buonanno prevailed against AT&T Broadband, Clemons says, because the employer “really didn’t engage in the interactive process.
“I would be very careful of taking the hard line,” says Clemons. “You’ve got to do the accommodation. You’ve got to have the meeting. You’ve got to think outside of the box. That’s what your lawyer is going to tell you when you call.”
When engaging in this interactive process, “be creative,” suggests Kimberly George, director of religious diversity in the workplace program of the Tanenbaum Center for Interreligious Understanding. “Think of ways that you can turn situations into a win-win, working toward the company’s goals as embodied in the diversity policy but at the same time making it work for the employee.”
A lot of companies are finding ways to deal with religious backlash against sexual orientation protections, George says. “It’s not an impossible situation.” Having an open dialogue, moving conversations away from theology and toward issues of human rights, and allowing religiously based affinity groups are just a few things she suggests. (For a discussion of issues involved with religiously based affinity groups, see “Religious Affinity Groups: Problem or Solution?”.)
Dont Leave Anyone Out
Employers may be surprised to learn that religious individuals—who enjoy greater legal protection than GLBT workers—may have an equally strong need to be included under the diversity umbrella. And it may be even more surprising to hear that Christians, although not a minority in this country, may feel this need keenly.
That’s certainly the contention of John W. Whitehead, founder and president of the Rutherford Institute—the Charlottesville, Va.-based civil rights organization that represented Albert Buonanno in his suit against AT&T Broadband.
“People assume that all Christians are like the televangelists; they have a negative stereotype,” says Whitehead, who is Christian. “They’re being left out of society. I think they feel they’re being discriminated against. The only way that you can combat that is by inclusion.”
Employer attorneys Segal and Clemons agree that employers’ policies should include both religion and sexual orientation.
“To the extent the employer defines diversity broadly, it should include both religion and sexual orientation,” says Segal. “There are some employers that include sexual orientation, but don’t address sufficiently religious diversity.”
In fact, according to the 2001 Society for Human Resource Management/Tanenbaum Center Survey on Religion in the Workplace, less than one-third of respondents’ organizations have an official written policy regarding religious diversity. (By contrast, 77 percent have a written policy regarding religious harassment.)
“The more broadly you define diversity, the more people are going to see themselves in the program,” adds Clemons, who says that “religion is the hottest button issue in diversity. It is the thing that people are most sensitive about, attuned to and defensive about.”
“People are afraid because religion is such an individual issue,” says the Tanenbaum Center’s George. “It’s so important to people, and it’s complicated. It’s easier to not deal with it or to get very worried about it.”
But by not dealing directly with it, George says, employers are only buying trouble. “There’s a lot of stuff under the surface that can cause problems; dealing with it head-on is what we recommend.”
Margaret M. Clark, J.D., SPHR, is senior legal editor for HR Magazine.
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