FYI An Interesting Case

[Alan Leigh Armstrong]

> I think it's pretty clear that AT&T is free to implement a
> "progressive" antidiscrimination policy that encompasses the 
> protection of
> its gay and lesbian employees over the objections of its religious
> employees, and that it need not accommodate them by exempting them from
> that policy. See Peterson v. Hewlett Packard Co., 358 F.3d 599 (9th 
> Cir.
> 2004):

Under the same rationale, couldn't BU&U, Inc. implement an 
anti-discrimination policy that protects the religious employees over 
the objections of gay and lesbian employees?

Alan

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KE6LLN
On Apr 8, 2004, at 10:47 AM, Michael MASINTER wrote:

> 	
> 	"The only other alternative acceptable to Peterson--taking down
> all the [diversity] posters--would also have inflicted undue hardship 
> upon
> Hewlett-Packard because it would have infringed upon the company's 
> right
> to promote diversity and encourage tolerance and good will among its
> workforce. The Supreme Court has acknowledged that "the skills needed 
> in
> today's increasingly global marketplace can only be developed through
> exposure to widely diverse people, cultures, ideas, and viewpoints."
> Grutter v. Bollinger, 539 U.S. 306, ----, 123 S.Ct. 2325, 2340, 156
> L.Ed.2d 304 (2003) (citing amici briefs submitted by leading American
> corporations including Hewlett-Packard). These values and good business
> practices are appropriately promoted by Hewlett-Packard's workplace
> diversity program. To require Hewlett-Packard to exclude homosexuals 
> from
> its voluntarily-adopted program would create undue hardship for the
> company. Cf. Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 
> 855
> (1996) (Colorado state constitutional amendment prohibiting state or 
> local
> government action to protect persons based on their homosexual status,
> conduct, or orientation violates Equal Protection Clause). Because only
> two possible accommodations were acceptable to Peterson and 
> implementing
> either would have imposed undue hardship upon Hewlett-Packard, we 
> conclude
> that the company carried its burden of showing that no reasonable
> accommodation was possible, and we therefore reject Peterson's 
> failure-to-
> accommodate claim."
>
> 	That leaves only the so called oath as a violation of Title VII.
> Without a decision to read, it is hard to evaluate exactly what the
> employer required of its employees.  Title VII forbids a nonexempt
> employer from conditioning a job on fealty to or abandonment of a
> religious belief (absent proof of a BFOQ), but I can't tell from any of
> the posts whether that is what happened, or whether the company 
> clumsily
> sought assurances that its employees would behave consistently with the
> company policy on tolerance of homosexuals.  It seems to me that it is
> entitled to demand the latter, even in the form of an affirmation, 
> without
> violating Title VII.
>
> 	Like David, I think private employers have no business trying to
> regulate the thoughts of their employees; I only would add that in
> reaching that conclusion, I necessarily but willingly commit 
> libertarian
> heresy by enlisting state power to regulate the private employer's
> behavior.
>
>
> Michael R. Masinter			3305 College Avenue
> Nova Southeastern University		Fort Lauderdale, Fl. 33314
> Shepard Broad Law Center		(954) 262-6151
> masinter at nova.edu			Chair, ACLU of Florida Legal Panel
>
> On Thu, 8 Apr 2004 DavidEBernstein at aol.com wrote:
>
>> I'm ambivalent about this case.  On the one hand, I think that AT&T 
>> should be
>> able to enforce a "progressive" antidiscrimination policy if it so 
>> desires,
>> without special accommodations for religious employees. The same 
>> conservatives
>> who are against requiring or even allowing private companies to 
>> engage in
>> special treatment for minority employees see to alway want the 
>> government to
>> require them to engage in special treatment for religious employees 
>> in the form of
>> "reasonable accommodations." We live in a pluralistic society, and if
>> religious employees don't like AT&T's employment policies, there are 
>> many, many other
>> places they can work.
>>
>> On the other hand, the whole notion of requiring employees to swear 
>> loyalty
>> oaths to antidiscrimination policies, to require not just 
>> nondiscriminatory
>> actions but beliefs, seems to have originated with state action.  
>> Even if AT&T's
>> specific policies weren't mandated by the government, they can be 
>> seen as the
>> outgrowth of years of lawsuits and EEOC actions trying to require 
>> employers to
>> only promote managers  who "believe in" certain policies.  As I wrote 
>> in a r
>> elated context in "You Can't Say That! The Growing Threat to Civil 
>> Liberties
>> from Antidiscrimination Laws" (http://mason.gmu.edu/~dbernste/book):
>> As a condition of settlement of antidiscrimination lawsuits, the EEOC 
>> and
>> private litigants are increasingly demanding that defendant 
>> corporations agree to
>> have managers strongly consider supervisors' vigilance in implementing
>> antiharassment policies when evaluating those employees' performance. 
>>  Even
>> companies that have not been sued are adopting this policy to attempt 
>> to avoid future
>> lawsuits.  One common criterion used to judge an employee's 
>> zealousness in
>> enforcing antiharassment policies is whether the employee has 
>> expressed his
>> personal support for the policies.  An employment law expert asserts 
>> that managers
>> must "communicate to their employees that they agree with, personally 
>> believe
>> in, and will enforce the harassment policy."   Yet antiharassment 
>> policies are
>> often controversial within a company, especially when they stifle 
>> speech or
>> prohibit dating among coworkers.  Employment law expert Walter Olson 
>> writes
>> that unless the trend toward requiring absolute fealty to internal 
>> antiharassment
>> policies is reversed, "those who dissent from the official line, 
>> harbor
>> doubts or qualms about it, or for any other reason prove unwilling to 
>> announce
>> their enthusiasm for it, will sooner or later find themselves 
>> excluded from
>> positions of responsibility in the American corporation."
>>
>>
>> Professor David E. Bernstein
>> George Mason University School of Law
>> http://mason.gmu.edu/~dbernste
>> blog: http://volokh.com/index.htm?bloggers=DavidB
>> ***********************************************
>> My latest book, You Can't Say That!
>> The Growing Threat to Civil Liberties
>> from Antidiscrimination Laws, has just
>> been published
>> ***********************************************
>>
>
>
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