FYI An Interesting Case

Michael MASINTER masinter at nova.edu
Thu Apr 8 17:15:45 PDT 2004


Title VII already obliges an employer to protect employees from religious
discrimination, and more particularly religiously motivated harassment to
the same extent that it must protect employees from sexual harassment --
if the harassment is by a supervisor and causes a tangible employment
effect, the employer is strictly liable; if the harassment is by a
supervisor, causes no tangible employment effect, but is sufficiently
pervasive or severe to create a hostile work environment, the employer is
strictly liable unless it can prove that the victim unreasonably failed to
complain to the employer, and if the harassment is by coworkers and is
sufficiently severe or pervasive to create a hostile work environment, the
employer is liable only if it knew or should have known of the harassment
and failed to take prompt remedial action.  For a representative religious
harassment case, see Venters v. City of Delphi, 123 F.3d 956 (7th Cir.
1997). 

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, Alan Leigh Armstrong wrote:

> 
> > 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
> 
> Law Office of Alan Leigh Armstrong
> Serving the Family & Small Business Since 1984
> 18652 Florida St., Suite 225
> Huntington Beach CA 92648-6006
> 714-375-1147   Fax 714 375 1149
> alan at alanarmstrong.com
> alanarmstrong.com at verizon.net
> www.alanarmstrong.com
> 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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