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 [EMAIL PROTECTED] [EMAIL PROTECTED] 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 [EMAIL PROTECTED] Chair, ACLU of Florida Legal Panel
On Thu, 8 Apr 2004 [EMAIL PROTECTED] 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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