Re: FYI An Interesting Case
Rick: If you were confronted with hard scientific evidence that people who choose same sex partners are biologically/chemically inclined to such partners, and that it is no more a matter of "choice" then it is for a straight person to choose an opposite sex partner, would you still conclude that it is a "serious moral disorder?" After all, if God made some people in such a way that they are only interested in same sex partners, are they truly making a "moral" choice in the matter, or are there merely following the biological/chemical make-up with which they were born. Since their behavior would not affect anyone but other people who were so biologically and chemically made up, what would be the moral problem? I am not a Christian, so forgive me if I am misunderstanding your faith, but aren't there issues in Christian theology about people "casting stones" of moral condemnation at others, and, are you not supposed to "do unto others as you would have them do unto you?" IF you were born with the came biological and chemical inclinations, would you want others pointing a finger at you, and saying, because of how you were born -- because of how God made you -- you are inherently immoral? -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] It sounds like your ideological beliefs prevent you from affirming the value of Christians who believe that homsexuality is a serious moral disorder. I call that Christophobia and religious bigotry. Rick Duncan = Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FYI An Interesting Case
Needless to says the subject of gay marriage has come up in my courses (the subject of sexual harassment of gay students and teachers and discrimination based on sexual orientation, generally, the employment of public school teachers, and the formation of gay-lesbian clubs where a school has allowed other non-curricular clubs are issues we routinely discuss). One observation I have made (the phenomenon appears to have intensified with the advent of the gay marriage issue) is that one and occasionally two male student is/are vehemently anti-gay. For instance, a few semesters ago I posed the question about a student who looked up to "you" coming to "you" for advice and comfort because he was unsure of his sexuality. How would "you" handle this situation? A couple of male students were simply appalled at the very thought of being put in that situation. Could not envision themselves offering any consolation, words of compassion or kindness to the student at all and found the very thought of this occurring extraordinarily threatening. Other students opined that they might refer the students to a counselor, but that they would not condemn the student or show hostility toward him even though the situation might make them uncomfortable. This is an issue, in part, because of the high rate of suicide/attempted suicide among gay and lesbian adolescents and my purpose was to remind students that how they responded could have profound consequences. Anyway, this spring as we've been discussing (briefly) gay marriage in the context of equal rights and sources of law (full faith and credit--state v. federal--statutes v. constitional amendments), I wondered aloud why it was that the students with the strongest feelings were male students responding to male homosexuality, that lesbianism did not seem to provoke the same degree of (dare I say it? VBG) homophobia. I went on to speculate that society generally and parents, especially fathers, appear to be much more tolerant of female children exhibiting male characteristics and interests (the tomboy being viewed/portrayed with some measure of amused approval) than male children exhibiting female characteristics or being interested in traditionally female activities, e.g., the little (how little is acceptable) playing with baby dolls, being exceptionally tender or nurturing, wanting to play tea parties (gosh, I don't know if children even do that anymore), etc. There seems to be a very bright line for little boys (around age four-ish) when interest in traditionally female things is no longer permissible. That line has always been and appears to be getting even more fuzzy where girls are concerned. Well naturally, I ended up with "I wonder why this is." And kept pushing them with more "why, why, why's." This observation evoked some anecdotes about fathers going "ballistic" about effeminate characteristics in sons. To which I responded, "Why?" BTW, several students said, in connection to the gay marriage discussion, that they had gay relatives who were perfectly nice folk. I thought that particularly interesting in the deep South. Frances R. A. Paterson, J.D., Ed.D. Associate Professor (school law) Department of Educational Leadership Valdosta State University Valdosta, GA 31698 ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: FYI An Interesting Case
Michael: You are so full of hatred. Just read what you wrote. Best wishes, Rick Duncan --- Newsom Michael [EMAIL PROTECTED] wrote: Rick, you are so full of [EMAIL PROTECTED] I am a Christian, but I don't buy into your right wing [EMAIL PROTECTED] (I also suspect that my Catholicism is something that you can't handle.) No one on this listserv is more ideological or bigoted than you are. Anybody who disagrees with your right wing views is a bigot. It's like the pot calling the kettle black. You are a hateful bigot and a disgrace! -Original Message- From: Rick Duncan [mailto:[EMAIL PROTECTED] Sent: Friday, April 09, 2004 11:23 AM To: Law Religion issues for Law Academics Subject: RE: FYI An Interesting Case --- Newsom Michael [EMAIL PROTECTED] wrote: No, I didn't miss the point. The employee's religious beliefs prevent him from affirming the value of gay people. I call that homophobia. It sounds like your ideological beliefs prevent you from affirming the value of Christians who believe that homsexuality is a serious moral disorder. I call that Christophobia and religious bigotry. Rick Duncan = Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone. C.S.Lewis, Grand Miracle I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered. --The Prisoner __ Do you Yahoo!? Yahoo! Small Business $15K Web Design Giveaway http://promotions.yahoo.com/design_giveaway/ ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw = Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone. C.S.Lewis, Grand Miracle I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered. --The Prisoner __ Do you Yahoo!? Yahoo! Tax Center - File online by April 15th http://taxes.yahoo.com/filing.html ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FYI An Interesting Case
May I respectfully suggest that we put an end to this thread? There has been a lot of heat, virtually no light, no one changing or affecting anyone else's views, at least two inadvertant private posts accidently sent to the list, etc. (This is not meant as directed especially to Rick; his simply happens to have been the most recent post.) This may be hard to believe, but there once was a (pre-blogging) day when we used to have very substantive, enlightening discussions about actual legal questions involving religion. I fear that many of our most valuable posters no longer participate because this list has all-too-often (albeit not always) lapsed into invective, predictable sloganeering, and superficial sound-bites about cases and headlines. This thread sure isn't helping matters. Of course, if others are getting a lot out of it, please do not hestitate on my account to continue the flame-wars . . . - Original Message - From: Rick Duncan [EMAIL PROTECTED] To: Law Religion issues for Law Academics [EMAIL PROTECTED] Sent: Sunday, April 11, 2004 9:42 PM Subject: RE: FYI An Interesting Case Michael: You are so full of hatred. Just read what you wrote. Best wishes, Rick Duncan --- Newsom Michael [EMAIL PROTECTED] wrote: Rick, you are so full of [EMAIL PROTECTED] I am a Christian, but I don't buy into your right wing [EMAIL PROTECTED] (I also suspect that my Catholicism is something that you can't handle.) No one on this listserv is more ideological or bigoted than you are. Anybody who disagrees with your right wing views is a bigot. It's like the pot calling the kettle black. You are a hateful bigot and a disgrace! -Original Message- From: Rick Duncan [mailto:[EMAIL PROTECTED] Sent: Friday, April 09, 2004 11:23 AM To: Law Religion issues for Law Academics Subject: RE: FYI An Interesting Case --- Newsom Michael [EMAIL PROTECTED] wrote: No, I didn't miss the point. The employee's religious beliefs prevent him from affirming the value of gay people. I call that homophobia. It sounds like your ideological beliefs prevent you from affirming the value of Christians who believe that homsexuality is a serious moral disorder. I call that Christophobia and religious bigotry. Rick Duncan = Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone. C.S.Lewis, Grand Miracle I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered. --The Prisoner __ Do you Yahoo!? Yahoo! Small Business $15K Web Design Giveaway http://promotions.yahoo.com/design_giveaway/ ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw = Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone. C.S.Lewis, Grand Miracle I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered. --The Prisoner __ Do you Yahoo!? Yahoo! Tax Center - File online by April 15th http://taxes.yahoo.com/filing.html ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: FYI An Interesting Case
--- Newsom Michael [EMAIL PROTECTED] wrote: No, I didn't miss the point. The employee's religious beliefs prevent him from affirming the value of gay people. I call that homophobia. It sounds like your ideological beliefs prevent you from affirming the value of Christians who believe that homsexuality is a serious moral disorder. I call that Christophobia and religious bigotry. Rick Duncan = Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone. C.S.Lewis, Grand Miracle I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered. --The Prisoner __ Do you Yahoo!? Yahoo! Small Business $15K Web Design Giveaway http://promotions.yahoo.com/design_giveaway/ ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FYI An Interesting Case
One could say, in response to Michael, that his beliefs prevent him from affirming the value of homophobes. Of course, he thinks that judging homosexuality as immoral is a mistaken point of view, a disorder one may say. But I don't recall ever coming across the argument that establishes the unquestioned veracity of this conclusion. It seems to me that to call someone a name in replacement of an actual argument is uncivil and disreputable. So, let me suggest that we refrain from using terms that carry no intellectual freight, such as homophobe or Christophobe. Let's be a little less logophobic. Frank On 4/9/04 8:23 AM, Rick Duncan [EMAIL PROTECTED] wrote: --- Newsom Michael [EMAIL PROTECTED] wrote: No, I didn't miss the point. The employee's religious beliefs prevent him from affirming the value of gay people. I call that homophobia. It sounds like your ideological beliefs prevent you from affirming the value of Christians who believe that homsexuality is a serious moral disorder. I call that Christophobia and religious bigotry. Rick Duncan = Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone. C.S.Lewis, Grand Miracle I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered. --The Prisoner __ Do you Yahoo!? Yahoo! Small Business $15K Web Design Giveaway http://promotions.yahoo.com/design_giveaway/ ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FYI An Interesting Case
Yes. That's why the decision challenging ATT's pledge was correct -- but that does not mean that companies are limited to prohibiting harassment and discrimination. There is some distance on the continuum of workplace rules between valuing other people's lifestyles and agreeing not to discriminate against them or to harass them. Alan Brownstein UC Davis At 09:32 PM 4/7/2004 -0400, you wrote: The ATT pledge did not require that people be able to work together. It required that they announce that they value each others' lifestyle-and it is hard to see why a company has an interest in its employees moral views. If this pledge were enforced evenhandedly, would it not require gays to value the lifestyle and values of religious opponents of a gay lifestyle. I bet is it not so understood. The company's reaction about diversity suggests that the company does not understand the pledge to apply equally to all religious views-itself a possible violation of Title VII. Marc Stern ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FYI An Interesting Case
I'm ambivalent about this case. On the one hand, I think that ATT should be able to enforce a "progressive" antidiscrimination policy if it so desires, without special accommodations for religious employees.The same conservatives who are againstrequiringor even allowing private companiesto engage in special treatment for minority employees see to alway want the governmentto 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 ATT'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 ATT'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 related 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. BernsteinGeorge Mason University School of Lawhttp://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 Libertiesfrom Antidiscrimination Laws, has justbeen published*** ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FYI An Interesting Case
I think it's pretty clear that ATT 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): 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 UniversityFort 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 ATT 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 ATT'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 ATT'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
Re: FYI An Interesting Case
Thanks. As I suspected, we define discrimination differently. I believe that discrimination occurs when someone employs an illicit characteristic to modify his or her behavior in any way, including being uncooperative. - Original Message - From: A.E. Brownstein [EMAIL PROTECTED] To: Law Religion issues for Law Academics [EMAIL PROTECTED] Sent: Thursday, April 08, 2004 2:26 PM Subject: Re: FYI An Interesting Case What is between valuing other people's lifestyles and not discriminat[ing] against them because they are gay? Putting aside one's feelings about a person's sexual orientation or specific religious beliefs and cooperating fully with the individual to achieve collective goals. I do that all the time with religious liberty issues. I often work cooperatively and effectively with, and for, people whose religious beliefs I do not subscribe to and who hold some beliefs I do not value (indeed, with which I strongly disagree). I suppose one can argue that anything short of such a cooperative commitment is discrimination and harassment. Under that definition, the continuum I describe would not exist. I don't think we typically use the terms discrimination and harassment that way. At least I don't. I think there is a more neutral base line. Participating as team mates in a team effort (think of a sports team) means more to me than agreeing not to discriminate against or harass other team members. But it doesn't mean that I have to value what other team members do when the game is over. Alan Brownstein UC Davis At 12:37 PM 4/8/2004 -0400, you wrote: Please describe that continuum. - Original Message - From: A.E. Brownstein [EMAIL PROTECTED] To: Law Religion issues for Law Academics [EMAIL PROTECTED] Sent: Thursday, April 08, 2004 12:37 PM Subject: Re: FYI An Interesting Case Yes. That's why the decision challenging ATT's pledge was correct -- but that does not mean that companies are limited to prohibiting harassment and discrimination. There is some distance on the continuum of workplace rules between valuing other people's lifestyles and agreeing not to discriminate against them or to harass them. Alan Brownstein UC Davis At 09:32 PM 4/7/2004 -0400, you wrote: The ATT pledge did not require that people be able to work together. It required that they announce that they value each others' lifestyle-and it is hard to see why a company has an interest in its employees moral views. If this pledge were enforced evenhandedly, would it not require gays to value the lifestyle and values of religious opponents of a gay lifestyle. I bet is it not so understood. The company's reaction about diversity suggests that the company does not understand the pledge to apply equally to all religious views-itself a possible violation of Title VII. Marc Stern ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FYI An Interesting Case
I think it's pretty clear that ATT 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 BUU, 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 UniversityFort 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 ATT 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 ATT'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 ATT'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
Re: FYI An Interesting Case
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 UniversityFort Lauderdale, Fl. 33314 Shepard Broad Law Center(954) 262-6151 [EMAIL PROTECTED] Chair, ACLU of Florida Legal Panel On Thu, 8 Apr 2004, Alan Leigh Armstrong wrote: I think it's pretty clear that ATT 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 BUU, 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 UniversityFort Lauderdale, Fl. 33314 Shepard Broad Law Center(954) 262-6151 [EMAIL PROTECTED] Chair, ACLU of Florida Legal Panel On Thu, 8 Apr 2004 [EMAIL
Re: FYI An Interesting Case
There is a big difference between the value of a person and the values of a person. 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 2:57 PM, Newsom Michael wrote: No, I didn't miss the point. The employee's religious beliefs prevent him from affirming the value of gay people. I call that homophobia. -Original Message- From: Amar D. Sarwal [mailto:[EMAIL PROTECTED] Sent: Wednesday, April 07, 2004 3:48 PM To: Law Religion issues for Law Academics Subject: Re: FYI An Interesting Case I think you're missing the point. The gentleman was not homophobic. He just had no interest in affirming values with which he disagreed. A related example: I am not anti-Muslim, because I do not believe in Allah, nor do I wish to affirm his existence or value. - Original Message - From: Newsom Michael [EMAIL PROTECTED] To: [EMAIL PROTECTED]; Law Religion issues for Law Academics [EMAIL PROTECTED] Sent: Wednesday, April 07, 2004 3:49 PM Subject: RE: FYI An Interesting Case To the extent, and only to the extent, that ATT Broadband failed explicitly to connect its concerns about homophobia to the effective functioning of the workplace, the decision may be right. Surely ATT is entitled to have a harmonious work environment for ALL of its employees, both gays and homophobes. And it should be given some latitude in achieving that objective. The devil is in the details, I suspect. I'll feel more confident about this case -- one way or the other -- after I get a chance to read it cover to cover. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FYI An Interesting Case
In a message dated 4/8/2004 8:13:40 PM Eastern Daylight Time, [EMAIL PROTECTED] writes: To be clear, my understanding of the term homophobe is one who hates homosexuals. I don't think this gentleman qualifies. And herein lies the rub for those who think that the language should mean something: homophobia should mean fear of men or of the genus homo, not loathing of persons whose sexual affections run only to persons that share their gender. Jim "Word Mean Precisely What I Say they Mean" Henderson Senior Counsel ACLJ ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FYI An Interesting Case
It is progressive to require people not to discriminate or harass. It is not progressive to require people to swear loyalty oaths or swear fealty to other people's values. The Colorado case appears to be about the difference. In the Pledge case, it is progressives who are opposing such coerced oaths of allegiance. But for too many people on both sides, it will always be about whose ox is gored. At 03:34 PM 4/7/2004 -0400, Nathan Oman wrote: This is interesting to me because it is an example of the civil rights laws being used as a weapon against progressive workplace policies. Richard Epstein and more recently David Bernstein have argued that civil rights laws present a threat to free exercise rights when they unduly regulate religious employers. This case seems like the flip side of this argument, in which the civil rights laws get used as a sword by the religious against voluntary, progressive policies. NBO -- Original Message -- From: Rick Duncan [EMAIL PROTECTED] Reply-To: [EMAIL PROTECTED], Date: Wed, 7 Apr 2004 14:51:44 -0400 Rick Duncan has sent you an article from The Washington Times. Rick Duncan's comments: --- WORKER OPPOSED TO GAYS WINS SUIT By Amy Fagan THE WASHINGTON TIMES --- An ATT Broadband employee who was fired after refusing to abide by company rules that he said violated his religious beliefs about homosexuality has won a federal court case. Judge Marcia S. Krieger of the U.S. District Court for the District of Colorado awarded Albert Buonanno of Denver $146,269 for lost salary, loss of 401(k) matching contributions and compensation for emotional distress in a Friday ruling released this week. The judge found that although there was no direct religious discrimination against Mr. Buonanno, ATT Broadband failed to show it could not have accommodated Mr. Buonanno's beliefs without undue hardship to the company he had been with for nearly two years. Mr. Buonanno objected to language in a new employee handbook issued in January 2001 that said each person at ATT Broadband is charged with the responsibility to fully recognize, respect and value the differences among all of us, including sexual orientation. He was fired after refusing to sign a certificate of understanding acknowledging that he agreed to the policy. The Civil Rights Act requires employers to reasonably accommodate the religious beliefs of employees unless the employer can show it will create an undue hardship on the company to do so. Mr. Buonanno felt his Christian beliefs prevented him from valuing or agreeing with homosexuality, which he views as a sin, but he pledged not to discriminate against or harass anyone, said John W. Whitehead, president of the Rutherford Institute, the group that represented Mr. Buonanno. This issue is about more than an objection to homosexuality, Mr. Whitehead said. It concerns the freedom of conscience the right of individuals to object to something they believe is wrong, especially when it contradicts their religious beliefs, whether it is war, abortion, homosexuality or a number of other issues. A spokesman for Comcast, which owns ATT Broadband, said, the company is disappointed in the court's ruling, which they said appears to ignore attempts by companies to foster diversity and nondiscrimination in the workplace. The spokesman, who asked not to be named, said the company is reviewing the case and might appeal the ruling. Mr. Buonanno did not ask the court to reinstate him as a quota specialist, instead seeking monetary compensation. He now works for Mental Health Corporation of Denver as a counselor. The ruling could embolden other Christians or religious people to challenge similar policies, said Mr. Whitehead, who expects court challenges to the sensitivity training companies sometimes require, which he said often aims at training workers to accept and value diversity, including homosexuality. I think Buonanno is just the tip of the iceberg, Mr. Whitehead said. Mr. Buonanno wasn't asking anything that would unduly burden the company such as granting him every Wednesday off for religious purposes, Mr. Whitehead said. All he was saying that he couldn't agree that he would value the homosexual lifestyle ... which as a fundamentalist Christian he sees as a sinful lifestyle, said Mr. Whitehead. But ATT made no attempt to even reasonably accommodate him, and they couldn't show undue hardship would occur if they did. In the ruling, the judge listed several things the company could have done to avoid the situation, such as communicating better, getting more details about Mr. Buonanno's concerns, clarifying what the company intended by the language in question, accepting his pledge not to
RE: FYI An Interesting Case
To the extent, and only to the extent, that ATT Broadband failed explicitly to connect its concerns about homophobia to the effective functioning of the workplace, the decision may be right. Surely ATT is entitled to have a harmonious work environment for ALL of its employees, both gays and homophobes. And it should be given some latitude in achieving that objective. The devil is in the details, I suspect. I'll feel more confident about this case -- one way or the other -- after I get a chance to read it cover to cover. -Original Message- From: Rick Duncan [mailto:[EMAIL PROTECTED] Sent: Wednesday, April 07, 2004 2:52 PM To: [EMAIL PROTECTED] Subject: FYI An Interesting Case Importance: High Rick Duncan has sent you an article from The Washington Times. Rick Duncan's comments: --- WORKER OPPOSED TO GAYS WINS SUIT By Amy Fagan THE WASHINGTON TIMES --- An ATT Broadband employee who was fired after refusing to abide by company rules that he said violated his religious beliefs about homosexuality has won a federal court case. Judge Marcia S. Krieger of the U.S. District Court for the District of Colorado awarded Albert Buonanno of Denver $146,269 for lost salary, loss of 401(k) matching contributions and compensation for emotional distress in a Friday ruling released this week. The judge found that although there was no direct religious discrimination against Mr. Buonanno, ATT Broadband failed to show it could not have accommodated Mr. Buonanno's beliefs without undue hardship to the company he had been with for nearly two years. Mr. Buonanno objected to language in a new employee handbook issued in January 2001 that said each person at ATT Broadband is charged with the responsibility to fully recognize, respect and value the differences among all of us, including sexual orientation. He was fired after refusing to sign a certificate of understanding acknowledging that he agreed to the policy. The Civil Rights Act requires employers to reasonably accommodate the religious beliefs of employees unless the employer can show it will create an undue hardship on the company to do so. Mr. Buonanno felt his Christian beliefs prevented him from valuing or agreeing with homosexuality, which he views as a sin, but he pledged not to discriminate against or harass anyone, said John W. Whitehead, president of the Rutherford Institute, the group that represented Mr. Buonanno. This issue is about more than an objection to homosexuality, Mr. Whitehead said. It concerns the freedom of conscience - the right of individuals to object to something they believe is wrong, especially when it contradicts their religious beliefs, whether it is war, abortion, homosexuality or a number of other issues. A spokesman for Comcast, which owns ATT Broadband, said, the company is disappointed in the court's ruling, which they said appears to ignore attempts by companies to foster diversity and nondiscrimination in the workplace. The spokesman, who asked not to be named, said the company is reviewing the case and might appeal the ruling. Mr. Buonanno did not ask the court to reinstate him as a quota specialist, instead seeking monetary compensation. He now works for Mental Health Corporation of Denver as a counselor. The ruling could embolden other Christians or religious people to challenge similar policies, said Mr. Whitehead, who expects court challenges to the sensitivity training companies sometimes require, which he said often aims at training workers to accept and value diversity, including homosexuality. I think Buonanno is just the tip of the iceberg, Mr. Whitehead said. Mr. Buonanno wasn't asking anything that would unduly burden the company - such as granting him every Wednesday off for religious purposes, Mr. Whitehead said. All he was saying that he couldn't agree that he would value the homosexual lifestyle ... which as a fundamentalist Christian he sees as a sinful lifestyle, said Mr. Whitehead. But ATT made no attempt to even reasonably accommodate him, and they couldn't show undue hardship would occur if they did. In the ruling, the judge listed several things the company could have done to avoid the situation, such as communicating better, getting more details about Mr. Buonanno's concerns, clarifying what the company intended by the language in question, accepting his pledge not to discriminate, or even rewriting the language to make it less ambiguous. --- This article was mailed from The Washington Times (http://www.washingtontimes.com/national/20040407-124312-3261r.htm) For more great articles, visit us at http://www.washingtontimes.com Copyright (c) 2004 News World Communications, Inc. All rights reserved. ___ To
Re: FYI An Interesting Case
Doug, I was hoping that progressive here would be a neutral phrase. Perhaps there is a better label, I am just not sure what it is. I don't want to use the word liberal because I like to reserve that term for philosophical purposes -- e.g. liberal v. communitarian -- rather than succomb to its bastardized use in general political discussions. BTW, it seems to me that having the state require an oath and having ATT require an oath are different sorts of things. The state has more guns than ATT does. NBO -- Original Message -- From: Douglas Laycock [EMAIL PROTECTED] Date: Wed, 07 Apr 2004 14:48:27 -0500 It is progressive to require people not to discriminate or harass. It is not progressive to require people to swear loyalty oaths or swear fealty to other people's values. The Colorado case appears to be about the difference. In the Pledge case, it is progressives who are opposing such coerced oaths of allegiance. But for too many people on both sides, it will always be about whose ox is gored. At 03:34 PM 4/7/2004 -0400, Nathan Oman wrote: This is interesting to me because it is an example of the civil rights laws being used as a weapon against progressive workplace policies. Richard Epstein and more recently David Bernstein have argued that civil rights laws present a threat to free exercise rights when they unduly regulate religious employers. This case seems like the flip side of this argument, in which the civil rights laws get used as a sword by the religious against voluntary, progressive policies. NBO -- Original Message -- From: Rick Duncan [EMAIL PROTECTED] Reply-To: [EMAIL PROTECTED], Date: Wed, 7 Apr 2004 14:51:44 -0400 Rick Duncan has sent you an article from The Washington Times. Rick Duncan's comments: --- WORKER OPPOSED TO GAYS WINS SUIT By Amy Fagan THE WASHINGTON TIMES --- An ATT Broadband employee who was fired after refusing to abide by company rules that he said violated his religious beliefs about homosexuality has won a federal court case. Judge Marcia S. Krieger of the U.S. District Court for the District of Colorado awarded Albert Buonanno of Denver $146,269 for lost salary, loss of 401(k) matching contributions and compensation for emotional distress in a Friday ruling released this week. The judge found that although there was no direct religious discrimination against Mr. Buonanno, ATT Broadband failed to show it could not have accommodated Mr. Buonanno's beliefs without undue hardship to the company he had been with for nearly two years. Mr. Buonanno objected to language in a new employee handbook issued in January 2001 that said each person at ATT Broadband is charged with the responsibility to fully recognize, respect and value the differences among all of us, including sexual orientation. He was fired after refusing to sign a certificate of understanding acknowledging that he agreed to the policy. The Civil Rights Act requires employers to reasonably accommodate the religious beliefs of employees unless the employer can show it will create an undue hardship on the company to do so. Mr. Buonanno felt his Christian beliefs prevented him from valuing or agreeing with homosexuality, which he views as a sin, but he pledged not to discriminate against or harass anyone, said John W. Whitehead, president of the Rutherford Institute, the group that represented Mr. Buonanno. This issue is about more than an objection to homosexuality, Mr. Whitehead said. It concerns the freedom of conscience the right of individuals to object to something they believe is wrong, especially when it contradicts their religious beliefs, whether it is war, abortion, homosexuality or a number of other issues. A spokesman for Comcast, which owns ATT Broadband, said, the company is disappointed in the court's ruling, which they said appears to ignore attempts by companies to foster diversity and nondiscrimination in the workplace. The spokesman, who asked not to be named, said the company is reviewing the case and might appeal the ruling. Mr. Buonanno did not ask the court to reinstate him as a quota specialist, instead seeking monetary compensation. He now works for Mental Health Corporation of Denver as a counselor. The ruling could embolden other Christians or religious people to challenge similar policies, said Mr. Whitehead, who expects court challenges to the sensitivity training companies sometimes require, which he said often aims at training workers to accept and value diversity, including homosexuality. I think Buonanno is just the tip of the iceberg, Mr. Whitehead said. Mr. Buonanno wasn't asking anything that would unduly burden the
Re: FYI An Interesting Case
In a message dated 4/7/2004 3:54:42 PM Eastern Daylight Time, [EMAIL PROTECTED] writes: BTW, it seems to me that having the state require an oath and having ATT require an oath are different sorts of things. The state has more guns than ATT does. Of course, the State, at least since Barnette, has always been required togive special regard to the conscientious dissenter in the pledge cases. So, absent evidence of more than a de minimus impact on the dissentiphobic employer, the decision seems about right. Jim "Neologiphobic" Henderson Senior Counsel ACLJ ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
