Anti-Gay Worker Who Violates Diversity Policy May Be Fired
by Richard S. Rosenberg and John J. Manier

Employers striving to comply with job bias statutes are frequently put in the unenviable position of “choosing their lawsuit.” Hewlett-Packard Co. was confronted with just such a dilemma when an employee named Richard Peterson challenged the company’s diversity policies by posting Bible scripture passages condemning homosexuality.

Peterson claimed that Hewlett-Packard committed illegal religious discrimination when it discharged him for refusing to remove his inflammatory postings from the workplace. Hewlett-Packard had to fight Peterson’s lawsuit all the way to the 9th Circuit before finally prevailing. Peterson v. Hewlett-Packard Co., 2004 DJDAR 170 (9th Cir. Jan. 6, 2004).

By way of background, Hewlett-Packard began displaying “diversity posters” in its Boise, Idaho offices as part of a workplace diversity campaign. Five of these posters showed pictures of company employees above different captions: “Black,” “Blonde,” “Hispanic,” “Old” and “Gay.”

The “Gay” poster apparently irked Peterson, a fundamentalist Christian who believes homosexuality violates the Bible’s commandments. Claiming he was duty-bound “to expose evil when confronted with sin,” Peterson posted several scriptural quotations in large typeface at his work cubicle. These included a passage from Leviticus which describes male homosexual acts as an “abomination” punishable by death.

Peterson’s supervisor removed these passages from Peterson’s cubicle because they violated Hewlett-Packard’s policy against “comments or conduct related to a person’s race, gender, religion, disability, age, sexual orientation, or ethnic background that fail to respect the dignity and feeling[s] of the individual.”

Company managers then met with Peterson to discuss the matter. Peterson said he meant the passages to condemn “gay behavior” and admittedly intended them to be “hurtful.” He reasoned that “you cannot have correction unless people are faced with truth,” and hoped his gay and lesbian colleagues would heed the passages and be “saved.” Peterson also claimed that the company’s diversity campaign unfairly “targeted” him and other heterosexual and Christian employees.

Peterson insisted he would not remove his Bible passages unless the company removed its “Gay” posters. When management rejected his proposal, Peterson remained steadfast: “[A]s long as [Hewlett-Packard] is condoning [homosexuality], I’m going to oppose it ....”

Hewlett-Packard put Peterson on a paid leave and asked him to reconsider. However, when he returned to work, Peterson again posted the scriptural passages and refused to remove them. The company ultimately discharged Peterson for insubordination.

Peterson sued Hewlett-Packard for religious discrimination under Title VII of the 1964 Civil Rights Act, 42 U.S.C. Section 2000e et seq., and Idaho state law. A magistrate judge dismissed Peterson’s lawsuit on summary judgment. The 9th Circuit affirmed in an opinion by Judge Stephen Reinhardt, joined by Judges William Fletcher and Ronald Gould.

Peterson claimed that his discharge constituted unlawful disparate treatment based on religion. Applying the familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the 9th Circuit held that Peterson’s evidence failed to raise a triable issue of disparate treatment.

Initially, the court noted that the company’s diversity campaign in general, and its emphasis on anti-gay prejudice in particular, “were entirely consistent with the goals and objectives of our civil rights statutes generally.” The court cited to cases holding that Title VII prohibits gender stereotyping, Nichols v. Azteca Restaurant, 256 F.3d 864 (9th Cir. 2001), and same-sex harassment, Rene v. MGM Grand Hotel, 305 F.3d 1061 (9th Cir. 2002) (en banc).

Peterson also accused the company of “harassing” him into altering his religious beliefs, but his own evidence proved otherwise. The court noted that Hewlett-Packard never objected to Peterson’s published letter to a newspaper editor which accused the company of being “on the rampage to change moral values in Idaho under the guise of diversity” and “promote the homosexual agenda.”

Hewlett-Packard also allowed Peterson to park his car in the company lot even though it had a bumper-sticker which read “Sodomy is Not a Family Value.” The court concluded that the company uniformly applied its anti-harassment policies to all employees, and simply asked Peterson to treat his colleagues with respect.

Peterson claimed that he was treated differently than employees who were allowed to post other religious and secular messages in the workplace, including posters of “Native American dream catchers,” “New Age pictures of whales” and a “yin-yang symbol.” Peterson also complained that Hewlett-Packard allowed a group of gay employees to organize and advertise in the company’s newsletter and e-mail system.

However, the court noted that none of these other communications were intended to be “hurtful” or harass other employees. The court thus found no evidence to support a reasonable inference that Peterson was the victim of religious-based disparate treatment. Rather, he was terminated for insubordination and violating Hewlett-Packard’s lawful anti-harassment policy.

Peterson also claimed the company failed to accommodate his religious beliefs. The 9th Circuit explained that a prima facie case under this theory includes three elements: “(1) [the plaintiff] had a bona fide religious belief, the practice of which conflicts with an employment policy; (2) he informed his employer of the belief and conflict; and (3) the employer discharged, threatened, or otherwise subjected him to an adverse employment action because of his inability to fulfill the job requirement.”

For purposes of its analysis, the court assumed that Peterson could state a prima facie case. Yet, the court had “considerable reservations” on this point and seriously doubted that Peterson’s religion would “compel any employee to engage in either expressive or physical activity designed to hurt or harass one’s fellow employees.”

The court then shifted the burden to Hewlett-Packard to show that it “initiated good faith efforts to accommodate reasonably the employee’s religious practices or that it could not reasonably accommodate the employee without undue hardship.” Hewlett-Packard satisfied this burden. It met with Peterson at least four times, explained its diversity campaign, allowed him to explain his position, and tried to resolve the conflict in a manner which respected both Peterson and other employees.

Peterson, however, was willing to consider only two accommodations: Either his Bible passages remained posted with the company’s “Gay” posters, or they were all removed. The court held that both accommodations were unreasonable and would pose an undue hardship to Hewlett-Packard.

The first alternative would have allowed Peterson “to post messages intended to demean and harass his co-workers,” while the second would have eliminated sexual orientation from the company’s diversity program. As the court explained, “[e]ither choice ... would have inhibited [Hewlett-Packard’s] efforts to attract and retain a qualified, diverse workforce, which the company reasonably views as vital to its commercial success.”

The court stated that in accommodating religious beliefs, employers “must tolerate some degree of employee discomfort,” and that “[c]omplete harmony in the workplace is not an objective of Title VII.” Conversely, employers need not adopt accommodations which discriminate against other employees “or deprive them of contractual or other statutory rights.” Nor must employers grant “an employee’s desire to impose religious beliefs on his co-workers.”

The 9th Circuit also noted that in a recent affirmative action case, the Supreme Court cited amicus briefs filed by Hewlett-Packard and other companies for the proposition 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, 123 S. Ct. 2325 (2003).

The 9th Circuit held that Hewlett-Packard’s voluntary diversity program properly promotes these goals, and that it would be an undue hardship to require the company to exclude gays from this program. Hewlett-Packard thus showed that “no reasonable accommodation was possible” in this case.

While the 9th Circuit in Peterson only addressed federal and Idaho state law claims, the result likely would be the same under California law. The Fair Employment and Housing Act expressly prohibits discrimination and harassment based on sexual orientation, and requires employers to take all reasonable steps to prevent such unlawful practices. Government Code Section 12940(a), (j), (k).

Many California employers have anti-harassment and diversity policies similar to Hewlett-Packard’s, which expressly prohibit sexual orientation bias. Employers whose policies omit sexual orientation may find difficulties in defending job bias claims by gays and lesbians. Yet, as Hewlett-Packard learned, even the most inclusive anti-bias policies are bound to offend somebody.

The company’s defense in this case was helped by Peterson’s stunning admission that he “intended to be hurtful” towards co-employees. Such concessions are rare, however, and some employees with religious objections to homosexuality may present accommodation claims which are not as clear-cut as Peterson’s.

The best approach for employers in such cases may be to follow Hewlett-Packard’s lead. The company’s policy was to treat all employees with equal dignity and respect – irrespective of their religion or sexual orientation – and to insist that its employees do likewise. Because Richard Peterson rejected this guiding principle, he lost both his job and his lawsuit.