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The culture wars are coming to a workplace near you. There was a time when religious discrimination cases arose from the claims of certain employees that their work requirements be waived or that their work schedules be adjusted because of a conflict with their religious obligations. But now a new kind of religious discrimination claim is coming from those who feel they have a religious obligation to affirm publicly in the workplace their religious beliefs, proselytize to others or expressly oppose what they believe to be the sinful behavior of their co-workers-even if this conflicts with their employer’s anti-harassment or diversity policies that affirm the value of all employees irrespective of their religion, sexual orientation or lifestyle. Federal law prohibits employers from discriminating against employees on the basis of religion. If an employee’s sincerely held religious beliefs require that employee to engage in observances or practices at work that conflict with the employer’s policy, it is the employer that must reasonably accommodate the employee’s needs unless doing so would cause an undue hardship. When an employee’s religiously based need to proselytize or affirmatively oppose sinfulness conflicts with an employer’s diversity policies or is experienced as harassing by co-workers, employers that reflexively enforce their anti-harassment policies run the risk of liability for religious discrimination. Some effort to accommodate the employee’s religious practice must be made. While employers often can lawfully discipline those who will not accept the accommodation, they may sometimes be forced to tolerate conduct they disfavor if it emanates from a sincerely held religious belief, even one that runs counter to the workplace culture the employer is seeking to cultivate. EEOC’s anti-harassment efforts drew a backlash Ironically, this conflict was presaged more than a decade ago when, in 1993, the Equal Employment Opportunity Commission (EEOC) attempted to expand its already existing regulation on sexual harassment into a general policy against all forms of workplace harassment based on any classification under Title VII of the Civil Rights Act of 1964. The proposed guidelines would have defined harassment as activity that was offensive to a reasonable person in the victim’s position. 58 Fed. Reg. 51266 (1993). That definition caught the attention of evangelical Christians and their advocates in Congress, like then-Senator Jesse Helms, R-N.C., who feared that a proselytizing evangelical could be accused of engaging in discriminatory harassment if a “reasonable” atheist, secularist, homosexual or unwed mother felt offended by the evangelical Christians’ efforts to convey God’s word as they believed it to be. Those in Congress who objected to the EEOC’s definition of workplace harassment precisely because it would, in their view, impede an evangelical Christian’s ability to proselytize in the workplace, successfully attached riders to congressional appropriations prohibiting the EEOC from taking any further steps to implement the proposed guideline. After a few years of such legislative limitations, the EEOC stopped trying, and no guidelines on workplace harassment (other than the original sexual harassment guidelines) ever came to be. As a result, courts have slowly developed their own approaches to proselytizing at work. As evidenced by Ng v. Jacobs Eng’g Group, No. B185838 (Calif. Ct. App. Oct. 16, 2006) (unpublished opinion), persistent and blatant proselytizing at work can be prohibited. There, summary judgment was granted against Edna Yuen Man Ng, an evangelical Christian, who had been fired for persistent attempts to convert co-workers. Her actions included companywide e-mails of religious literature, Christmas and Easter parties in conference rooms complete with songs and amplifiers, and weekly prayer meetings. In response to offended co-workers who complained, management had repeatedly urged Ng’s compliance with the company’s anti-harassment policy, but to no effect. Ng sued for religious discrimination, asserting that Jacobs Engineering Group had failed to accommodate her religious practices. The court disagreed: “If we were to require defendant to accommodate proselytizing in the workplace, as plaintiff suggests, it would violate its own policy and be subject to claims by other employees desiring to use company facilities to share their own religious beliefs.” Impeding Jacobs’ ability to enforce its anti-harassment policy was, said the court, sufficient undue burden to relieve it of a duty to accommodate Ng. If, however, the proselytizing activity is less pronounced or widespread, the employer may be forced to accept it as a reasonable accommodation to religious belief. In Banks v. Service America Corp., 952 F. Supp. 703 (D. Kan. 1996), the court upheld the right of two employees who continually greeted customers with phrases such as “Praise the Lord” and “God bless you.” The employer, which ran the cafeteria in a factory, preferred “Hello. What can I get for you today?” as the standard greeting. Even though around 25 complaints were received, the court determined that it would not unduly burden the employer to let the employees use the religious greetings, basically because there was no showing that the customer dissatisfaction would significantly affect the employer’s profitability. A similar situation arose in Powell v. Yellow Book USA Inc., 445 F.3d 1074 (8th Cir. 2006), where a recently converted evangelical Christian felt obligated to expound her newfound religious beliefs to co-workers and to post religious sayings in her workplace cubicle. When another employee complained, the evangelizing employee stopped talking to that employee about religious matters, but continued posting religious material in her cubicle. The complaining employee continued to complain, and the employer moved that employee to a cubicle farther away. In rejecting that employee’s claim of religious harassment, the court ruled that an employer “has no legal obligation to suppress any and all religious expression merely because it annoys a single employee,” and that the employer acted correctly in moving the complaining employee to another cubicle. Id. at 1078. It is unlikely that pornographic pictures of naked women posted in a man’s cubicle would be treated the same way if a female co-worker found them offensive. Employer-established diversity programs sometimes conflict with employees who feel a religious duty to oppose sin. In Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir. 2004), Richard Peterson, a self-described “devout Christian,” felt religiously compelled to post at his work station biblical passages denouncing homosexuality in response to diversity posters hung by his employer that included an employee labeled as “gay.” Determining that the scriptural passages could be offensive to certain employees, management asked that they be removed. Peterson responded that he would remove his scriptures only if Hewlett-Packard removed its diversity posters, which he viewed as condoning homosexuality. Peterson, though otherwise a satisfactory worker, was fired for his refusal, as his postings violated the company’s anti-harassment policy, which forbade conduct that “failed to respect the dignity . . . of the individual.” Allowing Peterson’s posting of the scriptures (unless that “gay” diversity poster was removed) was not, the court ruled, a reasonable accommodation to Peterson’s religion: It would either force the employer to accept demeaning and harassing postings in its workplace or infringe on its right to promote diversity and tolerance among its work force. One employer should have reworded diversity policy There was an opposite result in Buonanno v. AT&T Broadband LLC, 313 F. Supp. 2d 1069 (D. Colo. 2004). There, Albert Buonanno, a fundamentalist Christian employee, was prohibited by his religious beliefs from endorsing behavior that scripture repudiated. He thus refused to sign a “Certificate of Understanding” attached to the company’s code of conduct because it contained a “Diversity Policy” that required each employee to “fully recognize, respect and value” co-worker differences, as he could not conscientiously value any difference that he found “contrary to God’s word.” For that refusal, he was fired. That firing, the court found, violated Buonanno’s Title VII right to religious accommodation because the employer had failed to communicate to him an interpretation of its diversity policy or, if necessary, make minor changes to its wording that would assuage his objection to valuing behavior scripture abhorred. Going beyond mere anti-harassment policies, many businesses are pursuing even broader diversity initiatives that set standards of mutual respect for all employees. These encompass not only race, religion and ethnicity, but also sexual orientation, gender identification and lifestyle choices (like unwed parenthood). Diversity policies like these may be offensive to deeply religious employees who feel compelled to publicly proclaim their opposition to practices in the secular culture that they find sinful. Employers are generally permitted to prohibit religious proselytizing at work that some employees feel compelled to engage in. Because, however, federal discrimination law requires reasonable accommodation to religion, employers must proceed carefully in enforcing their secularist policies against those who assert religious-based objections to compliance. Michael Starr ([email protected]) is a partner in the labor and employment group of Hogan & Hartson, resident in New York. Christine M. Wilson ([email protected]) is an associate, not yet admitted to practice, in that group, also resident in New York.

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