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Objecting to your employer’s publicized diversity campaign is a risky proposition. And, as Richard Peterson learned, when taken to the extreme it may lead to the end of employment. The 9th U.S. Circuit Court of Appeals heard Peterson v. Hewlett-Packard Co., over Peterson’s termination for refusing to remove Bible passages from his workspace. He had posted the passages to counter HP’s diversity campaign, which included a poster of an openly homosexual HP employee. Peterson claimed that he was discriminated against by HP’s failure to accommodate his religious beliefs. Peterson was employed in HP’s office in Boise, Idaho for almost 21 years, when the company began displaying posters showing a photograph of HP employees above various captions: “Black,” “Blonde,” “Old,” “Gay,” and “Hispanic.” Some of the posters also contained the slogan “Diversity is Our Strength.” Peterson, who describes himself as a “devout Christian,” responded to the posters that read “Gay,” by posting Bible passages in his cubical, printed large enough to be seen by co-workers. One of the passages referred to same-sex relations as an “abomination.” Peterson’s supervisor removed the passages, on the grounds that they violated HP’s policy prohibiting harassment. The policy stated, in part, that “any comments or conduct relating to a person’s race, gender, religion, disability, age, sexual orientation or ethnic background that fail to respect the dignity and feeling [sic] of the individual are unacceptable.” Peterson explained that he intended the passages to be hurtful and that he hoped that any gay and lesbian co-workers would read the passages, repent and be saved. After numerous meetings at which HP and Peterson expressed their thoughts, Peterson made an all-or-nothing proposal: both the posters and Bible passages remain, or both be removed. Nothing else was acceptable. He stated during one of the meetings that “as long as HP is condoning [homosexuality] I’m going to oppose it � “ Peterson was given time off with pay to reconsider his position. When he returned to work, he again posted the passages and refused to remove them. After further meetings with HP managers, Peterson was terminated for insubordination. Peterson brought suit claiming that he was discriminated against on the basis of his religion under Title VII. PETERSON’S CLAIMS Peterson initially claimed that he was discriminated against subject to the “disparate treatment” theory, in that the workplace diversity campaign was “a crusade to convert fundamentalist Christians to [the company's] values,” including the promotion of “the homosexual lifestyle.” He further argued that the disciplinary process was “an inquisition serving no other purpose than to ferret out the extremity of [his] views on homosexuality.” The Court rejected both of these arguments, based on HP’s anti-harassment policy which, according to the Court, did nothing more than ask Peterson to treat his co-workers with respect. The Court concluded that Peterson was discharged “not because of his religious beliefs, but because he violated the company’s harassment policy by attempting to generate a hostile and intolerant work environment and because he was insubordinate in that he repeatedly disregarded the company’s instructions to remove the demeaning and degrading posters from his cubical.” Peterson’s second argument, that HP refused to accommodate his religious beliefs, was also rejected. The Court considered his proposal that the posters and his postings be allowed or they both be removed, and found that “either choice would have created undue hardship for HP because it would have inhibited its efforts to attract and retain a qualified, diverse workforce … “ WORKPLACE TOLERANCE The case raises any number of questions regarding tolerance of culturally-divergent views in the workplace. The court started with the fundamental societal goal that diversity and tolerance are values to be encouraged. Interestingly, the court found that HP’s efforts to eradicate discrimination against homosexuals in its workplace were “entirely consistent with the goals and objectives of our civil rights statutes generally.” Title VII, of course, does not protect discrimination on the basis of sexual-orientation. Those cases where same-sex discrimination has been actionable, have done so under a sexual harassment analysis, not disparate treatment. While not explicit, the court’s analysis seems to provide some level of protection against anti-homosexual speech in the workplace, although there is certainly no federal statutory basis for doing so. Peterson’s pronouncement that he “intended” the passages to be hurtful seemed to squarely violate HP’s anti-harassment policy. While Peterson may have felt compelled to cast his postings in this light, an even more interesting question would be the company’s reaction had he posted passages inside of his cubicle and proclaimed that they were simply intended to counter-balance what in his mind was HP’s offensive posters promoting a homosexual lifestyle. In this light, it should be noted that HP did not object to Peterson’s expression of his criticism of the company in the local newspaper, in which he stated that HP was “on the rampage to change moral values in Idaho under the guise of diversity.” It further took no action against him for placing a bumper sticker on his car stating: “Sodomy is Not a Family Value.” In the end, stripping away the politically charged issues in the case, makes clear HP’s rationale. If Peterson had posted a sign in his cubicle that “persons with red hair are an abomination [and] they shall surely be put to death,” there would be little question that HP would have been compelled to take action. That this same posting targeted homosexuals should make no difference in a discrimination analysis. Sidney R. Steinberg is a shareholder in the business law and litigation department of Post & Schell, (www.postschell.com). He concentrates his national litigation and consulting practice in the field of employment and employee relations law and may be reached at [email protected].

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