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Imagine the following scenario: Bill, a recent transfer from Boston — where the Supreme Judicial Court of Massachusetts held in 2003′s Goodridge v. Department of Public Health that the state must offer same-sex couples the option of marrying — brings his husband to a company picnic or holiday party. They hold hands, dance and otherwise behave like any other married people. Suddenly the party stops. Some employees stare; a few simply leave. Bill, understandably upset, visits the human resources manager and demands that the company live up to the promises in its diversity policy, which states that all employees will be valued and treated with respect without regard to their sexual orientation. The HR manager provides diversity training for Bill’s work group and asks each employee to sign a statement saying they agree to value the differences in each other as part of valuing diversity. If some of the employees refuse to sign the statement based on their religious beliefs, should in-house counsel sign off on a manager’s effort to terminate them? Can the company discipline employees for leaving the party if they left because of their religious beliefs? In-house counsel must prepare to help their companies balance competing interests: a desire to create a workplace that welcomes all employees, including those who might be in same-sex marriages, versus the equally important desire not to offend the religious beliefs of some other employees. One of the first cases to show how this tension can broadside a well-intentioned company is Buonanno v. AT&T Broadband, decided on April 2 by Judge Marcia S. Krieger of the U.S. District Court for the District of Colorado. According to the opinion, AT&T introduced a new employee handbook. The company advised employees that, to make diversity work, the employees must sign a policy statement including language that “[e]ach person at AT&T Broadband is charged with the responsibility to fully recognize, respect, and value the differences among all of us.” According to the opinion, Albert Buonanno refused, based on his religious beliefs. He found some behaviors to be sinful; thus he could not value such behavioral differences. In particular, Buonanno testified that he was reluctant to value the particular behavior of homosexuality. He was prepared however, to comply with the principles underlying the diversity policy. He agreed not to discriminate against or harass any person based on that person’s differing beliefs or behaviors. He alerted the company’s human resources manager to his beliefs and gave his word to conduct himself in a professional manger. The HR manager and Buonanno’s supervisor met with him to explain the importance of the diversity policy and explain that signing the certificate was a condition of employment. After the meeting, Buonanno continued to refuse to sign the certificate. The company terminated him solely due to his refusal to sign the certificate. Buonanno sued for religious discrimination under Title VII of the Civil Rights Act of 1964. The company argued that permitting an employee to refuse to certify anything other than full agreement with all the language in the handbook would destroy the competitive advantage its diversity policy it created, according to the opinion. But the court found for Buonanno, awarding back pay with prejudgment interest, lost 401(k) matching contributions, compensatory damages for emotional distress and front pay. The judge found that the language of the policy, taken literally, would require an employee to ascribe some value to those beliefs or behaviors of his co-workers that he did not share. The court also pointed out in the opinion that the company did not try to accommodate the plaintiff’s religious beliefs. Judge Krieger held that, when an employer makes no effort to accommodate the religious beliefs of an employee before taking action against him, the employer may prevail on a religious discrimination claim only if it shows that it could not have made any accommodation without undue hardship. In this case, AT&T could have accommodated the plaintiff’s religious beliefs simply by adding a written statement from the company or by accepting the plaintiff’s promise that he would not discriminate for any reason. TREAD CAREFULLY Texas statutes also require employers to accommodate religious beliefs once they are informed of them, unless doing so would create undue hardship. Under the Texas Labor Code Annotated, 21.108 (1996), once an employee informs management that his religious beliefs conflict with a company requirement, the company must listen to the belief and make a good-faith effort to accommodate it, if possible. In Grant v. Joe Myers Toyota, decided by Houston’s 14th Court of Appeals in 2000, an applicant for a sales position attended a mandatory sales training course. She found that the principles promoted by the course, entitled “The Greatest Salesman in the World,” went against her religious beliefs. The course instructor asked the plaintiff to memorize certain paragraphs and repeat them morning, noon and night. The plaintiff informed the employer that some of the book’s principles went against her Christian beliefs. The company told her that, if she did not read the book, it would not hire her. She asked to take an alternative class or on-the-job training, but the company refused and did not hire her, according to the opinion. The 14th Court found that the company failed to attempt to accommodate the plaintiff’s religious beliefs, which it could have done without undue hardship, by placing her in a different class, allowing her to read a different book or offering her on-the-job training. Buonanno and Grant demonstrate that employers must tread carefully when trying to manage ideas and beliefs instead of behavior. In the context of the hypothetical employee referenced above, Bill, the employer can require its employees to treat Bill and his partner respectfully. That includes no gossiping, joking or otherwise treating Bill disrespectfully. However, the employer may not be able to require employees to sign a statement indicating that they value Bill’s differences, if by doing so the employees would violate their known religious beliefs. Victoria M. Phipps is a partner in the labor and employment practice of the Houston office of Epstein Becker Green Wickliff & Hall. She has been board certified by the Texas Board of Legal Specialization since 1995. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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