Refusing to “Respect and Value” Homosexual Coworkers:

A federal judge has awarded back pay and damages for emotional distress to a Christian employee who objected to his employer’s policies requiring him to “respect and value” the differences of his gay colleagues. Specifically, Albert Buonanno objected to language in an AT&T Broadband employee handbook stating that “each person at AT&T Broadband is charged with the responsibility to fully recognize, respect and value the differences among all of us,” including sexual orientation. The company fired Buonanno after he refused to sign a “certificate of understanding” acknowledging that he agreed to the policy.

Buonanno’s lawsuit was based on AT&T Broadband’s failure, under Title VII of the 1964 Civil Rights Act, to show that it could not “reasonably accommodate” his religious objections without “undue hardship.” This opinion, from a district court in Colorado, which is in the Tenth Circuit, seems to conflict with the Ninth Circuit’s recent ruling in Peterson v. Hewlett Packard Co., 358 F.3d 599 (9th Cir. 2004), holding that modifications to an employers’ diversity policies are an “undue hardship” within the meaning of Title VII. I wrote about Peterson here.

However, while Peterson actually sought to express his disagreement with company policy at his workstation, thereby undermining company policy, Buonnano simply sought to be excused from signing an oath of allegiance to the policy. Buonnano could reasonably argue that it is one thing to expect an employee to act in ways consistent with a company’s nondiscrimination or tolerance policy, and quite another to require an employee to swear fealty to the principles underlying the policy.

This latter issue makes me ambivalent about the outcome of Buonnano’s case. On the one hand, I think that AT&T Broadband 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 seem to always want the government to require them to engage in special treatment for religious employees in the form of an expansive definition of “reasonable accommodations.” We live in a pluralistic society, and if religious employees don’t like one company’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 AT&T Broadband’s specific policies weren’t mandated by the government, the form they took are likely an outgrowth of years of lawsuits and EEOC actions that have attempted to require employers to only promote managers who “believe in” certain nondiscrimination policies. I’ve noted in a related context:

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.”

UPDATE: A reader write: “Maybe it’s just my interpretation, but I see a rather large difference between the AT&T Broadband policy that ‘charges each person with the responsibility to fully recognize, respect and value the differences among us” and the legal requirement that managers “communicate to their employees that they agree with, personally believe in, and will enforce the harassment policy.'”

One must be clear, as this reader may not have been, that measures taken by companies to prevent “harassment” include much more than one might think. Anti-harassment policies can include some rather controversial provisions, including forbidding intracompany dating, mandatory anti-harassment (or “diversity”) training by individuals with a strong feminist or racialist or pro-gay agenda, bans on “dirty jokes,” bans on certain political discussions at work (e.g., Clinton and Monica Lewinsky), bans on religious proselytizing in the workplace (including during lunch and other breaks) even by those whose religion teaches them they have an obligation to proselytize, and more. A manager can comply with all of these policies while personally disagreeing with them, or even finding some of them offensive to his or her deepest-held beliefs.

It’s one think to ask a manager to comply with such policies, with a smile on his face. It’s another to require him to assert that he personally believes in such policies, but companies think they need managers willing to do so to protect themselves from litigation. And you can see why. The following colloquy would look extremely bad before a jury: Q. And you were the manager in charge of enforcing IBM’s sexual harassment policy for the past five years? A. Yes. Q. And did you personally support and believe in all aspects of that policy? [Objection] A. No. Q. Please tell the jury which aspects of the policy you did not support [Objection]. Some courts would sustain these objections, but some would not.