Peterson v. Hewlett-Packard:
conflict between Peterson and Hewlett- Packard arose when the company began displaying “diversity posters” in its Boise office as one component of its workplace diversity campaign. The first series consisted of five posters, each showing a photograph of a Hewlett- Packard employee above the caption “Black,” “Blonde,” “Old,” “Gay,” or “Hispanic.” Posters in the second series included photographs of the same five employees and a description of the featured employee’s personal interests, as well as the slogan “Diversity is Our Strength.”Peterson asserted that he was subjected to disparate treatment because of his religion, which he clearly was not, and that H-P failed to reasonably accommodate his religious beliefs, which also is a nonstarter, as H-P, as the court holds, is under no obligation to make all of its employees feel totally comforable at the expense of corporate policies intended to increase productivity and profits (especially when this would involve the uncomfortable employee intentionally making other employees feel uncomfortable). On this much, the Ninth Circuit and I agree. (Edit: Indeed, I don’t think Peterson needed to be acommodated at all. His religious beliefs were in no way being violated. No one asked him to endorse the morality of homosexual conduct, just to tolerate signs asking employees to be tolerant of gays as co-workers.)
Peterson describes himself as a “devout Christian,” who believes that homosexual activities violate the commandments contained in the Bible and that he has a duty “to expose evil when confronted with sin.” In response to the posters that read “Gay,” Peterson posted two Biblical scriptures on an overhead bin in his work cubicle. The scriptures were printed in a typeface large enough to be visible to co-workers, customers, and others who passed through an adjacent corridor. One of Peterson’s postings was taken from Corinthians 10:12. The other featured the following passage from Isaiah:
The shew of their countenance doth witness against them; and they declare their sin as Sodom, they hide it not. Woe unto their soul! For they have rewarded evil unto themselves. Isaiah 3:9
Subsequently, Peterson posted a third scriptural passage. This time he chose the well-known and highly controversial passage from Leviticus:
If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination; they shall surely be put to death; their blood shall be put upon them. Leviticus 20:13
Peterson’s direct supervisor removed the scriptural passages after consulting her supervisor and determining that they could be offensive to certain employees, and that the posting of the verses violated Hewlett-Packard’s policy prohibiting harassment. Throughout the relevant period, Hewlett-Packard’s harassment policy stated as follows:
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.
*2 Over the course of several days after Peterson posted the Biblical materials, he attended a series of meetings with Hewlett-Packard managers, during which he and they tried to explain to each other their respective positions. Peterson explained that he meant the passages to communicate a message condemning “gay behavior.” The scriptural passages, he said, were “intended to be hurtful. And the reason [they were] intended to be hurtful is you cannot have correction unless people are faced with truth.” Peterson hoped that his gay and lesbian co-workers would read the passages, repent, and be saved.
In these meetings, Peterson also asserted that Hewlett-Packard’s workplace diversity campaign was an initiative to “target” heterosexual and fundamentalist Christian employees at Hewlett-Packard, in general, and him in particular. Ultimately, Peterson and the managers were unable to agree on how to resolve the conflict. Peterson proposed that he would remove the offending scriptural passages if Hewlett-Packard removed the “Gay” posters; if, however, Hewlett-Packard would not remove the posters, he would not remove the passages. When the managers rejected both options, Peterson responded: “I don’t see any way that I can compromise what I am doing that would satisfy both [Hewlett- Packard] and my own conscience.” He further remonstrated: “as long as [Hewlett- Packard] 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 scriptural passages and refused to remove them. After further meetings with Hewlett-Packard managers, Peterson was terminated for insubordination.
However, the opinion, written by arch-liberal Judge Stephen Reinhardt, suggests that H-P’s case is strengthened because trying to stop internal discrimination against gays is consistent with the “spirit” of federal and state antidiscrimination laws. Ahem. Neither federal law nor Idaho law bans employment discrimination against gays. There is no such “spirit” of the law, except in Reinhardt’s imagination.
Moreover, Reinhardt throws in gratuitous references to Grutter v. Bollinger(upholding affirmative action in state university admissions and noting the importance of a diverse workplace to corporate America) Romer v. Evans (invalidating a Colorado initiative banning local gay rights laws) to support the court’s conclusion that requiring H-P to take down its pro-diversity posters re gays would create “undue hardship” for H-P. You have to read the whole opinion closely to see it, but I read Reinhardt as subtly suggesting that a company may have a statutory obligation with regard to other minorities, supported by constitutional interests, to enforce pro-diversity policies at the expense of other concerns. By contrast, Reinhardt makes no reference at all to the Dale case (upholding the Boy Scouts’ First Amendment right to exclude gay scoutmasters), even though that opinion suggests that H-P may have a constitutional interest in controlling its own message regarding diversity issues (Dale is not quite on point because H-P isn’t a non-profit expressive association like the Scouts, but it’s certainly closer to the mark than is Grutter or Romer). In short, Reinhardt’s dicta suggests that H-P’s case is strengthened because of public, statutory, and constitutional interests in having companies proactively prevent a hostile environment for minorities, not because of the public, statutory, and constitutional interests in preserving corporate autonomy from antidiscrimination laws that attempt to regulate speech.
Oddly enough, Peterson failed to raise his strongest claim, that H-P’s diversity campaign subjected him to a hostile working environment as a conservative Christian-surely the “be tolerant of gays” campaign created a subjectively hostile environment for him! I think this claim would have lost on the legal merits (and should lose under any rational, and/or First Amendment protective statutory scheme), but then again, a Christian manager won a large settlement from Dairy Mart for being required to sell Playboy and Penthouse magazine at the store she managed. I wonder how Reinhardt would have squared his obvious concern for having the law encourage proactive action against hostile environments for other minorities with such a claim by Peterson.
ADDENDUM (in response to readers’ queries): Unlike in some cases, there is no hint in this case that H-P’s diversity policy was undertaken to comply with federal antidiscrimination laws, and, indeed, the policy encompassed gays, who are NOT protected by such laws. It appears, though it is not certain, that H-P simply believes, rightly or wrongly, that its policy is good for business. If, however, H-P’s polic
y had been responsive to concerns about legal liability, Peterson could have argued that enforcing the policy against his speech to protect against legal liability created a First Amendment issue. Of course, in the absence of direct or indirect state action, Peterson could not assert a First Amendment defense. On the other hand, H-P could at least plausibly raise a First Amendment defense to any interpretation of federal antidiscrimination rules that interfered with its diversity campaign.
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