Employers have long recognized the value of diversity awareness and respect programs as a method of improving overall workplace productivity. These programs seek to foster respectful interactions between workers and diffuse tensions that often exist within a diverse workplace. Some employees, however, may resist participation in such programs because they believe that the program promotes values that are antithetical to their own religious beliefs. Such a conflict places the employer in the difficult position of fulfilling its legitimate interest to provide diversity awareness and respect programs while at the same time demonstrating respect for the employee's religious beliefs.
A. Reasonable Accommodation For Religious Practices Under Title VII
In accordance with Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating against individuals on the basis of their religion in making decisions that impact employment terms or conditions.1 Further, employers are obligated to provide reasonable accommodation for religious practices, observances or beliefs of employees, so long as the accommodation does not impose an undue hardship on the conduct of the employer's business.2 Religious practices include "moral or ethical beliefs as to what is right or wrong which are sincerely held with the strength of traditional religious views."3
In Trans World Airlines, Inc. v. Hardison, the Supreme Court clarified the extent to which an employer must endure hardship in providing a religious accommodation.4 The Court explained that undue hardship consists of any costs to the employer that exceed the nominal standard of de minimis. An employer need not accommodate an employee's religious beliefs if doing so would result in more than de minimis costs to the employer or if it results in disruption of the workplace or violation of a statute. In addition, an employer is not required to provide the specific accommodation requested by the employee, as long as the employer has offered an alternative reasonable accommodation.5
Title VII contemplates a number of theories for discrimination suits - including disparate treatment and failure to accommodate. To prove a disparate treatment claim, an employee must show that the employer treated him or her differently than other employees because of his or her religious beliefs. Because the statute requires employers to accommodate religious practices, employees also can challenge an employment decision by arguing that the employer failed to properly accommodate the employee. The employer then must show that it initiated good-faith efforts to reasonably accommodate the employee or that it was unable to provide a reasonable accommodation without undue hardship.6
B. Religious Objection to Diversity Awareness Programs And Other Forms Of Workplace Respect Training
A series of recent cases address the obligation of an employer to accommodate an employee's religious objection to diversity awareness and respect efforts in the workplace. The cases highlight the challenge faced by employers in formulating a reasonable accommodation for the employee, while at the same time preserving the important business purposes furthered by diversity awareness and respect programs.
In Buonanno v. AT&T Broadband LLC, an employee brought an action for religious discrimination based on his termination for refusing to sign a written certification to abide by the company's diversity policy.7 The employee was asked to sign a certification acknowledging in part 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."8 The employee refused to sign the certification and asserted that the diversity section of the employee handbook required him to value behavior and beliefs of "sinful" co-workers, contrary to his religious beliefs.9
Although supervisors engaged in several conversations with the employee, they failed to ascertain the nature of his objection to the language in the statement. The court concluded that had the supervisors probed further, they may have been able to resolve the issue without accommodation by explaining that a literal interpretation of the statement did not require the employee to value the behaviors and beliefs of co-workers, but simply charged him to recognize that those differences exist. Further, the employer actually could have accommodated the employee by modifying the challenged language.
The Court of Appeals for the Eighth Circuit examined the issue of imposing discipline on employees who engaged in a protest during a diversity training session in Altman v. Minn. Dep't of Corrections.10 Three public employees received reprimands for protesting the subject matter of a training program entitled "Gays and Lesbians in the Workplace" by silently reading their Bibles and copying scripture during the class. One of the employees objected to the training beforehand, protesting to his superior that the nature of the program promoted acceptance and respect for "deviant sexual behavior."11 The superior attempted to assure the employees that the training was part of a commitment to create a respectful work environment and was "not designed to tell you what your personal attitudes or beliefs should be."12 The court concluded that the employees raised triable free speech, Title VII and equal protection issues because other employees who had been similarly inattentive during training sessions had not received reprimands for insubordination. But the court rejected the employees' free exercise claim, reasoning that their religion did not require them to read the Bible while working and that exposure to disagreeable views during a 75-minute presentation did not burden their free exercise of religion.
In another case dealing with an employee's religious objection to a company diversity program, the Court of Appeals for the Ninth Circuit upheld the termination of an employee who protested the displaying of diversity posters that depicted a gay employee and included the caption "Gay."13 In response to the posters, the employee repeatedly posted Biblical verses condemning homosexuality at his workstation that were visible to co-workers and customers.14 The company informed the employee that the messages were offensive to others and that they violated the company's policy against harassment. The employee and his managers held a series of meetings in an attempt to reach an accommodation. During these meetings, the employee explained his belief that the workplace diversity campaign was "an initiative to 'target' heterosexual and fundamentalist Christian employees," and that his religion required him to post the hurtful passages "to expose evil when confronted with sin."15 The employee stated that he would remove the Biblical verses only if the company would remove the "gay" diversity posters. Because the company refused to remove the "gay" diversity posters, the employee continued to post scriptural passages, and was terminated for insubordination.
The court found in favor of the employer, holding that taking down the diversity posters would be an undue hardship because it "infringed upon the company's right to promote diversity and encourage tolerance and good will among its workforce."16 Further, an accommodation that would violate company policy prohibiting the demeaning and harassment of co-workers would be unduly burdensome to the employer. Therefore, because the only two accommodations acceptable to the employee - removal of the diversity posters, or alternatively, continuing to display the Biblical passages - would create an undue hardship on the employer, the court concluded that no reasonable accommodation was possible.
Must an employer excuse an employee from participating in diversity and respect training because some of the views expressed during the training are not consistent with the employee's personal religious beliefs? Recent court decisions indicate no. The courts have recognized the value of diversity awareness programs and the employer's legitimate interest to require participation. The Ninth Circuit acknowledged that "the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas and viewpoints," and stated that "good business practices are appropriately promoted by [the company's] workplace diversity program."17 Further, the Eighth Circuit observed that exposure to disagreeable views that could arise during a diversity awareness program would not burden the employee's freedom of religion.18
When an employee notifies his or her employer of a religious objection to a diversity awareness or respect program, the employer should engage in a dialogue with the employee with the goal of discovering the nature of the conflict and identifying potential accommodations. As the district court concluded in Buonanno, such dialogue may reveal that the employee's religious beliefs do not actually conflict with participation in diversity efforts. During these conversations, the employer should focus on determining what is required as a religious practice and what is merely a personal preference. In a religious accommodation case that arose outside the context of diversity programs, the Eighth Circuit affirmed an employer's ability to offer an accommodation that differs from that requested by the employee.19 Specifically, in Wilson v. U.S. West Communications, the employee asserted that her religion required that she wear a pro-life pin. The pin contained the photograph of a fetus that distracted and upset her co-workers. As an accommodation, the employer did not require the removal of the pin, but instead asked that she cover the pin while at work - thereby allowing the employee to satisfy her religious mandate and eliminating the disruption in the workplace.20
When confronted with an employee's religious conflict, the employer should be open to the employee's concerns and make efforts to provide a reasonable accommodation for the employee, while keeping in mind that the employee is not necessarily entitled to the accommodation of his or her choice. By engaging in a dialogue and providing a reasonable accommodation when possible, an employer can meet its legal obligations to respect an employee's religious beliefs while maintaining the productive effect of diversity and respect awareness programs.
1 42 U.S.C. § 2000e-2.
2 42 U.S.C. § 2000e(j).
3 29 C.F.R. § 1605.1.
4 432 U.S. 63 (1977).
5 Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986).
6 See Peterson v. Hewlett-Packard Co., 358 F.3d 599, 606 (9th Cir. 2004).
7 313 F. Supp. 2d 1069 (D. Colo. 2004).
8 Id. at 1074-75.
9 Id. at 1075.
10 251 F.3d 1199 (8th Cir. 2001).
11 Id. at 1201.
13 Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir. 2004).
14 Id. at 601-02.
16 Id. at 608.
17 Peterson, 358 F.3d at 608 (citing Grutter v. Bollinger, 539 U.S. 306 (2003)).
18 Altman, 251 F.3d at 1204.
19 Wilson v. U.S. West Communications, 58 F.3d 1337 (8th Cir. 1995).
20 The employee refused to either cover or remove the pin, and was subsequently terminated. The Eighth Circuit affirmed the district court's dismissal of the employee's claim, concluding that the employer had met its obligation to provide a reasonable accommodation. Id.
Brian Nuterangelo is a Partner in Wiley Rein & Fielding's Employment and Labor Practice. He litigates employment and commercial issues in state and federal courts and before arbitrators. Mr. Nuterangelo regularly represents employers during government investigations and provides representation and advice on wrongful discharge, harassment, discrimination, employee leave, workplace privacy, employment contracts and a variety of other employment matters. He can be reached at (202) 719-3172. Maria L. Mullarkey is an Associate in WRF's Employment & Labor Practice.