By Ross Farr

An employee puts a crucifix in his office, causing other employees to complain. Someone else objects on religious grounds to the company’s policy of not discriminating against gay employees. Everyone begins to talk about their constitutional rights. What’s an employer to do?

The First Amendment is probably the most often cited protector of religious expression, but it only protects against governmental infringement of rights to free speech and religious expression. Therefore, it only protects religious expression in governmental workplaces.

Federal, state and some local statutes prohibit religious discrimination for all employees. For example, employees can assert a religious discrimination claim under the Washington Law Against Discrimination (WLAD)1 and Title VII of the federal Civil Rights Act.2 An employer can be held liable if the employee proves that: (1) the employee’s sincerely held religious belief conflicts with an employment requirement; (2) the employee has told the employer about the conflict; and (3) the employer discharges or disciplines the employee or otherwise subjects the employee to discriminatory treatment for failing to comply with the requirement.

An employer is obligated to accommodate an employee’s religious beliefs unless the accommodation would result in undue hardship to the employer. In return, an employee must make an effort to cooperate with an employer’s accommodation attempts. Courts determine the reasonableness of an employer’s accommodation attempts on a case-by-case basis. If the employer’s attempts to accommodate the religious belief do not eliminate the conflict with a work requirement, the employer still has the burden to show that the employer cannot accommodate the employee’s beliefs without undue hardship.

For example, an employee objected to posters in the workplace that promoted tolerance of diversity within the company, including gay and lesbian employees, because he believed that homosexuality was a sin.3 In response, he posted biblical scriptures above his cubicle in a large enough font that passersby could clearly read them. He explained that he intended for gay and lesbian employees to read the scripture passages, repent and be saved.

The employer met with the employee about four times to attempt to reasonably accommodate the employ-ee’s religious views. Ultimately, the employee refused to take down the scriptures unless the employer removed the diversity posters. He was fired for insubordination.

The employee argued that his employer failed to accommodate him and had treated him disparately as a member of a protected class. He claimed that the employer’s diversity campaign was a “crusade to convert fundamentalist Christians to its values.”4 The court disagreed and determined that the employer only required that the employee treat his co-workers with respect, which included removing intentionally hurtful postings above his cubicle. The court concluded that the employer’s goal of increasing tolerance of diversity, including gay and lesbian people, was not unlawful.

The only accommodation that the employee was willing to accept -- removal of the diversity posters or allowing him to post his biblical passages -- would have been an undue hardship on the employer. The court held that “an employer need not accommodate an employee’s religious beliefs if doing so would result in discrimination against his co-workers or deprive them of contractual or statutory rights.”5 Furthermore, “Title VII does not require an employer to accommodate an employee’s desire to impose his religious beliefs upon his co-workers.”6

In a case with similar facts, however, a trial court ruled that the employer did not do enough to accommodate an employee’s religious beliefs.7 The employee was asked to sign a diversity policy as part of AT&T’s employee handbook. The employee objected to a sentence in the policy that said, “Each 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 policy because he considered homosexual behavior and beliefs to be sinful. He did not intend to discriminate against or harass anyone, but he could not agree to value what he believed to be sinful beliefs and behaviors. He wrote “I can’t allow any group or individual to choose for me what I must respect or place value on.”9 He was subsequently terminated for not signing the policy.

In Buonanno, the court ruled that the employer could have reasonably accommodated the employee’s beliefs without undue hardship by rewording the policy. Had the employer sought more details about the employee’s concerns, it would have learned that the employee basically agreed with the policy, but had difficulty with the literal meaning of the term “value.”10

The bottom line is that religious or value-based beliefs may not be forced on employees or co-workers, but religious expressions should be accommodated whenever possible. Whether a crucifix in the office conflicts with a work requirement will depend on the placement of the crucifix and the requirements of the job. Accommodating objections to a diversity policy requires sensitive and individual attempts to work with the affected individuals. The lesson for employers is to take care to craft reasonable accommodations in each individual circumstance. n

1 Chapter 49.60 RCW.

2 42 U.S.C. ¤ 2000.

3 Peterson v. Hewlett-Packard, 358 F.3d 599, 601 (9th Cir. 2004).

4 Id. at 603.

5 Id. at 607.

6 Id.

7 Buonanno v. AT&T Broadband, LLC, 313 F. Supp. 2d 1069 (2004).

8 Id. at 1075.

9 Id. at 1076.