The Recorder, San Francisco

1/7/04

Cubicle Postings Merited Firing

9th Circuit rules against employee who protested HP's sensitivity campaign

By Jason Hoppin

A former Hewlett-Packard employee whose silent protest of a workplace sensitivity campaign earned him a trip to the unemployment line can't have his job back, the Ninth Circuit U.S. Court of Appeals ruled Tuesday.

Richard Peterson, described as a 55-year-old devout Christian, objected to one of a series of posters posted at HP's 3,800-employee office in Boise, Idaho. To protest a poster highlighting a gay employee, the tech support specialist printed out controversial passages of biblical scripture and fixed them to the overhead bin in his cubicle. When he refused to take them down, he was canned.

"While Hewlett-Packard must tolerate some degree of employee discomfort in the process of taking steps required by Title VII to correct the wrongs of discrimination, it need not accept the burdens that would result from allowing actions that demean or degrade, or are designed to demean or degrade, members of its work force," Judge Stephen Reinhardt wrote.

Reinhardt was joined by Judges William Fletcher and Ronald Gould.

Peterson's lawyer, Christ Troupis of Boise's Troupis & Summer, said no one complained about the posted passages, nor did Peterson confront any co-workers.

"The record is that nobody was offended at all," Troupis said. "If something like that had come up, we'd have a different case."

Troupis said he will petition for U.S. Supreme Court review, hoping to add Peterson v. Hewlett-Packard, 04 C.D.O.S. 104, to the high court's growing docket of cases dealing with religion in public life. The court has already heard arguments this term about whether a state can deny scholarships for religious education. Later this year it will review the Ninth Circuit's decision that having schoolchildren recite the phrase "one nation under God" in the Pledge of Allegiance violates the Establishment Clause.

Peterson's signs quoted passages from Corinthians and Isaiah that some interpret as anti-gay. He was confronted by his superiors, but only offered to remove the passages if HP took down the diversity poster. He also posted a passage from Leviticus: "If a man also lie with mankind, as he lieth with a woman their blood shall be put upon them." According to Peterson's lawyer, that sign didn't go up until after he was fired.

He later sued, alleging HP treated him differently and failed to accommodate his religious beliefs. Representatives and a lawyer for HP did not immediately return phone calls seeking comment.

"It is evident that he was discharged, not because of his religious beliefs, but because he violated the company's harassment policy by attempting to generate a hostile and intolerant work environment and that he was insubordinate" for not removing the passages, Reinhardt wrote.

Paul Cane Jr., a partner with Paul, Hastings, Janofsky & Walker, said the law in this area is evolving to the point that if competing rights are asserted in the workplace, "The correct advice [to employers] is that they require employees to avoid offending co-workers."

Georgette Bennett, president of New York's Tanenbaum Center for Interreligious Understanding, said there have been an increasing number of cases in which Christian employees, sometimes in backlash to company policies, bring their religious views into work.

"In the workplace, employers need to do the same kind of balancing of interests that the Supreme Court does in weighing obscenity cases and other kinds of First Amendment cases. There is a need to balance the interests of the individual versus the interest of a group," Bennett said.