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Ask The Lawyer By: Daniel A. Gwinn, Esq.

| May 8, 2017

EMPLOYER’S DIVERSITY POLICY AT ODDS WITH EMPLOYEES’ VIEWS

QUESTION: My company recently implemented a “diversity policy” which requires employees to “recognize the value of diversity and to respect the beliefs and practices” of co-workers. People who violate the policy can be terminated. One of our employees has made several comments disparaging a white co-worker, married to a black woman, saying interracial marriage is against the Word of God. Another worker, a younger guy, posted some cartoons making fun of “rednecks” and of older people for being ignorant of technology. I have talked to both workers: the “Christian” says he is only expressing his religious beliefs, and expects others to respect these beliefs under our diversity policy, and the young guy says the cartoons are just an exercise of freedom of speech! I’m fed up with both of them, but worry that I’ll be sued if I terminate them.

ANSWER: You are right to be cautious – the intersection of diversity policies, and freedom of religion and speech is a tricky one. However, an employer can limit a worker’s religious rights where those rights are in conflict with the rights of others to be free from discrimination or harassment in the workplace. Diversity policies – and federal law – protect workers from being discriminated against because of their religion, but neither diversity policies nor the law give workers job protection for expressing opinions or acting on religious views that harm the rights of their co-workers. But employers must still be careful.

In a 2004 case, a worker won an award of almost $150,000 after his employer fired him for refusing to sign a company diversity policy. The policy required workers to “fully recognize, respect and value the differences among all of us.” The worker claimed signing the statement would violate his religious beliefs: He could not attest he would “fully recognize, respect and value” homosexuality because he was taught it was a sin. However, he promised he would not discriminate or harass any employee on any basis. The employer made no effort to modify the language of the statement to allow the worker to sign it in good conscience, while upholding the company’s diversity policy. When the worker was fired for his refusal to sign the policy, the company’s failure to make any effort to accommodate the worker’s religious beliefs was the deciding factor in the court’s ruling against the employer.

The result was very different when the employee’s actions – even when based on his religious beliefs — impinged on the rights of others. For example, in Peterson v. Hewlett Packard (9th Cir. 2004), the employee took exception to some pro-diversity posters put up on site that represented several workers — Black, Blonde, Old, Gay, and Hispanic – with the caption “Diversity is Our Strength.” Like the employee in the first case, the man objected to expressing any form of acceptance or approval to homosexuals – but his response was to place biblical verses condemning homosexuality on prominent display in his work area. When he refused to take the verses down, he was discharged. The Court ruled that the worker’s religious views did not give him the right to violate the diversity policy by demeaning or disparaging others at work.

In another case, Schwingel v. Elite Protection & Security Ltd., an extremely observant Jewish man constructed a special chair and placed a sign on the chair that stated it was reserved for men only because women are unclean when menstruating and cannot be trusted. When he confronted a woman who sat in the chair, and then continued to verbally abuse her, he was fired for violating the company’s diversity policy – and the company’s decision was upheld by the court.

On the facts you describe, it appears both workers have violated the diversity policy, and demeaned or disparaged their co-workers. Michigan is an at-will employment state, meaning you can fire a worker for any reason, or for no reason at all as long as the reason is not discriminatory — and you have presented a non-discriminatory reason for discharging both.

If either employee does try to bring a lawsuit against you, you should consult an experienced employment attorney.

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN TAURIAINEN PLLC. To view previous columns, please visit our website.

GWINN TAURIAINEN PLLC, is a Troy based law firm representing clients from Warren, Sterling Heights, Ferndale, Royal Oak, Oak Park, Oakland and Wayne Counties and all of Southeast Michigan

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinntauriainenlaw.com

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