Fluent Essays

- Must read chapter 10  - must use template uploaded ONLY do not make changes to the heading - must only use   JUSTICA.com or FindLaw.com for references 2 page max Chapter 10 Sexual Orientation and Gender Identity Discrimination Statutory Basis It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex. [Title VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. § 2000e-2(a).] [N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Amendment XIV of the U.S. Constitution.] The EEOC, which is statutorily responsible for interpreting and enforcing Title VII, has determined that although Title VII does not explicitly include  sexual orientation  and  gender identity , based on Supreme Court and other case law holding that employment actions motivated by gender stereotyping are unlawful sex discrimination and other court decisions, the law’s prohibition against gender discrimination does. If you have been paying attention to the opening Statutory Basis section for all the other chapters, you realize that this one is quite different. Over the past several years the EEOC has set forth its position in several published decisions that explain the legal basis for this determination and give examples of what would be considered unlawful. In reaching this conclusion, according to the EEOC, it has not recognized any new protected characteristics under Title VII. Rather, it has applied existing Title VII precedents to gender discrimination claims raised by LGBT individuals. “What You Should Know About EEOC and the Enforcement Protections for LGBT Workers.” https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm sexual orientation Whom one is attracted to for personal and intimate relationships. gender identity How one identifies for male/female purposes, based on a combination of genetics and environment, including, among other things, transgender. page 474  Out of the Closet See Exhibit 10.1, “Terms to Know.” “Look!” the angry gentleman in the audience said gruffly as the diversity consultant walked into the room and up to the stage in preparation for conducting a training session. “Does this diversity training mean that I have to deal with homosexuals? Because if it does, I’m not doing it! Homosexuality is against my religion and I just don’t think it’s right!” Exhibit 10.1  Terms to Know Terms may evolve over time to reflect changes in thinking and/or preferences within the LGBT community. Catalyst offers these definitions but encourages readers to recognize that different language may be used by different people, companies, and countries. Also, it is important to respect the language individuals use to identify themselves, regardless of how they are labeled by others. Bisexual: A person whose emotional, sexual, or romantic attractions are to both women and men. Bisexuals need not be “equally” attracted to, or have had equal sexual experience with, both sexes. Nor do they need to have attractions toward both sexes at the same time. Closeted/In the closet: LGBT individuals who do not openly disclose their sexual orientation to others. Coming out of the closet: The process of self-acceptance and/or disclosure of LGBT identity to others. People can disclose to none, some, or all of the people they know. Gay/Homosexual: A woman or a man whose emotional, sexual, or romantic attractions are primarily to members of the same gender. Gender expression: How an individual manifests a sense of femininity or masculinity through appearance, behavior, grooming, and/or dress. Gender identity: One’s inner sense of being a woman or a man, regardless of biological sex; different from sexual orientation. Heterosexism: The attitude that heterosexuality is the only valid sexual orientation. Heterosexism denies, denigrates, and stigmatizes any non-heterosexual form of behavior, relationship, or community. Homophobia: Disapproval of, fear of, hatred of, or hostility toward people who are identified as, or assumed to be, LGBT. Intersex: Individuals with sex chromosomes or biological/physical characteristics that are neither exclusively female nor male. Lesbian: A woman whose emotional, sexual, or romantic attractions are primarily to other women. LGBT: The acronym most commonly used in Canada and the United States to refer to the lesbian, gay, bisexual, and transgender community. The acronym can vary in a number of ways, including GLBT and GLB, and can include additional letters, such as Q (queer; also questioning), I (intersex), and A (straight ally). Non-LGBT: Anyone who does not identify as LGBT; most commonly refers to straight/heterosexual individuals. Out employee: An employee who discloses his or her LGBT identity to a few, some, or all of his or her co-workers. Queer: A fluid term with numerous meanings. It is commonly used to describe sexual orientation and/or gender identity or gender expression that does not conform to heterosexual norms. The term is often used to refer to the LGBT community in general. It can be either a positive or a negative term, depending on the context in which it is used. Questioning: Someone who is questioning their gender, sexual identity, or sexual orientation. Sexual orientation: A term commonly used to refer to a person’s emotional, romantic, or sexual attraction to individuals of a particular gender (women or men). page 475Straight/Heterosexual: A person whose emotional, sexual, or romantic attractions are primarily to members of the opposite sex. Straight ally/LGBT supporter: An individual who identifies as non-LGBT and who supports the LGBT community in a direct way, such as attending LGBT ERG activities, acting as an executive sponsor, or volunteering at LGBT events. Transgender: People who identify with the characteristics, roles, behaviors, or desires of a gender different from the one they were assigned at birth. This is an umbrella term that can be used to include transsexuals, cross-dressers, and other gender-variant people; some may use the umbrella term trans-identified. Transsexual: Transsexuals change (or seek to change) their physical characteristics to a gender different from the one they were assigned at birth—for example, individuals born as males seek to change their sex to female. These changes can include sex reassignment surgery and/or hormone therapy. Two-spirit: The term used by contemporary Native Americans and Aboriginal people in Canada to describe a masculine spirit and a feminine spirit living in the same body. Christine Silva and Anika K. Warren, “Building LGBT Inclusive Workplaces: Engaging Organizations and Individuals in Change.” Catalyst.org, June 2009. Copyright © 2009 by Catalyst Inc. All rights reserved. Used with permission. http://www.catalyst.org/publication/328/building-lgbt-inclusive-workplacesengaging-organizations-and-individuals-in-change. Even though it has been estimated that LGBT1 employees make up between 3.15 and 17 percent of the workplace population,2 this employee’s attitude is not unique. In no particular order, some of the events that have provoked such reactions and provide context for where we now find ourselves include · An Arkansas farmer acknowledges spreading three tons of manure along the route of a gay rights parade, saying he was exercising his constitutional right to free speech.3 · A Mississippi high school cancels its prom after a female student wanted to bring a female date.4 · The day before 2014 Valentine’s Day, the Kansas House passes House Bill 2453 by a vote of 74 to 29, protecting religious individuals, groups, and businesses that refuse service to same-sex couples, especially those contemplating marriage, even though the state banned same-sex marriage.5 The measure comes after several lawsuits in other states, including one in Kentucky against a Christian T-shirt printer who refused to print T-shirts for the city’s annual gay pride event,6 one in Oregon where a Christian bakery refused to make a wedding cake for a lesbian couple,7 and one in New Mexico where a Christian wedding photographer refused to take pictures for a lesbian wedding.8 Claimants in jurisdictions with antidiscrimination laws in public accommodations that included sexual orientation won suits for violations of their civil rights. However, the Kansas proposal was just the opening shot fired. Shortly thereafter the Arizona house and senate passed such a measure, and it was quickly introduced in the Georgia legislature.9 After widespread protests, Arizona Governor Jan Brewer vetoed the bill in 2014, as did Georgia’s governor once the NFL threatened to boycott Atlanta for the Super Bowl. · page 476Shorter University requires more than 200 employees to sign a “Personal Lifestyle Statement” rejecting homosexuality.10 · In 2012, Toronto Blue Jay’s shortstop Yunel Escobar plays on the field with a homophobic slur written on an eyeblack sticker (patch athletes use to reduce the sun’s glare) under his eyes. The patch said “Tu ere Maricon,” for which the most common translation is “You are a faggot.” In 2017, Kevin Pillar of the same team, was suspended for two days for yelling a homophobic slur at Atlanta Braves pitcher Jason Mott. “This is not who I am and I will use this as an opportunity to better myself,” he said.11 · The U.S. Treasury Department announces on August 29, 2013, that it would recognize any legally married gay couple, even in the then-37 states that did not recognize same-sex marriages. In addition, the Defense Department announced it would begin offering full spousal and family benefits to same-sex spouses of military personnel in alignment with the June 2013 U.S. Supreme Court’s striking down of the Defense of Marriage Act’s denial of federal marriage benefits to lawfully married same-sex couples. In Texas, Mississippi, Louisiana, and Oklahoma, the National Guard says that it would not process claims from gay couples, despite the Pentagon’s authorization, without the spouses traveling to federal military installations sometimes located a long distance away.12 · On June 26, 2015, the U.S. Supreme Court, in Obergefell v. Hodges, 13 outlaws as an unconstitutional denial of equal protection, state laws prohibiting same-sex marriage. Marriage between members of the same gender became legal in every state. · In 2013 the Boy Scouts of America ended its long-standing blanket policy against admitting openly gay members but still excluded gays as Scout leaders. In 2015, it lifted the ban on gay leaders but allowed an exemption for troops with religious affiliations.14 · A firefighter who was allegedly harassed because he stood up for his lesbian daughter after a “condemnation of homosexuals” by his captain is forced to retire after being dunned by his captain and others even after he transferred.15 · Minnesota Vikings punter, Chris Kluwe charges that he was released from the team because of his activism for same-sex marriage rights even though is heterosexual.16 · The New York attorney general challenges the NFL for asking draft picks about their sexual orientation and enters into a settlement agreement with them in 2013 requiring, among other things, antidiscrimination posters to be placed in team locker rooms.17 · Republican California Governor Arnold Schwarzenegger causes an uproar when he calls Democratic legislators who oppose his budget “girlie men.”18 · A seven-year-old is scolded and forced to write repeatedly “I will never use the word ‘gay’ in school again” after he told a classmate about his lesbian mom in response to a question during recess by a classmate about the boy’s parents.19 · page 477In 2010, after 17 years, Congress repeals “Don’t Ask, Don’t Tell” for gays in the military.20 · The Episcopal Church consecrates its first openly lesbian bishop in 2010.21 · The 2010 Census reports the number of married same-gender couples for the first time. The 2020 Census will not count gays and lesbians.22 · In 2010, President Obama issues a memorandum for the secretary of Health and Human Services requesting that she initiate appropriate rule making and other relevant provisions of law to ensure that hospitals that participate in Medicare or Medicaid respect the rights of patients to designate visitors and not deny visitation privileges on the basis of, among other things, sexual orientation or gender identity.23 The move came after a lesbian and the three children of her and her partner were denied visitation to see her partner, who suffered a brain aneurysm. The partner died the next day.24 · As part of “dirty” recruiting tactics, parents of highly sought-after female high school basketball players are told that female coaches of competing teams are lesbian in what is called the “fear of a gay boogeyman who will make their daughters choose a lesbian sexual orientation” (partly in response, the NCAA is studying whether homophobia is a reason that the number of female head basketball coaches dropped from 79 percent in 1977 to 63 percent in 2002).25 In 2017, female coaches said it was still not comfortable to come out in women’s college basketball.26 · In 2009, the American Psychological Association issues a statement that mental health professionals should not tell gay clients they can become straight through therapy.27 · The California governor signed into law a ban on gay conversion therapy, calling it “quackery” in 2012.28 · The U.S. Supreme Court rules in Snyder v. Phelps 29 that anti-gay protests at funerals of American soldiers are protected by the First Amendment’s freedom of speech. The Court affirms the appellate court’s decision that the protests with signs such as “God hates fags,” were “utterly distasteful” but protected because they were related to “matters of public concern.” The protests were by members of the Westboro Baptist Church in Topeka, Kansas, who contend that the death of American soldiers is God’s punishment for the country’s tolerance of homosexuality. They have held over 43,000 such protests since 1991.30 · When University of Missouri star defensive end Michael Sam returned to the university with his teammates to claim the Cotton Bowl award after announcing he was gay just before attending the NFL combine, over 2,000 people showed up in the February 2014 cold, locked arms, and turned their backs on the 14 Westboro demonstrators in an effort to support Sam and block him from even seeing the Westboro demonstrators.31 · Two days after unanimously requesting that the county attorney find a way to enact an ordinance banning gays and lesbians from living in the county (saying, “We need to keep them out of here”), the Rhea County, Tennessee, commissioners withdrew the request because of the outcry outside the county.32 · page 478New York then-gubernatorial candidate Carl Paladino calls gay pride parades “disgusting,” but lesbian sex “awesome.”33 · Walmart, the largest private employer in the United States, joins many other employers and extends benefits to LGBT employees same-sex domestic partners.34 As you can see from this sprinkling of just a few of the things that have happened in the recent past, LGBT issues push a lot of buttons in society in general, and the workplace is just a microcosm of society. Though a bit gruff, the employee’s assertion that homosexuality was against his religion, was a manifestation of that. We have no doubt that the employee spoke for many others when he made his statement. The good thing is that he got it out onto the table where it could be discussed, put into perspective, and fitted into what his employer wanted the program to accomplish: less exposure to unnecessary liability for violations of the law on this and other bases of discrimination. Since we understand that this sentiment is a fairly common one, let’s take a bit of time up front to discuss it and give you some things to keep in mind as you go through the chapter. Just so you know, he was much comforted by what he learned in the session and said he had never thought about the issues this way before. He even said thank you! :-) From the battle with the Boy Scouts of America over whether the Philadelphia chapter could continue to discriminate against gays and stay in the city-owned building it had been in for 80 years, paying $1 annual rent rather than the $200,000 fair market value when the city had an antidiscrimination policy, to celebrity and adoptive mother Rosie O’Donnell announcing that she is a lesbian and taking up the issue of Florida law not permitting adoptions by gays and lesbians, to whether a transgender employee can lawfully sue for the use of certain toilet facilities, to the fining of basketball superstar Kobe Bryant for calling a referee a “faggot” in the heat of a game, to the refusal of the city clerk to handle same-sex marriage license applications even after same-sex marriage became legal, the issues of sexual orientation and gender identity have been, and continue to be, debated and discussed not only in the United States, but all across the world, in every conceivable context. The issues have vast implications for people’s everyday lives. Most people need to work in order to survive, so workplaces consist of all kinds of people. That means that anything that is of any great social importance generally ends up finding its way into the workplace. The issues of sexual orientation and gender identity are no different. The increasing prominence of the issues in the workplace, the legal implications arising therefrom, and the very convoluted patchwork of rules make it essential that we include coverage here, despite the fact that the language of Title VII, as well as most of its history, does not prohibit discrimination on these bases. Unlike the other Title VII categories, coverage of sexual orientation and gender identity is not quick or easy. Since LGBT employees were not covered by Congress in the words of the statute, the law is a very, very crazy quilt of federal, state, and local laws, executive orders, and court decisions. On top of that are employers’ private rules. With same-sex marriage now the law of the land, it seems it would only be a matter of time before the issue is resolved and uniformity brought to bear either by Congress or the U.S. Supreme Court. After all, it page 479seems rather incongruous for the Supreme Court to recognize that it is unconstitutional to discriminate regarding the issue of same-sex marriage, but for Congress not to do so regarding the issue of employment discrimination. It is not at all inconceivable that a person could happily marry their soul mate on Saturday and be fired for doing so when they return to work on Monday. What is legal in Wisconsin, may not be legal in North Carolina. What is not legal in Iowa for non-governmental employees may be legal for government employees. What is not legal in the state of Georgia may be legal in Atlanta. Protections or benefits denied by the federal or state government may be granted to employees who work for a certain employer in that state. Even within the federal government, Congress has not included protections for LGBT employees, but the agency it created to enforce workplace discrimination laws has. The legality, protections, or rights may not arise from a law, but from a court decision, agency determination, local ordinance, or an employer. It is truly a crazy quilt of protection—or lack thereof. Seventeen state laws and the District of Columbia35 (see Exhibit 10.2, “State Laws Banning Workplace Discrimination on the Basis of Sexual Orientation or Gender Identity”) prohibit both LGB and T employees. There are 29 states without protection for sexual orientation and 33 without protection on the basis of gender identity. In addition, hundreds of local ordinances, and thousands of workplaces, including 91 percent of Fortune 500 companies,36 include LGBT employees as part of their employment discrimination laws and policies37 and the 7th Circuit Court of Appeals38 has determined so also. As of 2012, the EEOC now accepts complaints of gender identity discrimination as a type of gender discrimination and as of 2015, claims of discrimination against gay, lesbian, or bisexual employees as a type of gender discrimination. New guidance and edicts come into existence virtually every day via legislatures, court opinions, agency regulations, and employer policies and guidelines. Exhibit 10.2  State Laws Banning Workplace Discrimination on the Basis of Sexual Orientation or Gender Identity · State laws prohibiting discrimination based on sexual orientation, gender identity, or both: California (1992) (*2003) New Hampshire (1998) Colorado (2007)* New Jersey (1992) (*2007) Connecticut (1991) (*2011) New Mexico (2003)* Delaware (2009) (*2013) New York (2003) Hawaii (1991) (*2011) Nevada (1999) (*2011) Illinois (2006)* Oregon (2008)* Iowa (2007)* Rhode Island (1995) (*2001) Maine (2005)* Vermont (1991) (*2007) Maryland (2001) Washington (2006)* Massachusetts (1989) (*2012) Wisconsin (1982)* Minnesota (1993)* Washington, D.C. (1977) (*2006) · page 480An executive order prohibits discrimination in the federal civilian workforce and mandates that security clearances not be denied based on sexual orientation. · State courts, commissions, agencies, or attorney generals have interpreted the existing law to include some protection against discrimination against transgender individuals in Florida New York · In 2012, the Equal Employment Opportunity Commission determined that gender identity discrimination in employment violates Title VII’s prohibition against gender discrimination; it extended this to sexual orientation in 2015. · Hundreds of cities and counties prohibit discrimination in public and/or private employment. Jurisdictions include Fayetteville, AR Lawrence, KS Portland, OR Phoenix, AZ Louisville, KY Philadelphia, PA Boulder, CO New Orleans, LA Charleston, SC Wilmington, DE Detroit, MI Minnehaha County, SD Broward County, FL St. Louis, MO Austin, TX Atlanta, GA Durham, NC Salt Lake County, UT Ames, IA Albuquerque, NM Alexandria, VA Chicago, IL New York, NY Seattle, WA Bloomington, IN Toledo, OH Morgantown, WV *Law also includes protection based on gender identity. Source: Human Rights Campaign, www.hrc.org. As exhibited by the gentleman in the opening paragraph (one of your authors was actually the consultant involved), sexual orientation discrimination is also one of the types of discrimination that may call into question ideas we hold dear and wish to protect. As a result we may think of this type of discrimination differently—as more justifiable—than we do others. In order to prevent those thoughts from turning into actions that lead to litigation and avoidable liability for the employer, we must learn to view the costly and avoidable matter in its proper legal workplace perspective. As you read the chapter, keep this thought in the front of your mind: The intent of this chapter is not to get you to “accept” anyone’s sexual orientation or gender identity. This chapter is not about going against your religious dictates, moral values, or conscience. As with our other chapter topics in the text, you are free to believe whatever you wish. Before choosing to engage in activity that may cause the employer liability for discrimination and result in your termination, keep in mind that this is the employer’s workplace, not yours. Employees don’t have the right to engage in personal activities that will cause unnecessary liability page 481or embarrassing publicity for their employer. Since this is the employer’s workplace, the employer is the one in charge of such things. If the employer has hired someone you don’t like, for whatever reason, you have to decide what it’s worth to you. Do you create trouble for the employer and run the risk of getting fired, or do you conduct yourself in a professional manner, keep your personal issues to yourself, continue to do the job you were hired to do, and collect a check? If you feel like you can’t do the latter, then you are free to seek employment elsewhere. But if you choose to stay, you have no right to impose your purely personal beliefs on the workplace through the decisions you make about the acts you do, in a way that increases the employer’s liability. If you think your beliefs do not “permit” homosexuality, then don’t be LGBT. Don’t take your LGBT co-worker to lunch. Don’t take him or her home for dinner. But refusing to work with him or her as required or otherwise treating the co-worker in ways that discriminate and expose the employer to liability is simply not an option. If this sounds like we have an agenda, then you heard us correctly. Our agenda is to protect employers from unnecessary costly and liability and negative and embarrassing publicity. Our job is to make sure that if what you believe is not in sync with the law, that you understand the difference and are able to do what you need to do at work to prevent unnecessary liability. As always, this chapter tries to teach you not only about the law, but also the context and history of the issue so that when you have to make workplace decisions unfamiliar to you, you understand what is involved and how the law views it. This is especially important as things in this area are changing so rapidly (see Exhibit 10.3, “Rapidly Changing Fortune 500 Sexual Orientation and Gender Identity Policy Percentages”) and new issues seem to arise daily. Exhibit 10.3  Rapidly Changing Fortune 500 Sexual Orientation and Gender Identity Policy Percentages Fortune 500 2002 2008 2013 2014 Sexual Orientation Policy 61\% 88\% 88\% 91\% Gender Identity Policy  3\% 25\% 57\% 61\% Source: HRC: The Cost of the Closet and the Rewards of Inclusion, at 5. http://www.hrc.org/resources/the-cost-of-the-closet-and-the-rewards-of-inclusion With that out of the way, let’s explore this area and see what’s here. Despite the stereotypes of gay males as florists, designers, or interior decorators, a survey by the Chicago marketing research firm Overlooked Opinions39 found that more gay males work in science and engineering than in social services, 40 percent more are employed in finance and insurance than in entertainment and the arts, and 10 times as many work in computers as in fashion. (See Exhibit 10.4, “Heterosexual Realities Questionnaire.”) Once, gays and lesbians in the workplace were virtually invisible, but diverse circumstances, some of which were provided for you earlier in the chapter, have begun to change that in dramatic ways. page 482  Exhibit 10.4  Heterosexual Realities Questionnaire The questions below provide a somewhat humorous yet insightful look at some of the more frequent assumptions surrounding gays and lesbians, which affect how they may be perceived in the workplace and society at large. The approach of reversing the questions subtly challenges commonly held heterosexually based notions. 1. What do you think caused your heterosexuality? 2. When and how did you first decide you were heterosexual? 3. Is it possible your heterosexuality is just a phase you may grow out of? 4. Is it possible your heterosexuality stems from a neurotic fear of others of the same gender? 5. Heterosexuals have histories of failures in gay relationships. Do you think you may have turned to heterosexuality out of fear of rejection? 6. If you’ve never slept with a person of the same gender, how do you know you wouldn’t prefer that? 7. To whom have you disclosed your heterosexual tendencies? How do they react? 8. Your heterosexuality doesn’t offend me as long as you don’t try to force it on me. Why do you people feel compelled to seduce others into your sexual orientation? 9. Why do you insist on being so obvious and making a public spectacle of your heterosexuality by holding hands or kissing in public? Can’t you just be what you are and keep it quiet? 10. How would the human race survive if everyone were heterosexual like you, considering the menace of overpopulation? 11. Why do heterosexuals place so much emphasis on sex? 12. How can you be heterosexual if you’ve never had sex? Source: Adapted from Martin Rochlin, Ph.D., by Dr. Miranda Pollard, University of Georgia. You have the … Buonanno v. AT&T Broadband, LLC 313 F. Supp. 2d 1069 (D. Colo. 2004) Employee was terminated for refusing to sign a workplace document containing language that he would “value” diversity, under the employer’s diversity policy. His refusal was based on his religion rejecting homosexuality. The employee sued the employer for terminating him without trying to reasonably accommodate the employee’s religious belief or practice. The court sided with the employee. Krieger, J. *** Buonanno is a Christian who believes that the Bible is divinely inspired. He attempts to live his life in accordance with its literal language. Because the Bible requires that he treat others as he would like to be treated, Buonanno values and respects all other AT&T employees as individuals. He never has nor would he discriminate against another employee due to differences in belief, behavior, background, or other attribute. However, his religious beliefs prohibit him from approving, endorsing, or esteeming behavior or values that are repudiated by Scripture. In January 2001, AT&T promoted a new “Employee Handbook” that addressed “How We Work: Employee Guidelines” and “Doing What’s Right: Business Integrity & Ethics Policies.” AT&T maintains a “Certification Policy,” which provides that “each AT&T Broadband employee must sign and return the Acknowledgment of Receipt and Certificate of Understanding form indicating that you have received a copy of the handbook and the AT&T Code of Conduct and that you will abide by our employment policies and practices.” The parties agree that one of the “employment policies and practices” to which Buonanno was required to adhere is AT&T’s “Diversity Policy.” The Handbook, however, does not contain a single policy clearly denoted as such; instead, it contains numerous references in various locations to AT&T’s philosophy and goals with regard to diversity in the workplace. The parties’ references to a “Diversity Policy” appear to be primarily referring to a section of the Handbook entitled “A Summary of Our Business Philosophy,” a subsection of which is entitled “Diversity.” It reads as follows: The company places tremendous value on the fresh, innovative ideas and variety of perspectives that come from a diverse workplace. Diversity is necessary for a competitive business advantage—and the company is competing for customers in an increasingly diverse marketplace. To make diversity work to our advantage, it’s our goal to build an environment that: · Respects and values individual differences. · Reflects the communities we serve. · Promotes employee involvement in decision making. · Encourages innovation and differing perspectives in problem solving. · Allows our diverse employee population to contribute richly to our growth. We want to create a team that is diverse, committed and the most talented in America. To that end, AT&T Broadband has a “zero tolerance” policy toward any type of discrimination, harassment, or retaliation in our company. Each person at AT&T Broadband is charged with the responsibility to fully recognize, respect and value the differences among all of us. This is demonstrated in the way we communicate and interact with our customers, suppliers and each other every day. There was no uniform understanding at AT&T as to what comprised the company’s “Diversity Policy,” or, more importantly, what an employee was required to do or not do to comply with it. Buonanno questioned the meaning of the third sentence in the second paragraph of the Diversity Philosophy, which reads “Each person at AT&T Broadband is charged with the responsibility to fully recognize, respect and value the differences among all of us.” (The Court will hereinafter refer to this phrase as “the challenged language.”) He believed that some behavior and beliefs were deemed sinful by Scripture, and thus, that he could not “value”—that is hold in esteem or ascribe worth to—such behavior or beliefs without page 529compromising his own religious beliefs. Buonanno was fully prepared to comply with the principles underlying the Diversity Philosophy; he recognized that individuals have differing beliefs and behaviors and he would not discriminate against or harass any person based on that person’s differing beliefs or behaviors. However, he could not comply with the challenged language insofar as it apparently required him to “value” the particular belief or behavior that was repudiated by Scripture. Accordingly, if the challenged language literally required him to do so, he could not sign the Certificate of Understanding, agreeing to “abide by” such language. No AT&T representative explored or explained the intended meaning (or any of the various interpretations) of the challenged language to Buonanno. No AT&T employee inquired as to the particulars of Buonanno’s concerns, sought to devise ways to accommodate Buonanno’s religious beliefs, or reassured him that the challenged language did not require him to surrender his religious beliefs. At all relevant times, Buonanno was presented with a choice between accepting the language of the Handbook without any additional clarification and signing the Certificate, or losing his employment. AT&T’s Diversity Philosophy reflects a legitimate and laudable business goal. The Court accepts AT&T’s contention that allowing employees to strike piecemeal portions of the Handbook or Certification could pose an undue hardship on its business, making uniform application of company policies much more difficult. Nevertheless, had AT&T gathered more information about Buonanno’s concerns before terminating his employment, it may have discovered that the perceived conflict between his beliefs and AT&T’s policy was not an actual conflict at all, or that if a true conflict existed, it was possible to relieve that conflict with a reasonable accommodation. Had [Human Resources Manager] Batliner sought more details about Buonanno’s concerns, rather than steadfastly insisting that he had to agree with the ambiguous “Diversity Policy” to retain his job, she would have discovered that, but for the challenged language, Buonanno agreed with the entirety of the Handbook, including the Diversity Philosophy, the non-discrimination policy, and all other aspects of AT&T’s policies and practices. His only objection was to a literal interpretation of the challenged language that required him to “value” particular behavior and beliefs of co-workers. Had Batliner followed [vice president of Human Resources for Colorado operations] Davis’ instructions and engaged in a conversation through which she gathered information about Buonanno’s concerns, based on her interpretation of the challenged language, she would have discovered no actual conflict between the challenged language and Buonanno’s religion. If Batliner had, as directed, reported these findings back to Davis, based on Davis’interpretation of the challenged language, Buonanno’s religious beliefs would not have been in conflict with the challenged language. Had Batliner reported this information to [Senior Vice President for Human Resources] Brunick, he would have observed that, like the Jewish employee who must recognize—but not adopt—the differing beliefs of his Muslim co-worker, the challenged language did not require Buonanno to actually “value” the particular conduct of his co-workers that he considered sinful. Had [Director of Employee Relations] Wilson been consulted, Buonanno’s promise to recognize that there were differences between what he believed and did and what his co-workers believed and did and to treat everyone with respect regardless of their beliefs and behavior would have been sufficient to accomplish the goals of the challenged language. Had Batliner, Davis, Brunick, or Wilson ever explained that they understood the challenged language to have a figurative, rather than literal, meaning and listened to his concerns, the issue could have been resolved without any need for accommodation. Accordingly, AT&T has failed to show that it could not have accommodated Buonanno’s beliefs without undue hardship. Even assuming that—despite the testimony of Batliner, Davis, and, at times, Brunick and Wilson—AT&T intended that the challenged language be applied literally and that all employees were affirmatively required to ascribe value in the various beliefs and behaviors of their co-workers, AT&T could nevertheless have accommodated Buonanno without suffering undue hardship. Although AT&T’s Diversity Philosophy confers a business advantage, AT&T did not show that the literal application of the challenged language was necessary to obtain such advantage. For example, Wilson explained the advantages conferred by the “Diversity Policy” by relating an anecdote in which homosexual employees at American Express, sensing a need for estate-planning services in the gay community, proposed the creation of a successful new targeted product. In such example, no employee at American Express was required to ascribe any “value” to the practice of homosexuality in order to capitalize on the opportunity. Rather, American Express officials simply recognized that homosexual employees had a unique perspective on ways to market page 530the company’s product. Thus, as Wilson admitted, a minor revision of the challenged language, requiring all employees company-wide to “fully recognize, respect and value that there are differences among all of us” would have “accomplished [AT&T’s] goals” as set forth in the Diversity Philosophy, without imposing any apparent hardship on AT&T. Whether such a change is characterized as clarifying AT&T’s interpretation of the existing Handbook language or a reasonable accommodation for Buonanno is irrelevant. AT&T violated Title VII by failing to engage in the required dialogue with Buonanno upon notice of his concerns and by failing to clarify the challenged language to reasonably accommodate Buonanno’s religious beliefs. Accordingly, Buonanno is entitled to damages. 8/7/2021 Buonanno v. AT&T BROADBAND, LLC, 313 F. Supp. 2d 1069 (D. Colo. 2004) :: Justia https://law.justia.com/cases/federal/district-courts/FSupp2/313/1069/2580638/ 1/20 Buonanno v. AT&T BROADBAND, LLC, 313 F. Supp. 2d 1069 (D. Colo. 2004) U.S. District Court for the District of Colorado - 313 F. Supp. 2d 1069 (D. Colo. 2004) April 2, 2004 313 F. Supp. 2d 1069 (2004) Albert A. BUONANNO, Plaintiff, v. AT&T BROADBAND, LLC, a Delaware corporation, Defendant. No. 02-MK-778 (CBS). United States District Court, D. Colorado. April 2, 2004. *1070 *1071 *1072 *1073 James Parker Rouse, Sr., Rouse & Associates, PC, Greenwood Village, CO, for Plaintiff. Martha Ellen Cox, Paul Justin McCue, Sherman & Howard, Denver, CO, for Defendant.   FINDINGS OF FACT AND CONCLUSIONS OF LAW KRIEGER, District Judge. THIS MATTER is before the Court following a multi-day bench trial. Having considered the evidence presented and the arguments of counsel, the Court makes the following findings 8/7/2021 Buonanno v. AT&T BROADBAND, LLC, 313 F. Supp. 2d 1069 (D. Colo. 2004) :: Justia https://law.justia.com/cases/federal/district-courts/FSupp2/313/1069/2580638/ 2/20 of fact and conclusions of law. By separate document, the Court enters judgment in favor of the Plaintiff, Albert A. Buonanno (Buonanno or the Plaintiff) and against the Defendant, AT&T Broadband, LLC (AT&T or the Defendant).   I. Jurisdiction In this action, the Plaintiff brings a single claim religious discrimination in violation of Title VII, 42 U.S.C. § 2000e et seq. He asserts two theories: (i) direct religious *1074 discrimination; and (ii) failure to accommodate his religious beliefs or practices. The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331   II. Facts   The parties 1 AT&T was, at all relevant times, an employer subject to Title VII. 2. Albert Buonanno was employed by AT&T from January 10, 1999 to February 1, 2001 Initially he worked as a cable dispatcher, scheduling jobs and dispatching field technicians. He later became a quota specialist, assigning quota points for specialists for the scheduling of jobs. In both capacities, he performed his work as required and without any disciplinary incident. His direct supervisor on February 1, 2001 was Jonathan Dunn. 3. Buonanno is a Christian who believes that the Bible is divinely inspired. He attempts to live his life in accordance with its literal language. Because the Bible requires that he treat others as he would like to be treated, Buonanno values and respects all other AT&T employees as individuals. He never has nor would he discriminate against another employee due to differences in belief, behavior, background or other attribute. However, his religious beliefs prohibit him from approving, endorsing, or esteeming behavior or values that are repudiated by Scripture.   The policies 8/7/2021 Buonanno v. AT&T BROADBAND, LLC, 313 F. Supp. 2d 1069 (D. Colo. 2004) :: Justia https://law.justia.com/cases/federal/district-courts/FSupp2/313/1069/2580638/ 3/20 4. In January 2001, AT&T promoted a new Employee Handbook(Ex. 2) that addressed How We Work: Employee Guidelines and Doing Whats Right: Business Integrity & Ethics Policies. 5. AT&T maintains a Certification Policy, which provides that [e]ach AT&T Broadband employee must sign and return the Acknowledgment of Receipt and Certificate of Understanding form indicating that you have received a copy of the handbook and the AT&T Code of Conduct and that you will abide by our employment policies and practices. 6. The parties agree that one the employment policies and practices to which Buonanno was required to adhere is AT&Ts Diversity Policy. The Handbook, however, does not contain a single policy clearly denoted as such; instead, it contains numerous references in various locations to AT&Ts philosophy and goals with regard to diversity in the workplace. The parties references to a Diversity Policy appear to be primarily referring to a section of the Handbook entitled A Summary of Our Business Philosophy, a subsection of which is entitled Diversity. It reads as follows:   The company places tremendous value on the fresh, innovative ideas and variety of perspectives that come from a diverse workplace. Diversity is necessary for a competitive business advantage and the company is competing for customers in an increasingly diverse marketplace. To make diversity work to our advantage, its our goal to build an environment that:   � respects and values individual differences   � reflects the communities we serve   � promotes employee involvement in decision making   � encourages innovation and differing perspectives in problem solving   8/7/2021 Buonanno v. AT&T BROADBAND, LLC, 313 F. Supp. 2d 1069 (D. Colo. 2004) :: Justia https://law.justia.com/cases/federal/district-courts/FSupp2/313/1069/2580638/ 4/20 � allows our diverse employee population to contribute richly to our growth.   We want to create a team that is diverse, committed and the most talented in America. To that end, AT&T Broadband has a zero tolerance policy toward any type of discrimination, harassment or retaliation in our company. Each person at AT&T Broadband is charged with the responsibility to fully recognize, respect and value the differences *1075 among all of us. This is demonstrated in the way we communicate and interact with our customers, suppliers and each other every day. 7. Parsing the quoted language, the Court notes that the bulk of the section is, as described in the main heading, a collection of statements of corporate philosophy, rather than specific policy directives governing behavior. Only the second sentence of the last paragraph identifies an actual policy towards discrimination, harassment, or retaliation 8. There was no uniform understanding at AT&T as to what comprised the companys Diversity Policy, or, more importantly, what an employee was required to do or not do to comply with it. In setting forth its factual findings, the Court will use the phrase Diversity Policy where the parties specifically spoke of it, with the recognition that scope and contents of such a Policy are somewhat dependent upon the person speaking. When speaking of the language quoted above, the Court will refer to it as the Diversity Philosophy.   Buonannos objection 9. Buonanno questioned the meaning of the third sentence in the second paragraph of the Diversity Philosophy, which reads Each person at AT&T Broadband is charged with the responsibility to fully recognize, respect and value the differences among all of us. (The Court will hereinafter refer to this phrase as the challenged language.) He believed that some behavior and beliefs were deemed sinful by Scripture, and thus, that he could not value that is hold in esteem or ascribe worth to such behavior or beliefs without compromising his own religious beliefs. Buonanno was fully prepared to comply with the principles underlying the Diversity Philosophy; he recognized that individuals have differing beliefs and behaviors and he would not discriminate against or harass any person based on that persons differing beliefs or behaviors. However, he could not comply with 8/7/2021 Buonanno v. AT&T BROADBAND, LLC, 313 F. Supp. 2d 1069 (D. Colo. 2004) :: Justia https://law.justia.com/cases/federal/district-courts/FSupp2/313/1069/2580638/ 5/20 the challenged language insofar as it apparently required him to value the particular belief or behavior that was repudiated by Scripture. Accordingly, if he challenged language literally required him to do so, he could not sign the Certificate of Understanding, agreeing to abide by such language. 10. Buonanno consulted with his pastor, Scott McCall, of the Crow Hill Bible Church for guidance. Buonanno also discussed his concerns with his supervisor, Dunn, a practicing Christian. Dunn did not believe that the challenged language was inconsistent with his personal, religious beliefs as a Christian, but he urged Buonanno to clarify the issue in a written communication to his AT&T Human Resources Manager, Susan Batliner. In accordance with this suggestion, on January 30, 2001, Buonanno slipped a written communication under Batliners office door. 11 In the letter (Ex.4), Buonanno explained that   I cant comply with the ambiguous statement under `Diversity on pages six and seven [of the Handbook]... As an AT&T employee I am fully cognizant of the fact that there is diversity among its members. Since being hired on January 10, 1999, I have indiscriminately conducted myself in a professional manner with all people.... However, ... I believe its wrong for any individual or organization to attempt to persuade me to fully respect and fully value any differences which are contrary to Gods word. In order for me to comply with this diversity statement in the company handbook, I would have to deny my faith; this I will not do. It is this reason that prohibits me from signing the certificate of acknowledgment... As an AT&T employee I give you my word *1076 that I will continued to conduct myself in the same professional manner. But I cant allow any group or individual to choose for me what I must respect or place value on. The letter was accompanied by an unsigned copy of the Certificate.   Events leading to Buonannos termination 12. Batliner discovered the letter the next morning. She discussed it with to her superior, Debora Davis, the Vice President of Human Resources for AT&Ts Colorado operation. Davis instructed Batliner to talk to Buonannos supervisor and then with Buonanno to clarify his concerns. Batliner was instructed to ask questions, get information and to 8/7/2021 Buonanno v. AT&T BROADBAND, LLC, 313 F. Supp. 2d 1069 (D. Colo. 2004) :: Justia https://law.justia.com/cases/federal/district-courts/FSupp2/313/1069/2580638/ 6/20 explain the importance of the Diversity Policy. Davis told Batliner that signing the Certificate was required of all employees, but she did not authorize Batliner to terminate Buonannos employment if he did not sign. 13. Batliner met with Dunn and his supervisor, Scott Neesley, to discuss the letter from Buonanno. They agreed that importance of the Diversity Policy should be explained to Buonanno and that he should be told that signing the Certificate was required to retain his employment. There was no discussion of the particular meaning of the challenged language or what obligations, if any, it imposed on employees. 14. Batliner then scheduled a morning meeting with Dunn and Buonanno. On the way to the meeting, Dunn informed Buonanno that signing the Certificate was a requirement for continued employment. He suggested that Buonanno seek clarification of the challenged language, suggesting that Buonanno inquire if the language would require him to value, for example, a neo-Nazi skinheads beliefs. 15. The meeting among Batliner, Buonanno and Dunn lasted between 30 and 40 minutes. Batliner explained the importance of the Diversity Policy and stated that Buonanno was required to sign the Certificate in order to keep his job. However, there does not appear to have been any discussion about the meaning of the challenged language or what it required. Indeed, when Buonanno attempted to clarify its meaning by asking how it would apply to the beliefs of neo-Nazi skinheads, Batliner refused to engage in what she characterized as a philosophical debate. 16. Buonanno iterated that he supported the Diversity Philosophy and would not discriminated against, harass, or retaliate against any employees. However, he could not disavow his religious beliefs by endorsing behavior or beliefs he considered sinful. Without clarification as to the identified language, he explained, he could not sign the Certificate. Batliner refused to clarify. Buonanno and Dunn both asked whether there was some way to work around the challenged language or the signing of the Certificate. Batliner refused and repeated that Buonanno must sign the Certificate as presented to keep his employment. 17. Buonanno declined to sign the Certificate for the reasons he had stated in the communication. Batliner terminated his employment and proceeded to conduct an *1077 exit interview. Batliner later reported to Davis that she had not gathered any information about Mr. Buonannos concerns, and had terminated his employment solely due to his refusal to sign the Certificate.   [1] 8/7/2021 Buonanno v. AT&T BROADBAND, LLC, 313 F. Supp. 2d 1069 (D. Colo. 2004) :: Justia https://law.justia.com/cases/federal/district-courts/FSupp2/313/1069/2580638/ 7/20 AT&Ts interpretation of the Diversity Policy 18. As is clear from the language of the Diversity Philosophy, as well as the numerous references to diversity elsewhere in the Handbook, AT&T maintains an overarching policy of inclusiveness. AT&T defines diversity broadly contemplating all attributes, history, experience, skill, perspective, etc. that make one individual different from another, and considers all of those various characteristics as having potential value to its business development. AT&T believes that its Diversity Philosophy helps it better acquire customers, understand customer needs, and increase its sales and provide better customer service. For example, Senior Vice President of Human Resources David Brunick testified that in the past, English-speaking employees recognizing the differences between themselves and Spanish- or Russian-speaking employees allowed the company to expand into Spanish- and Russian-speaking markets that were otherwise unavailable. 19. AT&T maintains that permitting an employee to certify anything other than full agreement with all of the language in the Handbook would destroy the competitive advantage its Diversity Philosophy creates. Doing so would demonstrate to other employees that AT&Ts policies were not uniformly applied and enforced. 20. Although the challenged language, Each person at AT&T Broadband is charged with the responsibility to fully recognize, respect and value the differences among all of us is undoubtedly consistent with the spirit of the Diversity Philosophy, it is ambiguous. Taken literally, the language appears to require an employee to ascribe some value to those particular beliefs or behaviors of his or her co-workers that he or she does not share. Taken figuratively, however, the language could be understood to mean that an employee must ascribe value to the fact that there are differences among employees, but not necessarily require that each employee has to find some value in each of the various behaviors or beliefs of his or her co-workers. As discussed below, the testimony of some AT&T officials reflected uncertainty over whether the language was intended to have a literal or figurative interpretation. 21 Five corporate officials testified about the challenged language, but none of them shared a common understanding of what it actually requires. For example: � Scott Neesley, Director of Workforce Management and Buonannos second-line supervisor, testified via deposition. He understood the Diversity Policy to require employees to celebrate the differences in all of us. � Batliner believed the challenged language required employees to treat each other with respect, and to respect and value differences in people [and] value the people. She did not 8/7/2021 Buonanno v. AT&T BROADBAND, LLC, 313 F. Supp. 2d 1069 (D. Colo. 2004) :: Justia https://law.justia.com/cases/federal/district-courts/FSupp2/313/1069/2580638/ 8/20 directly answer repeated questions by the Plaintiffs counsels question as to whether the language required employees to value the actual differences themselves; � Davis understood the challenged language to require employees to do something more than simply treat each other professionally, but did not specifically state what additional conduct was necessary. Even more problematic, Davis implied that the challenged language was impossible to enforce because it addressed only an employees thoughts, rather than an employees behavior; � Brunick, the highest executive within AT&T to review and approve the challenged language, had yet another interpretation. *1078 He intended the challenged language to require that an employee not only respect and value other employees as individuals, but also to affirmatively value the disparate attributes, behavior, or beliefs themselves. He testified that valuing disparate attributes was essential to ensure that every employee would feel valued and respected for who they are. This interpretation was subject to undisclosed exceptions, however. Brunick testified that, although the fact that one of the differences among employees could be that one employee had been convicted of murder, the challenged language would not require other employees to value that particular difference. Similarly, he testified that an Orthodox Jewish employee would have to value the difference between himself and a fellow Muslim employee, but that the challenged language would not require the Jewish employee to actually adopt the beliefs of the Muslim employee. When asked what he understood the word value to mean, he testified that it required employees to understand their difference, respect their difference, and value what they bring to the table; � Deborah Wilson, Director of Employee Relations, drafted the Handbook and the challenged language. She, like Brunick, offered somewhat ambiguous testimony as to her interpretation of the language. On one hand, she did not intend the language to compel employees to endorse or esteem the beliefs or behavior of others, but, on the other, believed that the language required employees to respect and value the individual differences that may exist between different employees. She attempted to clarify that conflict by stating that, to value the differences in others, an employee would treat them in a respectful manner [,] would not say things or exhibit, whether its behaviors or anything, that would that would offend them potentially or that would exhibit anything that I would say that I dont value you or I dont respect you or that aspect of your difference. Wilson agreed that the challenged language essentially means that employees are supposed to value and respect each other as individuals and as persons, but generally thought that an employee would also have to value the actual difference itself. Upon questioning by the Court, 8/7/2021 Buonanno v. AT&T BROADBAND, LLC, 313 F. Supp. 2d 1069 (D. Colo. 2004) :: Justia https://law.justia.com/cases/federal/district-courts/FSupp2/313/1069/2580638/ 9/20 Wilson acknowledged that the challenged language was intended to mean that each person had to fully recognize, respect, and value that there are differences among all of us, (emphasis added), and that the language did not require employees to value the specific difference, but [only] the fact that there were differences. But upon re-cross by Buonannos counsel, Wilson crystalized the ambiguity in the challenged language, testifying that she did not see a difference between valu[ing] the fact that there are differences and valu [ing] the difference itself. Ultimately, she admitted that AT&T did not expect individuals to change their religious beliefs, and expressly acknowledged that it would have accomplished [AT&Ts] goals had Buonanno agreed to respect and value the fact that there are differences among us. 22. No AT&T representative explored or explained the intended meaning (or any of the various interpretations) of the challenged language to Buonanno. No AT&T employee inquired as to the particulars of Buonannos concerns, sought to devise ways to accommodate Buonannos religious beliefs, or reassured him that the challenged language did not require him to surrender his religious beliefs. At all relevant times, Buonanno was presented with a choice of between accepting the language of the Handbook without any additional clarification and signing the Certificate, or losing his employment.   Damages 24. Buonanno was upset and humiliated by his termination. He had difficulty *1079 sleeping and withdrew socially, but obtained no medical or psychological treatment. He was unemployed for a period of 4 months before obtaining a job as a mental health counselor with Mental Health Corporation of Denver in late May 2001. He has continued in that job since his hiring. As a mental health counselor, Buonanno has had reduced earnings and fewer benefits compared to that which he would have received at AT&T. However, the counselor position has provided a flexible schedule enabling Buonanno to complete his undergraduate degree. He now wishes to change careers to counseling and intends to seek a masters degree from Denver Seminary. Continuing to work in his present position, he anticipates that he will complete his masters degree by year end 2006. 25. Buonannos expert calculated his economic losses as follows: His projected salary at AT&T, based upon an assumed annual raise of 3.5\%, over Buonannos expected working life of approximately 20 years from the date of his termination in 2001, would have totaled $1,283,762 ; [2] [3] 8/7/2021 Buonanno v. AT&T BROADBAND, LLC, 313 F. Supp. 2d 1069 (D. Colo. 2004) :: Justia https://law.justia.com/cases/federal/district-courts/FSupp2/313/1069/2580638/ 10/20 . He would have earned 401(k) matching contributions by AT&T, assumed to be 75\% of his typical contributions of 10\% of his gross income, over his expected working life, totaling $96,282; . Buonannos actual and projected future salary as a mental health counselor, over the remainder of his expected working life, totals $1,168,368, a difference of approximately $115,394 compared his projected future salary had he remained employed at AT&T; and . He is not expected to earn 401(k) matching contributions in his current position, yielding a loss of $96,282 from his projected 401(k) matching contributions had he remained employed at AT&T. A key feature of Buonannos experts analysis was the conclusion that, beginning in 2007, Buonannos receipt of a masters degree would enhance his earning capacity as a mental health counselor, such that his projected salary as a mental health counselor would thereafter always exceed his projected salary had he remained at AT&T. 26. AT&Ts expert calculated Buonannos economic loss as follows: . As a general rule, changes of career paths may create salary disparities at the outset, but that within 3-5 years, various market forces will restore the employee to the same earnings path that existed prior to the career change; . From his termination to the date of trial, Buonanno lost back pay totals $ 66,176; . Projected future salary diminution is $ 26,288, with Buonannos projected actual *1080 salary matching or outpacing his projected AT&T salary by the end of 2007; and . Based on his general assumption regarding market forces mentioned above, AT&Ts expert did not specifically address the issue of 401(k) matching contributions, believing that such benefits would be recovered by Buonanno over the same 3-5 year period.   III. Conclusions of law The Plaintiff articulated two distinct theories of religious discrimination in his closing argument: (i) direct religious discrimination, as discussed in Shapolia v. Los Alamos National Laboratory, 992 F.2d 1033 (10th Cir. 1993); and (ii) failure to accommodate.   [4] 8/7/2021 Buonanno v. AT&T BROADBAND, LLC, 313 F. Supp. 2d 1069 (D. Colo. 2004) :: Justia https://law.justia.com/cases/federal/district-courts/FSupp2/313/1069/2580638/ 11/20 A. Direct discrimination Under Shapolia, a claim of direct religious discrimination lies where an employee contends that he received unfavorable treatment motivated by an animus directed against his particular religious persuasion. 922 F.2d at 1037 (employee alleged discriminatory treatment motivated by animus against non-Mormons). In such circumstances, the Court applies a slightly modified version of the customary shifting-burden test. A plaintiff must come forward with evidence establishing: (i) that he was subjected to some adverse employment action; (ii) that, at the time the employment action was taken, the employees job performance was satisfactory; and (iii) an inference that the employment actions were taken because of a discriminatory motive based upon the employees failure to hold or follow his or her employers religious beliefs. 922 F.2d at 1038. The employer must then present evidence to support a non-discriminatory reason for the adverse action. In rebuttal, the employee must prove pretext, all in accordance with the classic McDonnell Douglas analysis. Id. Here, Buonanno did not establish the third element of the prima facie case, that the actions taken against him were motivated by his failure to follow his employers religious beliefs. With the exception of Dunn, nothing in the record establishes that any of his supervisors held particular religious beliefs, much less that their beliefs were in conflict with Buonannos. Dunn, Buonannos immediate supervisor, is a Christian. Thus, Buonanno has not proved that he was terminated based on his failure to follow the religious beliefs of his employer. Accordingly, AT&T prevails on this claim.   B. Failure to accommodate To establish of a claim of religious discrimination based on a failure to accommodate theory, a plaintiff must prove: (i) he had a bona fide religious belief that conflicts with an employment requirement; (ii) he informed his or her employer of this belief, and (iii) he was fired for failure to comply with the conflicting employment requirement. Thomas v. National Association of Letter Carriers, 225 F.3d 1149, 1155 (10th Cir.2000). The burden then shifts to the employer to either conclusively rebut one or more elements of the plaintiffs prima facie case, to show that it offered a reasonable accommodation, or to show that it was unable reasonably to accommodate the employees religious needs without undue hardship on the conduct of its business. Id. at 1156. 8/7/2021 Buonanno v. AT&T BROADBAND, LLC, 313 F. Supp. 2d 1069 (D. Colo. 2004) :: Justia https://law.justia.com/cases/federal/district-courts/FSupp2/313/1069/2580638/ 12/20 The employer and employee have reciprocal duties in discussing the matter and attempting to reach a reasonable accommodation. Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68- 69, 107 S. Ct. 367, 93 L. Ed. 2d 305 (1986). The employer *1081 has the burden of initiating the discussion of accommodations once it becomes clear that the employees beliefs conflict with an employment policy. Where an employer has made no efforts to accommodate the religious beliefs of an employee before taking action against him, the employer may only prevail if it shows that no accommodation could have been made without undue hardship. Toledo, 892 F.2d at 1490. The reasonableness of a proposed accommodation is considered in light of all of the facts and circumstances of the case. Weilert v. Health Midwest Development Group, 95 F. Supp. 2d 1190, 1196 (D.Kan.2000), citing United States v. Albuquerque, 545 F.2d 110, 114-15 (10th Cir.1976). A proposed accommodation poses an undue hardship on the employer if it bears more than a de minimis cost or significant impact on efficiency, or disrupts a bona fide seniority system. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84, 97 S. Ct. 2264, 53 L. Ed. 2d 113 (1977); Lee v. ABF Freight System, Inc., 22 F.3d 1019, 1023 (10th Cir.1994); 29 C.F.R. § 1605.2(e) (2). However, the claimed hardship must be more than merely speculative. Banks v. Service America Corp., 952 F. Supp. 703, 709 (D.Kan.1996), citing Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th Cir.1987); see also Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1492 (10th Cir.1989). An employers costs of accommodation must mean present undue hardship, as distinguished from anticipated or multiplied hardship. Cook v. Chrysler Corp., 981 F.2d 336, 339 (8th Cir.1992)   1. Prima facie case Turning first to the requirements of a prima facie case, Buonanno established that he has a bona fide religious belief that conflicted with an employment policy. AT&T does not contest that Buonannos beliefs are religious in nature, nor that they are bona fide. AT&T understood that Buonanno was concerned that those beliefs conflicted with the challenged language in the Handbook and, by extension, the Certification Policy. As … 1 Running Head: COURSE PRJOECT 3 COURSE PROJECT Course Project Introduction Chapter Selected by the Group: Chapter 10 | Case 6 Citation: Buonanno v. AT&T Broadband, LLC 313 F. Supp. 2d 1069 (D. Colo. 2004) Student: Identify Plaintiff and the Defendant: Plaintiff and Defendant Facts Facts For Plaintiff and Defendant: Summarize only those facts which apply to both the Plaintiff and Defendant which were critical to the outcome of the case. Issue What was the primary/central question or questions on which the case is based and which the Court based its Decision. Explain the applicable law(s). The law should come from the same chapter as the case. Be sure to use citations from the textbook including page numbers. Holding/ Reasoning [State the Holding of the Court and explain the reasoning. Why did the Court decide the way it did? What was the logic used? Give examples and explain. (Do NOT cut and paste.) Conclusion This should summarize the key aspects of the decision. State why you agree or disagree with the Court’s Decision. Reference Only use : the web-based JUSTICA.com or FindLaw.com