Wal-Mart’s Harassment Policy Trumps Religious Bigotry

In a ruling surprisingly designated as not for publication, a unanimous panel of the U.S. Court of Appeals for the 7th Circuit, based in Chicago, has ruled in Matthews v. Wal-Mart Stores, Inc., 2011 Westlaw 1192945 (March 30), that the giant retailer did not violate the religious discrimination provisions of Title VII of the Civil Rights Act of 1964 when it discharged an employee for spouting religiously-inspired anti-gay bigotry on company premises during a work break.

According to the unsigned decision for the three-judge panel of William J. Bauer, Richard A. Posner, and Ann Claire Williams, Tanisha Matthews, who describes herself as an Apostolic Christian, worked as an overnight stocker at a Wal-Mart store in Joliet, Illinois.  During a work break, she took part in a conversation with other employees in which the topic of God and homosexuality came up.  Another employee who participated in the conversation reported to management that Matthews was "screaming over her" that God does not accept gays, they should not "be on earth," and they will "go to hell" because they are not "right in the head."  Five other employees who heard the remarks confirmed in response to a company investigation that Matthews had said that gays are sinners and are going to hell.

Wal-Mart managers considered these remarks to be "serious harassment" in violation of the company's "Zero Tolerance" policy for harassment, which includes prohibiting employees from engaging in any conduct that could be interpreted as harassment on the basis of a list of characteristics that includes sexual orientation.  Serious harassment is considered "gross misconduct" that is grounds for dismissal.

Matthews sued for religious discrimination in violation of Title VII, claiming she was discharged for her statement of her religious views.  She pointed out that her work up to then had been satisfactory, so it was clear she was fired for her religiously-based statements about gay people.  The district court granted summary judgment to Wal-Mart, finding that there was no direct evidence of discrimination and no indication that other employees received more favorable treatment.  Matthews appealed.

The court of appeals said that "if Matthews is arguing that Wal-Mart must permit her to admonish gays at work to accommodate her religion, the claim fails."  The court pointed out that "Wal-Mart fired her because she violated company policy when she harassed a co-worker, not because of her beliefs, and employers need not relieve workers from complying with neutral workplace rules as a religious accommodation if it would create an undue hardship.  In this case, such an accommodation would place Wal-Mart on the 'razor's edge' of liability by exposing it to claims of permitting work-place harassment."

Matthews also claimed that Wal-Mart discriminated against her by not discharging other employees who participated in the conversation.  But, pointed out the court, none of the other employees in the conversation commented about "someone's individual status, homosexuality or race," and there was no evidence that Wal-Mart failed to enforce the policy against other employees who violated it.

The court rejected as irrelevant the fact the Matthews was awarded state unemployment benefits, pointing out that it was based on a statutory definition of misconduct that differs from that relevant to analyzing a Title VII claim.  Matthews also claimed her trial attorney provided ineffective representation, to which the court replied that her remedy was to sue the lawyer for malpractice, saying that ineffective assistance in the context of civil litigation does not give her "another shot at a trial against Wal-Mart."

This sounds to me like another culture wars case.  Some religious groups have been working very hard to carve out protection under civil rights laws for employees who want to act out their religious views in the workplace, regardless of whether that adversely affects their employers' businesses.  The courts have generally stood firm, at least where private sector employers are concerned, for the proposition that the employer, not the employee, is entitled to set the tone in a workplace. As in this case, an employer who wishes to avoid having homophobia spouted in the workplace – regardless whether it is religiously-inspired – can establish and enforce a rule against it.

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