No Religious Cover for Bias

Fed appeals court says anti-lesbian supervisor deserved firing

An evangelical Christian who lost her job for violating her employer’s policy against sexual orientation discrimination and harassment cannot mount her own claim of religious discrimination, a unanimous three-judge panel of the U.S. Court of Appeals for the 9th Circuit in San Francisco ruled on April 26.

In an opinion by Circuit Judge Michael D. Hawkins, the court found that Evelyn Bodett’s religious discrimination claims, under both the 1964 Civil Rights Act and Arizona statute, were invalid. Coxcom, Inc. had a legitimate reason for discharging Bodett, based on the complaint of a lesbian employee under her supervision, Hawkins found.

According to the opinion, Bodett supervised 13 employees, including Kelley Carson, an out lesbian.

“When they began working together,” wrote Hawkins, “Bodett told Carson that homosexuality was against her Christian beliefs.”

Initially, Carson did not feel threatened by Bodett, but things changed in 2000, when Carson confided in Bodett during a “coaching session,” about her distress about a break-up with her domestic partner and about making her house payments. Carson testified that Bodett told her that “the relationship she was in, was probably the cause of the turmoil in her life,” and “that homosexuality is wrong, considered by God to be a sin.” Bodett shut the door and the two women prayed together, when the boss, according to Carson, “made me born again.”

Carson joined Bodett twice at church and once on a religious retreat paid for by her boss, but later said she was uncomfortable with the situation and participated only out of fear for her job. She applied for a transfer to the Coxcom’s Omaha office, which triggered questions from a senior company official as to whether Bodett was making Carson uncomfortable. Carson responded that, at the conclusion of a recent performance review, Bodett had said she would be disappointed if Carson were dating another woman but happy if she were dating a man. Asked why she had never filed a complaint about Bodett, Carson responded that “Bodett was her boss and she could not afford to lose her job,” according to Hawkins’ opinion.

When company officials met Bodett, she admitted having made the statements. When they told Bodett that her conduct was a “gross violation” of the company’s policy against sexual orientation harassment, she responded that “sometimes there is a higher calling than a company policy.” She was discharged immediately.

Bodett’s lawsuit claimed that she was the subject of discrimination under federal and state law, because her First Amendment right to free exercise of religion was violated. The claim was obviously invalid since the First Amendment applies only to the government, not private employers. She also claimed breach of contract and intentional infliction of emotional distress. David K. Duncan, the federal magistrate assigned to the case, determined that she was discharged for “a legitimate non-discriminatory reason,” and the appeals court agreed.

Hawkins found that Bodett’s conduct clearly violated company policy and that she was aware of the consequences of that policy, rejecting Bodett’s argument that her conduct had not constituted harassment.

The court found no merit to Bodett’s state law claims, either. A claim of intentional infliction of emotional distress requires the plaintiff to show that the defendant acted in an outrageous manner, either intending to inflict severe emotional distress or acting in reckless disregard for the risk of such distress. The court found that Cox’s executives had not acted in this way.

“This type of termination goes on every day in the corporate world,” wrote Hawkins, “particularly when the employee has violated existing company policy.”

Bodett expressed particular outrage that during the litigation process her counseling session with Carson had been characterized as an “exorcism,” but the court found that this was not all that far off from what had been described.

It has become a standard tactic for anti-gay supervisors to claim that they are being subjected to religious discrimination when they are required to render fair treatment to out gay employees. This decision decisively rejects the contention that a company enforcing anti-discrimination policies violates any protected right of religious practice or belief.

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