Locate a decision from a court or other tribunal where a BFOQ or business necessity argument carried the day–or did not. Briefly summarize it and explain why you agree or disagree with the decision.

Topic 1

A male employee complains to his supervisor.

The employee is gay.

He says another employee – who is straight – says things whenever the gay employee passes the straight employee’s cubicle.

The gay employee says the straight employee makes sexually suggestive remarks to him, like “Nice buns” or “Nice basket.” of “I’d let you ‘do’ me, even if I am straight.”

The straight employee shows pictures of handsome men from his sports magazine to the gay employee and says, “I bet you wouldn’t throw him out of bed for eating crackers!” or “I bet you’d like to see his baseballs!”

The gay employee finds this behaviour offensive; he is in a long-term relationship and has no interest in the straight employee.  He finds it offensive to have pictures of these handsome athletes shoved in his face along with suggestive comments.

The gay employee demands that something be done or he will seek legal advice.

The supervisor shows up at your door.

“Can he really sue?” he says. “Federal law doesn’t protect against anti-gay discrimination, does it?  Can’t I tell him he has to live with this?”

You might “skim” this article for help; the ‘twist’ in this hypothetical is that the “straight” employee does not really have any sexual interest in the gay employee.  It doesn’t fit the usual situation (e.g., a male supervisor “hitting on” his female secretary, who fears for her job if she complains to anyone).

Complex Law Review Article on Same-Sex Sexual Harassment

1.  Provide your analysis of the situation in 200- 400 words.

Topic 2

Your company was approached by the lesbian and gay association formed by a small group of employees.

They asked the company to let them celebrate “Gay Pride” during the week in June when this is usually “celebrated.”

The company agreed.

The LGBT group used the employee notice board to post pictures of same-sex couples, of transsexuals, of same-sex couples raising children – along with rainbow flags and slogans such as “Gay is Good” and two posters: one showed three men, and had the caption, “He’s gay – and that’s cool with us.”  There was the same type of poster featuring three women.  The implicit message was that gays are like everybody else.

Another employee – a committed Christian — posted on the same employee notice board the following:

“Leviticus 20:13”

A gay employee looked up the reference in her Bible.  It says:

“If a man has sexual relations with a man as one does with a woman, both of them have done what is detestable. They are to be put to death; their blood will be on their own heads.”

The gay woman complained to her supervisor.  The supervisor spoke to the man.  He said gay sex was a sin and he had an obligation to urge lesbian and gays to repent or they would be condemned to eternal damnation.

He said the employer had to accommodate his sincere religious beliefs.  Tne Christian employee said they could do this either by 1) removing his Bible citation AND the “gay pride” material, or 2) allowing both points of view to be expressed.

He said forcing him to be exposed to messages like “gay is good” violated his religious beliefs, and said he would sue.

The supervisor comes to you and asks, “What do I do?”

Does the recent case of Hobby Lobby have any bearing on this scenario?

Hobby Lobby Decision

[or, in lieu of No. 2 ” BFOQ’s and “business necessity” sometimes serve as exceptions to the rule that you cannot discriminate in employment decisions.  Locate a decision from a court or other tribunal where a BFOQ or business necessity argument carried the day–or did not. Briefly summarize it and explain why you agree or disagree with the decision.  ]

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