reefs however i don't believe that the rehearing of that case or that this court entered affects the argument that will be making here or should affect a decision in this case in that opinion written by judge pleasure he indicated that we would hold that employees sexual orientation is irrelevant for purposes of titles and in need of provides nor precludes a cause of action for sexual harassment goes on to say that it is enough that the harasser have engaged in severe or pervasive unwelcome physical contact of a sexual nature i think that opinion fortunately or unfortunately is not is a plurality though it's not a majority believe that's correct your honor but i still don't believe that with respect to the conduct it's an issue in this case or that renee should alter the decision and certainly would not alter my argument with respect to the ability of hewlett packard to accommodate richard peterson's conduct basically the richard peterson my client was employed by hewlett packard for twenty one years during all of that time he had deeply held religious convictions but during twenty of number of things first thing i don't think that there was any need to say take the poster down at all as a practical matter this is the record shows there wasn't a single person who complained about the poster being out there wasn't a single person until somebody complains i think it in the example that you gave niggers go home i think is not an innocuous philosophical statement it is instead it would instead be a statement directed at and at a certain people within that or at the workplace and i think they could say take that statement out i think that's far different than saying that putting up a biblical statement a bible verse that basically says that's of this type of  person and i don't think the title seven calls and even if it were considered an offensive utterance would say that that created such a pervasive and discriminatory work environment that that mr peterson was violating either  richard peterson and his religious convictions as they claim the statement he put out was offensive to there so you say could they have could they have some other form of  richard peterson commented repeatedly and it's in the record that he said i have no problem working side by side with homosexuals that's not the issue he said i've worked with him for twenty years the issue was that these are people who have a hundred different characteristics they could be they could be called they could put up a post and say this is a good worker this is a family man this is a person with good values this is that this is a team member and he said i could live with that but when they label the person gay and say now you're to accept him order for either side to claim there was a hostile work environment there needs to be an objective determination of that issue and i object to the combination of those that would be quite impossible to read there you are to accept that person because he is gay and i agree with that and i agree with that the point is that richard peterson for whatever reason because of his religious convictions couldn't accept that i'm not saying that it is that that it is subjectively or objectively reasonable to another person to say he should have accepted in fact in  now i've just saying that i didn't say that what i meant was that even without the posters judge judge who will promise you that that if they take the posters down are you saying that h p should abandon its diversity campaign or diversity program which is the true meaning that seems to me with regard to several police were company that has this policy we hire people of all types and we expect them to be treated decently and expect their employees to accept  and you know i don't think we should have women executives here let's just assume that anything you wanted to post a bunch of posters i'm sure you could find something in the bible that would support that idea could find something in a sports a lot of ideas  going to happen everyone has any other religion no matter how good it's going to the other place i think or they post coasters that say well i think i don't think that we necessarily get that far because in this case all that mr peterson did in the court lower court i started with the conversation i'm assuming for the moment that he didn't have a religious conviction that this conviction created under these circumstances he had to put up a poster and the question that and mr mr peterson's concept of what diversity means was different than what h p s concept of what diversity means and if they had pursued their policy in such a way that it wouldn't have led to misunderstandings among a large number of the workforce are a number of the members of the workforce as to what their policy was they wouldn't have had any problem with mr peterson cynthia stand still mentioned in that that she was aware of the fact that the campaign had engendered misunderstandings the poster campaign had engendered misunderstandings among a number of people in the workplace and he wasn't the only one she said that at page seventy two in excerpts of the record he said because it's not our intent to have somebody get so upset that they feel they have to leave the company and i've had these conversations with people before and i think there's a lot of misunderstanding around what h p is trying to do on this particular issue cynthia stansell the diversity director said we know there's a misunderstand and he felt that he needed to say you're saying who you are i need to be able to say who i am and if you go back to your point about what whether or not this is consistent with policy and also judge pools coins at page one forty of the excerpts of record h p says that it will consider requests for accommodation for individual employees personal expression of religious practice so it isn't as though h p said we're not going to make some provision for you if you have a sincere belief that needs accommodation and if we can do so to return to judge pools comment about whether or not how far mr peterson could go i don't think i have problems myself  with saying that employees can run rampant in the workplace and can prevent an employer from instituting the policies that it wants i don't believe that they have that authority but i don't believe this is that case where we can say there's only one thing i don't think we can do maybe i'm wrong but i don't think we can say there's one policy to express scripture from the old testament that will be permitted but if some other worker is of a different religion or maybe one that we don't know title seven talks about talks about discriminatory insulting remarks or comments or whatever directed at someone directed at that person as opposed to conduct and that are going to specifically have an effect on that that are offensive to that person  to that extent if scripture or any other words were used to attack someone for them personally to attack against a gay man that person on the poster for instance if richard peterson got in front of them open up the bible and read it to said look this is you and you are going like the charmers case then i would have no problem in saying he doesn't have that right just using scripture or any other words but on the other hand if a person is making a philosophical statement this is what i believe in response to what he perceives h p said this is what you believe that he has not transgressed title seven and he has not made an offensive statement and in that regard my my my remaining point too i said h p is a huge place that has five thousand workers and his job is a telephone job he works on the telephone making calls for tech support he could have been put in a cubicle in a corner that nobody would have seen him or h p could created a diversity for on the spot where people that want to put something up whatever they want to post so long as it doesn't offend people are entitled to put up their own posters but they could have made a rule that that's the only place and then if a person was going to be offended they simply don't have to walk down that accommodate an employee who is protesting the employer's legitimate activities violating its for rassmann policies and being insubordinate because the means of protest selected by that employ is either scripture or is motivated by a religious belief hewlett packard didn't accommodate richard peterson richard peterson disapprove of their very legitimate activity of promoting the first in a long standing business principle with this company and its eighty six thousand employees in over twenty eight cities and one hundred twenty comp countries but he also as he met with four managers actually five managers on four different occasions made it clear that he had deeper concerns than simply the particular poster now the  poster what i want to take what mr probus has suggested here to its logical extension with any employer to particularly this employer which is that the subjective view of the employee as to a coaster with the word game on it just that then becomes a legitimate enterprise for that employer to express religious views and to force the employer to capitu late by taking down that poster because of his subjective interpretation of that single word and that's all that poster what mr peterson upon examination in his deposition explained that can't be the driving force for an obligation of accommodation previous to this mr peterson had problems with the fact that employees were dressing up in halloween costumes or is that just an attempt of the stream no it's not as if to say it's been extreme i could use another example frankly that that that is another hypothetical valentine's day i perceive it as a religious statement five of the religion of the fall like religion i'm not catholic i'm opposed to it i want to put up my scriptures with respect to that particular activity and i want the employer to accommodate that the fact that he spoke out on halloween i'm not here to trash mr peterson or his beliefs i want to respect his beliefs and i think the company vigorously attempted to it respect his beliefs when you asked the company to take but the word was posters he said for example didn't get that particular i be deposited didn't get that particular that is to say if he had only asked this and i don't want the one nearest my workstation otherwise that's a different question from i there's no facts that the one near him was this gay poster there's no facts to support that i understand perfectly what you're saying and i deliberately chose my words say the one nearest i can to my going to be one that was nearest when it was right some distance away or right next all she said i wish there was something i could do he said i don't know what it is you could do except take down those posters and quit publicizing them in the weekly paper on the web site now he's referring to a gay and lesbian group where he met with mr fowler mr fowler says is there any way you can channel your convictions productively as opposed to a message of condemnation he said i don't see any way i can compromise what i'm doing that would satisfy h p and my own conscience basically while they explored and i think in good faith attempted to find a solution here and i indicated again he had been able i think we need to put this in the context of let me just say it for a moment and hopefully it will make some point janel says that the question here is whether or not he must prove first whether he has a bona fide belie the practice of which conflicts with employment duty now we seem to skip over the practice of which what was the practice that created a conflict that required accommodation if it was the speak out against evil to criticize the program he had done that what is the specific commandment that required him to do what he was doing in the workplace  of this process to ask what is the particular practice that we're dealing with here and when he says it's to speak out against evil well that's to be in every contest no it's not in every context must it be in the workplace no it does not have to be in the workplace must only be on homosexuality or is that on all simple conduct it depends under the circumstances so now we have a practice which is in and of itself not necessarily in conflict and in response to that poster he puts up a poster of his own there is to say he does not seem to have a free flowing claim that because there are gays in the workplace i want to post spectra at my workstation the only time judge pleasure first of all it was not first time he had also distributed religious literature in response to halloween that had occurred in one thousand nine hundred sixty two years previously a supervisor met with him and talking about it was not the first time he had expressed himself in some fashion to a particular practice that was taking place in the workplace the second thing is that what h p was doing and what the scriptures the scriptures as h p perceived it violated its policy on harassment and upon inquiry mr peterson confirmed their suspicions they were intended to be judged mentally they were intended to be hurtful they were intended to condemn practices they were i can't remember the exact words i know it's in the brief but he was the statement was made by one of the interviewers that that they were hurtful and he admitted they were hurtful they were judgment he admitted they were in judgment he even went on to say that in order to bring people to christ you would have to it won't be hurtful the process would be hurtful he recognized that there was a hurt or  other people by his conduct and so that the question here about h p simply saying well go ahead and do it or we'll take down our poster is is that it undermines its own legitimacy policy then this court is in the posture of saying well you are legitimate business interests must defer to a religious expression in the workplace and i think that turns the standard entirely upon its hat once you do that then every employee can simply come in and say irrespective of the policy irrespective of the political sensitivities of homosexuality i disagree with this policy and therefore i generally it has a policy concerning posting but it does not really address religious statements but it does have a harassment policy which says it will not tolerate a lack of respect or hostility all i think like the andrea and i think one of the one of the interesting thing twists this put on this by the power in this case is that when they talk about harassment they watch they want to apply a title seven standard of harassment this is the compan internal policy it can determine what is harassment and what is not harassment by its policy and by its interpretation and application of its policy it regarded biblical statements that says to those w homosexuals your blood will be a minute as offensive as harassing as in violation of its policies and require that the employee then acquiesce to its legitimate requests his only defense but i'm acting upon religious belief the mere fact that he's acting upon religious beliefs doesn't require an accommodation and lack of it doesn't require one where it's not susceptible to accommodation the only accommodation he legitimately offered was you take down your poster i'll take down my scriptures the invented minds of the lawyers coming in later on and saying well they could have putting in a different room or they could have done this or they could have done that they peter meet with him after he gone through an escalating group of managers to try and deal with them and that was the expression that he made gays are filthy he is afraid to use the same bathrooms when he's become uncomfortable with them it was at this point that the manager said to you to him why do you work here why why don't you leave and he said because then i don't have the chance to do what i'm doing which is i interpret protesting using the workplace as the vehicle my protest and my against homosexuality an expression of my religious views but i think you know in all fairness it's a minor point the issue really was the out scriptures again because i really don't like the fact that you allow the gay and lesbian network group to publicize their events in the company's newspaper that offends me now will have to take  then something else i don't even like the fact that you look policy harassment policy protects and treats equally sexual orientation with race and other classifications i'm quoting of scripture until you change that policy there is no end to this there the proposal that he made and seems to be reinforced again by his counsel is carried out except capitulation every time the someone would have the right to do it even espousing recognized religious principle in scriptures in the old testament i would think it opens the door to almost any religious expression and then open invites an inquiry as to what is the particular of the practice as it conflicts if you don't have that inquiry and what are you the car accommodate it becomes a looser feel where you got to accommodate my need to speak out well can you be more particular and if the practice of which cannot be connected to the conflict if in for example in this case as was the under by the testimony from richard peterson that he was required to speak out against evil homosexuality was evil but he wasn't required to do it in every instance he wasn't required to do it in the workplace but he wasn't required to do it in response to this particular poster he didn't have a conversation with this deity who said you must act on that you must be a living witness for example on this particular activity and there are other course who've gone down this road and i think legitimately because it opens a wide door when the ninth circuit in wilson looked at a woman who out of conviction wore in abortion but button but didn't have to wear it on the outside is religious obligation i may be missing the point you're trying are but that's not what i'm saying i'm not asking this court to judge the sincerity or the tenets of his conviction i'm asking this court to sa now we have a different issue now the accommodation issue takes on a different meaning i still think that is not susceptible of accommodation however when he defines it as simply speaking out against evil and doesn't involve a command that take place in the workplace at admits that he can do and does freak out in other contexts now the accommodation is quite different and i guess we'll have to look at record i would find it very surprising  employer then i'm not required to think that only to say it's not a general obligation to go around making speeches about her or my memory just ran out of the examination is not crystal clear but i do know that it quoted in the record original record at kate's thirty nine forty in my questions of him going back and forth in terms of this concept and what it requires and doesn't have to go take place in the workplace i'd like to first address the issue that that castle just concluded within the court concluded with that is richard peterson i think it was taken out of context the statement that richard peterson vast you always have to say something in the workplace isn't there some other way that you can express yourself and they talk about writing letters to the editor or maybe making speeches in your church or something else richard peterson said yes but in this particular instance i felt the conviction of the holy spirit i felt that it was absolutely necessary for me to say this is who i am and to distance myself from this campaign and interestingly enough that same issue came up in the hollowing instance how we didn't brief the hollowing instance because it wasn't a part of the case and in fact if you look at the record carefully h p said what you did in how the how the incident has nothing to do with your terminations today now we find out in the appellate argument that all of a sudden it shows the true character richard peterson but if you take a look at the record pa level of the excerpts of record and page i believe one sixty seven of the excerpts of record you'll see that that richard peterson said he was deeply offended by what he thought was the tannic that is cards boards people dressed as which isn't devils that were at his workstation and he at that point did the same thing he put out a brochure that said this is what christians believe about the origins of hollowing he was told that is not appropriate religious expression in the direct expression of your opinion in the workplace and in that instance he took the grocer's and got rid of them he felt the same conviction but he he was able at that point he felt that he had made his point and what i'm saying is that those kinds of convictions are even measured response in twenty one years this is not a person who's trying to create trouble in the workplace this is a deeply since person with sincere religious beliefs who feels that he has to do something in that context to say that unless you can find a scripture in the bible that rick specifically mentions h p and tech support and says you have to speak up at h p really i think that that sincerely held should be enough in this case i think it's also consistent with mainstream protestant it made me stream a fundamental christian belief and in fact if you look at the first scripture the first scripture that you posted from second corinthians he said for we dare not make of ourselves of the number or compare ourselves with some that command themselves then call the understand the purpose of it was he was saying i don't want to make myself of the number of those who are saying this is ok i'm setting myself aside and print these as we dare not do that and he was saying that's his conviction we dare not do that and that the second issue on  hardships the employee was was creating when they've not really tried to accommodate and on that issue a great deal has been made that richard peterson wouldn't be accommodated and that in the end i think justice reinhardt pointed out that th comment that was neighbor richard peterson said well they're filthy and i can't you can't work with them that stands in stark contrast to the fact he had worked with them for twenty one years that that the record is clear at pages one seventy eight one seventy five and one eighty two where marilyn taylor sherry mcgrath in the fall of the three supervisor said that nobody ever complained about rich peterson's dealings with gays at the workplace this statement was made at the at the during the four meetings where he was sequestered with supervisors after you've been removed from his job and was told your jobs at stake and at that point he makes a comment that you know what are you going to do about it he says well i think they're filthy and all this other i mean put yourself in and he the point is whose duty is it to propose an accommodation at this point he says well take the posters that mean and then whatever but h p made no effort whatsoever to look into accommodating him in ways that they certainly could a the only thing they offered him was something prohibited by their policies set up a religious network group something specifically explicitly you'll find in the record at page one thirty six and one forty expressly prohibited by the policy was the only thing they offered him feels his religion does then see the way to find out what kind of accommodation will fit with your religious belief is to ask and they did and he told them two things that i thought it would have been acceptable and i think there a whether it's near that's true but the record like the one that he passed the one that was in the hallway that where he worked because there were different ones in different places finally your honor at the i don't think we ever got to the point of  whether or not this could be accommodated because i don't think h p wanted to go there and it's indicative by the way that this was handled by hewlett packard and i don't think we go to the parade of horribles that counsel gets to when he says well if we prove