Accommodating employees' beliefs

[Sanford Levinson]

I confess that I'm with Posner on this one.  The police should be treated
like mail deliverers.  I trust that few (I dare not say "no one") would
argue that the Post Office is under any conceivable duty to "accommodate" a
mail deliverer who says that delivering pro-choice material (or the
campaign material of pro-choice candidates) offends his/her conscience, any
more that we should accomodate the liberal deliverer who refuses to deliver
Nazi journals.  The public should be assured that every member of the
police force is imbued with a classic professional ethic that indeed, as I
have written elsewhere, "bleaches out" the private self and substitutes in
its stead a person committed to serving every member of the public without
reference to their religion, race, political views, etc.  If abortion were
the one and only issue in which "conscientious objection" might arise, I
might feel differentl, but I'm even tempted to quote Scalia approvingly,
from Smith, in regard to the practical anarchy of viewing the police
department as an "accommodating" agency.

Re Rodriguez:  What if an anti-abortion terrorist attacks an abortion
clinic in Area 1, and the dispatcher calls on the police from all areas to
converge to help out?  Surely Rodriguez has not right to hold back.  The
idea that a member of a police force is truly limited to the particular
area to which he or she is assigned is, I suspect, false, unlike, say, if
Rodriguez had left the Chicago department entirely and accepted employment
with a suburban department.

Sandy Levinson

At 06:59 PM 11/12/1998 EST, you wrote:
>Sorry -- Gremlins in the Justice Department computer system again!  Here
goes:
>
>Agreed.  Rodriguez -- especially Posner's quite startling concurrence --
>deserves attention, as I seem to recall Eugene suggesting at the time it was
>decided.  I'm appending below Posner's opinion.  The majority had decided,
>quite correctly, that the city satisfied Title VII's accommodation
requirement
>by permitting Rodriguez to use his accumulated seniority to transfer to a
>district that does not have an abortion clinic in it.  Posner agrees that the
>case is easily decided on that narrow and fairly unobjectionable ground; but
>he nonetheless upbraids his colleagues for declining to base their
decision on
>a much broader ground.  The absolute rule that Posner would have had the
court
>announce -- "in order to maximize the value of the decision in guiding the
>behavior of persons seeking to comply with the law" -- is that, as a
matter of
>law, police departments never, under any circumstances, need to accommodate
>religious (or other principled) objections to assignments.  To so rely upon a
>ground that is so obviously unnecessary to the judgment would be shocking
>enough as it is.  But I find his reasoning for such a rule especially
>perplexing.
>
>Posner argues that the reason departments should always be able to require
>officers to perform duties to which they have religious objections is "the
>loss of public confidence in governmental protective services if the public
>knows that its protectors are at liberty to pick and choose whom to protect."
>In particular, Posner asserts that, although "[t]he public knows that its
>protectors have a private agenda," nevertheless "it would like to think that
>they leave that agenda at home when they are on duty."  And:  "When the
>business of the employer is to protect the public safety, the maintenance of
>public confidence in the neutrality of the protectors is central to effective
>performance, and the erosion of that confidence by recognition of a right of
>recusal by public-safety officers so undermines the agency's effective
>performance as to constitute an undue hardship within the meaning of the
>statute."
>
>This seems backwards to me.  Wouldn't the public -- knowing that its
>protectors do have, in Posner's unfortunate words, "private agendas" -- have
>much more confidence in the police department if it knew that persons with
>moral objections to protecting certain categories of persons were *not*
>assigned to do just that?  For instance, if the public knows that the police
>department will offer some accommodations to officers with religious (and
>other) objections to abortion -- such as offering them transfers or
>alternative assignments -- a woman obtaining abortion services may, at least
>to some extent, take comfort in the fact that the police officers protecting
>her are likely persons who respect (or at least do not oppose) her right to
>obtain such services.  Under Posner's rule, by contrast, that woman will
>suspect that there's a good chance some of her "protectors" think she's
>committing a mortal sin, which would, in turn, understandably cause her to be
>somewhat uncertain about the zealousness or reliability of the protection
upon
>which she must depend.
>
>Posner's rule would, to be sure, "do[] a big favor for the bench and bar of
>this circuit, and for its police and fire departments," and no doubt would
>"serve to dispel uncertainty."  I even think there may be other, much
stronger
>arguments for the absolute rule that Posner would adopt.  But his rationale
>is, at the very least, counterintuitive.
>
>Marty Lederman
>(in my personal capacity)
>
>
>POSNER, Chief Judge, concurring.
> It is a matter of judgment whether to base the decision of an appeal on a
>broad ground, on a narrow ground, or on both, when both types of ground are
>available.  If the judges are dubious about the broad ground, then they will
>do well to decide only on the narrow ground;  but if they are confident of
the
>broad ground, they should base decision on that ground (as well as on the
>narrow ground, if equally confident of it) in order to maximize the value of
>the decision in guiding the behavior of persons seeking to comply with the
>law.  One of the most important things that appellate courts do is to
>formulate rules of law.  They would formulate very few rules, and leave the
>law in a state of considerable and avoidable uncertainty, if they always
chose
>to decide   a case on the narrowest possible ground.  It is true that the
>broader the ground, the more likely it is to sweep in cases that the judges
>cannot perfectly foresee, and this argues for caution in deciding cases on
>broad grounds, because there is greater risk of error, and for a willingness
>to carve exceptions as new cases imperfectly foreseen arise.  But I think
that
>we could prudently have gone further in this case than the majority opinion
>does to clarify the law governing the duty of public-safety agencies to
>accommodate the religious beliefs of their employees, rather than leave the
>law in a state of uncertainty which the majority opinion may actually
>increase.  The ground on which my colleagues have based decision is
>narrow--that the city made a reasonable effort to accommodate Officer
>Rodriguez's religious beliefs.  It is convincing, but we would be doing a big
>favor for the bench and bar of this circuit, and for its police and fire
>departments, and with little risk of error, if we made clear that police
>officers and firefighters have no right under Title VII of the Civil Rights
>Act of 1964 to recuse themselves from having to protect persons of whose
>activities they disapprove for religious (or any other) reasons.  Mr.
>Rodriguez, a Chicago police officer, claims, I have no reason to doubt
>sincerely, that it violates his religious principles to guard abortion
>clinics.  He is entitled to his view.  He is not entitled to demand that his
>police duties be altered to   conform to his view any more than a volunteer
>member of the armed forces is entitled to demand that he be excused from
>performing military duties that conflict with his religious faith (I specify
>"volunteer" because the claim of a conscripted soldier is stronger, see Welsh
>v. United States, 398 U.S. 333, 344, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970);
>United States v. Seeger, 380 U.S. 163, 185-87, 85 S.Ct. 850, 13 L.Ed.2d 733
>(1965)), or than a firefighter is entitled to demand that he be entitled to
>refuse to fight fires in the places of worship of religious sects that he
>regards as Satanic.  The objection to recusal in all of these cases is not
the
>inconvenience to the police department, the armed forces, or the fire
>department, as the case may be, though that might be considerable in some
>instances.  The objection is to the loss of public confidence in governmental
>protective services if the public knows that its protectors are at liberty to
>pick and choose whom to protect.
> The public knows that its protectors have a private agenda;  everyone does.
>But it would like to think that they leave that agenda at home when they are
>on duty--that Jewish policemen protect neo-Nazi demonstrators, that Roman
>Catholic policemen protect abortion clinics, that Black Muslim policemen
>protect Christians and Jews, that fundamentalist Christian policemen protect
>noisy atheists and white-hating Rastafarians, that Mormon policemen protect
>Scientologists, and that Greek-Orthodox policemen of Serbian ethnicity
protect
>Roman Catholic Croats.  We judges certainly want to think that U.S. Marshals
>protect us from assaults and threats without regard to whether, for example,
>we vote for or against the pro-life position in abortion cases.
> All that an employer must show to avoid liability for religious
>discrimination in employment is that "he is unable to reasonably accommodate
>to an employee's or prospective employee's religious observance or practice
>without undue hardship on the conduct of the employer's business."  42 U.S.C.
>2000e(j). The Chicago Police Department reasonably accommodated Rodriguez by
>allowing him to use his accumulated seniority to transfer to a district that
>does not have an abortion clinic in it.  The only inconvenience to Rodriguez
>is that he would miss the "camaraderie" of the Fourteenth District.  This
is a
>trivial inconvenience.  But I do not think that the Department was
required to
>accommodate Rodriguez's religious aversion to protecting abortion clinics
even
>to the limited extent that it did.  The importance of public confidence in
the
>neutrality of its protectors is so great that a police department or fire
>department or equivalent public-safety agency that decides not to allow
>recusal by its employees should be able to plead "undue hardship" and thus
>escape any duty of accommodation.  Ryan v. Department of Justice, 950 F.2d
>458, 462 (7th Cir.1991);  Beadle v. City of Tampa, 42 F.3d 633, 637-38 (11th
>Cir.1995);  United States v. City of Albuquerque, 545 F.2d 110, 114 (10th
>Cir.1976);  cf.  Jones v. City of Gary, 57 F.3d 1435, 1442 (7th Cir.1995).
> Both Ansonia Board of Education v. Philbrook, 479 U.S. 60, 67, 107 S.Ct.
367,
>93 L.Ed.2d 305 (1986), and Trans World Airlines, Inc. v. Hardison, 432 U.S.
>63, 84, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977), hold that anything more than a
>de minimis cost to the employer is undue hardship within the meaning of Title
>VII. It is undue hardship in spades when the necessary accommodation would
>strike a body blow to the employer's business.  When the business of the
>employer is to protect the public safety, the maintenance of public
confidence
>in the neutrality of the protectors is central to effective performance, and
>the erosion of that confidence by recognition of a right of recusal by
public-
>safety officers so undermines the agency's effective performance as to
>constitute an undue hardship within the meaning of the statute.  Although the
>principle that public-safety officers have no right to pick and choose on
>religious or other personal grounds among the people whom they protect
applies
>to all police officers employed by any public police force, including the
U.S.
>Marshals Service, the FBI, and the Secret Service, and to all firefighters
>employed by public fire departments, I would reserve the case we put at
>argument, of a fire department paramedic who refuses on religious grounds to
>obey an order by his superiors to withdraw life support from a patient.  That
>would be a case of a public-safety officer insisting on   protecting all
>members of the public rather than refusing to protect some of them.  It would
>thus be a different case from the present one and we need not decide today
how
>it ought to be decided.
> Our decision in Ryan, which upheld the discharge of an FBI agent who refused
>on religious grounds to investigate antiwar activists, comes so close to
>enunciating the principle that I am urging that the failure of the majority
>opinion even to cite that case may be taken as expressing doubts about the
>validity of the principle.  I hope not, but it is another reason why deciding
>this case on the broader ground would serve to dispel uncertainty.
>
>
>
>
>-----Original Message-----
>From: Alan Gunn
>Sent: Thursday, November 12, 1998 11:21 AM
>To: RELIGIONLAW at LISTSERV.UCLA.EDU@inetgw2
>Subject: Accommodating employees' beliefs
>
>
>        Rodriguez v. City of Chicago, 156 F.3d 771 (7th Cir. 1998) deserves
>attention. The plaintiff was a police officer who, for religious reasons,
>did not want to be assigned to protect abortion clinics. His superiors
>offered him a transfer to a district that had no abortion clinic, a choice
>which he didn't like for other reasons. Per the majority, this was
>accommodation enough, so he loses. Judge Posner's concurrence said that no
>accommodation at all was needed; police officers have to protect those of
>whose activities they disapprove just as well as those they approve of
>(giving many illuminating examples).
>        Posner's position strikes me as obviously right, but disturbing:
there
>are
>instances in which people must do things that they see as contrary to their
>beliefs (or get out of their line of work), but it is in everybody's
>interest that things be arranged so that these instances are few. So the
>department's actions in Rodriguez, even if not required by law, made a lot
>of sense. (In addition to the offer to transfer, the department tried not
>to assign Rodriguez to the clinic detail whenever possible, let him take
>leave when assigned, etc.). This could get troublesome, though, if other
>officers complain that they are stuck with the extra duty at the clinics.
>        All of this seems relevant to a much more fundamental matter than the
>technicalities of accommodation: can we get anything other than the
>extremes of anarchy (at least for the religious) and suppression of
>religion if the law tries--as it so often does--both to compel
>"nondiscrimination" (in things like hiring, schooling, and employment) and
>"accommodation"? I think not, or at least not very well. A public school
>that seeks both to teach conventional science and to avoid offending
>biblical literalists, a religious school that doesn't "discriminate"
>against nonbelievers in hiring teachers, or janitors, but which then tries
>to "accommodate" those people's views, etc., will not be a success. For
>effective protection of religious belief and practice, while at the same
>time trying to let people get on with their lives, we need a diversity of
>institutions, a diversity quite inconsistent with extensive government
>regulation of employment practices, admissions to schools, and the like. In
>other words, we need a set of institutions that allows people to sort
>themselves out in ways that let them achieve their various and sometimes
>incompatible goals. To take as an example the subject of a current thread,
>a school (or a voucher system) that allows everybody to take off on the
>holidays of that person's religion could hardly teach, given a sufficiently
>diverse student body; a set of schools that get to make their own rules
>about these things could teach and meet believers' needs.
>
>
>Alan Gunn
>Notre Dame Law School
>