On June 28 the Indiana Law Blog reported on two decisions involving, as stated at the time:
questions of discrimination against individuals because of their religious beliefs. The first, Benjamin Endris v. Indiana State Police, concerns a former state trooper who was was dismissed after refusing to work on a riverboat casino because of his religious beliefs.According to the Star's coverage at the time: "Ex-welfare worker's lawsuit gets OK: 2 who said they were victims of religious discrimination by state get different results":The second involves a woman who, according to the Star story: "had to remove her head wrap, called a geles. If she failed to do so, she was told, she would be written up for insubordination for violating the dress code." The case is Holmes, Patricia v. Marion County Office of Public Welfare (02-1377).
Benjamin P. Endres Jr., who refused to work at the Blue Chip Casino in Michigan City in 2000, lost his lawsuit. Patricia Holmes, however, was allowed to proceed with her suit.But that was not the 7th Circuit's last word on the matter. Today the 7th Circuit issued separate rulings on each dispute, each with an explanatory preface. Here is the one for the Endris ruling, the Holmes' is similar, insofar as the first paragraph is concerned:
This appeal originally was consolidated with No. 02-1377, Holmes v. Marion County Office of Family and Children, and the two appeals were decided in a single opinion, which is reported at 334 F.3d 618 (7th Cir. 2003). In response to the petition for rehearing and rehearing en banc, the court has decided to de-consolidate the appeals and to issue a separate opinion in each. The panel’s opinion resolving this appeal follows.Judge Easterbrook authored this 11/19/03 opinion, Endres v. Indiana State Police. Endres sued under Title VII of the Civil Rights Act of 1964, contending that Indiana discriminated against him on account of religion. Endres relied on a definition in §701(j) of that Act which provides that religion “includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates 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.”All members of the panel have voted to deny the petition for rehearing. A judge in active service called for a vote on the petition for rehearing en banc. A majority did not favor rehearing, so the petition is denied. Judges Ripple, Rovner, and Williams voted to grant rehearing en banc. Judge Ripple has written a dissenting opinion (joined by Judges Rovner and Williams) that immediately follows the panel’s new opinion.
Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
Endres contends that §701(j) gives law-enforcement personnel a right to choose which laws they will enforce, and whom they will protect from crime. Many officers have religious scruples about particular activities: to give just a few examples, Baptists oppose liquor as well as gambling, Roman Catholics oppose abortion, Jews and Muslims oppose the consumption of pork, and a few faiths (such as the one at issue in Smith) include hallucinogenic drugs in their worship and thus oppose legal prohibitions of those drugs. If Endres is right, all of these faiths, and more, must be accommodated by assigning believers to duties compatible with their principles. Does §701(j) require the State Police to assign Unitarians to guard the abortion clinic, Catholics to prevent thefts from liquor stores, and Baptists to investigate claims that supermarkets mis-weigh bacon and shellfish? Must prostitutes be left exposed to slavery or murder at the hands of pimps because protecting them from crime would encourage them to ply their trade and thus offend almost every religious faith?As might be guessed from the preceding, the panel ruled no, the "decision of the district court is reversed, and the case is remanded with instructions to enter judgment for the State Police on the merits." Three judges issued a written dissent from the denial of rehearing in banc. A quote:
Not only does the panel’s decision here abandon theIn Holmes v. Marion County Office of Family and Children (11/19/03), §701(j) of the Civil Rights Act is again at issue.
analytical framework of Rodriguez and Ryan, it also ignores the clear language of the statute. It simply blue pencils the reasonable accommodation requirement from the statute as it applies to police and fire personnel. It relies on no language of the statute, no interpretive regulation, no legislative history. It simply constructs a categorical statutory amendment where none exists.
Patricia Holmes, an employee of Indiana’s child-welfare system, took two days of paid leave rather than comply with a directive to remove a headwrap required by her faith. She filed suit under Title VII of the Civil Rights Act of 1964, contending that Indiana discriminated against her on account of her religion. She relies on a definition in §701(j) of that Act, 42 U.S.C. §2000e(j), which provides that religion “includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates 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.”Initially the court finds that, in spite of a prior ruling, "county offices of family and children in Indiana now must be classified as part of the state for purposes of the eleventh amendment. This does not require the overruling of Baxter, which dealt with superseded legislation." Then to the second issue:
Thus we arrive at the question whether a claim against a state, based on the accommodation clause of §701(j), may be litigated in federal court. The parties’ dispute concerns venue, not substance: it is the validity of §701(a), to the extent it authorizes private parties to sue a state in federal court, and not the validity of §701(j), that is at issue—for legislation based on the commerce clause may be applied to states (as employers) via suits brought by the federal government in federal court, or via private suits in state courts that are already open to litigation against the state.Ultimately the court ruled no and vacated the decision of the district court, remanding the case "with instructions to dismiss that portion of the complaint that alleges failure to accommodate, while retaining that portion of the complaint that alleges disparate treatment." Posted by Marcia Oddi at November 19, 2003 06:49 PM