Benjamin P. Endres, Jr., and United States of America, Intervening v. Indiana State Police

RIPPLE, Circuit J., with whom ILANA DIAMOND ROVNER and WILLIAMS, Circuit J., join,

dissenting from the denial of rehearing en banc.

Today, the court declines to rehear en banc a case that departs significantly from this court’s fundamental approach to statutory interpretation. In doing so, it sets our court apart from the other circuits with respect to a fundamental aspect of Title VII law and deprives those who serve us in important public safety positions from a protection that they enjoy in every other circuit in the United States. For the reasons set forth in the following paragraphs, I respectfully dissent from the denial of rehearing en banc.

Benjamin Endres was an officer for the Indiana State Police. After Indiana began to license casinos, the State Police designated some of its officers as Gaming

*928Commission Agents. In March 2000, Mr. Endres was designated as a Gaming Commission Agent and was assigned full time to the Blue Chip Casino in Michigan City, Indiana. Mr. Endres is a Baptist; he believes that gambling is a sin and that he must neither gamble nor help others to do so. As admitted by the court, although Mr. Endres did not object to enforcing general vice laws on casino property, Mr. Endres informed his supervisors that providing full-time services at the casino would violate his religious beliefs; he, therefore, requested a different assignment. The State Police refused. When Mr. Endres failed to report for duty, he was fired for insubordination. Mr. En-dres subsequently filed suit under Title VII and claimed that the State of Indiana failed to accommodate reasonably his religious beliefs.

In addressing his claim, the panel first noted, correctly, that “ § 701(j) does not require an accommodation that would cause more than minimal hardship to the employer or other employees.” Endres v. Indiana State Police, 2003 WL 22719177, slip op. at 5 (7th Cir. Nov. 19, 2003) (citing Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977)).

However, it then continued:

Juggling assignments to make each compatible with the varying religious beliefs of a heterogeneous police force would be daunting to managers and difficult for other officers who would be called on to fill in for the objectors. Whether or not a paramilitary organization could accommodate task-specific conscientious objection without undue hardship, however, the demand would not be reasonable— and § 701(j) calls only for reasonable accommodations.

Id. Comparing Mr. Endres’ request to that of the plaintiff in Ryan v. Department of Justice, 950 F.2d 458 (7th Cir.1991), the panel held that such a request is per se unreasonable in the context of a police or fire department. See id. at 5-6.

The panel’s disposition of Mr. Endres’ accommodation claim contains several crucial errors. First, the panel recharacter-izes the scope of the accommodation that Mr. Endres sought. Mr. Endres simply asked that he not be assigned on a permanent, full-time basis to a gambling establishment; he did not seek to avoid all law enforcement activity with respect to a casino. Consequently, his request did not either require the ongoing “[jluggling [of] assignments” or involve an officer choosing which law he would enforce — elements of Mr. Endres’ claim that the panel found so troubling.

The panel’s resolution also fails to adhere to the established law of this and every other circuit. Employing a less polemical characterization, this court has twice addressed accommodations that must be offered to law enforcement personnel who seek to avoid specific assignments on religious grounds. Most recently in Rodriguez v. City of Chicago, 156 F.3d 771 (7th Cir.1998), we addressed the request of a Catholic police officer to be exempted from assignments at abortion clinics. In evaluating the City’s alleged failure to accommodate, we reiterated the standard to be applied:

Under Title VII, therefore, an employer must reasonably accommodate an employee’s religious observance or practice unless it can demonstrate that such accommodation would result in an undue hardship to the employer’s business. Accordingly, we turn first to the issue of whether the City has satisfied its duty of reasonable accommodation; only if we answer that question in the negative need we proceed to the “undue hardship” prong of the Title VII analysis.

Id. at 775. Applying this standard, we determined that the City had satisfied its *929duty of reasonable accommodation because, under the existing collective bargaining agreement, the officer in question could have secured a transfer to a district without an abortion clinic without any reduction in his level of pay or benefits. See id. In an earlier case, Ryan v. United States Department of Justice, 950 F.2d 458 (7th Cir.1991), we reached a similar conclusion. Ryan was a Federal Bureau of Investigation agent who, on religious grounds, “repeatedly refused to carry out a lawful order to investigate an unsolved federal offense; he declined to swap assignments; he would not promise to carry out similar orders in the future .... ” 950 F.2d at 461. Although seeking to be removed from the investigation of any peaceful, antiwar protestors, “Ryan proposed no course other than discontinuing investigations of the sort to which he is opposed, which would be capitulation rather than accommodation.” Id. Under these circumstances, we determined the FBI had not failed to accommodate Ryan’s religious beliefs.

Notably absent from our resolution of either Rodriguez’s or Ryan’s claim, however, was a holding that the agencies were exempt from the statutory requirement of reasonable accommodation because of their law enforcement mission. Indeed, the panel in Endres acknowledges that “Ryan does not compel ” its conclusion. Endres, slip op. at 8. Quite the opposite, Ryan acknowledged the unreasonableness of the request to cease investigations when the perfectly reasonable solution of an assignment swap had been proposed and rejected:

Not only does the panel’s decision here abandon the 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. Congress took a different view. Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... religion.” 42 U.S.C. § 2000e-2(a)(l). Furthermore, Title VU’s definition of religion includes “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate ... an employee’s ... religious observance or practice without undue hardship on the conduct of the employer’s business.” Id. § 2000e(j). Neither the definition of religion, nor the definition of employer in § 2000e(b), suggests that law enforcement agencies, fire departments, or any other “paramilitary” employers are exempt from the reasonable accommodation provisions. Consequently, a law enforcement exception to the reasonable accommodation requirement finds no support in the plain language of Title VII.

I have no doubt that public safety agencies have a great deal of latitude in accommodating the religiously based requests of their employees for exemptions from particular duties. Both our previous case law and the case law of the other circuits make that proposition clear.1 But Congress sim*930ply did not determine that these agencies ought to be given a blanket exemption from the mandate of the statute, and, I respectfully suggest, Congress’ ability to determine the wisdom of such an exemption is far superior to ours. On a nationwide scale, public safety organizations come in many shapes and sizes. Some are highly professional; some are not. Some are relatively immune from prejudices, be they racial or religious or otherwise; some are not. Congress apparently saw no reason to exempt categorically such organizations from the plain mandate of the statute and preferred that the boundaries of the reasonable accommodation requirement be established in case-by-case adjudication.

The court’s decision to let this panel decision stand will raise, regretfully, many questions in the minds of many people. Public safety and emergency personnel, whose contributions to our daily lives are so much more appreciated these days, have every right to ask why this court has singled them out as not deserving of a statutory protection guaranteed to every other person in the United States. Members of minority religions, whose doctrines are not well-understood or appreciated in our culture, may well wonder whether municipalities within this circuit are the best place in which to make a public contribution. Hopefully, these doubts will be lessened by enlightened municipal management who certainly could ensure that those who serve us are protected despite this court’s decision to depart from the anti-discrimination standards enforced in the rest of the United States.

Members of the practicing judiciary and the practicing bar in this circuit also will be puzzled by this court’s departure from its usual methodology in interpreting statutes. Time and time again, we profess that, in interpreting a statute, we begin with the plain wording of the statute. Unless there is an ambiguity, we apply the explicit command of Congress. No one suggests that Congress has left any doubt as to what it expects in this situation. Unfortunately, however, our current deci-sional behavior does not follow the course of our rhetoric. In future cases, judges, attorneys, and litigants will have to accept the reality that they must observe not what we say, but what we do.

. See, e.g., Shelton v. Univ. of Med. & Dentistry of New Jersey, 223 F.3d 220, 228 (3d Cir.2000) (finding public hospital had reasonably accommodated Pentecostal nurse opposed to assisting with emergency abortions by offering her different assignment); Beadle v. City of Tampa, 42 F.3d 633, 637 (11th Cir.1995) (applying reasonable accommodation analysis and holding that excusing Seventh Day Adventist officer from all Friday evening and *930Saturday shifts would work an undue hardship); Miller v. Drennon, 966 F.2d 1443, 1992 WL 137578 (4th Cir. June 19, 1992) (applying reasonable accommodation analysis and finding that county had offered reasonable accommodations to emergency medical worker who was opposed to sharing one-room apartment with a member of the opposite sex when on twenty-four hour shifts).