Doug could also have pointed to many such instances in the analogous area of religious accommodation of employees. In both reported and unreported cases it is quite common for a new supervisor to cancel an accommodation for no apparent reason although proving an illicit motive is often impossible. In some cases, the cancelled accommodation may have been improvidentally granted but in most cases I have seen the best that can be said is that the supervisor is simply flexing muscle to show who is in charge Marc
----- Original Message ----- From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> To: religionlaw@lists.ucla.edu <religionlaw@lists.ucla.edu> Sent: Mon Jun 22 23:49:38 2009 Subject: Re: still waiting for concrete examples This e-mail reveals a very important fact. A new chief arrived who said rules are rules and no exceptions. This is a very common story -- exemptions are granted and cause no problems, the institution functions just fine and its employees, students, clients, whatever, can practice their religion. Then a new administrator comes in and says screw this crap about exception; there aren't going to be any exceptions. That's the story here. That's the story in Mozert v. Hawkins County Board of Ed. That's the story in the case of the kid at the University of Nebraska who didn't want to live in the dorm. I don't remember for sure, but I think that was the case in Swanson in the 10th Circuit, where a home schooler wanted to take a course or too at the the school. Quoting artspit...@aol.com: >> Marci asks: Why [didn't the Fire Dep't] just give up and let everyone >> wear a beard? >> > Because (a) that would mean admitting they were wrong, and (b) a Fire Dep't > is a paramilitary organization and the two new chiefs from out of town who > imposed this policy think beards look scuzzy -- the new chief who first > imposed this "safety" policy simultaneously banned dreadlocks and religious > headcoverings, with no plausible safety rationale. > > To give the Department more credit (perhaps more than due), it's following > a policy of erring on the side of safety. But for RFRA, that policy would > apply to all firefighters. Under RFRA, the Department should have thought > seriously about whether it could accommodate a few beards. But the Fire > Chief's attitude was "orders are orders." Much as Judge Robertson > apparently doesn't like RFRA, he took his responsibility more > seriously and found > that in a department with hundreds of firefighters, of course a few could be > accommodated, even assuming that without accommodation their safety would be > compromised in the rare hypothetical situation (it's never yet occurred) > posited by the Department. > > I was puzzled by the Judge's complaint about RFRA. It may have its > problems, but the fact that it "imposes upon the courts of the United > States the > duty of 'striking sensible balances between > ... competing ... interests,'? is hardly a legitimate ground for > complaint. Judges strike (hopefully) sensible balances between > competing interests > every time they sit in equity. > > Art S. > > > In a message dated 6/22/09 9:09:42 PM, hamilto...@aol.com writes: > > >> Art-- We may only be talking to each other at this point, but the facts >> matter in these cases. So why do you think DC moved to an across-the-board >> rule regarding beards and why does the rule appear in fire companies >> across the country? If it was all a pretext, why not just give up and let >> everyone wear a beard? >> >> >> In a message dated 6/22/2009 9:03:23 P.M. Eastern Daylight Time, >> artspit...@aol.com writes: >> >> In a message dated 6/22/09 1:31:13 PM, Hamilton02 writes: >> >> >> I have to ask Art one question-- It seems quite clear from the record >> that there really is a danger to those with facial hair in responding to >> emergencies.... >> >> >> Those not interested in the minutiae of the case can press delete now. >> I've pasted below a short (500 word) excerpt on safety from my opposition to >> the Fire Department's petition for rehearing. The petition was denied. >> >> Art >> >> III. This Case Does Not Present a Serious Issue of Public Safety. >> >> The District urges the Court to apply a ?particularly strong? >> preference for resolving this case on the merits, because ?public >> safety is at >> issue.? Pet. at 8. But the district court's judgment poses no threat to >> public safety. >> The D.C. Fire Department, as a matter of official policy, allowed >> hundreds of firefighters to wear beards from sometime before 1973 until >> mid-2005. [Citation.] While initially limited to men with a skin >> condition, from >> 1994 until 2005 all employees were permitted to wear beards, and many did. >> [Citation omitted.] It is uncontradicted that these thousands of man-years >> of bearded firefighting did not result in a single safety problem. >> [Citation.] >> At the very outset of this litigation, the retired Chief of Safety of >> the F.D.N.Y. explained in detail why facial hair does not undermine the >> safety of an SCBA [Self-Contained Breathing Apparatus]. [Citation.] Faced >> with that compelling evidence, the Fire Department did not appeal the >> preliminary injunction issued at that time, and made no effort to pursue the >> litigation in the district court for four years, during which time all >> firefighters remained free to wear beards. [Footnote omitted.] That >> changed in >> 2005, when the district court grew tired of having this case sit >> dormant on its >> docket and ordered the Fire Department to file within 15 days ?a plain >> statement of what its official policy is with respect to facial >> hair.? R. Doc. >> 60. Seventeen days later the Department announced the new policy that is >> at issue in this case. R. Doc. 61. >> When called before the district court to justify the new rule, the >> Fire Department represented--at length and unambiguously--that its safety >> concern was limited to the use of negative-pressure respirators in >> circumstances not requiring the greater protection of SCBAs. >> [Citation.] The >> Department explained that ?what we're worried about is a situation >> where you have >> to go into a contaminated area for an extended period of time,? and an SCBA >> would not be suitable because ?once the air runs out, that's it,? while ? >> negative pressure masks . . . will allow them to work. They can work the >> eight hours. [Citation.] That explanation never changed until after summary >> judgment had been entered. >> The district court rejected the District's argument on the ground >> that it had not adduced credible evidence that in such a situation ?bearded >> firefighters . . . could not be redeployed either 'up' to areas of duty >> where SCBA use is required, or 'down' to cold zones where no respiratory >> protection is needed.? Mem. Op. at 19. The District did not >> contest that ruling >> on appeal. >> The record here should therefore leave the Court entirely comfortable >> that its affirmance of the district court's judgment creates no danger to >> the public safety of the District of Columbia. The handful of bearded >> firefighters and paramedics protected by the permanent injunction in >> this case >> can hardly be cause for alarm in light of the undisputed fact that the D.C. >> Fire Department protected the city for more than 30 years with hundreds of >> bearded firefighters, without a single beard-related safety incident. >> >> > > > > > ************** > An Excellent Credit Score is 750. See Yours in Just 2 Easy > Steps! > (http://pr.atwola.com/promoclk/100126575x1221823273x1201398689/aol?redir=http://www.freecreditreport.com/pm/default.aspx?sc=668072&hmpgID=62& > bcd=JuneExcfooterNO62) > Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713
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