RE: FW: 75% of Minneapolis airport taxis refusecustomerswithalco hol
Because of the Sabbath and Yom Kippur, I am just catching up with the threads of the past few days. I wanted to add a note to the discussion about the Muslim taxi drivers. There was a lot flying and I can't find the original posting describing exactly the system of color coded cabs, so forgive me if this precise point has been made. I am responding to the Greg Sisk thread that speaks most closely to my own views but wanted to lay out a more specific approach that I think captures his conceptual approach. Most of the other postings I read argue that, in this situation pitting the rights of Muslim employees against those passengers who carry alcohol, the law should favor one or the other in most or all situations. But a number of us have been arguing that in situations involving valid competing interests (e.g. the pharmacist or nurse with objections to certain prescriptions or provision of services) efforts should be made to better accommodate the interests on both sides. This is a variant of what Greg (and I think Eugene) was arguing for. In the case of the taxi drivers, if there is another taxi available at the time service needs to be provided, the religious objections should always be accommodated. But since provision of transportation is the essential function of the position the employer has been licensed to provide to the public, if there is no accessible alternative available, the taxi driver needs to provide the services. The notion, for example, that in a small town with half a dozen drivers, that in a snow storm, your elderly aunt could be left stranded (by a government licensed transportation provider) indefinitely or altogether after shopping, because she is carrying alcohol home, where the only drivers are of the color code for "won't carry" is deeply problematic. So, on the one hand, if someone won't perform the essential function of the job in those circumstances where they are the only accessible provider, they ought not to work in that profession or work in a locality where there are alternatives available. On the other, when someone is available to replace them, they always ought to be accommodated. In the same way, I would argue that pharmacists or nurses should always be accommodated when (in a pharmacy or hospital providing particular services) there are others to provide needed services but need to accept their responsibility to provide such services to which they object when no one else is available to provide them. (Hope the analogy doesn't stir another hornet's nest of debate :-)). This schema, of course, requires the kind of case by case analysis to which Greg referred in his posting (how long can reasonably someone be made to wait while a substitute is found and dispatched? Is referring them to another accessible provider who has fewer objectors a legitimate resolution?) But nonetheless this approach has the advantage of taking reasonable steps to accommodate the competing rights of both parties as fully as possible. At the risk of stepping over the boundaries our moderator set between legal and religious issues, I hope you will, in the words of the Jewish blessing, accept my best wishes for a Jewish new year of sweetness, peace and health for you and your loved ones. David -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Sisk, Gregory C. Sent: Saturday, September 30, 2006 5:11 PM To: 'Law & Religion issues for Law Academics' Subject: RE: FW: 75% of Minneapolis airport taxis refusecustomerswithalco hol To piggy-back on Eugene's point, such accommodation is not only wise public policy (in my view), but is wise employer behavior, not only to maintain higher morale but also to ensure higher quality of work. As an example, when I was an appellate lawyer at the Department of Justice, it was openly offered to us that should we have a strong moral or religious objection to working on a particular case, we should express it, would be released from the case, and this would have no detrimental effect on our review. I took advantage of that offer on only one occasion, when the government (as I recall the matter from many years later) was objecting to a religious seminary's refusal on religious grounds to accept a returning student who had interrupted his religious training for military service. In my view, this offended the seminary's religious liberty and I was morally unwilling to cooperate with the government in that intrusion. As former Judge Patricia Wald of the United States Court of Appeals for the District of Columbia Circuit commented on this very policy: "With changes in administrations, many government counsel understand that, at least in DOJ, lawyers are not required, at the peril of ending their careers, to represent government policy that collides with their most fundamental beliefs. (The "don't ask, don't tell" policy
RE: FW: 75% of Minneapolis airport taxis refusecustomerswithalco hol
To piggy-back on Eugene's point, such accommodation is not only wise public policy (in my view), but is wise employer behavior, not only to maintain higher morale but also to ensure higher quality of work. As an example, when I was an appellate lawyer at the Department of Justice, it was openly offered to us that should we have a strong moral or religious objection to working on a particular case, we should express it, would be released from the case, and this would have no detrimental effect on our review. I took advantage of that offer on only one occasion, when the government (as I recall the matter from many years later) was objecting to a religious seminary's refusal on religious grounds to accept a returning student who had interrupted his religious training for military service. In my view, this offended the seminary's religious liberty and I was morally unwilling to cooperate with the government in that intrusion. As former Judge Patricia Wald of the United States Court of Appeals for the District of Columbia Circuit commented on this very policy: "With changes in administrations, many government counsel understand that, at least in DOJ, lawyers are not required, at the peril of ending their careers, to represent government policy that collides with their most fundamental beliefs. (The "don't ask, don't tell" policy on gays in the military is one example, I am told, where lawyers sincerely opposed to the policy are excused from defending it.) This kind of leeway is wise policy for an agency; given that the government is a vast enterprise required to take on a multitude of subjects, the possibilities of both conflict and substitution are greater. It is also wise for government counsel to take their employer up on the offer: Their discomfort is often discernible to the court, and no government counsel should be asked to ignore deeply felt convictions (so long as he does not have too many)." Patricia M. Wald, "For the United States": Government Lawyers in Court, 61 Law & Contemp. Probs. 107, 121 (Winter 1998). I'd submit that it is wise policy as well for most employers considering religious accommodation requests, even if the First Amendment or Title VII doesn't require it. Greg Gregory Sisk Professor of Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 [EMAIL PROTECTED] http://personal2.stthomas.edu/GCSISK/sisk.html -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Saturday, September 30, 2006 3:28 PM To: Law & Religion issues for Law Academics Subject: RE: FW: 75% of Minneapolis airport taxis refusecustomerswithalco hol Well, we started with "people hired to do a job, should do it." Now we're at "people hired to do a job, should do it on the days that they are willing to do it, even though they can get an exemption from the schedule the job usually required." Why not have an alternative vision -- "people hired to do a job, should do it, but if they have serious moral or religious objections to some aspect of the job, we should try to accommodate them when such an accommodation wouldn't be that hard"? That, I take it, is the way many jobs are run. If you're doing research on pornography that requires accessing sexually themed material, and the secretary or librarian you ask to help you says "I wonder whether I might hand this off to my colleague who doesn't have my religious objections to it," I take it you'd say "Sure," at least if the hand-off will be relatively simple. If some small part of a biological research task involves vivisection of small animals, and one of the researchers offers to trade off this task with a colleague, I'd think the supervisor would be and should be happy to oblige. Why should the words "common carrier" magically dissolve this laudable willingness to accommodate? Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Paul > Finkelman > Sent: Saturday, September 30, 2006 1:19 PM > To: religionlaw@lists.ucla.edu > Subject: RE: FW: 75% of Minneapolis airport taxis > refusecustomerswithalco hol > > not about days off, but about doing the job on the days you > work; one is an accommodation to religious needs but it gets > the job done and leaves NO discretion to the employee to > decide who to serve and who not to serve; this system means > some people won't get picked up and won't know why and sets > the stage for discrimination. the day off does not exempt > workers from doing the job when they are at work; the Minn. > program does. > > Paul Finkelman > President William McKinley Distinguished Professor of Law > and Publi
RE: FW: 75% of Minneapolis airport taxis refusecustomerswithalco hol
(1) The fact that we limit businesspeople's freedom of choice when it comes to discriminating against customers based on race, religion, sex, and so on doesn't mean that we ought to limit it as to everything else. (2) In particular, I don't know of any rules that bar Muslim grocers from refusing to serve people who are carrying six packs from other stores, nor do I see why there should be such rules. Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Paul > Finkelman > Sent: Friday, September 29, 2006 8:45 PM > To: religionlaw@lists.ucla.edu; [EMAIL PROTECTED] > Subject: RE: FW: 75% of Minneapolis airport taxis > refusecustomerswithalco hol > > Again, the employement compesation is different; this is > about a duty of common carriers to accept all people. > Moreover, it opens too many other exceptions -- pagan > symbols, race mixing (Bob Jones Cab Co. won't pick up mixed > race couples); I think we all think of many examples of how > very religious people can find a religious reason for not > picking up someone; can a muslim tow truck driver refuse to > tow the broken Miller Beer Truck? Can the Muslim bus driver > close the door on the overtly pagan kids trying to get on the > bus; can Muslim Cabbies (or Evangelical > Christians) refuse to carry Wickens? Where, I would ask, > would Greg or Eugene draw the line -- on common carries and > places of public accommodations? The Muslim grocer can close > on Friday and refuse to carry beer; but he cannot refuse to > sell to someone who bought beer next store and is legally > carrying a six pack (closed of course) as he tried to by > chips and salsa in the Muslim store. By the way, if they > meet other criteria, would favor unemployment compensation > for Muslin cabbies who quit because they cannot obey the law > which requires them to take all passengers. > > Paul FInkelman > > Paul Finkelman > President William McKinley Distinguished Professor of Law > and Public Policy > Albany Law School > 80 New Scotland Avenue > Albany, New York 12208-3494 > > 518-445-3386 > [EMAIL PROTECTED] > >>> [EMAIL PROTECTED] 09/29/06 6:45 PM >>> > It seems to me that the right question is whether the > religious accommodation may be made in a manner that does not > cause an unacceptable burden to others. Whether or not such > an accommodation is compelled, in the post-Employment > Division v. Smith period, it surely is not prohibited. > > > > Being here in Minneapolis as I am, I can report that this > story has received significant play in the press. And, > interestingly, this appears to be a case in which all the > parties concerned are behaving with courtesy and respect in > an attempt to find the right balance and live together in a > community without being forced to surrender faith. The > Muslim cab drivers agree that they would not inquire as to > what a person is carrying - the Koran does not impose such a > duty of inquiry - so any alcohol included in baggage would > not be known to or covered by the their refusal to accept the > carriage of alcohol. The concern is for visible carrying of > alcohol (although not just in open containers, as Paul > Finkelman correctly assumed). > The Muslim cab drivers further have agreed that they would > place a different colored light on their cabs, so that the > attendants for the cab waiting line at the airport would > simply direct the next passenger in line who is visibly > carrying alcohol to the next cab in line that does not have > the different light. In most cases, this would occur so > unobtrusively that the passenger wouldn't even know what has > just occurred. In this way, every passenger still will > receive cab service in the order in which he or she appears > in the cab waiting line, while the Muslim cab drivers may > face a temporary wait for the next passenger without alcohol, > a minor burden placed on and accepted by the Muslim community > in exchange for accommodation of their deeply-held beliefs. > Please keep in mind as well that this is Minneapolis-St. Paul > - not New York or Washington, D.C. - so that most passengers > arriving at the airport are not taking cabs and thus > accommodation for the relatively few passengers who do take > cabs is made all the easier. > > > > Eugene's point of comparison with unemployment beneficaries > is quite apt, in light of recent events in Germany. As he > says, drawing the comparison with the Muslim cab drivers, > "One could equally well say that unemployment beneficiaries > must take any job fo
RE: FW: 75% of Minneapolis airport taxis refusecustomerswithalco hol
Well, we started with "people hired to do a job, should do it." Now we're at "people hired to do a job, should do it on the days that they are willing to do it, even though they can get an exemption from the schedule the job usually required." Why not have an alternative vision -- "people hired to do a job, should do it, but if they have serious moral or religious objections to some aspect of the job, we should try to accommodate them when such an accommodation wouldn't be that hard"? That, I take it, is the way many jobs are run. If you're doing research on pornography that requires accessing sexually themed material, and the secretary or librarian you ask to help you says "I wonder whether I might hand this off to my colleague who doesn't have my religious objections to it," I take it you'd say "Sure," at least if the hand-off will be relatively simple. If some small part of a biological research task involves vivisection of small animals, and one of the researchers offers to trade off this task with a colleague, I'd think the supervisor would be and should be happy to oblige. Why should the words "common carrier" magically dissolve this laudable willingness to accommodate? Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Paul > Finkelman > Sent: Saturday, September 30, 2006 1:19 PM > To: religionlaw@lists.ucla.edu > Subject: RE: FW: 75% of Minneapolis airport taxis > refusecustomerswithalco hol > > not about days off, but about doing the job on the days you > work; one is an accommodation to religious needs but it gets > the job done and leaves NO discretion to the employee to > decide who to serve and who not to serve; this system means > some people won't get picked up and won't know why and sets > the stage for discrimination. the day off does not exempt > workers from doing the job when they are at work; the Minn. > program does. > > Paul Finkelman > President William McKinley Distinguished Professor of Law > and Public Policy > Albany Law School > 80 New Scotland Avenue > Albany, New York 12208-3494 > > 518-445-3386 > [EMAIL PROTECTED] > >>> [EMAIL PROTECTED] 09/30/06 4:09 PM >>> > Greg's analysis seems entirely right to me. To add > just one item, would we respond to religious requests for > days off with "You were hired to do a job Tuesday to > Saturday, do it?" Say that taxicabs were expected to be on > duty Monday through Friday until 10 pm, and someone asked for > an exemption for Friday evenings. Should we just reject such > a request, on the theory that there may be other such > requests that would be too burdensome? Or should we see if > we can accommodate the person (for instance, because there > are enough other cab drivers who are willing to work Friday > evenings)? The question here, recall, isn't even whether the > airport authority has a state constitutional obligation to > accommodate the religious objection -- only whether it's > proper for it to do so if it wants to. > > Eugene > > > -Original Message- > > From: Sisk, Gregory C. [mailto:[EMAIL PROTECTED] > > Sent: Saturday, September 30, 2006 11:20 AM > > To: 'Paul Finkelman'; Volokh, Eugene; 'religionlaw@lists.ucla.edu' > > Subject: RE: FW: 75% of Minneapolis airport taxis refuse > > customerswithalco hol > > > > It's only hard to imagine that telling a Muslim cab driver to > > knowingly assist someone in transporting alcohol could be a > burden on > > faith if you're unwilling to put yourself, even for a > moment, in that > > person's shoes and consider the matter from the point of > view of the > > believer involved, rather than insisting upon evaluating by > one's own > > worldview. The sincerity of the Muslim cab drivers is > denied by no one > > who is familiar with the situation here in the Twin Cities. They > > sincerely believe that they are directly assisting evil if they > > knowingly participate in the transportation of an illicit > substance. > > That's not my worldview either, but I have no difficulty > understanding > > it and see no reason not to respect and accommodate to it. > > > > Paul's absolutist standard of "if you're hired to do a job, just do > > it" is so rigid that it would lead to innumerable instances of > > injustice and disrespect for diversity in our society, as well as > > create situations in which certain elements of the economy >
