Monday, February 10, 2003
Appellate Judge, in Belated Dissent, Criticizes Ruling Rejecting Police Cadet’s Claim of Religious Bias
By a MetNews Staff Writer
A Ninth U.S. Circuit Court of Appeals decision rejecting a Washington State Patrol cadet’s claim that he was forced to resign from the academy because officials would not accommodate his religious beliefs was wrong and should have been reviewed en banc, a judge said Friday.
Judge Marsha Berzon, in a belated dissent from the court’s Jan. 3 denial of en banc rehearing, criticized the decision of a divided three-judge panel. Judges Harry Pregerson, Stephen Reinhardt, A. Wallace Tashima, and Richard Paez joined in Berzon’s dissent.
The panel ruled on July 12 that Gregory Lawson was not constructively discharged, but simply chose to resign, upon concluding that he could not reconcile the agency’s oath and mandatory flag salute with his beliefs as a Jehovah’s Witness.
Judge Richard Tallman, writing for the panel, said the academy staff was not required to “make extraordinary efforts to talk [Lawson] out of leaving.” Senior Judge Thomas M. Reavley of the Fifth Circuit, sitting by designation, concurred, while Senior Judge Betty B. Fletcher dissented.
Fletcher argued that Lawson was committed to a law enforcement career and would have remained at the academy had the Washington State Patrol been willing to accommodate his religious beliefs.
Lawson’s declaration, in which he swore that he told his superiors he did not wish to resign but felt compelled to because of policies which were contrary to his beliefs, and that he was told that the patrol could do nothing accommodate those beliefs, was sufficient to create a triable issue as to whether he was constructively discharged, Fletcher said.
Berzon Friday argued that Fletcher was correct and that the court should have taken the case en banc. Under the ruling, she said, an employee could never sue for religious discrimination in employment based on lack of reasonable accommodation unless the employee first violates an applicable rule and is subjected to or threatened with adverse action.
“This holding is squarely contrary to Supreme Court precedent, to the EEOC’s consistent interpretation of the statute, and to good sense,” Berzon wrote.
His employer’s failure to accommodate Lawson’s religious beliefs was itself an illegal employment practice, the dissenting jurist said, regardless of whether adverse employment action was taken.
The state patrol, she elaborated, made it clear to Lawson that he had only two choices—violate his religious beliefs, or resign. The fact that he did not violate rules and risk being terminated for insubordination before resigning should not deprive him of his cause of action, the judge said.
“The forebears of many Americans came to this country, leaving their homelands, not just their employment, behind, in order to practice their religion in accord with their beliefs,” Berzon wrote. “As a nation, we recognize conscientious objection from military service because we understand that people cannot be expected to serve in combat against their most deeply held beliefs, even in the face of a threat to national security. To hold as a matter of law that a reasonable person would not resign from his job in order to avoid behaving in a manner that he believes offensive to his God is inconsistent with our traditions.”
The case is Lawson v. State of Washington, 00-35458.
Copyright 2003, Metropolitan News Company