I would ask the city attorney whether there is generally another
driver to whom such rare requests could be referred. If there is, then the
case would be much like the nurse cases, as well as the postal worker / draft
registration cases (plus I suspect quite a few other such cases involving other
accommodation claims). But if there isn’t, then it would be an undue hardship
to accommodate this, so the city should fight the case.
Of course, it costs money to fight the case, and if the city
doesn’t have the money, then that’s a tough situation. But that sounds like an
argument for Congress to repeal the reasonable accommodation provisions, or to
institute a loser-pays system. I might support either of those as a policy
matter, but that’s not the law right now.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Monday, April 25, 2011 4:11 PM
To: Law & Religion issues for Law Academics
Subject: RE: Settlement or extortion?
Eugene asks a fair question. I confess I’m not on top of the relevant case law
(as I suspect he is). I’m responding as a potential juror or judge who would
be disinclined to be accommodating in any instance where a substitute could not
quickly and easily be found to take the place of the claimant. Indeed, were
this a USPS case, I wouldn’t allow any accommodation at all with regard to
someone who refused to deliver, say, The Atheist Monthly, etc.
I am curious what Eugene would advise the city attorney, if asked for a
disinterested prediction of the odds of victory (before a judge, in order to
eliminate the wild card of a local jury).
sandy
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, April 25, 2011 6:07 PM
To: Law & Religion issues for Law Academics
Subject: RE: Settlement or extortion?
Sandy: Can you explain, please, exactly why you think the bus
driver has a sure loser case, given that nurses who refuse to help with
abortions – even if just to sterilize the equipment – and IRS agents who refuse
to deal with abortion-related nonprofits have won their cases? I’m not saying
the two cases are indistinguishable; I’m just wondering what distinction is so
open-and-shut that we should view the case as clearly “dubious” enough to
justify “outrage.” Title VII has been read as requiring “reasonable
accommodation,” sometimes even when that involves refusing to do things that
would normally be part of one’s job duties (e.g., to show up Saturdays, to help
in abortions, to help process draft registration forms, etc.). Maybe that’s an
excess of modern “antidiscrimination” law, but that seems to be the law.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Monday, April 25, 2011 3:51 PM
To: Law & Religion issues for Law Academics
Subject: RE: Settlement or extortion?
I am curious whether there will be any public outrage about this, in the way
that I suspect there would be if, say, the city paid out $21,500 (in order
simply to avoid litigation that could undoubtedly be won) to an atheist who
made an equally dubious claim. (I confess I see no circumstances under which
the bus driver deserves “accommodation,” any more, to return to a much earlier
discussion, than I would allow a postal worker to refuse to deliver unpalatable
mail.
I wonder, incidentally, if the ACLJ is making any money off this settlement, or
do they handle such cases pro bono?
sandy
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Monday, April 25, 2011 5:44 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Settlement or extortion?
Art may well be right about insurance counsel.
But to the merits-- Even under TRFRA--where is the substantial burden here?
The vast majority of Planned Parenthood's services have nothing to do with
abortion, no one forced him to become a bus driver, and he has no religious
belief that he need be a bus driver.
This reminds me of the Muslim cab drivers in Minneapolis who refused to pick up
passengers at the airport who were carrying closed bottles of alcohol (think:
people bringing wine in from France). The City at first gave an accommodation
and then woke up and realized that you cannot have a workable taxi system that
permits drivers to pick and choose among passengers. (NY figured that out a
long time ago) The case was particularly ironic, because area imams announced
that there is no religious prohibition for Muslims that forbids carrying
someone else's closed alcohol.
The slippery slope here is really slippery, and should have led defense counsel
to dig in their heels in my view. It was none of the driver's business what
the women were doing. For all he knew, they were going to PP to protest
abortion. Presumably, he would have approved of that, and would have happily
driven them to carry out that viewpoint. So what is his "right"? Does he have
a right to question passengers and drop them off at locations where they will
do that with which he agrees, but to balk if they are going to engage in
conduct he disapproves of? It is absurd.
Marci
In a message dated 4/25/2011 6:26:34 P.M. Eastern Daylight Time,
artspit...@aol.com<mailto:artspit...@aol.com> writes:
I suspect the [Texas] Capital Area Rural Transportation System had liability
insurance covering this risk and that this case was settled by the insurance
company's counsel, who could care less about the principles involved, or even
about the legal merits except insofar as they affect the settlement value of
the case. With ACLJ representing the plaintiff, defense counsel reasonably
would have anticipated having to litigate the case to judgment in the district
court and then in the 5th Circuit, at a cost undoubtedly far exceeding the
$21,000 settlement.
You can call that extortion if you want to, but Texas does have a state RFRA,
and how different is this case from the thousands of lawsuits filed every year
in which one party settles despite believing that it has a meritorious claim or
defense, knowing that it faces a determined opponent with a deep pocket?
Opposing counsel often tell me that my clients' cases have only nuisance
settlement value. (Often I prove them wrong.)
By the way, I gather from the news report that this was not the driver of a bus
on a fixed route that happened to go near Planned Parenthood. The story says,
"The system, operated under an agreement among participating counties, offers
bus service on fixed routes and through requested pickup ...." and, "After he
was dispatched to take the women to Planned Parenthood in January, Graning
called his supervisor “and told her that, in good conscience, he could not take
someone to have an abortion."
Art Spitzer
In a message dated 4/25/11 5:19:05 PM,
hamilto...@aol.com<mailto:hamilto...@aol.com> writes:
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