The Case of the Conscientious Policeman

Mitchell A. Tyner March/April 2000 Chris Carter was a state policeman-a very good one. He has a sheaf of commendations, awards, and positive media coverage an inch thick. Obviously, he was the kind of officer any law-enforcement agency would want to employ: honest and conscientious. Too honest and conscientious not to obey his deeply held belief that God requires him to observe Saturday as the Sabbath. That's where the trouble began.

On February 15, 1998, Chris went to his immediate superior and asked to be scheduled off from sunset Friday until sunset Saturday. He didn't ask to put in fewer hours, or to avoid unpopular duties. Actually, he said he would be happy to work any other time, any shift, any assignment, as long as it allowed him to observe the Sabbath. That presented the scheduler with an opportunity: he scheduled Carter to work early on Fridays and to come on duty late on Saturdays. Nobody complained, because the other troopers were happy to have someone else on the highways on Saturday nights.

That took care of the regular schedule, but there was another problem: race weekends. Chris worked for a state in which stock car racing is a major event, and at least twice a year state troopers are called in from all over the state to work race weekends at a major track. The duty involves Friday afternoon and evening, and all day Saturday and Sunday. Carter knew the routine, having worked races several times in the past. So he asked the scheduler to arrange his hours on race weekends to be Saturday night and Sunday. He was willing to put in long hours with minimal rest in between.

But the scheduler told Carter that it was out of his hands: the post commander had decreed that all troopers would work race weekends, either at the track or on regular patrol. Carter would have to work on Saturday like everybody else.

On February 25, 1998, Carter asked the post commander for an accommodation on an upcoming race weekend. The post commander replied, 'It's good enough that we work it out for you on regular duty; I'm not going to do it for race weekends." When Carter restated that he could not work on the Sabbath, the commander notified him that if he did not, he would be disciplined. There was to be no leave for anyone, he was told; all troopers would work, either on post or at the race.

The following Friday, March 6, 1998, Carter was in the radio room of his post and happened to hear a conversation with another trooper who asked the radio operator to remind the post commander that the trooper was going on vacation that weekend-race weekend. The trooper happened to be the post commander's son-in-law. Records show that this trooper was, indeed, allowed to take leave at a time Carter was told was not available to anyone.

Carter failed to report as scheduled on the Saturday of race weekend-as he said he would. The post commander started disciplinary procedures against Carter-as he said he would. During that procedure Carter was interviewed by the commander of the entire state patrol, who said, "If you want, I can inquire as to the availability of a non-law-enforcement job for you. Understand, it would be a clerical job, probably with a cut in pay." Carter said, "Thank you, please do that." Later the commander seemed to forget his suggestion, and took no action to follow up on it. The possible availability of such a position was never determined. The only accommodation was to tell Chris Carter he would be allowed to trade shift assignments with other troopers if they were willing. But this was a hollow gesture, as the shift roster was often not available until Friday afternoon. Carter would have had to ask his peers to swap for an unknown schedule: one that might even conflict with their own assignments. Exactly how that idea might work in reality was never explained. By canceling the previous system whereby Carter covered the unpopular Saturday night shift, and suggesting that he instead try to trade shifts, the state police were simply disallowing a workable system in favor of an unworkable one.

According to the record, the state patrol put forth no further effort to do anything but run through their routine disciplinary procedure, which resulted in Carter's termination on April 23, 1998.

Was accommodation possible? Yes, in several ways. Carter could have continued the system of working an early shift on Fridays and a late one on Saturdays. No hardship was ever shown to come from that system. Alternatively, on race weekends Carter could have worked a split shift, around the hours of the Sabbath. Then too, Carter could simply have been given leave on race weekends-as was the post commander's son-in-law. In another option, Carter could have been scheduled for some other unpopular detail, but one that did not conflict with his Sabbath convictions. Finally, the patrol could have followed up on the commander's suggestion of a transfer. None of these options were followed.

And it wasn't unheard of for the patrol to accommodate a trooper. Evidence showed that it had done so over a period of several years for another trooper who also worked as a postman. The patrol simply scheduled him around the hours he worked for the postal service.

So what happened here? Why was the patrol unwilling to do for Carter what it had done for others? There are at least three possible answers.

The first possibility is simply hostility to religion. Some would immediately classify this case as demonstrating a perceived societal antipathy toward those who bring their religious beliefs and practices into the public eye. Beyond doubt, many feel that religion is a private matter, protected when practiced in private, but something that should not be "brought into the workplace." Many supervisors, asked for such accommodation by an employee, comment, "You made a choice; you'll just have to live with the results of that choice." Such statements show a total misunderstanding of sincere religious conviction. While religious affiliation and practice is a personal choice, when an individual asks for help with a conflict between work and religious practice, they have no choice but to make a statement about who and what they are. To call that a choice is to think of a sort of cafeteria-style religion: "I will be Adventist today; tomorrow I will choose to be a Baptist, then Calvinist, Disciple of Christ, Episcopalian, and if I last that long, perhaps I'll try Zen." Perhaps that concept was part of the reason for the state patrol's refusal to accommodate Chris Carter.

Second, and demonstrably a part of this case, is the issue of authority, or more precisely put, a perceived challenge to managerial authority. We live in a time when many react negatively to political correctness, affirmative action, and emphasis on diversity. The result is an increased hostility to nonconformity, or what is often described as a request for "special treatment." Many personnel managers are taught that the way to avoid problems is to blindly treat all employees alike. That approach may be productive of good in the areas of racial/ethnic/national origin/gender discrimination, but in areas in which the law requires accommodation of individual need, it is counterproductive.

After firing Carter, the state police moved to suspend his certifications to operate various items of police equipment, ostensibly because he was found guilty of insubordination: failure to obey a direct order. There was absolutely no evidence presented at the suspension hearing that Carter's action in any way demonstrated a decreased ability to operate the equipment. At the end of that hearing, one of the officers who testified for the state approached Carter, and said, "Chris, sorry it had to be this way, but the tail doesn't wag the dog." In his eyes, Chris Carter was the tail trying to wag the dog, by asking for special consideration. He challenged authority just by stating what he could not do. And the state police reacted not by an honest effort to accommodate him, but by asserting its authority at all cost.

A third reason the state police did not put forth meaningful effort to accommodate Chris Carter is the state of the law, specifically Title VII of the Civil Rights Act of 1964. Current court interpretation of that act is clearly a far cry from what Congress intended.

When the 1972 amendments to the Civil Rights Act of 1964 were being debated on the floor of the United States Senate, Senator Jennings Randolph (D-W. Va.) specifically mentioned the difficulties of those whose religious practices came into conflict with work schedules. Randolph, a Seventh Day Baptist, specifically brought to the attention of the Senate the plight of his fellow Sabbatarians, who so often found their observance of the Sabbath in conflict with work schedules. The federal courts at that time had heard only one major case brought by a Sabbathkeeper, claiming that the 1964 act required his employer to accommodate his religious practice (Dewey v. Reynolds Metals). The lower court rejected the claim, and the Supreme Court, in a 4-4 tie vote, upheld that ruling. It was obvious that the 1964 act did not offer the needed protection, which led Randolph and others to support the 1972 amendments. The record of that debate is clear that the proposed amendments were intended to remedy the problem identified in Dewey.

The amendment passed, and became Section 2000e-j of Title 42 of the United States Code. In brief, it requires an employer to accommodate the religious practices of an employee unless to do so would be an undue hardship on the conduct of the business.

That section was first interpreted by the United States Supreme Court in the 1977 case of Trans World Airlines v. Hardison. The Court effectively undercut the intent of the legislation by defining undue hardship as (1) any violation of a seniority agreement, or, according to some interpreters, any violation of any part of a collective bargaining agreement; (2) any diminution of productivity or efficiency; (3) any extra cost over a minimal amount, without saying how "minimal" was to be calculated; or (4) any violation of the rights of other employees.

The Hardison rationale is bad enough, but there's more. Chris Carter lives in the territory of the United States Court of Appeals for the Eleventh Circuit. That circuit authored perhaps the most restrictive of all decisions interpreting the law requiring accommodation. In that case, Beadle v. City of Tampa, the circuit ruled that a law-enforcement agency had fulfilled its duty to accommodate employee religious practices when it allowed the employee to seek voluntary shift swaps. Never mind that the city knew that no one would do so, or that another workable method of accommodation existed. For a law enforcement agency, the mere offer to accept swaps was enough. Until that decision is modified or overturned, or until the law is amended by Congress, to bring a case such as Carter's to court would be to "court" further damage.

There is some hope that Congress will do exactly that. Senators John Kerry (D-Mass) and Sam Brownback (R-Kans), on September 28, 1999, introduced the Workplace Religious Freedom Act (WRFA). In doing so, both stated that the intent of their bill is to restore the law to what Congress originally intended.

WRFA would indeed undo much of the worst damage. It would require consideration of all available means of accommodation, and require that "undue hardship" be evaluated in light of the size and situation of the individual employer. At the very least, an employer could not get by with merely offering to accept voluntary substitutes where the employer knew such an offer was meaningless.

The passage of WRFA would not bring back Chris Carter's police career. But it would, he says, be deeply satisfying because he would know that others could not be treated as he was.

Mitchell A. Tyner is associate general counsel for the General Conference of Seventh-day Adventists, based in Silver Spring, Maryland.

Article Author: Mitchell A. Tyner