Police officers, firefighters can't use Title VII to justify not protecting people.

Police officers and firefighters do not have the right under Title VII of the Civil Rights Act of 1964 to recuse themselves from protecting people whose activities they disapprove of for religious or other reasons, said the chief judge of the Seventh Circuit Court of Appeals.

Chief Judge Richard Posner's comments came in a separate concurring opinion rejecting a religious-discrimination suit brought by a Chicago police officer against the city. Posner's comments reflected his view that the case should have been decided on broader grounds. (Rodriguez v. City of Chicago, 156 F.3d 771 (7th Cir. 1998).)

The plaintiff, Angelo Rodriguez, was a Chicago police officer assigned to the 14th District, where two abortion clinics were located. In 1995, he sued the city for religious discrimination under Title VII because his superiors had refused to exempt him from a duty assignment guarding an abortion clinic during a demonstration. A Roman Catholic, Rodriguez objected to abortion on religious grounds.

Under Title VII, an employer must reasonably accommodate an employee's religious observance or practice unless it can show that doing so would result in an undue hardship to the employer's business.

The district court concluded that the city had satisfied its duty to accommodate Rodriguez by providing him the opportunity, through the police union's collective bargaining agreement, to transfer to a district that did not have an abortion clinic. The transfer did not involve a reduction in pay or benefits.

The appeals court agreed, quoting itself in a similar case as calling such a transfer a "paradigm of `reasonable accommodation.'" (Wright v. Runyon, 2 F.3d 214, 217 (7th Cir. 1993), cert. denied, 510 U.S. 1121 (1994).)

The court also pointed out that Title VII requires only a reasonable accommodation by the employer, not satisfaction of an employee's every desire.

But Posner, in his concurring opinion, went even further. "The only inconvenience to Rodriguez is that he would miss the `camaraderie' of the 14th District," he wrote. "This is a trivial inconvenience."

Posner went on to say he did not think the police department was required to accommodate Rodriguez's religious aversion to protecting abortion clinics even to the limited extent that it did.

"The importance of public confidence in the neutrality of its protectors is so great that a police department or fire department or equivalent public-safety agency that decides not to allow recusal by its employees should be able to plead `undue hardship' and thus escape any duty of accommodation," he wrote.

Chicago employment attorney Monica McFadden said Posner's opinion sends a message to police officers and firefighters that they can't use Title VII or other anti-discrimination laws to justify a refusal to protect people engaged in lawful activities.

"The issue is their sworn duty and their special role in American society," McFadden said. "Police and fire personnel have taken an oath to preserve, protect, defend, and enforce the Constitution and our laws. While in uniform, they must provide protection blind to their own religious and personal leanings.

"As Judge Posner has said so eloquently, our system cannot survive if the public fears that police or fire protection depends on whether or not the police officer's or firefighter's religion agrees with the citizen's views."