Written By: Robert I. Gosseen*
Ganfer & Shore, LLP
New York, NY
Allegations by Muslims of workplace discrimination are rising, with the number of annual complaints more than doubling since 2004, according to Equal Employment Opportunity Commission (“EEOC”) data. In 2009, the EEOC received 1,490 complaints from Muslims, the fifth consecutive year the number of complaints rose. “The trend could reflect a rise in Islamophobia in the workplace or an increased willingness on the part of Muslims to report discrimination — or both,” according to one observer.1
Conflict and Accommodation
Muslim employees seeking accommodations to wear hajibs, to set aside time or space for daily prayer, or to perform ablutions before prayers; or, in meatpacking plants, to abstain from handling pork, often meet with antagonism from employers and co-workers. The results have been decidedly mixed.
We will briefly examine the post-9/11 history of workplace accommodations of Islamic religious customs.2
Hijabs and Khimars
Wearing a hijab, or headscarf, is for many Muslim females a visible expression of their faith, piety or modesty, and represents a tangible manifestation of their religious identity. Employers often do not see headscarves in the same light, and relying on uniform dress codes, their desire to maintain their corporate image3, or the nebulous concept of “customer preference,” have over the years objected to wearing traditional Islamic head coverings at work.
Less than a year after 9/11 the EEOC brought a class action against American Airline4s, alleging that the airline maintained a policy of refusing to hire Muslim women who wore hijabs as passenger service agents. The case was settled within one week.5
Several years later, a hijab case did go to trial.6 Plaintiff was a car rental agent, responsible for renting cars and personally interacting with customers at the counter and on the telephone. Over the years the company had routinely accommodated her wish to wear a hijab during the holy month of Ramadan. After 9/11, however, when plaintiff requested an accommodation from the company’s dress code to wear her hijab, she was told that she could do so, but not at the front counter where she would be interacting with, and, the company suggested, offending customers.
The employee refused to remove her hijab while working at the front counter and was terminated. She sued. The court, holding that the company had a duty to accommodate plaintiff’s religious practice and could not rely on perceived customer preferences to establish that accommodating plaintiff would cause it undue hardship, granted summary judgment against the employer.7
An employer’s duty to accommodate hijab wearing, however, is far from absolute, as two later cases illustrate. Accommodation may turn on context or, in some cases, on the attitude of supervision at a particular branch or operation.8 In EEOC v. Regency Health Associates,9 for example, a medical assistant in a pediatric health clinic, started wearing a hijab after she was hired, and told management that she eventually planned to wear a full headpiece, with only her eyes showing.
The clinic’s management objected, explaining to her that given the nature of the pediatric practice and the reasonable desire of child patients and parents to see the face of the medical staff providers, it could not approve wearing of a full headpiece. Management told the employee however, that it would consider what reasonable accommodations could be made to its dress code policy. Before it could do so plaintiff resigned and filed a lawsuit against the clinic. The employer argued that plaintiff had neither given it sufficient time to consider her accommodation request nor provided enough information about her request for a reasonable accommodation to be made be-fore she resigned. The jury agreed and rejected the employee’s claim.
In Webb v. City of Philadelphia,10 the police department denied a Muslim female officer’s request to wear a khimar11 over her uniform. The department determined that doing so would violate the department’s uniform regulation, which prohibited officers in uniform from wearing religious dress or symbols, applied in all circumstances, permitted no medical or secular exceptions.
Moreover, the commissioner testified that in his professional judgment and experience “it is critically important to promote the image of a disciplined, identifiable and impartial police force by maintaining . . . [the department’s] uniform as a symbol of neutral government authority, free from expressions of personal religion, bent or bias.”12 The court agreed, holding that the commissioner’s “reasons for refusing accommodation are sufficient to meet the more than de minimis cost of establishing that the proposed accommodation would be an undue burden.”13
Private security firms, on the other hand, do not enjoy what amounted in Webb to an exception for public paramilitary organizations on accommodating hijab-wearing employees.14
Hijab cases continue to this day to test the limits of employer dress codes and resistance to accommodation.15
Accommodating Daily and Weekly Prayers
Elmenayer v. ABF Air Freight Systems16 points up the difficulties faced by Muslim employees seeking accommodations to permit them to attend Friday prayers at local mosques. Plaintiff, a truck driver, asked his employer to permit him to add his coffee break to his lunch so that he could attend congregational Friday services and return to work on time. He even offered to come in early or stay late to make up for any lost time. The employer, citing potential violation of the collective bargaining agreement and impact on the morale of the other drivers, rejected the driver’s suggested accommodation, proposing that he instead bid on evening shifts that would not conflict with his prayer obligations.
Plaintiff rejected the accommodation – though not on religious grounds – because he preferred to stay on his usual day shift. After he was terminated he sued. He argued that working evenings imposed too great a hardship on him, even more so as his proposed accommodation was so minimal. The court disagreed. The relevant inquiry, it stated, “is not whether the employer’s proposal is better, or more to his liking, but whether the employer’s is reasonable.”17
Objection to accommodating Muslim employees’ request for time to pray during the work day is often fierce, typified by the view of Congressman Tom Tancredo (R-Colo.) that it isn’t the responsibility of private companies to bend over backwards to accommodate Islamic workers who want to take special breaks to pray.18 The Congressman, referring to a pending dispute over Muslims’ prayer time accommodation at a meat packing plant in the Midwest, stated that “[t]he fact is that, if you take a job that requires your attendance on an assembly line from a point certain to a point certain, and if your religious views do not allow you to do that, then don’t take the job.” Tancredo went on to opine that “[t]here is nothing forcing anybody to take the job. No one has put a gun to their head.”19
Typical too are the comments made by the founder of a conservative legal organization, which has represented Christians and Jews who wanted Saturdays or Sundays off to worship, that “[t]he problem with the Muslim prayer request is that it’s not one day or annual . . . it’s every day and multiple times.”20
Non-Muslim co-workers have also expressed hostility over what they perceive as favoritism when employers accommodate Muslims’ requests for prayer breaks during the work-day. In a pending lawsuit, for example, two Hertz employees claim that the company discriminated against them in violation of Title VII by accommodating Muslim employees with as many as three paid 15-minute prayer breaks each shift while denying non-Muslim employees equal time off.21
On the other hand, Muslim employees achieved a singular victory in EEOC v. Gold’n Plump Poultry, Inc., No. 0:08-CV-05316 (D.Minn. filed Sept. 8, 2008) when the EEOC obtained a consent decree from a Minnesota chicken processor adding a paid break during the second half of each shift to accommodate the religious beliefs of Muslim employees who wish to pray in the course of the work day. The break is in addition to a break early in the shift and lunch breaks which are required by law. The timing of the added break will fluctuate during the year to coordinate with the religious timing for Muslim prayers.22
The employer, a hospital, had always accommodated a Muslim employee’s prayer schedule, allowing her to take breaks during the work day to pray in its two non-denominational chapels. The employee’s attempts to perform her pre-prayer ablutions in the basement or in public restrooms were unsuccessful because the sinks were too high to cleanse her feet.23 When, however, she tried to perform her ablutions in the shower of an empty patient room, which was technically in violation of hospital rules, her supervisor refused to listen to her explanation of her religious motivation and reported her to higher management, which terminated the employee.
The employee brought a Title VII suit for religious discrimination. The court held that although the employer accommodated plaintiff’s prayer breaks, its failure to provide her with an appropriate place to perform her pre-prayer ablutions was sufficient to defeat summary judgment and send the case to a jury.
The No Pork Accommodation
An obstacle for Muslims working in meat processing plants is the Quran’s prohibition of the consumption of pork. Many Muslims also believe that even touching pork violates this tenet of Islam, the accommodation of which was recently tested in EEOC v. The Work Connection, in which the EEOC alleged that in order to be referred for work at meat processing facilities applicants were required to sign a form stating that they would not refuse to handle pork in the course of their jobs. In a consent decree, the employment agency agreed no longer to use the pork form.
No pork accommodation is far from a certainty, however. In Al-Jabery v. ConAgra Foods Inc., 2007 U.S. Dist. Lexis 3124628 (D.Neb. 2007), for example, a Muslim started working at a ham-processing plant as a sanitation worker, which required him to clean the pork-processing machines, but apparently not touch the pork directly. When he had work performance problems he was transferred to the pork production line, where he could be closely supervised. He objected to the transfer, but didn’t tell management that his reluctance to work on the pork production line was based on his religious beliefs.
After he was terminated he sued for religious discrimination under Title VII, as-serting that the company had a duty to accommodate his religious objections to handling pork. The court summarily dismissed his suit, holding that the cost of accommodating plaintiff’s request to remain in the sanitation position would cause the em-ployer to suffer undue hardship.
The court was not sympathetic to the employee’s situation, noting that plaintiff “seeks to be the only person at a ham processing plant who was not required to touch pork, even if the needs of the company demanded it.” “Plainly put,” the court stated, “a ham plant cannot be efficiently run by catering to the idiosyncratic desires of a Muslim worker not to touch the plant’s main product.”
1“Job Discrimination Claims by Muslims on the Rise,” http://www.salon.com/news/politics/war_room/2010/09/08/muslim_employment_discrimination.
2The emergence of Muslim religious accommodation in the workplace has given rise to a significant body of commentary. See, e.g., Living in a Post 9/11 World: Religious Discrimination Against Muslims, 2 Phoenix L. Rev. 361 (2009); Born Osama: Muslim-American Employment Discrimination, 51 Ariz. L. Rev. 1069 (2009); Making Space for Islam in the Workplace: Expect More Bids for Religious Accommodation as the Number of Practicing Muslims Grows, 9/28/09 Nat’l L.J. 16, col. 1, 16 (2009); Walking a Fine Line: Religious Accommodation for an Increas-ingly Diverse Workplace, 49 No. 11 DRI for the Defense 32 (2007).
3EEOC v. Kaze USA, Inc .d/b/a Kaze Japanese Steakhouse and Sushi Bar, No. 5:10-CV-00358 (E.D.N.C. filed Sept. 7, 2010), is illustrative. Plaintiff, who had worked for some time as a server at the restaurant, converted to Islam and told the owner that she now needed to wear a hijab in observance of her religious beliefs. The owner, who apparently believed that plaintiff’s Islamic garb was at odds with the expectations of his sushi and hibachi consuming customers, rejected her request and terminated her. The case is pending.
4EEOC v. American Airlines, Inc, 02C-6172 (N.D.Ill. Aug. 28, 2002).
5American Airlines paid $60,000 to the lead plaintiff and her attorney and changed its uniform policy to contemplate exceptions for religious accommodation.
6EEOC v. Alamo Rent-A-Car LLC, 432 F. Supp.2d 1006 (D.Ariz. 2006).
7The jury awarded plaintiff $287,000 in compensatory and punitive damages.
8In EEOC v. LAZ Parking, LLC, No. 1:10-CV-01384 (N.D.Ga. filed May 7, 2010), an employee wore a hijab without incident at one location. When that location was closed she was transferred to another location at which the manager told her that she could not work unless she ceased wearing her hijab. She explained that the headscarf was part of her religious practice, but management at the location was unrelenting and effectively terminated plaintiff’s employment. The company paid $46,000 to settle the case. EEOC Press Release, 11/22/10 EEOCDOCS, 2010 WLNR 23281352.
9No. 1:05-CV-2519 (N.D.Ga. filed Aug. 2, 2007).
102007 U.S. Dist. LEXIS 46872 (E.D.Pa. 2007), aff’d, 562 F.3d 256 (3d Cir. 2009).
11The khimar is an Islamic religious head scarf designed to cover the wearer’s hair, forehead, sides of the head, neck, shoulders and chest.
12562 F.3d at 261.
13Id. at 262.
14See, e.g., EEOC v. Imperial Security, Inc., No. 2:10-CV-04733 (E.D.Pa. filed Sept. 16, 2010). A security company hired a Muslim woman as a part-time security officer who wore at her interview a religious garment that covered her from head to toe, revealing only her hands and face. The company’s written uniform policy states in all capital letters that “ADDITIONS TO THE UNIFORM ARE NOT PERMITTED FOR ANY REASON INCLUDING RELIGION.” Hence, when the employee showed up for her first assignment wearing a khimar she was told that as an accommodation she could wear a baseball cap to cover her head, but could not wear her khimar. She refused to doff the khimar and was fired. The case is pending.
15Recently the EEOC filed two suits against Abercrombie & Fitch on behalf of young Muslim girls whom it refused to hire because they wore hijabs. EEOC v. Abercrombie and Fitch Stores, Inc., No. 5:10-CV-03911 (N.D.Cal. filed Sept. 1, 2010); EEOC v. Abercrombie and Fitch Stores, Inc., No. 4:09-CV-00602 (N.D.Okl. filed Sept. 16, 2009). In the California case the store manager had made a note on the interview form that the young woman did not have that All-American “Abercrombie look.” Abercrombie, of course, is no stranger to litigation over its “Look Policy.” See Gonzalez v. Abercrombie & Fitch Stores, Inc., No. 03-2817 SI (N.D.Cal. 2004) (class action settled for $50 million; plaintiffs alleged that Abercrombie’s “Look Policy,” the company’s conception of “natural, classic American style,” epitomized by a “good-looking” sales force, unlawfully excluded African-Americans and Hispanics from selling jobs).
162001 WL 1152815 (E.D.N.Y. 2001), aff’d 318 F.3d 130 (2d Cir. 2002).
172001 WL 1152815 at *6 (E.D.N.Y. 2001).
18Meat Plant to Muslim Employees: Pray On Your Own Time, OneNewsNow (9/29/08). http://onenewsnow.com/Business/Default.aspx?id=265106.
20“Prayer Leads to Work Disputes, ”http://www.usatoday.com/news/nation/2008-10-15-Muslim_N.htm.
21Barkley v. The Hertz Corporation, No. 1:09-CV-3359 (N.D.Ga. filed Nov. 30, 2009).
22EEOC Press Release, 3/31/09 EEOCDOCS, 2009 WLNR 6114255.
23Special sinks for the performance of pre-prayer ablutions is a hot button topic on public university campuses. As The New York Times noted,
When pools of water began accumulating on the floors in some bathrooms at the University of Michigan-Dearborn, and the sinks began pulling away from the walls, the problem was easy to pinpoint. On this campus, more than 10 percent of the students are Muslims, and as part of the ritual ablutions required before their five-times-a-day prayers, some were washing their feet in the sinks. The solution seemed straightforward. After discussions with the Muslim Students’ Association, the university announced that it would install $25,000 foot-washing stations in several bathrooms.
But as a legal and political matter, that solution has not been quite so simple. When word of the plan got out this spring, it created instant controversy, with bloggers going on about the Islam-ification of the university, students divided on the use of their building-maintenance fees, and tricky legal questions about whether the plan was a legitimate accommodation of students’ right to practice their religion or unconstitutional government . . . .
Nationwide, more than a dozen universities have foot baths, many installed in new buildings. On some campuses, like George Mason University in Fairfax, Virginia, and Eastern Michigan Uni-versity, in Ypsilanti, Michigan, there has been no outcry . . . But after a Muslim student at Minneapolis Community and Technical
College slipped and hurt herself . . . while washing her feet in a sink, word got out there that the college was considering installing a foot bath, and a local columnist accused the college of a double standard – stopping a campus coffee cart from playing Christmas music but taking a different attitude toward Islam.
“After the column, a Christian conservative group issued an action alert to its members, which prompted 3,000 e-mail and 600 voice messages to me and/or legislators,” said Phil Davis, president of the college. Davis said that after a legal briefing, the board con-cluded that installing foot baths was constitutional and that the college hoped to have a plan in place by the next school year.
“Some U.S. Universities Install Foot Baths for Muslim Students,” http://www.nytimes.com/2007/08/07/world/americas/07iht-muslims.4.7022566.html?_r=1.
24Tyson v. Clarian Health Partners Inc., 2004 U.S. Dist. Lexis 13973 (S.D.Ind. 2004).
25No. 0:08-CV-05137 (D.Minn. filed Sept. 8, 2008).
26EEOC Press Release, 3/31/09 EEOCDOCS, 2009 WLNR 6114255.
27It did not help plaintiff’s case that none of the other Muslim employees in the plant appeared to have held the religious views that plaintiff held regarding touching pork. As the court noted, “the evidence is that the other Muslim employees made no such assertions to . . . [the company]. As a result, there was no reason for . . . [the company] to assume that since the plaintiff was a Muslim it was obvious that he could not touch pork.” 2007 U.S. Dist. Lexis 3124628 at *5.
28Id. at *7.
29Id. at *6. (Emphasis added)
What if a Male Employee Refuses to Work with Female Coworkers Due to His Religion?
There’s a big brouhaha in the media this week about a professor at York University who refused a student’s request for religious accommodation in the performance of a group assignment for a distance (Internet) course. The student sent a email to the professor claiming that his religion prohibited him from working closely in a group with women, something required by the assignment. The student says a reason he took the Internet course was to avoid group work and this potential problem. Other students who cannot attend in-person group meetings for non-religious reasons have been accommodated and allowed to do something else instead of the group assignment. Apparently, the University administration sought legal advise and then took the position that the student’s request should be granted and an alternative means of performing the assignment should be offered. Probably to the great surprise of the student, his private personal email to a professor requesting religious accommodation some how ended up on the front page of national newspapers. Here’s a op-ed by one of Ontario’s leading human rights code experts Raj Anand discussing York’s position in that dispute.
I won’t comment on the York case specifically, since it is not an employment case. But I’m interested in how this scenario would be dealt with in an employment setting. What if an employee who is usually a machine operator and works by himself is one day told unexpectedly by the employer that he will have to go work in a team comprised of women coworkers. He tells the employer that his religion forbids him from working in close quarters with women who are not his family, and he requests accommodation that will allow him to keep working without the new requirement to work in the mixed gender group. Could the employer refuse that request outright and insist that he work with the women, else be fired?
My Employment Law students should know how to approach that question. As I always preach, human rights issues need to be approached by asking two questions:
First question: Does the employer’s requirement (all employees are required to work with coworkers of the opposite sex) discriminate, directly or indirectly, on the basis of a prohibited ground?
Let’s assume that the employee is being honest in his belief that his religion prohibits working closely with women in a team, and that he is not just trying to get out of a task. The Supreme Court of Canada has applied a test of “sincerity of belief” in a religious doctrine (for example, see the discussion at para. 22, 49-51 in S.L. v. Commission scolarie des Chenes (2012, SCC). If the employee has a sincere belief that his religion prohibits him from working closely with women, then that is enough to trigger the protection of the legal prohibition on religious discrimination in human rights statutes. [See discussion of this issue too in Heintz v. Christian Horizons, HRTO, 2008] Since even religious experts can disagree on what a religion ‘requires’, Tribunals and Courts do not generally try to decide what the religion actually says. “Sincerity of belief” by the employee that the religion dictates this or that action is the test. So let’s assume the employee can meet the test of a sincere belief that his religion forbids him from working in a close group within women who are not his family.
In Ontario, the Human Rights Code prohibits discrimination on the basis of religion (creed) in employment (Section 5). The rule requiring male employees to work directly with women indirectly discriminates against this employee on the basis of his religion. Indirect discrimination occurs when a rule that is neutral on its face–it treats everyone the same–has an adverse impact on some people because of their religious convictions. That is what is happening here.
Second question: If a work requirement does discriminate on a prohibited ground, does the Code nevertheless allow this discrimination in these circumstances?
The Code provides some defenses for an employer accused of discrimination; there are exemptions in the Code so that some types of discrimination are permissible. Therefore, we need to look for something in the Code that would permit the employer to insist that the employee work with women, even though his religious beliefs tell him he cannot.
Some employers, like educational or religious organizations, which primarily serve people of a certain faith, can try to bring themselves within the defense provided in Section 24(1)(a) for special service organizations. However, that Section would not apply to a typical industrial employer (or even a large secular university like York). Therefore, we need to look elsewhere.
In the case of indirect discrimination in employment on the basis of religion, the other possible defense appears in Section 11. That section says that a rule that indirectly discriminates on the basis of a prohibited ground is unlawful, unless:
(1) the requirement is reasonable and bona fide in the circumstances; and
(2) the person’s religion cannot be accommodated without undue hardship to the employer.
How do you think this section would play out in our fact scenario? I’d think the requirement for men and women to work together would be considered reasonable and bona fide. This case, like so many, would probably come down the issue of accommodation. Can the employee’s request to perform his job without direct interaction with women coworkers be accommodated without causing the employer undue hardship. Undue hardship is a high standard in the case law.
Whether the employer would suffer undue hardship if required to accommodate the employee’s request will depend on the job and the workplace. Is it really necessary for this employee to perform his job working directly alongside women? Can an exception be made for this one employee, so that he can just work with men, or do his job on his own. Sometimes the answer will be yes, and sometime it will be no. It depends on the job and the capacity of the employer to organize how tasks are performed.
But one thing is clear: the employer cannot just refuse to even consider the employee’s request. Perhaps the employer responds to the request by saying: “We will not even entertain your request because doing so would legitimize sex discrimination against our female employees”. If the employer does that, it would lose a human rights complaint. That would amount to preferring one prohibited ground (sex) over another (religion) on principle, rather than on the basis of an assessment of whether an accommodated compromise can be reached. The Code deals with the potential of conflicting equality rights through the device of undue hardship: employers must grant the accommodation, unless it would cause undue hardship. Employers are not supposed to simply choose the equality right they like best.
The effect of the accommodation on the female employees may be relevant to assessing undue hardship, but certainly not determinative. It may be that the female employees would not be directly affected at all if the male employee is permitted to work only with men. It may be that the female employees really don’t care one or the other if they are assigned to work with the employee. Maybe its possible to just create an all male group, and to put the employee into that group without anyone knowing that a request for accommodation was made. In that case, it is hard to imagine how the employer would demonstrate undue hardship would result from assigning the employee to work alone or with men, don’t you think?
It may be that the women employees would not even need to learn that an accommodation was made. For example, in the York case, I can’t understand how any other student would learn that an employee had requested accommodation. These requests are supposed to be private. We don’t go announcing to the class when a disabled student requests accommodation, so why would we announce a student’s request for religious accommodation to anyone?
In a case called Marriage Commissioners from Saskatchewan, the Court of Appeal struck down a law that would have allowed marriage commissioners to refuse to marry same sex couples on religious grounds. The law failed the ‘least intrusive means’ test in Section 1 of the Charter. The court said a less intrusive model would require all requests for marriage to go into a central database, and commissioners who wished not to marry gay couples due to religion could refuse to volunteer to take those files. This way the gay couples would never learn that someone had refused to marry them, which would protect them from the humiliation and insult they may feel as a result of the conflict between sexual orientation and religious rights. So whether someone learns of an accommodation is relevant to assessing the level of hardship suffered by other groups as a consequence of accommodation.
Issues for Discussion
Do you think the hypothetical employee in my story would win a human rights complaint, assuming that it would be possible for the employer to assign him to work with only men?
In the York scenario, many commentators have argued that the employees’ accommodation request should be denied because it is insulting to women. Do you think that argument would succeed in a human rights complaint? Would it matter to the ‘undue hardship’ calculus that York is a large publicly funded secular institution? Should it matter?
Do you think that the Ontario Human Rights Code strikes an appropriate balance between competing rights in a workplace?