Feds Sue A & F over refusal to allow Muslim headscarves in the workplace

Marc R Poirier Marc.Poirier at shu.edu
Fri Sep 3 13:35:54 PDT 2010


As a practical matter, how serious is the courts' supervision of the "reasonable accommodation" provision of Title VII?  A colleague suggested to me that it's not policed in the same way as reasonable accommodation under the ADA.  He speculated that stricter supervision would put courts in jeopardy of defining the details of protected religious practice, thus entangling government in the definition of religion, something they might not want to do.


Marc R. Poirier
Professor of Law and Martha Traylor Research Scholar
Seton  Hall University School of Law
One Newark Center
Newark, NJ 07102
973-642-8478 (work)
201-259-0896 (cell)
973-642-8546 (fax)
Selected articles and drafts available at http://ssrn.com/author=1268697

Somebody has to plant the seed so that sanity can happen on this earth. -- Chogyam Trungpa, Rinpoche






-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Dawinder S. Sidhu
Sent: Friday, September 03, 2010 2:23 PM
To: hamilton02 at aol.com
Cc: conlawprof at lists.ucla.edu
Subject: Re: Feds Sue A & F over refusal to allow Muslim headscarves in the workplace

What gives rise to my concern is that "clothing" is not always just
"clothing."  For members of certain religious communities, clothing is
something they are required to wear and thus becomes a fundamental
part of their religious identity.

Sikhs, for example, are required to wear five articles of faith and to
cover their unshorn hair with a turban.  The significance of this
mandate is such that, for the Sikh, the turban is part of the self.
Historically, those attempting to convert or conquer Sikhs were keenly
aware of this and demanded that Sikhs surrender their turbans. It is
said that a common response from the Sikhs was, "You may take off my
head but not my turban."  This awareness continues to the modern day.
In 1984, when the Indian Army stormed a Sikh shrine in order to find a
group of militants hidden inside, soldiers purposefully removed the
turbans of detained Sikhs, a last humiliation before they were
executed.  In the ensuing Delhi riots, mobs would knock off the
turbans of Sikhs before lighting them on fire or beating them to
death.

This is all to say, it cannot be said to a Sikh that your turban is
just clothing. More generally, clothing is not just clothing for those
with sincerely held religious beliefs.  Accordingly, an employee who
wishes to wear a turban or headscarf for religious reasons perhaps
should not be in the same category as an employee who wears earrings
or a unique hairstyle for non-religious reasons.  Religious exemption
law is predicated on the notion that religious employees may be
treated differently precisely on account of their religious beliefs --
that they are not just like a person who wears earrings for secular
reasons.

I do not contest the business interest in maintaining a certain public
image.  I am concerned, however, that the employee interest in
adhering to religious requirements may not be as appreciated or
understood.  Dollars and cents, the bottom line is more readily
acknowledged, whereas the meaning a individual may attach to his
religious clothing may not be so easily valued or seen as worthy of
protection.  I am also troubled by the practical consequence of
reading Title VII to allow employers place all religious employees in
the back, out of sight.

Segregation may be a sensitive term, though I think it captures the
essence of what we're talking about -- if you fit the image, which is
likely to be from the dominant faith or group, you can interact with
customers and can be in the public area of the business; if you have a
headscarf or turban, you do not fit our corporate policy or what we
want the public to see, you will be in the back, away from public
view.

Best,
Dave


On Fri, Sep 3, 2010 at 11:46 AM,  <hamilton02 at aol.com> wrote:
> In my view, the us of the loaded term workplace "segregation" is misleading
> at best.  If the employer is making business decisions and not religiously
> motivated decisions, the "segregation" in Disney or A & F would amount to
> all those employees who have full-face tattoos, spiked pink-tipped hair,
> dress in a different Halloween costume each day, and/or who wear religious
> or nonreligious garb inconsistent with the corporate image.  The religious
> individual is not being "segregated" at all, but rather being placed in the
> position consistent with the company's business ends.  Do you have a problem
> with that?  It would seem that you are arguing that there is a problem,
> because the corporate image might rest on cultural stereotypes that preclude
> certain images.  But the only "images" being precluded are articles of
> clothing, not faces or races.   Or am I missing something?
>
> As Marc pointed out, if there is a pretext, that is a different, fact-based
> issue.
>
> Marci A. Hamilton
> Paul R. Verkuil Chair in Public Law
> Benjamin N. Cardozo School of Law
> Yeshiva University
>
>
>
>
>
> -----Original Message-----
> From: Dawinder S. Sidhu <dsidhu at gmail.com>
> To: conlawprof at lists.ucla.edu
> Sent: Fri, Sep 3, 2010 1:14 am
> Subject: Re: Feds Sue A & F over refusal to allow Muslim headscarves in
> theworkplace
>
> The question whether a private employer has the right to maintain and
> a certain image to the public brings to mind two cases -- the first
> concerns a female Muslim who is suing Disney because Disney's strict
> dress code does not allow for headscarves, religious or otherwise.
> The second is that of a Sikh male who has filed suit against the New
> York transit authority on the grounds that its insistence that he wear
> a transit authority logo on his turban is unlawful.  In both cases,
> the employer offered the employee what it deemed to be a reasonable
> accommodation -- the ability to wear a headscarf or turban while
> working in the employer's back area, wholly outside of public view.
> The employer ostensibly contends this is a reasonable accommodation
> within the meaning of Title VII because the alternative removes the
> conflict between the employer's policy and the employee's religious
> needs.
>
> What concerns me is that, if courts are to rule in favor of the
> employers in these Title VII cases, they will effectively allow for
> workplace segregation -- the fact that employees who wear conspicuous
> articles of faith will be found only in the back, hidden parts of a
> company or business because they do not conform with the public image
> that the employer wants the patrons or customers to see.  This does
> not mean that all clothing policies are discriminatory, but it seems
> that an employer not wanting Muslims or turbaned Sikhs to represent
> his company may simply implement, consistent with Title VII, a neutral
> clothing policy as a basis to not hire Muslims or Sikhs, or to stuff
> them in the back.
>
> As a district court judge noted:
>
> "One has to wonder how often an employer will be inclined to cite
> [Cloutier's] expansive language to terminate or restrict from customer
> contact, on image grounds, an employee wearing a yarmulke, a veil, or
> the mark on the forehead that denotes Ash Wednesday for many
> Catholics. More likely, and more ominously, considerations of 'public
> image' might persuade an employer to tolerate the religious practices
> of predominant groups, while arguing 'undue hardship' and 'image' in
> forbidding practices that are less widespread or well known."
>
> I do not quarrel with an employer's general interest in controlling
> its brand or public image.  What I find problematic, however, is when
> that image itself either perpetuates views that only a certain group
> (e.g., non-Muslims, non-Sikhs) may represent an employer or that the
> public will only be comfortable with members of a certain group (e.g.,
> non-Muslims, non-Sikhs), but attains legal cover nonetheless because
> the image concerns clothing or applies to all employees.
>
> --
> Dawinder "Dave" S. Sidhu
> * Co-author, Civil Rights in Wartime: the Post-9/11 Sikh Experience
> http://www.civilrightsinwartime.com
> * Selected research http://www.ssrn.com/Author_id=688955
>
> "[T]o serve mankind . . . should indeed be the great aim and end of
> all learning."
> - Benjamin Franklin
>
>
>
>
> On Thu, Sep 2, 2010 at 3:26 PM, masinter at nova.edu <masinter at nova.edu
>> wrote:
>> <p>
>> Given that Title VII obliges employers to reasonably accommodate all
>> aspects of employees' religious observances and practices, why would A&F
>> be thought &quot;plainly&quot; to have the better of the argument over an
>> observant Muslim woman who for religious reasons wears a modest head
>> scarf?<br />
>> <br />
>> Employers regularly accommodate observant Jewish men who wear Kippahs or
>> Yarmulkes; why would an employee who for religious reasons wears a modest
>> head scarf be treated any differently absent evidence that her head scarf
>> creates a safety hazard or otherwise prevents her from performing her
>> job?<br />
>> <br />
>> Accommodating an employee who for religious reasons wears a head scarf
>> ordinarily imposes no monetary cost on an employer.  Though the sight of a
>> woman wearing a head scarf may offend some customers, longstanding Title
>> VII
>> caselaw makes customer preference a legally insufficient basis for
>> discrimination.  </p><p>As for A&F's desire to project a particular
>> image to attract customers, recall that it paid $40 million to settle a
>> previous claim that it practiced intentional race and national origin
>> hiring
>> discrimination to create that image, and that E.E.O.C. has again alleged
>> intentional discrimination and not simply a good faith mistaken failure to
>> reasonably accommodate.  Finally, recall the fate of Southwest Airlines'
>> &quot;Love campaign&quot; to attract customers when it reached the courts
>> in
>> Wilson v. Southwest Airlines, 517 F. Supp. 292 (N.D. Tex. 1981).</p><p>
>> One
>> image campaign prevailed over religious accommodation.  Costco's policy
>> forbidding cashiers from wearing facial jewelry other than earrings
>> prevailed over a Church of Body Modification member's insistence upon
>> wearing multiple facial piercings, Cloutier v. Costco Warehouse, 390 F.3d
>> 126 (1st Cir. 2004), cert. denied, 545 U.S. 1141 (2005) but the defense
>> did
>> not fare as well in E.E.O.C. v. Red Robin Gourmet Burgers, Inc., 2005 WL
>> 2090677 (W.D. Wash. 2005) (denying summary judgment to employer on its
>> insistence that a practitioner of Kemeticism cover his tattoos).  EEOC may
>> not prevail despite A&F's checkered history, but its position is
>> certainly not frivolous, and cannot be said to ignore plainly established
>> law.<br />
>> <br />
>> Michael R. Masinter                           3305 College Avenue<br />
>> Professor of Law                                Fort Lauderdale, FL
>> 33314<br
>> />
>> Nova Southeastern University             954.262.6151 (voice)<br />
>> masinter at nova.edu                            954.262.3835 (fax)<br />
>> <br />
>> <br />
>> <br />
>> Quoting hamilton02 at aol.com:<br />
>> <br />
>> > Harm to the woman who must cover herself head-to-toe so no man is   <br
>> />
>> > tempted.  I do believe these are difficult issues under our   <br />
>> > Constitution but I also have no question that extremist Islamic   <br
>> />
>> > practices are as bad for women and girls as the FLDS's practices are
>> <br />
>> >  for women and children.  And the latter need to be fought to the   <br
>> />
>> > same extent we are fighting sex trafficking.<br />
>> ><br />
>> > A head scarf is not so clear on this axis.  Though I do think A &
>> F   <br />
>> > plainly have the better of the argument.<br />
>> ><br />
>> > Marci<br />
>> > Sent from my Verizon Wireless BlackBerry<br />
>> ><br />
>> > -----Original Message-----<br />
>> > From: Robert Sheridan <rs at robertsheridan.com><br />
>> > Date: Thu, 02 Sep 2010 08:07:15<br />
>> > To: <hamilton02 at aol.com><br />
>> > Cc: Marc R Poirier<Marc.Poirier at shu.edu>;   <br />
>> > <conlawprof-bounces at lists.ucla.edu>; CONLAWPROFS   <br />
>> > professors<CONLAWPROF at lists.ucla.edu><br />
>> > Subject: Re: Feds Sue A & F over refusal to allow Muslim
>> headscarves  <br />
>> >  in theworkplace<br />
>> ><br />
>> >   I agree that these issues are more complicated than the issue of<br
>> />
>> > religious intolerance, which is why I posted the article and the<br />
>> > reader-comment citing undefined &quot;cultural&quot; objections,
>> whatever they<br />
>> > are, and then broadened the subject of inquiry to the burqa ban in<br
>> />
>> > France and the publicly nursing mother in America.<br />
>> ><br />
>> > The question:  &quot;Does the Constitution require society to ignore
>> obvious<br />
>> > harm?&quot; suggests that there is an obvious harm in these activities
>> that<br />
>> > isn't quite yet apparent to me.  Is a publicly nursing mother
>> harming<br />
>> > me?  Is a burqa wearing woman harming me?  Is a publicly yarmulka<br />
>> > wearing man harming me?  Is same-sex marriage harming me?<br />
>> ><br />
>> > Years ago, police in California cited nude-beach bathers for the
>> crime<br />
>> > of indecent exposure, an offense registrable, for life, as a<br />
>> > sex-offender under California Penal C. Sec. 314.1.  The statute was
>> held<br />
>> > unconstitutional by the California Supreme Court on the ground that<br
>> />
>> > there was nothing necessarily obscene under Miller, nor sexual,<br />
>> > communicated by the nude sunbather at the beach.<br />
>> ><br />
>> > Some observers in our culture no doubt have read something sexual,
>> or<br />
>> > obscene, into nudity, considering the general cultural taboo against<br
>> />
>> > going &quot;too far&quot; in public, the quoted words being subject to
>> vague<br />
>> > definition, as in &quot;I know it when I see it.&quot;<br />
>> ><br />
>> > But &quot;obvious harm?&quot;<br />
>> ><br />
>> > Obvious to whom?<br />
>> ><br />
>> > rs<br />
>> ><br />
>> > On 9/2/2010 7:47 AM, hamilton02 at aol.com wrote:<br />
>> >> These issues are much more complicated than your religio-centric
>> post<br />
>> >> suggests. In the case of burqas, we are dealing with liberty
>> issues<br />
>> >> separate from religion -- gender equality and oppression. The
>> question<br />
>> >> is how a free society deals with such issues. Does the
>> Constitution<br />
>> >> require society to ignore obvious harm?<br />
>> >><br />
>> >> The appropriate focus for A and F, by the way is not religious<br
>> />
>> >> symbols, but rather consistency of the article of clothing with
>> the<br />
>> >> store's marketing policy. A small cross or star of david
>> necklace,<br />
>> >> like a wedding ring, does not introduce the same interference as
>> does<br />
>> >> headwear.<br />
>> >><br />
>> >> Marci<br />
>> >><br />
>> >> Sent from my Verizon Wireless BlackBerry<br />
>> >><br />
>> >>
>>
>> ------------------------------------------------------------------------<br
>> />
>> >> *From: * Robert Sheridan <rs at robertsheridan.com><br />
>> >> *Date: *Thu, 02 Sep 2010 07:11:11 -0700<br />
>> >> *To: *<hamilton02 at aol.com><br />
>> >> *Cc: *Marc R Poirier<Marc.Poirier at shu.edu>;<br />
>> >> <conlawprof-bounces at lists.ucla.edu>; CONLAWPROFS<br />
>> >> professors<CONLAWPROF at lists.ucla.edu><br />
>> >> *Subject: *Re: Feds Sue A & F over refusal to allow Muslim
>> headscarves<br />
>> >> in theworkplace<br />
>> >><br />
>> >> Assuming that the A&F store policy lawfully forbids the wearing
>> of<br />
>> >> religious symbols, I presume that employees may not wear a
>> necklace<br />
>> >> bearing a cross or a chai, nor a yarmulka, nor a tattoo of a
>> religious<br />
>> >> symbol, nor a Sikh turban, or the like.<br />
>> >><br />
>> >> Broadening the question to the issue of dominant cultural mores,
>> as<br />
>> >> asserted in the reader- comment to the news article, what do you
>> think<br />
>> >> of legislation pending in France subjecting Muslim women who choose
>> to<br />
>> >> wear a burqa (a head-to-toe overgarment with openings to see and<br
>> />
>> >> breathe) to a fine?  Would ban-the-burqa legislation, if enacted
>> in<br />
>> >> the U.S., likely be constitutional as a general law only
>> incidentally<br />
>> >> affecting a specific minority, a la Smith v. Employment Division<br
>> />
>> >> claims of religious freedom in light of a ban on a narcotic drug
>> used<br />
>> >> as a sacrament?  I believe that the argument that the covering<br
>> />
>> >> conceals identity from the general public and the authorities
>> was<br />
>> >> rejected as a compelling state interest in cases involving masks
>> worn<br />
>> >> in public decades ago, if recollection serves, leaving the main
>> motive<br />
>> >> against the burqa a religious one.<br />
>> >><br />
>> >> Further regarding cultural pressure, are nursing mothers<br />
>> >> constitutionally entitled to nurse uncovered in public w/o fear
>> of<br />
>> >> citation or arrest for some form of alleged indecent exposure or<br
>> />
>> >> disorderly conduct?<br />
>> >><br />
>> >> rs<br />
>> >><br />
>> >> On 9/2/2010 6:22 AM, hamilton02 at aol.com wrote:<br />
>> >>> I agree with this Marc here.  And to insert some facts into
>> the   <br />
>> >>> debate, A&  F has a non-negotiable policy regarding what
>> employees  <br />
>> >>>  wear from top to bottom.  It is not a general look-good
>> policy,   <br />
>> >>> but a specific brand-based policy that goes to its marketing
>> plan   <br />
>> >>> overall<br />
>> >>> There is no justification for imposing on the company a   <br
>> />
>> >>> requirement that its employees have rights to water down its
>>  <br />
>> >>> public image. It is a clothing company<br />
>> >>><br />
>> >>> Marci<br />
>> >>> Sent from my Verizon Wireless BlackBerry<br />
>> >>><br />
>> >>> -----Original Message-----<br />
>> >>> From: Marc R Poirier<Marc.Poirier at shu.edu><br />
>> >>> Sender:conlawprof-bounces at lists.ucla.edu<br />
>> >>> Date: Thu, 2 Sep 2010 09:14:08<br />
>> >>> To: 'Robert Sheridan'<rs at robertsheridan.com>;
>> CONLAWPROFS   <br />
>> >>> professors<CONLAWPROF at lists.ucla.edu><br />
>> >>> Subject: RE: Feds Sue A&  F over refusal to allow Muslim
>> headscarves in the<br />
>> >>>      workplace<br />
>> >>><br />
>> >>> _______________________________________________<br />
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>> </p>
>>
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