Muslim Policewoman Barred from Wearing Khimar on the Job:
Christopher C. Lund
chlund1 at hotmail.com
Wed Jun 13 20:00:31 PDT 2007
I think these dual-role cases are often difficult. Vis a vis the public, Webb is the government, barred by the Establishment Clause from practicing religion. But vis a vis her governmental employer, Webb is an individual, affirmatively entitled with rights to practice religion under the Free Exercise Clause (and Title VII). These competing concerns produce a number of hard cases.
But I find this particular case to be fairly easy. Webb's exercise of religion does not interfere with her job performance (unlike the Amish man or Quaker officer), and it imposes no burden on any third parties (unlike the male Orthodox Jewish officer). Ultimately, barring religious individuals from wearing religious symbols like the khimar or yarmulke will mean that any individual who refuses to convert or cover will be effectively barred from governmental employment. And in many lines of work we are talking about here (i.e., the police force, the public schools, etc.), the government is the largest employer -- denying Webb's claim here would not only strip her of her current employment, but it may mean putting her out of her chosen field of work altogether (as long as she wants to maintain her religious views).
> Date: Wed, 13 Jun 2007 21:10:12 -0400> From: pfink at albanylaw.edu> To: VOLOKH at law.ucla.edu; religionlaw at lists.ucla.edu> Subject: Re: Muslim Policewoman Barred from Wearing Khimar on the Job:> > It strikes me that her claim is not like Goldman's (which might be the> analogy that comes to mind), in that he wanted to wear something (a> skullcap under his uniform hat) that would not be visible to anyone most> of the time; the dissenters in that case made a strong argument that his> violation of the military rules was insignficant and could not affect> the military in any meaningful way. It is also worth noting that an> Army Captain is likely to deal only with people in the military, while> a police officer deals with the general public, which makes neutrality> all the more important. How far, one wonders, should one take this> argument. Could an Amish Man claim the right to be a police officer in> Pennsylvania but not be forced to drive or ride in a squad car? Would a> Quaker officer refuse to carry a weapon? Could a male Orthodox Jewish> officer refuse to have a female partner in his squad car? The demands> for special treatment based on religion might be endless. > > Paul Finkelman> President William McKinley Distinguished Professor of Law> and Public Policy> Albany Law School> 80 New Scotland Avenue> Albany, New York 12208-3494> > 518-445-3386 > pfink at albanylaw.edu> >>> VOLOKH at law.ucla.edu 06/13/07 7:51 PM >>>> FYI, in case you're interested. > > -----Original Message-----> From: volokh-bounces at lists.powerblogs.com> [mailto:volokh-bounces at lists.powerblogs.com] On Behalf Of> notify at powerblogs.com> Sent: Wednesday, June 13, 2007 4:50 PM> To: volokh at lists.powerblogs.com> Subject: [Volokh] Eugene Volokh: Muslim Policewoman Barred from> WearingKhimar on the Job:> > Posted by Eugene Volokh:> Muslim Policewoman Barred from Wearing Khimar on the Job:> http://volokh.com/archives/archive_2007_06_10-2007_06_16.shtml#118177859> 7> > > The khimar is "a headpiece ... which covers the hair, forehead, sides> of the head, neck, shoulders, and chest," but not, at least in this> instance, the face.> > Philadelphia Police Department Directive 78 apparently prescribes a> uniform uniform, with no exceptions for any religious apparel or> any religious symbols. The case suggests that the uniform requirement> is broad enough to exclude ashes on the forehead on Ash Wednesday,> and> therefore basically any non-uniform symbols.> > Police officer Kimberlie Webb claimed that Title VII of the Civil> Rights Act of 1964 required the city to accommodate her religious> practice by exempting her from the strict uniformity requirement, and> letting her wear the khimar. Title VII does require employers to> provide exemptions for employees whose religions conflict with> generally applicable work rules, but not when granting such an> exemption would create an "undue hardship" for the employer. Courts> have set the "undue hardship" bar pretty low, so that anything "more> than a de minimus cost" would constitute an "undue hardship" that the> employer need not bear.> > The court [http://howappealing.law.com/WebbVsPhiladelphia.pdf] held> that requiring a religious exemption from Directive 78> would indeed create an "undue hardship":> > The Directive's detailed standards with no accomodation for> religious symbols and attire not only promote the need for> uniformity, but also enhance cohesiveness, cooperation, and the> esprit de corps of the police force. Prohibiting religious symbols> and attire helps to prevent any divisiveness on the basis of> religion both within the force itself and when it encounters the> diverse population of Philadelphia.... Police Directive 78 is> designed to maintain religious neutrality, but in this case in a> para-military organization for the good not only of the police> officers themselves but also of the public in general.> > References> > 1. http://itre.cis.upenn.edu/~myl/languagelog/archives/004591.html> > _______________________________________________> Volokh mailing list> Volokh at lists.powerblogs.com> http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh> _______________________________________________> To post, send message to Religionlaw at lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw> > Please note that messages sent to this large list cannot be viewed as> private. Anyone can subscribe to the list and read messages that are> posted; people can read the Web archives; and list members can (rightly> or wrongly) forward the messages to others.> > _______________________________________________> To post, send message to Religionlaw at lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw> > Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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