Safety First: The Third Circuit Finds Safety Concerns Trump Claim for Religious Accommodation in Employment

Federal - Civil Rights

In EEOC v. The GEO Group, the Third Circuit Court of Appeals addressed the question of whether female Muslim employees of a private prison who wish to wear the khimar, a Muslim head scarf, are entitled to a religious accommodation in the form of a exemption from a policy restricting employees from wearing headgear. In a 2-1 decision, the court held that, on the facts of the case, the defendant established that it would be a substantial hardship in granting the exemption and, as such, the plaintiffs' Title VII claim was properly dismissed.

The claim arose from the 2005 institution of a dress code policy at the prison in which hats, scarves and headgear of any kind not issued by prison management were banned. The plaintiffs, who worked in various capacities in the prison, sought an exemption based on religion in order to wear the khimar. After they were told that no such exemption would be made, they commenced the action with the Equal Employment Opportunity Commission as plaintiff.

The defendant implemented the dress restriction in order to promote safety at the prison and to promote uniform appearance. The safety consideration was three-fold. First, the wardens of the prison were concerned with smuggling of contraband, such as hiding small quantities of drugs or other forbidden items in the head covering. Second, specifically applicable to khimars, the wardens sought to eliminate a potential choking hazard. A person wearing a scarf or khimar around the neck could potentially have that item used in an attack by an inmate. Finally, it could be used to hide the identity of the wearer.

The prison moved for summary judgment, which the EEOC opposed by arguing that the professed reasons for the policy lacked merit and substance; that the prison made no reasonable attempt to accommodate the wearing of the khimar; and that there was no legitimate reason to ban the khimar. The EEOC's position was supported by the testimony of its expert, whereas the prison's position was supported by the extensive testimony of the Warden and Associate Warden.

The trial court granted summary judgment, in large part applying the Third Circuit Court of Appeal's decision in Webb v. City of Philadelphia. In Webb, the court had found that a dress code with the Philadelphia Police Department which banned the wearing of religious symbols or garb, and which had the effect of preventing Muslim female officers from wearing khimars, was not a violation of Title VII.

The majority opinion in the Court of Appeals began by noting that there was no question that the plaintiff could establish a prima facie case under Title VII for religious discrimination. Rather, the question in the case was whether the defendant either provided a reasonable accommodation by permitting the women to wear wigs, rather than khimars, and whether the prison could provide any other reasonable accommodation without undue hardship.

On the first issue, the court refused to find that a wig would constitute a reasonable accommodation as the court declined to investigate theological matters and the record did not contain information from the women suggesting that this accommodation would be compliant with their religious obligations as they saw them.

On the second issue, the prison offered significant testimonial evidence from the wardens substantiating the claims regarding the concerns which led to the implementation of the policy and supporting the notion that permitting the women to wear the khimar in light of those concerns would constitute an undue burden. The court correctly characterized "undue hardship" as being anything more than a de minimis cost to the employer. The court also noted that non-economic as well as economic costs can pose the undue hardship, that the "undue hardship" test was not a difficult threshold to pass and that safety or security risks certainly could constitute such an "undue hardship."

The court found that the no headgear policy must stand or fall on the testimony of the wardens that khimars (1) could be used to smuggle contraband, (2) could be used to conceal the identity of the wearer causing misidentification problems and (3) could be used as a weapon.

After analyzing these points, the matter was described as a "close call," as the majority noted:

The arguments presented by the parties make this a close case. The EEOC has an enviable history of taking steps to enforce the prohibition against religious discrimination in many forms and its sincerity in support of its arguments against the application of the no headgear policy to Muslim employees wearing khimars is evident. On the other hand, the prison has an overriding responsibility to ensure the safety of its prisoners, its staff, and the visitors. A prison is not a summer camp and prison officials have the unenviable task of preserving order in difficult circumstances.

Based on the court's evaluation of the testimony of the wardens, the majority found that the prison established the undue hardship based on the security issues that could be presented by the khimar and the fact that the prison had the right to protect against those issues.

EEOC v. GEO Group demonstrates the importance in Title VII "undue hardship" cases of ensuring that sufficient and detailed testimony is obtained to detail the reasons for the limitations and to set out the costs to the employer. This should be done as broadly as the facts will permit as it is often the case that, when some of the reasons are credited by the courts, some may not be and the courts are given multiple rationales for the decision. It should be understood that while the "undue hardship"/de minimis is not difficult to meet, it does require substantiation and something more than theoretical costs. Further, full and complete testimony presents the court with a level of detail which reinforces the legitimacy of the proffered reasons and makes the finding of undue hardship more likely.

* Walt is a shareholder in our Cherry Hill, New Jersey, office and is the editor-in-chief of Defense Digest. He can be reached at (856) 414-6024 or wfkawalec@mdwcg.com.

Defense Digest, Vol. 16, No. 4, December 2010