Sheeva J. Ghassemi
National Law Journal
Due to the ever-increasing number of practicing Muslims in the United States, employers have been forced to confront Islam and the challenges it presents in the workplace. Muslim employees have begun requesting, and in certain circumstances demanding, that they be allowed to practice their religion at work. The practice of Islam can present unique legal and financial obstacles for employers that include wearing head coverings, praying, growing facial hair and dietary restrictions.
Many Muslim women choose to wear head coverings as a symbol of their faith. In EEOC v. Alamo Rent-A-Car LLC, 432 F. Supp. 2d 1006 (D. Ariz. 2006), Alamo terminated Muslim employee Bilan Nur for wearing a head covering at work during Ramadan. Alamo maintained a “Dress Smart Policy” that prohibited wearing any article of clothing not specifically approved in the policy.
A few days after the start of Ramadan, Nur requested permission to wear a head covering during the holy month. Alamo informed Nur that she could wear the head covering while working in the back of the office, but not while working at the rental counter. Shortly thereafter, Nur wore her head covering to work for three days in a row. Nur received several verbal and written warnings and was eventually suspended. Upon her return to work, Alamo terminated Nur for violating the dress policy. On behalf of Nur, the Equal Employment Opportunity Commission (EEOC) sued Alamo for religious discrimination in violation of Title VII of the Civil Rights Act of 1964.
Alamo argued that it made a good-faith attempt to accommodate Nur by allowing her to wear the head covering while working in the back of the office but requiring that she remove it while working at the rental counter. The court held that Alamo had failed to accommodate Nur because she was required to work at the rental counter during Ramadan without her head covering.
Additionally, Alamo argued that it would suffer undue hardship, as acceding to Nur’s request would open the floodgates for other employees to request deviations from the dress policy. The court noted: ” ‘Undue hardship’ is created when an accommodation ‘results in more than a de minimis cost to the employer.’ ” Id. at 1014-1015 (citations omitted). Furthermore, the court said that undue hardship cannot be proven by asserting “conceivable or hypothetical hardships.” Id. at 1015 (citations omitted).
The court granted partial summary judgment in favor of the EEOC, holding that allowing Nur to wear a head covering while working at the rental counter would not cause undue hardship because there was only the possibility that other employees would request deviations from the dress policy.
An additional challenge in the workplace involves praying, as Muslims are required to pray five times throughout each day. Similarly, providing a place for Muslims to perform ablution, the religious washing of the feet, hands and face in preparation for prayer, can impose major costs.
A SPACE FOR ABLUTION
In Tyson v. Clarian Health Partners Inc., 2004 U.S. Dist. Lexis 13973 (S.D. Ind. June 17, 2004), Clarian terminated Muslim employee Fatou Tyson, in part for performing ablution in the shower of an empty patient room. Tyson’s supervisor observed this and interpreted her actions as showering in a patient room, a violation of hospital policy. Accordingly, Tyson’s supervisor reported her behavior despite Tyson’s explanation about her religious motivation.
Before this incident, Clarian had accommodated Tyson’s prayer schedule and allowed her to take breaks in order to pray. The hospital also provided two of its nondenominational chapels for prayer. Tyson tried to perform ablution in the basement or public restrooms within the hospital; however, both were ill-suited, as the sinks were too high to cleanse her feet.
Clarian terminated Tyson, and she brought suit for religious discrimination in violation of Title VII. The court held that, although Clarian allowed Tyson to take breaks in order to pray, its failure to provide her with an appropriate place to perform ablution was sufficient to defeat summary judgment.
Some Muslims feel a religious compulsion to grow facial hair based on the teachings of the prophet Muhammad. Many companies maintain strict grooming policies that require their employees to maintain a clean-shaven appearance. In FOP Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999), Muslim police officers Faruq Abdul-Aziz and Shakoor Mustafa challenged the Newark, N.J., police department’s internal order requiring officers to shave their beards in order to maintain a uniform appearance. The policy provided two exceptions: undercover officers whose assignments required facial hair and medical conditions such as severe razor bumps caused by shaving.
Each plaintiff received at least one warning regarding noncompliance with the internal order and was informed that such noncompliance could lead to removal from the police department. Subsequently, Abdul-Aziz and Mustafa were ordered to appear for disciplinary hearings. They filed a complaint seeking permanent injunctive relief, alleging that the policy violated the First Amendment.
The police department argued that allowing certain employees to grow facial hair would undermine the uniform appearance of the department. The court held that, because the police department made an exception for medical reasons and provided no such exception for religious reasons, the policy did not satisfy a strict scrutiny analysis. The court granted the plaintiffs’ injunctive relief, holding that the religious importance of growing facial hair outweighed any purported interest in uniformity.
MORE THAN MINIMAL BURDEN
Another religious obstacle for Muslims is that the Koran forbids consumption of pork. Some Muslims believe that even touching pork violates this tenet of Islam. In Al-Jabery v. ConAgra Foods Inc., 2007 U.S. Dist. Lexis 79080 (D. Neb. Oct. 24, 2007), Muslim employee Naim H. Al-Jabery protested on religious ground his being transferred to the pork-production line of a ham-processing plant.
Al-Jabery had retained a translator in order to assist him in applying for a job at ConAgra’s ham-processing plant and declared on his application that he would accept any position at the plant, including sanitation. He started at the plant as a sanitation worker, which required him to clean the pork-processing machines and pick up pork that fell on the ground in the production line. Al-Jabery maintained that he was never required to perform the latter.
Due to performance problems, Al-Jabery’s supervisor transferred him to the pork production line, where he could be closely monitored. Al-Jabery expressed his wish to remain in the sanitation position but never informed his supervisor that his reluctance to join the production line was due to his religious beliefs. He failed to report to the production line and his absence was deemed a “voluntary quit.”
Al-Jabery sued ConAgra for discrimination on the basis of religion and national origin under Title VII. The court held that ConAgra would suffer undue hardship if it attempted to accommodate Al-Jabery’s request: “Al-Jabery 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.” Id. at *16. The court granted ConAgra’s motion for summary judgment, holding that the cost of allowing Al-Jabery to remain in the sanitation position would be more than minimal: “Plainly put, 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.” Id.
Despite the costs, Fortune 500 companies have begun to accommodate their Muslim employees. International Business Machines Corp. provides a washroom for Muslim employees to perform ablution. Companies such as and Texas Instruments Inc. and Ford Motor Co. have created religious affinity groups to assist in addressing religious education and accommodation issues. Many employers now offer floating holidays to accommodate different religions.
As these companies and the above cases demonstrate, religious accommodation remains within the employer’s discretion as long as the cost is more than de minimis. Nevertheless, employers should be cautious when failing to accommodate their Muslim employees, especially as their influence in the workplace increases.
Sheeva J. Ghassemi is an associate in the San Francisco office of Chicago-based Seyfarth Shaw. She serves as the vice president and general counsel for the San Jose/Silicon Valley NAACP. She may be contacted at email@example.com.