Friday, August 20, 2010

3rd Circuit Affirms Workplace Head Scarf Ban

On August 2nd, the Third Circuit, in EEOC v. GEO Group, Inc., No. 09-3093 (3d Cir. Aug. 2, 2010) (available here), held that a private contractor running a Pennsylvania prison could ban khimars, head coverings worn by some of its female Muslim employees.

According to the company, the ban on khimars, was necessitated by safety and security concerns including the ability to smuggle items into the prison under the khimar, the possibility that a khimar could be used to strangle the employee wearing it, and the possibility of misidentification of the person wearing the khimar.

The employees argued that GEO’s stated reasons for banning the khimar were meritless; GEO did not offer reasonable alternatives for accommodating khimar-wearers; and that there is no legitimate safety concern due to employees’ wearing khimars within the secure perimeter of the prison.

In affirming the district court’s granting of summary judgment to the defendant employer, the Third Circuit held that, even though the khimars presented only a small safety risk, they did “present a threat which is something that GEO is entitled to attempt to prevent.”

The dissent, by Judge A. Wallace Tashima (visiting from the Ninth Circuit), focuses on several areas of material fact that made summary judgment inappropriate and argues that the majority’s legal analysis allows an employer to engage in religious discrimination so long as it can come up with a post-hoc safety rationale for its decision not to accommodate its employees’ religious practices.

The issues of khimar’s in the workplace was also considered by the Seventh Circuit in EEOC v. Kelly Services, Inc., 598 F.3d 1022 (8th Cir. Mar. 25, 2010) (available here). In that case, the EEOC filed suit against an employment agency for failing to refer a khimar-wearing employee to an employer printing company that had a policy banning loose fitting clothing because of safety concerns involving the heavy, rotating equipment employees used at the job site. The Seventh Circuit ruled in favor of the defendant holding that there was no evidence of discrimination by the employment agency because the printing company’s policy was a valid, non-discriminatory reason for not referring the employee to that company.

The GEO Group court cited to the Kelly case when it discussed what exactly a “khimar” is. "The EEOC never introduced a khimar into evidence. Although khimars may come in different shapes and sizes we note the description adopted by a sister circuit that stated 'A khimar is a traditional garment worn by Muslim women that covers the forehead, sides of the head, neck shoulders, chest and sometimes their waist,' EEOC v. Kelly Servs., 598 F.3d 1022, 1023 n.1 (8th Cir. 2010) (quotation and citation omitted), a description similar to that provided in the EEOC's complaint.”

Although this case stands for the principle that safety concerns can outweigh an employer’s duty to provide religious accommodations, tip of the hat to Philip Miles at Lawffice Space for pointing out that since most workplaces are significantly different than prisons, employers should not consider this a “green light” to ban head scarves. Also, a tip of the hat to As Paul Mollica at Daily Developments in EEO Law points for his post on this case.

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