The Third Circuit Court of Appeals (which covers Delaware, New Jersey, and Pennsylvania) recently upheld the district court’s decision to dismiss a complaint by three Muslim prison workers who were prohibited from wearing headwear at work.
Facts
Three female employees at GEO Group, Inc., a private company that was contracted to run the George W. Hill Correctional Facility, were accustomed to wearing their khimars at work. A khimar is a Muslim head covering designed to cover the hair, forehead, sides of the neck, shoulders, and chest. When a new warden took over the facility, he revamped and tightened the dress code, implementing a zero-tolerance no-headwear policy. The three employees requested an exception to the policy, but their request was denied.
The Equal Employment Opportunity Commission (EEOC) filed a complaint on behalf of the three women claiming that GEO failed to accommodate them because of its refusal to make an exception to the no-headwear policy. GEO responded that making an exception would create an undue hardship for security and safety reasons because:
- contraband could be hidden inside the headwear;
- identification of an individual becomes more difficult when the headwear is worn; and
- the khimars could be used by the prisoners as a weapon against the employees who wore them.
The district court agreed with GEO and dismissed the EEOC’s complaint, opining that the safety risks cited posed an undue hardship and superseded the obligation to accommodate the employees’ religion. The EEOC appealed to the Third Circuit.
Third Circuit’s Opinion
The Third Circuit upheld the district court’s decision, acknowledging that both economic and noneconomic costs can pose an undue hardship on employers, which trumps the need to accommodate religion in the workplace. The court noted GEO’s three safety concerns and emphasized the importance of safety, particularly in the context of a prison. Finally, it explained that the three safety concerns pose legitimate foreseeable risks and that there is no need to wait for one or all of those risks to materialize before effectuating a policy to address them.
Bottom Line
This decision is important news for employers because it recognizes that legitimate employer safety concerns may supersede the need to accommodate employees’ religious beliefs.
I don’t see much to argue about in the second two considerations, but the first one seems like just a makeweight. Do they really think their guards are going to be bringing in contraband? And that any contraband they may bring, couldn’t be hidden elsewhere on their persons?
As for “identification” issues, it hadn’t occurred to me, but it is quite true: one of the prime “recognizers” people use is the hair of the person they are looking at.
Maybe the women could take a cue from some devout Jews: wear a wig that completely covers their hair. This practice almost certainly has the same cultural basis as does the khimar. When Islam first began, it was in an area where there were numerous Jewish villages and residents, and it seems clear to me that they very likely had similar cultural practices, which unfortunately are now considered religious ones, without much textual evidence to support the notion in either religion.