According to the Complaint in EEOC v. Pollard Agency, filed last week, the Pollard Agency fired an employee for “wearing a headscarf to cover her hair, which is a sincerely held religious belief as required by her faith.” The EEOC argues that this violates the duty of religious accommodation under Title VII of the Civil Rights Act of 1964 (as amended in 1972).
I think the EEOC is likely right, if its discussion of the facts is correct. Title VII requires employers to provide reasonable religious accommodations, by (1) giving religious employees special exemptions from generally applicable job requirements (2) if the requirements interfere with an employee’s “religious observance and practice” and (3) such an exemption doesn’t impose “undue hardship on the conduct of the employer’s business,” 42 U.S.C. § 2000e(j). Exemptions from dress codes, such as no-hat rules, requirements that everyone wear pants (which some religious groups object to, when applied to women), and the like, are a classic example of reasonable accommodations, since an employer can generally grant them without an undue hardship.
Indeed, police departments may generally insist that officers not deviate from the required uniforms:
In the City’s view, at stake is the police department’s impartiality, or more precisely, the perception of its impartiality by citizens of all races and religions whom the police are charged to serve and protect. If not for the strict enforcement of Directive 78, the City contends, the essential values of impartiality, religious neutrality, uniformity, and the subordination of personal preference would be severely damaged to the detriment of the proper functioning of the police department. In the words of Police Commissioner Sylvester Johnson, uniformity “encourages the subordination of personal preferences in favor of the overall policing mission” and conveys “a sense of authority and competence to other officers inside the Department, as well as to the general public.”Commissioner Johnson identified and articulated the police department’s religious neutrality (or the appearance of neutrality) as vital in both dealing with the public and working together cooperatively. “In sum, in my professional judgment and experience, it is critically important to promote the image of a disciplined, identifiable and impartial police force by maintaining the Philadelphia Police Department uniform as a symbol of neutral government authority, free from expressions of personal religion, bent or bias.” Commissioner Johnson’s testimony was not contradicted or challenged by Webb at any stage in the proceedings….
As a para-military entity, the Philadelphia Police Department requires “a disciplined rank and file for efficient conduct of its affairs.” Commissioner Johnson’s thorough and uncontradicted reasons for refusing accommodations are sufficient to meet the more than de minimis cost of an undue burden.
But this rationale, I think, generally flows from the special nature of policing, which probably doesn’t apply to the typical commercial security guard.
For more on religious accommodations, including ones related to headscarves, see these posts from the past few years. Thanks to Religion Clause for the pointer.
markm says:
This decision may be correct as to the law, but wouldn’t ordering men around as a security guard be inconsistent with her Muslim belief that women must be submissive? I’d find a male security guard in traditional Quaker clothing equally unconvincing.
March 15, 2010, 7:50 amjeff says:
markm:
possibly, who knows, but if you’d read the complaint, she is a “Mennonite Baptist” not a Muslim. Nice to assume.
March 15, 2010, 7:56 amHead Coverings and Religious Accommodation | Crossroads Arabia says:
[...] by the way… the head covering under discussion is not a hijab! EEOC Concludes Company Should Have Reasonably Accommodated Employee’s Felt Religious Obligation to Wear a Headscarf Eugene [...]
March 15, 2010, 10:02 amJust Dropping By says:
Yeah, when I noticed that the OP contained no reference to the complainant’s religion, I wondered whether Prof. Volokh intended that as some sort of test of VC posters’ pre-conceived biases.
March 15, 2010, 10:02 amkiwi dave says:
I was struck by this statement from Webb: “As a para-military entity, the Philadelphia Police Department…”
Since when are civilian police departments “para-military entities”? My understanding is that — with few exceptions, such as the RCMP (the Mounties) — police forces in English-speaking common law countries all have civilian origins, in the office of the local constable or sheriff. Unlike many countries in continental Europe, our police forces aren’t gendarmeries (i.e., police forces with specifically military origins). The fact that they carry guns is beside the point.
Can anyone with more knowledge than me point to an historical point at which American police forces became “para-military entities”? It seems to me that in other common law countries there is still an understanding that police forces are fundamentally civilian agencies, albeit civilian agencies with special duties/powers that sometimes involve use of force. My uneducated guess suggests to me that this shift is connected to the drug wars and the rise of SWAT teams.
I don’t mean this as nit-picking, I think the conception of police as either basically civilian or as “para-military” has real and significant implications for the relationship between the state and the public.
March 15, 2010, 10:13 amDavid M. Nieporent says:
I don’t know where it started, but it’s definitely not that recent. For a long time, cops have referred to citizens as “civilians” to distinguish them from cops.
March 15, 2010, 10:45 amgeokstr says:
As has been shown in many prior posts, the commerce clause power is pretty much infinite. It is just logical, after all, air molecules breathed in and out by some human beings who buy and sell stuff in one state will eventually cross state lines and be breathed in and out by other human beings who probably buy and sell stuff, or at least see actors on TV who buy or sell stuff.
Why bother with all these parliamentary machinations to pass health care “reform”? Why not just have the FTC pass a new 2,700 page book of “regulations” under their commerce clause powers?
March 15, 2010, 10:50 amkiwi dave says:
I don’t know where it started, but it’s definitely not that recent. For a long time, cops have referred to citizens as “civilians” to distinguish them from cops.
I’d be interested in when that was, though. My guess is that it’s post WWII, when police forces came to be largely staffed by military veterans; and possibly post- the disturbances of the 1960s.
March 15, 2010, 11:01 amJoseph Slater says:
I teach Employment Discrimination and used to practice in that area, and I think the EEOC is right for the reasons E.V. posted.
As to the “para-military” term, I’ve done some research on the history of police unions, and courts and police officials were referring to police as “para-military” at least back to 1919, and possibly earlier.
Geokstr: posted in the wrong thread, perhaps?
March 15, 2010, 11:33 ampete says:
Probably since they started wearing uniforms, carrying guns, and using titles like “captain” and “sargeant”.
And I agree with Eugene on the outcome of the case since security guards usually are not real cops.
March 15, 2010, 11:34 amRobert says:
I think the wording, “para-military entity,” is not quite accurate. The more correct wording should have been that the department has a “para-military structure.” Police Departments are similar to the military with their rank (sargeant, lieutenant, etc.) structure, wearing of uniforms, strict chain of command rules, detailed policy and procedural manuals, and the amount of control the departments have over their employee’s everyday lives. All of this predates the founding of SWAT teams by over a hundred years. The fact that many police officers served in the military reinforces the para-military structure of departments.
March 15, 2010, 11:38 amkiwi dave says:
Robert,
You make an interesting distinction: it’s one thing for police departments to have quasi-military internal structures, it’s another thing to say that civilian police departments themselves are para-military entities. The latter involves the role of police in society, with, I think, some very troubling implications.
March 15, 2010, 11:46 amkiwi dave says:
Like I said, I don’t think the fact they’re armed is determinative. Regarding ranks, though, I wonder when American police forces adopted military-style ranks (such as captain, lieutenant)? By contrast, British police forces have a system of rank distinct from military ranks (i.e., constable, inspector, detective, superintendant etc.)
March 15, 2010, 11:52 amMalvolio says:
American forces also have “patrolman”, “detective”, “inspector”, but I’m wondering how useful the rigid rank structure really is. The ranking seem a lot looser among firemen, who face danger much more frequently, and it is discipline in the face of danger that is the usual excuse for military structure.
March 15, 2010, 2:20 pmMatt Bruce says:
I’m impressed by the lack of “its/it’s” pedantry in these comments. (Then again that’s a weasely way for me to engage in such pedantry myself.)
Technically the passage should read “I think the EEOC is likely right, if its discussion of the facts is correct.” But maybe that apostrophe in that context is gaining common usage?
Either way, it’s quintessentially something that doesn’t change the obvious meaning but does jump out at a handful of readers.
[D'oh, fixed, thanks! -EV]
March 15, 2010, 3:48 pmAk Mike says:
Also relevant regarding the perceived more military nature of the police is the use now of the word “officer” to refer to what used to be called a “policeman” or “policewoman.” “Officer” is a term that has gained more currency in the last few decades as a result of gender equity (which also replaces “fireman” with “fire fighter”). I suspect you won’t see the phrase “police officer” much before 1960.
March 15, 2010, 4:10 pmEugene Volokh says:
Ak Mike: Why suspect when you can Google? Check out this Google Books query, and you’ll see that it had been used plenty of times before 1960. You may well be right that it’s been used more frequently since then, compared to “policeman.” But it seems to have been pretty common for centuries.
And, of course, there’s Officer Krupke.
March 15, 2010, 4:36 pmLaura(southernxyl) says:
.
Yes, it does. I suspect that there’s medication for the likes of us.
…
Not only should one not assume that the person being written about in stories like this is Muslim, but one should also refrain from making assumptions about Muslims. I once became supervisor of a department that contained a devout Muslim man, an Arab from the ME. About my age. People told me that he would not want to take direction from a woman. I always hate having people try to poison me against somebody before I’ve had a chance to get my own impression. As it happened, he and I had no trouble at all. He was pleasant and cooperative, asked what I wanted to do about various things and did what I said, was willing to change the way he did things when I asked him to, and whimsically called me “Boss Lady” on occasion. So best not to ASS-ume.
March 15, 2010, 7:50 pmmarkm says:
Jeff, you caught me. I’m an engineer. Since I learned that there are some dozens of lawyers regularly commenting in the VC, I rarely try to read the court rulings myself.
I’m more surprised to find a Mennonite woman working as a security guard than an observant Muslim woman. I expect Islam to include a variety of beliefs and cultures, although I still find it incongruous when a woman finds she can pick and choose from her Muslim heritage, and chooses to keep the hijab while working a “man’s job”.
I know several Mennonites, including one branch of my family. (Or more accurately, my branch are the backsliders – in three generations from Mennonite to Jehovah’s Witnesses, Unitarians and finally atheists). I’ve never met a Mennonite who would pick and choose among the elements of that faith or culture. It looks like a narrow and confining path to me, but it clearly has its rewards for those that can fully commit to it. If not, they can choose from a hundred other Christian churches, and I know those who have.
Perhaps I misunderstand the expected role of women in the Mennonite life. The women certainly are not slaves or locked up in harems, but they don’t talk much to men outside their family. I can’t see how a security guard job would fit in with these self-imposed limits, but there’s a lot I don’t know about the faith.
March 15, 2010, 8:47 pmMike P Wagner says:
Do you know of anything in Islam that specifies that a security job as a “man’s job”, and suggests that women cannot perform that role?
When I lived in Yemen, there were a number of women acting in police roles at the airport, and elsewhere in society. If nothing else, the airport had security guards who were women to avoid complications when a woman needed to be searched.
As Yemen was a pretty traditional Islamic country, I would be surprised if anything in Islam prevents woman from acting as security guards.
Mike
March 16, 2010, 3:20 pmwolfefan says:
markm describes one conservative branch of the Mennonite faith, but other Mennonites are in many ways virtually indistinguishable from mainstream Protestantism. The largest US branch is the Mennonite Church USA at http://www.mennoniteusa.org. For me as an Anabaptist, a Mennonite woman working in such a job is not surprising, but disappointing. All of the historic peace churches have seen a dilution of their peace/non-resistance witness among their members; this dilution is mirrored in other aspects of the traditional faith, including gender roles. Whether that is a good thing or not is another discussion…
March 16, 2010, 6:58 pmDavid M. Nieporent says:
Well, keep in mind that “Security Guard” does not necessarily mean some sort of pseudo-law enforcement job; it could be something as simple as a person who sits at the front desk in the lobby of a building and makes sure that visitors sign in.
March 16, 2010, 7:37 pmreadery says:
webb’s lawyer in Webb v. City of Philadelphia made the dumb mistake of suing solely for statutory claims under Title VII. As the Third Circuit noted, “She also raises, for the first time on appeal, certain constitutional claims.”
Had Webb properly raised First Amendment constitutional claims in her original complaint, she would have almost certainly prevailed on them. In Police v. City of Newark, involving a complaint by a Moslem police officer who prevailed in his religious challenge to a ban on police officers wearing beards, the Newark police department raised virtually identical arguments about the need for uniformity and cohesion in the force and they lost on them.
I understand you think the Title VII standard should be the constituional one, but it’s not, and this area is a striking e
Professor Volokh, you presented Webb v. City of Philadelphia as addressing the merits, but on reading, it’s clearly a case in which the plaintiff lost on a techicality, for failing to properly plead the relevant legal argument in the court below. This really isn’t a fair presentation of the case. The 3rd Circuit has found the First Amendment protection to be much stronger than the Title VII protection, so what Title VII says is frankly completely irrelevant. No plaintiff in his or her right mind should bring a religious challenge case (in the Third Circuit at least) and rely on Title VII rather than the First Amendment, and frankly one would be foolish not to raise the constitutional claims virtually anywhere.
This is simply a case of an unadroit lawyer making a legal mistake. Since the constitution trumps the statute the minute it’s properly raised, this case has essentially no significance for the state of the law in cases which are properly pled. Treating this case as saying something of importance (other than as a lesson on what to avoid in filing a complaint) is simply incorrect here.
March 17, 2010, 12:04 amreadery says:
Lost a sentence:
I understand your position is essentially that the Title VII standard should be the constituional one for religious discrimination cases against government, but under 3rd Circuit precedent it’s not, and this area is a striking example of the difference.
March 17, 2010, 12:13 amchuck hannah says:
Pete & Robert,
I am not legally educated beyond what information I get from reading this site (primarily) and others.
Some days I am more picky than others; when did the americans change the spelling of “sergeant” to “sargeant”?
I understood what was meant in each case, and agree that this tendency among police forces does, at least unconsciously, reinforce the tendency to “para-militarize” (is this really a word?) law enforcement.
March 17, 2010, 6:18 pmboots classic cardy ugg boots says:
am not legally educated beyond what information I get from reading this site (primarily) and others.
August 25, 2010, 3:34 am