“Department of Justice Enforces the Sharia: Sues Illinois School District for Muslim Teacher Hajj”

So reads an Atlas Shrugs headline, discussing this Justice Department press release:

The Justice Department today announced it has filed a lawsuit against Berkeley School District, Berkeley, Ill., alleging that the school district violated Title VII of the Civil Rights Act of 1964 by failing to reasonably accommodate the religious practices of Safoorah Khan, a Muslim teacher at McArthur Middle School.

The government’s complaint, filed in the U.S. District Court for the Northern District of Illinois in Chicago, alleges that Ms. Khan requested an unpaid leave of absence in December 2008 to perform Hajj, a pilgrimage required by her religion. According to the complaint, Berkeley School District denied Ms. Khan’s request because the purpose of her leave was not related to her professional duties nor was it leave for any of the specific purposes set forth in the Professional Negotiations Agreement between the district and the teachers’ union. The United States further alleges that, because Berkeley School District denied her a religious accommodation, the district compelled Ms. Khan to choose between her job and her religious beliefs, and thus forced her discharge.

The lawsuit is based on a charge of discrimination filed by Ms. Khan with the Chicago District Office of the Equal Employment Opportunity Commission (EEOC)…. In the lawsuit, the United States seeks an order requiring Berkeley School District to adopt a policy designed to reasonably accommodate the religious observances, practices and beliefs of employees and prospective employees. In addition, the United States seeks back pay, compensatory damages and reinstatement for Ms. Khan….

This is the first lawsuit brought by the Department of Justice as a result of a pilot project designed to ensure vigorous enforcement of Title VII against state and local governmental employers by enhancing cooperation between the EEOC and the Civil Rights Division.

Some thoughts (built on an article I wrote in 2007 for National Review Online):

1. The federal government is of course enforcing American law here — the 1972 amendments to Title VII of the Civil Rights Acts of 1964. With these amendments, Congress expressly required employers to give religious employees special exemptions from generally applicable job requirements, if (a) the requirements interfere with an employee’s sincerely felt religious obligations and (b) such an exemption doesn’t impose “undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j); TWA v. Hardison (1977).

This is called the “reasonable accommodation” requirement, and under this requirement employers are indeed sometimes required to give employees days off for their religious holidays. If the burden of accommodating the requests — the burden on the employer or on other employees — would be too great, an accommodation is not required. The duty is one of reasonable accommodation, not of accommodation, period. But in some situations courts have found that, given the particular job requirements, and the alternate mechanisms the employer has for getting the job done, an employer might indeed have to accommodate requests for days off.

Now one can certainly object to this rule, for instance on efficiency grounds, freedom of contract grounds, or equality grounds. (As to the latter objection, these rules give religious employees rights that other employees don’t have; and even though the EEOC and most lower courts have agreed that this applies not just to religious objectors but also people who have “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views,” 29 C.F.R. § 1605.1, the law still prefers such religious or conscientious objectors over people who (say) want Saturdays off just to relax or to be with their families. Plus an exemption for religious objectors

But the fact remains that this is the law of the land, which the federal government — usually the EEOC, but sometimes the Justice Department itself — is supposed to enforce. As I said, the government is enforcing an American statute here. And the fact that the employees are Muslims, and their religious beliefs thus stem from Sharia law rather than from their understanding of Jewish law or of Christian commandments, doesn’t strip them of their rights under that statute.

2. What’s more, it turns out that requests for weeks-long leaves (as opposed to the more common Sabbatarian requests to have each Saturday and Friday night off) have been made before by members of another religious group — and supported by the U.S. government. That group is the Worldwide Church of God, the adherents of which apparently feel obligated to take eight to ten days off every year to observe a holiday (the Feast of Tabernacles).

The EEOC and the Justice Department have on several occasions sued on behalf of Worldwide Church of God members, claiming they have a right to religious accommodation.

See EEOC v. Firestone Fibers & Textiles Co. (4th Cir. 2008), EEOC v. Universal Manufacturing Corp. (5th Cir. 1990), and U.S. v. Board of Trustees of Southern Illinois Univ., 1995 WL 311336 (S.D. Ill.). And some courts have held that denial of leave indeed violated Title VII, because on the particular facts of the case the employer has not shown that granting leave would cause undue hardship. See, e.g., Board of Trustees of Southern Illinois Univ.; Wangsness v. Watertown School Dist. (D.S.D. 1982); Edwards v. School Bd. of City of Norton (W.D. Va. 1980) (partly modified on other grounds by the Fourth Circuit); Willey v. Maben Mfg., Inc. (N.D. Miss. 1979); Rankins v. Comm’n on Professional Competence (Cal. 1979) (discussing Title VII standards, though in a case decided under then-existing Free Exercise Clause caselaw); Neiderhuber v. Camden County Vocational & Technical School District Board of Ed. (D.N.J. 1980) (likewise). Other courts have held otherwise, based on the particular facts of those cases. Firestone Fibers; Favero v. Huntsville Indep. School. Dist. (S.D. Tex. 1996); Smith v. United Refining Co., 1980 WL 98 (W.D. Pa.). And at least one court has remanded for more factual determinations about whether there would be undue hardship. Universal Manufacturing Co.. (Note that these sorts of cases could be brought either by private plaintiffs themselves, or by the EEOC or DOJ defending the rights of those plaintiffs.)

Would we condemn these cases on the grounds that the courts, the EEOC, or the Department of Justice was “enforcing the Worldwide Church of God’s religious law”? No — the courts and the government were asking what the U.S. Congress’s statutory enactments mandate. The same is so in the hajj case.

3. Naturally, this leaves open the question whether the school district could indeed accommodate Ms. Khan without undue hardship. Maybe the EEOC and the Justice Department were right to conclude that the school district could indeed reasonably accommodate Ms. Khan.

Or maybe they were wrong, because of the nature of her job, its staffing mechanisms, any special tasks that need to take place in December, the likely burden on other employees, the possibly excessive interference with a seniority system set up in a collective bargaining agreement, or what have you. Also, the Complaint (which I asked the Justice Department to send me) reveals that Ms. Khan was asking for 19 days of leave; perhaps that is so long that it would be unreasonable to ask the school district in this instance to accommodate it. (Many cases have held that it wouldn’t be an undue hardship for particular employers to accommodate Saturday observers, even when that meant changing the schedule for 50 days a year, and the 19 days of leave are only a one-time request, as opposed to the Worldwide Church of God members’ eight to ten days each year. There therefore wouldn’t be any categorical rule, I think, that 19 days of leave are per se an undue hardship — but the school district might be able to argue that this particular request does impose an undue hardship in this particular case.)

Or perhaps the school district can show that Ms. Khan doesn’t sincerely feel a religious reason to take all 19 days off, and might find it sufficient to take a shorter leave (though the school district’s position, as described in the Complaint, doesn’t seem to be that). Or perhaps she doesn’t sincerely feel a religious reason to take the hajj at this particular time, and could equally easily take it at some time when the school is not in session; much depends on her particular religious beliefs. Certainly anyone who has specific criticisms of the federal government’s evaluation of the undue hardship question here — in light of the precedents on undue hardship — or of the federal government’s evaluation of the burden on Ms. Khan’s beliefs should express those criticisms. [UPDATE: Elaborated this paragraph a bit, to discuss more of the questions that might be asked about the precise nature of Ms. Khan’s felt religious beliefs with regard to the hajj.]

But in any event, the Title VII rules, coupled with the Worldwide Church of God precedents, suggest that the federal government is acting pretty much the way that it’s supposed to act when a claim of violation of American antidiscrimination law is raised. It’s not showing special favoritism towards Muslims in this case. Rather, it appears to be applying to them the protections that Title VII mandates for all religions.

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