Social Problems Homework Two Custom Essay – Hope Papers

Social Problems Homework Two Custom Essay

Social Problems Homework Two
UMKC Law Review
2011
Note
HIJAB IN THE WORKPLACE: WHY TITLE VII DOES NOT ADEQUATELY PROTECT EMPLOYEES FROM DISCRIMINATION ON THE BASIS OF RELIGIOUS DRESS AND

APPEARANCE
Sadia Aslama1
Copyright (c) 2011 Curators of the University of Missouri; Sadia Aslam
I. INTRODUCTION
Halla Banafa, an 18-year-old looking for her first job in California, was refused a job in September 2010 when the interviewer at the Abercrombie store allegedly marked “not Abercrombie look” on her

interview form because she wore a colorful scarf to her interview.1 Banafa, a typical teenager, explained that
This was the first job I ever applied for, and I was excited about the idea of working for Abercrombie & Fitch. . . . I was into fashion, and wore skinny jeans and imported scarves that matched my outfits. The

interview crushed me because I never imagined anyone in the Bay Area would reject me because of my head scarf. To this day, I can’t walk into Abercrombie & Fitch stores. They didn’t just miss out on a hard

worker, they lost a customer.2
The Equal Employment Opportunity Commission (EEOC) had filed a similar suit on behalf of 19-year-old Samantha Elauf, a community college student with previous retail experience who had interviewed at

an Oklahoma Abercrombie Kids store while wearing a black hijab.3 During the EEOC’s investigation prior to filing suit, Abercrombie stated, “under the Look Policy, associates must wear clothing that is

consistent with the Abercrombie brand, cannot wear hats or other coverings, and cannot wear clothes that are the color black.”4 While some individuals look at this and conclude that a private employer

should have the right to decide who best represents its company or brand, others argue that there needs to be some mechanism to prevent large-scale discrimination on the basis of religious dress or

appearance.
*222 In a climate in which people are increasingly aware of the growing population of American Muslims, the hijab or khimar5 is perhaps one of the most recognizable features of Islam in the United States.6

Although Title VII of the Civil Rights Act of 1964 prohibits discrimination in hiring in the workplace on the basis of religion,7 the EEOC has seen a rise in claims of religious discrimination by Muslims in the

years since September 11, 2001.8
While some employers do not seem to pay much attention to the dress or appearance of potential employees, appearance and dress codes are a deciding factor for other employers. This Note will argue that

although many employers embrace diversity and are willing to accommodate religious dress and appearance within reason, the current judicial interpretation and analysis of Title VII claims does not provide

adequate protection for reasonable religious dress and appearance of employees when employers are not so accommodating. Even though employers generally are willing to accommodate religious dress and

appearance within reason, there does not seem to be any clear idea of what constitutes “reasonable accommodation” and what would present an “undue hardship” for the employer under a Title VII claim.9
Part II will give a brief overview of the concept of hijab in Islam, surveying the religious basis for it and how its observance can create issues in the workplace. Part III will examine the historical application and

analysis required under Title VII of the Civil Rights Act of 1964, including the EEOC guidelines for employers after 9/11, as well as the Trans World Airlines, Inc. v. Hardison10 case and its effect on

employment discrimination analysis. Part IV will look at recent cases, including Webb v. City of Philadelphia11 and E.E.O.C. v. Geo Group, Inc.,12 to examine how courts analyze Title VII claims of religious

discrimination on the basis of dress and appearance. Part V will encourage courts to adopt the definition of “undue hardship” promulgated in the Americans with Disabilities Act (“ADA”), namely that an undue

hardship requires “significant difficulty or expense.”13 By abandoning the “de minimis” standard used in current cases of religious discrimination under Title VII, courts will be better able to balance the *223

interests of employers and employees while simultaneously protecting employees’ rights to observe religious dress or appearance.14
II. WHAT IS HIJAB?
An often misunderstood and misrepresented aspect of Islam, the observance of hijab is surrounded by controversy not just in the United States, but all over the world.15 The controversy surrounding veiling

has been especially prevalent in European countries such as France, as legislatures have moved towards banning it in schools as a religious symbol.16 However, it is important to avoid over-generalizing about

“Islamic culture” or “Muslim culture,” as Muslims represent people of wide-ranging cultures and ethnicities.17 As a result, one must separate the tenets of the religion from the actions of the followers, which

may be influenced by culture and tradition in addition to religion.
The verses of the Qur’an18 that mandate hijab include:
And say to the believing women that they should lower their gaze and guard their modesty, that they should not display their beauty and ornaments except what (must ordinarily) appear thereof, that they should

draw their veils over their bosoms and not display their beauty . . . .19
O Prophet, tell your wives and daughters and the women of the believers to draw their cloaks close round them. That will be better, so that they may be recognized and not annoyed. Allah is ever Forgiving,

Merciful.20
*224 The Arabic word khimar, which appears in the first of these two verses (translated as “veil” above), comes from the word khamr, meaning “to cover,” and therefore refers to a piece of cloth used to

cover the head.21 Accordingly, when most Muslims refer to the hijab as a headscarf, they are actually talking about the khimar. The word, hijab, on the other hand, stems from the Arabic hajaba, “to prevent

from seeing,” and “refers to broader notions of modesty, privacy, and morality.”22 As one commentator explained:
Hijab is not only a hijab of the clothing, but also of the heart and intention. It is a choice to be modest, both in character and appearance, not just physical modesty, but also in one’s thoughts, speech, and

actions. The idea is to remove focus from the physical aspects of a woman, from a personal perspective as well as that of others, so that the focus may be on the mind, character, and spirituality of the woman,

rather than her body and appearance.23
In addition to this religious justification that Muslim women cover themselves because God mandated it, many women also look to common-sense, practical purposes such as avoiding the negative affects of

obsession with beauty and sexuality on women and the idea that if women want to be treated as equal to men, they should strive to abide by similar standards.24 For example, Al-Muhajaba explains that:
When men dress to be respected, they wear a business suit that covers them to throat, wrist, and ankle, and they keep their hair simple and plain. When women dress to be respected, shouldn’t they also cover

to throat, wrist, and ankle, and make sure that their hair is not a decoration? Clearly, men are not expected to play the “beauty game.” If women want equality with men, shouldn’t they take the same attitude to

dress that men do?25
Through this brief description of hijab,26 it becomes clear why veiling is important symbolically and religiously to the Muslim women who observe it. Yet one of the biggest criticisms Muslims face regarding the

hijab is the misconstrued idea that Islam forces women to be covered. The Qur’an states that “there is no compulsion in the religion.”27 As a result, although hijab is a part of *225 the Islamic religion, it does

not necessarily follow that all women choose to follow the command. It is, and should be, up to the individual to decide what religion to follow and how to observe that religion.28
Although Title VII requires employers to accommodate religious beliefs that are “sincerely held,”29 this issue is generally not disputed in litigation about Muslim women and hijab. Courts have consistently

recognized observance of hijab as a sincerely held religious belief.30
III. TITLE VII-HISTORICAL ANALYSIS
The remedial purpose of Title VII of the Civil Rights Act of 1964 was to accord equality to everyone in the workplace regardless of gender, race, color, national origin, and other bases on which some

employers had discriminated against employees and potential employees.31 The Supreme Court recognized that the “paramount concern of Congress in enacting Title VII was the elimination of discrimination

in employment.”32 As a result, courts should construe Title VII liberally so that it can effectuate Congress’ purpose in enacting the statute.33
A. History of Title VII Religious Claims
Title VII currently provides that:
It shall be an unlawful employment practice for an employer-
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin; or
(2) to limit . . . his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an

employee, *226 because of such individual’s race, color, religion, sex, or national origin.34
The statute originally did not address religion,35 and courts rejected early Title VII claims seeking religious accommodation.36 Congress amended the statute’s language to include religion at the urging of

Senator Jennings Randolph after several courts refused to recognize discrimination under Title VII when employers failed to accommodate employees’ religious needs.37 Senator Randolph wanted to ensure

“that freedom from religious discrimination in the employment of workers is for all time guaranteed by the law” to “save employees the pain of having to choose between their religions and their jobs.”38
After the addition of religious discrimination as a basis for a Title VII claim, the EEOC accepted religious beliefs as “defined by the individual claiming the belief,” minimizing the importance of “affiliation with or

membership in an organization of a religious nature.”39 Accordingly, the sincere religious belief, practice, or observance requirement has few to no limits as most aspects of religion can qualify as a sincere

religious belief.40
B. How a Claim Arises
In general, to have a valid claim under Title VII for religious discrimination, an employee must establish a sincere religious belief, practice, or observance that conflicts with the employer’s requirements and must

inform the employer of the conflict.41 Next, the employer must either offer the employee reasonable accommodation that the employee can accept or reject, or establish that all accommodations that could be

offered to the employee present an undue hardship to the employer.42
*227 There are two basic ways in which a Title VII claim can arise: disparate treatment or disparate impact.43 McDonnell Douglas Corp. v. Green, a 1973 Supreme Court case regarding racial discrimination

in the employment context under Title VII, created the essential framework used to evaluate whether a claimant has established a prima facie case of discrimination based on disparate treatment.44
In order to create an inference of discrimination, the complainant must establish: (1) that he/she belongs to a category protected by Title VII; (2) that he/she applied for and was qualified for a job for which the

employer was seeking applicants; (3) that despite his/her qualifications, he/she was rejected; and (4) that after the rejection, the position remained open and the employer continued to seek applicants from

person’s [sic] of complainant’s qualifications.45
After establishing a prima facie case, “[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.”46 If the employer puts forth a reason for

the rejection, the claimant must show that the employer’s reason was not legitimate and nondiscriminatory, but rather used to cover up the true motive, in order to pursue the Title VII claim of disparate

treatment.47
Disparate impact, on the other hand, does not require a showing of discriminatory intent by the employer. Griggs v. Duke Power Co.,48 the Supreme Court case establishing the prima facie case requirements

for a Title VII claim based on disparate impact, held that where a practice or policy is facially neutral,49 the claimant needs to show that the practice barring his or her *228 employment is not a bona fide

occupational qualification (BFOQ)50 and that it serves to disqualify members of a protected class under Title VII at a higher rate than other employees or potential employees.51 To counter such claims,

employers most often claim that certain appearances or characteristics are necessary for the successful continuation of the business. Establishing a BFOQ defense requires an employer to prove both “a direct

relationship between the protected status of the employee or applicant and that individual’s ability to perform the job” and that “the required characteristic goes to the very essence or goal of the business.”52

Additionally, a BFOQ must be “necessary for, or very likely predictive of, the ability to perform the job” and the employer needs to establish that “there are no less discriminatory means that would serve the

same purpose.”53
Presently, the EEOC does not generally allow employers to pursue a discriminatory employment policy based on customer or client preferences. For example, an employer cannot justify hiring a female

waitress over a male waiter based on the notion that customers prefer being served by females.54 As a result, courts must find a precarious balance between protecting the rights of employees and potential

employees in observing religious requirements and the interests of employers in conducting their business in a manner they see fit.55
C. TWA v. Hardison and its aftermath
The Hardison case, which established the framework for analyzing claims of religious discrimination under Title VII, arose when an employee of TWA who had begun following the teachings of the Worldwide

Church of God requested that he not work between sunset on Fridays and sunset on Saturdays in *229 observance of his Sabbath.56 Initially this posed no difficulty, as Hardison had sufficient seniority to set

his schedule to accommodate this requirement.57 However, when he moved from one building to another, he lost his seniority and thus requested that he be allowed to work a four-day shift to observe his

Sabbath.58 As the Court noted, both the 1967 EEOC guidelines and Congress failed to define “what sort of accommodations are ‘reasonable’ or when hardship to an employer becomes ‘undue.”’59 As a

result, the Court held that “[t]o require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.”60 In this case, the available accommodations discussed included

either circumventing the seniority system or treating employees unequally by giving employees days off based on their religion and thereby incurring additional cost.61
As a result of the Hardison decision, in which the Supreme Court interpreted Title VII as requiring “a low evidentiary burden on employers to satisfy the undue burden standard,” the 1980 EEOC Guidelines

tried to add teeth to the de minimis standard by establishing that “whether a cost is de minimis depends on the relative size and operating costs of the employer,” that only the cost of accommodating the

employee presently requesting the accommodation should be taken into account, and finally that “isolated or infrequent costs” do not create an undue burden on the employer.62 However, “the Court in

Ansonia Bd. of Educ. v. Philbrook refused to follow the Guidelines and, once again, narrowly construed an employer’s obligation to accommodate an employee’s religious practice.”63 This case arose when

Philbrook, a member of the Worldwide Church of God, requested to take off six days during the school year to observe religious holidays, exceeding the three days the school board allowed for religious

observance.64 Even though Philbrook offered to use his personal days of paid leave to observe the holidays or pay for the cost of a substitute, the school board refused both accommodations.65 The Court

held:
We find no basis in either the [Title VII] statute or its legislative history for requiring an employer to choose any particular reasonable accommodation. By its very terms the statute directs that any reasonable

accommodation by the employer is sufficient to meet its accommodation obligation. . . .
. . . .
*230 . . . In enacting [the statute], Congress was understandably motivated by a desire to assure the individual additional opportunity to observe religious practices, but it did not impose a duty on the employer

to accommodate at all costs.66
Part of the reason for this narrow construction is due to the context in which Title VII religious claims arose in the years following Hardison. A law review note by Huma T. Yunus provides a helpful framework

by discussing five categories of reasonable accommodation interpretation: “(1) public health and safety regulations; (2) overt religious discrimination by employers; (3) nonconformists failing to abide by

generally applicable neutral employment regulations; (4) religious accommodation balanced with public employment and the need to appear religiously neutral; and (5) religious interests balanced with business

necessity.”67 In analyzing court decisions in each of these categories, Yunus found that the success of Title VII claims for religious discrimination depended on the type of policy or practice against which a

“reasonable accommodation” was sought. Most consistently, courts were likely to affirm denials of religious accommodation in cases dealing with health or safety concerns.
For example, when one court was forced to make a decision that weighed the safety of employees against religious accommodation, it concluded “Title VII does not require employers to undertake

experiments with employee safety or legal liability to test a theory about how a facially-neutral safety policy might be modified.”68 Such cases tend to follow the line of reasoning established by Bhatia v.

Chevron U.S.A., Inc.69 in 1984, where the court held that Chevron would face more than de minimis costs in attempting to accommodate Bhatia, a Sikh with religious reasons for not shaving facial hair, who

could not comply with a new safety policy requiring removal of facial hair for machinists who wore masks.70 One critic argues that the Ninth Circuit erred in applying the de minimis standard to this line of

cases and should instead have applied the business necessity standard established by the Supreme Court in Griggs v. Duke Power Co.71 Griggs held that “employer policies that had a disproportionately

adverse impact on minorities” must “demonstrate empirically that the job requirement had ‘a manifest relationship to the employment in question.”’72 Applying this type of test would be more in line with the

BFOQ analysis and thus *231 may be better able to protect employees’ rights to observe religious dress without the employer claiming that allowing accommodation would create a safety concern.
However, following the Hardison and Bhatia line of thought, courts have consistently “limited employers’ obligations to accommodate religious employees.”73 In EEOC v. Oak-Rite Manufacturing Corp., for

example, the District Court held that there were no reasonable accommodations available that would not cost the employer undue hardship where an employee’s religion prohibited her from wearing pants, a

part of the uniform at the employer’s factory.74 The Court decided that the EEOC’s recommendation that the employer allow the employee to wear “a reasonably close-fitting, denim or canvas dress/skirt that

extends to within two or three inches above the ankle, when worn with leather above-the-ankle boots extending up under the dress/skirt” posed an undue hardship because it forced the employer to risk the

safety of the employee.75
Similarly, in EEOC v. Kelly Services, Inc., the Eight Circuit affirmed a District Court’s ruling that granted an employment agency summary judgment and refused to recognize religious discrimination where the

agency failed to refer a Muslim female to a commercial printing company because it believed the employer would not be willing to accommodate the woman’s headscarf and loose-fitting clothing out of safety

concerns.76
Regardless of the standard used by the court to evaluate the Title VII claim of religious discrimination, the court had to take safety concerns into account in deciding whether there were possible reasonable

accommodations and, if so, whether they presented an undue hardship to the employer. As a result, the level of the accommodation the courts considered reasonable became a low threshold and even the

slightest hardship to the employer was recognized as an undue hardship. Furthermore, when courts today face Title VII claims of religious discrimination on the basis of dress or appearance, the line of

precedents they follow make it relatively easy for an employer to establish that an undue hardship will result from offering reasonable accommodation to an employee.
IV. TITLE VII-PRESENT APPLICATION
While the EEOC Compliance Manual’s section on reasonable accommodation does not constitute precedent that a court would need to follow, it nevertheless illustrates to employers and employees what

could give rise to a *232 Title VII claim of religious discrimination.77 Example 47, concerning “Religious Garb,” provides:
Nasreen, a Muslim ticket agent for a commercial airline, wears a head scarf, or hijab, to work at the airport ticket counter. After September 11, 2001, her manager objected, telling Nasreen that the customers

might think she was sympathetic to terrorist hijackers. Nasreen explains to her manager that wearing the hijab is her religious practice and continues to wear it. She is terminated for wearing it over her

manager’s objection. Customer fears or prejudices do not amount to undue hardship, and the refusal to accommodate her and the termination, therefore, violate Title VII. In addition, denying Nasreen the

position due to perceptions of customer preferences about religious attire would be disparate treatment based on religion in violation of Title VII, because it would be the same as refusing to hire Nasreen

because she is a Muslim.78
This suggests a trend towards stricter regulation of religious discrimination by administrative government agencies such as the EEOC, likely in response to the increase in the number of complaints the EEOC

received after September 11, 2001.79 Nevertheless, the judicial response to religious discrimination in the workplace continues to lag behind, as courts have declared that “we need not ‘determine with

precision the meaning of “undue hardship” under Title VII”’ and that Hardison “‘strongly suggests that the undue hardship test is not a difficult threshold to pass.”’80 With this attitude of the judiciary and

precedent that clearly weighs in favor of employers and against protecting employees’ rights to accommodation for religious observances, Title VII facially seems to protect employees from religious

discrimination, but lacks the necessary backing from the judiciary needed to enforce the EEOC recommendations. As shown by historical episodes like the American civil rights movement after World War II,

an idea or practice needs support from all spheres of government in order to be effective. For example, even though the judiciary made important *233 early strides to desegregate schools with decisions likes

Sweatt v. Painter81 and Brown v. Board of Education,82 these rulings could not be enforced without the executive branch backing them. Congress has legislated through Title VII that religious discrimination is

not to be tolerated in the workplace83 and has created the EEOC as the implementing force,84 but each time the judiciary refuses to require employers to make religious accommodations by continuing to test

undue hardship with a de minimis standard, employees are forced to choose between working a specific job that they are otherwise qualified to do and observing a religious practice of great significance to

them.85
A. Successful Title VII suits
In recent years, some courts have moved towards enforcing stricter guidelines regarding what is considered an undue hardship to employers. In EEOC v. Alamo Rent-A-Car, the District Court did not allow

Alamo to refuse to let a Muslim employee wear the hijab based on the possibility that its customers would not be receptive to it.86 Bilan Nur, a Muslim and Somali immigrant, asked Alamo’s city manager for

permission to be excused from Alamo’s “Dress Smart Policy” during the month of Ramadan in 2001 so that she could wear a hijab.87 The city manager contacted Alamo’s Human Resource Manager, who

informed him that Ms. Nur “would be allowed to wear a head covering at work in the back of the office, but that she would need to remove the head covering while at the rental counter. Alamo did not excuse

Ms. Nur from working at the rental counter during Ramadan.”88 When Ms. Nur continuously contravened Alamo’s dress policy by wearing a hijab while working at the rental counter, where she interacted

with customers, “Alamo terminated Ms. Nur’s employment . . . for violation of company rules.”89 When the EEOC filed suit on behalf of Nur, Alamo countered by claiming that it had discharged its Title VII

duty by making a “good faith effort to accommodate Ms. Nur.”90 The court, however, rejected this argument since “Alamo’s proposal would have failed to accommodate Ms. *234 Nur’s religious conflict,

and was not a reasonable accommodation.”91 Although the court recognized in this case that Alamo failed to offer reasonable accommodation, it went further to evaluate whether Alamo’s claim that “permitting

Ms. Nur to wear a head covering at the rental counter would result in an undue hardship” since “any deviation from [Alamo’s] carefully cultivated image is a definite burden.”92 While it referenced the Hardison

standard, stating that “‘[u]ndue hardship’ is created when an accommodation ‘results in more than a de minimis cost to the employer,”’ the court held that “a claim of undue hardship cannot be supported by

merely conceivable or hypothetical hardships; instead it must be supported by proof of ‘actual imposition on co-workers or disruption of the work routine.”’93 Because Alamo failed to substantiate its claim

that it would suffer undue hardship by allowing Ms. Nur to wear a hijab while working at the rental counter, the District Court rejected this claim as well.94
The EEOC was similarly successful in a recent case involving four Somali women who were not interviewed for housekeeping jobs at the Louisville Marriot Downtown Hotel when they appeared in hijab

before the Housekeeping Director. Although the Marriot Employee Appearance Standards “did not permit hats to be worn . . . exceptions had been made in the past.”95 The resolution of these cases shows

that there are some instances where Title VII has proven to be adequate in protecting the rights of employees in response to blatant discrimination. These cases, however, are limited to circumstances where an

uncovered head was neither a bona fide occupational qualification nor provided an undue hardship to the employer to allow reasonable accommodation.
B. Unsuccessful Title VII suits
Some courts, such as those in the Third Circuit, continue to adhere to the earlier established standards, finding that allowing Muslim women to wear hijabs or khimars to work would be an undue burden.

Examples include the Third Circuit’s recent decisions in Webb v. City of Philadelphia96 and EEOC v. Geo Group, Inc.97 Kimberlie Webb, a Philadelphia police officer and practicing Muslim, was denied

permission to wear a hijab with her uniform.98 The District Court in this case, with the Court of Appeals affirming, held that a police officer’s request to wear religious garb with her uniform could not be

reasonably accommodated since it placed an undue burden on the City.99 The District Court *235 found that the police department’s policy and its “detailed standards with no accommodation for religious

symbols and attire not only promote the need for uniformity, but also enhance cohesiveness, cooperation, and the esprit de corps of the police force.”100
In deciding this case, both the District Court and Court of Appeals looked to Kelley v. Johnson101 and Goldman v. Weinberger,102cases evaluating policies concerning dress or appearance that have not been

overruled but should be revisited in light of the social transformations since the rulings. As an amicus brief in the Webb case established, much has changed since the 1970s as the nation’s largest police

departments, including those in New York City and Chicago, have made exceptions to dress and appearance codes to explicitly allow turbans, yarmulkes, and hijabs to be worn with uniforms.103 Additionally,

Congress passed legislation after Goldman allowing members of the armed forces to wear religious items while in uniform if the item does not “interfere with the performance of the member’s military duties”

and is “neat and conservative.”104 This clearly indicates a progression towards accommodating religious apparel even in instances where a uniform is of utmost importance.
Similarly, the court in Geo Group, which involved a company that managed a prison, upheld a change in uniform requirement that prohibited employees from wearing headgear of any sort, including for religious

reasons.105 Three Muslim women who had been employed and worn the hijab in the prison prior to the uniform change were forced to choose between their jobs and practicing their religion.106 In contrast

to the reasoning provided in Webb, the employer in this case claimed that the no head gear policy was a safety precaution since a hijab could be used to “grab ahold of and/or use against [the] staff” as a

choking or restraining device in addition to posing security concerns since it obscured the identity of the wearer in surveillance videos.107 While safety concerns are understandably important, as employers

should not be forced to risk liability for employees in cases of preventable harm, the courts in such cases must find a balance between the rights of employees to practice their religion and the interests of

employers.
*236 V. ADOPTING A “SIGNIFICANT DIFFICULTY OR EXPENSE” STANDARD FOR UNDUE HARDSHIP BETTER PROTECTS EMPLOYEES UNDER TITLE VII
Because the “de minimis cost” standard presents such a low threshold for employers to show undue hardship, employers do not always feel the need to provide reasonable accommodation to employees for

religious dress or appearance. Interestingly, the Americans with Disabilities Act of 1990, which also includes the terms “reasonable accommodation” and “undue hardship,” includes definitions of the terms. For

example, “undue hardship” is defined as:
(A) In general
The term “undue hardship” means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).
(B) Factors to be considered
In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include-
(i) the nature and cost of the accommodation needed under this chapter;
(ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or

the impact otherwise of such accommodation upon the operation of the facility;
(iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
(iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship

of the facility or facilities in question to the covered entity.108
Because Congress took the time to define the terms in the context of employment law, albeit discrimination for disabilities rather than the criteria listed under Title VII, courts should adopt this “significant

difficulty or expense” standard to evaluate religious discrimination suits when employers fail or refuse to accommodate religiously mandated dress or appearance.
The difference in the connotations between the words “de minimis” and “significant” is important enough to warrant a change in the standard. Additionally, because case law exists analyzing and applying the

ADA undue hardship standard, it would be relatively easy for courts to adopt and apply this *237 standard in the context of religious discrimination.109 Furthermore, because Title VII, along with other

provisions of the Civil Rights Act of 1964, historically had a remedial purpose,110 it makes sense that Title VII’s terms should be construed broadly to protect those individuals it was meant to protect.

Moreover, it is more likely that with courts advocating a tougher standard for employers to claim undue hardship when offering employees reasonable accommodation, Congress might consider defining more

terms in Title VII.
A similar trend of courts narrowing the scope of the protection provided by the ADA occurred in the last decade with the Supreme Court’s decisions in Sutton v. United Air Lines, Inc.111 and Toyota Motor

Manufacturing, Kentucky, Inc. v. Williams.112 As a result, Congress enacted the ADA Amendments Act of 2008 (“ADAAA”), which became effective on January 1, 2009, to redefine “disability” under the

ADA.113 Recognizing that the original purpose of the ADA was to “‘provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities’ and [to]

provide broad coverage; . . . [and that] prejudice, antiquated attitudes, or the failure to remove societal and institutional barriers” often “diminish a person’s right to fully participate in all aspects of society,”

Congress’s goal in enacting the ADAAA was to carry out the objectives of the ADA.114 As a part of this amendments act, Congress provided guidance to courts determining whether a particular claim should

be recognized as a disability under the ADA by specifically defining “major life activities” to limit the guesswork and subjectivity inherent in determining the validity of a discrimination claim.115
The need for an amendments act to Section 2000e-2 becomes even more apparent as one notes that this part of Title VII does not even include the “undue *238 hardship” or “reasonable accommodation”

language that courts have universally used since TWA v. Hardison.116 In order to provide a clear standard for courts to employ when analyzing a claim of discrimination on the basis of religion, it is paramount

that Congress take action to amend relevant sections of Title VII by defining terms such as “undue hardship” and “reasonable accommodation” that have become ubiquitous in employment discrimination law. It

is not enough for the EEOC to promulgate standards117 that, when challenged, are not recognized by courts.
VI. CONCLUSION
Although the Supreme Court has not yet taken a case about hijab in the workplace, or even decided a case about Title VII’s religious accommodation provision in the last twenty years, it is likely that the Court

would support the trend of protecting religious expression.118 As America becomes increasingly diverse with many of the nation’s largest employers creating and supporting diversity initiatives, it only seems

natural that the needs and rights of religious employees should be protected in more than name. Even though there are many instances where a certain appearance or dress code is not a bona fide occupational

qualification, in those circumstances where it is, the courts must balance the rights and interests of employers and employees in a just manner. One way the judicial system can effectively implement the goals of

Congress in amending Title VII to prohibit discrimination on the basis of religion would be to abandon the “de minimis” standard currently used by courts and adopt the “significant difficulty or expense”

standard for undue hardship. Such a change would serve as a much-needed example of America’s commitment to diversity in all levels of government.
Footnotes
a1
J.D. Candidate, University of Missouri-Kansas City School of Law, 2012; B.A., Chemistry, University of Missouri-Kansas City, 2010; B.A., History, University of Missouri-Kansas City, 2010. The author

would like to thank Professor Allen Rostron for his guidance in the writing of this Note and her family for their love and support during law school.
1
Press Release, EEOC, Abercrombie, Fitch Sued for Religious Discrimination (Sept. 1, 2010), available at LEXIS, U.S. Fed. News database; Steven Greenhouse, Offended Muslims Speak Up, N.Y. Times,

Sept. 24, 2010, at B1.
2
Press Release, EEOC (Sept. 1, 2010), supra note 1.
3
Press Release, EEOC, Abercrombie & Fitch Sued by EEOC for Religious Discrimination Against Muslim Teen Applicant (Sept. 17, 2009), available at http://eeoc.gov/eeoc/newsroom/release/9-17-09b.cfm;

Sean Gregory, Abercrombie Faces a Muslim-Headscarf Lawsuit, Time Mag., Sept. 23, 2009, available at http://www.time.com/time/business/article/0,8599,1925607,00.html.
4
Gregory, supra note 3.
5
“Khimar” is commonly defined as a headscarf while “hijab” refers to the broader notion of modesty in dress and actions. See What is the Khimar?, Al-Muhajabah’s Islamic Pages,

http://www.muhajabah.com/khimar.htm (last visited Sept. 5, 2011); “Why Should I Wear Hijab?”, Al-Muhajabah’s Islamic Pages, http://www.muhajabah.com/whyhijab.htm (last visited Sept. 5, 2011). For a

more complete discussion of the meaning of and differences between these Arabic terms, see infra Part II.
6
See Greenhouse, supra note 1.
7
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (2010).
8
Greenhouse, supra note 1.
9
29 C.F.R. § 1605.2 (2010).
10
432 U.S. 63 (1977).
11
562 F.3d 256 (3d Cir. 2009).
12
616 F.3d 265 (3d Cir. 2010).
13
42 U.S.C. § 12111(10)(A) (2010).
14
For a more complete discussion of the “de minimis” standard and its origin, see infra Part III.C.
15
There is extensive literature on various aspects of hijab, such as the history of veiling going back to Ancient Greece, alternative interpretations of verses from the Qur’an that mandate veiling, and the social

implications of veiling. As a result, this overview of hijab in Islam is in no way comprehensive or agreed upon by all Muslims.
16
See Joan Wallach Scott, The Politics of the Veil (2007).
17
See Aliah Abdo, Note, The Legal Status of Hijab in the United States: A Look at the Sociopolitical Influences on the Legal Right to Wear the Muslim Headscarf, 5 Hastings Race & Poverty L.J. 441, 447

(2008). For instance, while many people assume that the majority of the world’s Muslim population lives in the Middle East, in reality only 20% of Muslims live there. Pew Forum on Religion & Pub. Life,

Mapping the Global Muslim Population 16 (2009), available at http:// www.pewforum.org/uploadedfiles/Topics/Demographics/Muslimpopulation.pdf. Indonesia has the largest Muslim population in the world,

id. at 5, and there are significant minority populations of Muslims in India and China as well as in the West, id. at 7. As a result, some customs or traditions that people associate with Islam are in reality ethnic

or cultural aspects of a specific region and have little to do with Islam as a religion.
18
The Qur’an is the main religious text of Islam. Because it was revealed in Arabic, the various translations into English vary slightly since some Arabic words may not have equivalents in English.
19
Al-Qur’an 24:31.
20
Al-Qur’an 33:59.
21
What is the Khimar?, supra note 5.
22
Abdo, supra note 17, at 448.
23
Id. at 449.
24
“Why Do You Dress Like That?”, Al-Muhajabah’s Islamic Pages, http:// www.muhajabah.com/dresslikethat.htm (last visited Sept. 5, 2011).
25
Id. (emphasis in original).
26
Although there is a recognizable difference between the terms hijab and khimar, because hijab is commonly used to refer both to the headscarf as well as the broader idea of modesty, I will use the word hijab

to refer to both for convenience.
27
Al-Qur’an 2:256.
28
What is the Khimar?, supra note 5.
29
EEOC, Compliance Manual §12 (2008), available at http:// www.eeoc.gov/policy/docs/religion.html.
30
See, e.g., Forde v. Baird, 720 F. Supp. 2d 170 (D. Conn. 2010); Council on Am.-Islamic Relations, Mich. v. Callahan, No. 09-13372, 2010 U.S. Dist. LEXIS 41924, at *12 (E.D. Mich. Apr. 29, 2010);

EEOC v. White Lodging Servs. Corp., No. 3:06CV-353-S, 2010 U.S. Dist. LEXIS 32492 (W.D. Ky. Mar. 31, 2010); Kaukab v. Harris, No. 02 C 0371, 2003 U.S. Dist. LEXIS 13710 (N.D. Ill. Aug. 7,

2003). As a result, for the purposes of this note, I will assume that when a Title VII claim arises, the issue of whether hijab is a sincerely held religious belief will not be challenged.
31
Slagle v. Cnty. of Clarion, 435 F.3d 262, 267 (3d Cir. 2006).
32
Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 85 (1977).
33
Hillig v. Rumsfeld, 381 F.3d 1028, 1032 (10th Cir. 2004).
34
42 U.S.C. § 2000e-2(a) (2011).
35
Jamie Darin Prenkert & Julie Manning Magid, A Hobson’s Choice Model for Religious Accommodation, 43 Am. Bus. L.J. 467, 473 (2006).
36
See Dewey v. Reynolds Metal Co., 429 F.2d 324 (6th Cir. 1970), aff’d, 402 U.S. 689 (1971) (mem. per curiam); Riley v. Bendix Corp., 330 F. Supp. 583 (M.D. Fla. 1971), rev’d, 464 F.2d 1113 (5th Cir.

1972). For a brief history of Title VII and religion, see generally Debbie N. Kaminer, Religious Conduct and the Immutability Requirement: Title VII’s Failure to Protect Religious Employees in the Workplace,

17 Va. J. Soc. Pol’y & L. 453 (2010) and Huma T. Yunus, Note, Employment Law: Congress Giveth and the Supreme Court Taketh Away: Title VII’s Prohibition of Religious Discrimination in the Workplace,

57 Okla. L. Rev. 657 (2004).
37
Prenkert & Magid, supra note 35, at 475-76.
38
Id.
39
Id. at 479.
40
Id. at 467; see also 29 C.F.R. § 1605.1 (2010).
41
Michael Wolf et al., Religion in the Workplace: A Comprehensive Guide to Legal Rights and Responsibilities 78 (1998).
42
Id. The EEOC website explains “reasonable accommodation” and “undue hardship” as follows:
Unless it would be an undue hardship on the employer’s operation of its business, an employer must reasonably accommodate an employee’s religious beliefs or practices. This applies not only to schedule

changes or leave for religious observances, but also to such things as dress or grooming practices that an employee has for religious reasons. These might include, for example, wearing particular head coverings

or other religious dress (such as a Jewish yarmulke or a Muslim headscarf), or wearing certain hairstyles or facial hair (such as Rastafarian dreadlocks or Sikh uncut hair and beard). It also includes an

employee’s observance of a religious prohibition against wearing certain garments (such as pants or miniskirts). . . . An employer does not have to accommodate an employee’s religious beliefs or practices if

doing so would cause undue hardship to the employer. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of

other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”
Religious Discrimination, EEOC, http://www.eeoc.gov/laws/types/religion.cfm (last visited Sept. 5, 2011).
43
Abdo, supra note 17, at 477.
44
411 U.S. 792 (1973).
45
Abdo, supra note 17, at 477.
46
McDonnell, 411 U.S. at 802.
47
Abdo, supra note 17, at 477.
48
401 U.S. 424 (1971).
49
That is, it does not discriminate on the basis of any class protected by Title VII, namely race, color, religion, sex, or national origin.
50
There is quite a bit of literature on BFOQ. Additionally, courts have taken differing views on whether religion can be a BFOQ outside the exemption for religious organizations. See, e.g., Kern v. Dynalectron

Corp., 577 F. Supp. 1196 (N.D. Tex. 1983), aff’d, 746 F.2d 810 (5th Cir. 1984). Kern held that being Muslim where “an employer that hired pilots to fly helicopters to Mecca, Saudi Arabia, restricted its

pilots to Muslims, since Saudi Arabia did not permit non-Muslims to enter Mecca,” was a BFOQ. Wolf, supra note 41 at 25. See also EEOC v. Sambo’s of Ga., Inc., 530 F. Supp. 86 (N.D. Ga. 1981)

(holding that grooming requirements at a restaurant that excluded Sikh men were a BFOQ).
51
401 U.S. at 430-31.
52
Heather R. James, Note, If You Are Attractive and You Know It, Please Apply: Appearance Based Discrimination and Employers’ Discretion, 42 Val. U. L. Rev. 629, 643 (2008). This Note argues that

employers should have discretion to use appearance as a hiring criterion since antidiscrimination laws and Title VII safeguard the rights of members of protected classes.
53
Id.
54
See 29 C.F.R. § 1604.2(a)(1)(iii) (2010).
55
See Nantiya Ruan, Accommodating Respectful Religious Expression in the Workplace, 92 Marq. L. Rev. 1, 14-20 (2008). Also relevant is the role of the “heckler’s veto” in analyzing court decisions that favor

protecting employers’ interests over employee rights. Id. at 17-18 (explaining that a “heckler’s veto” refers to the opinions of coworkers about whether allowing accommodation for an employee to observe a

religious practice would be conducive to the work environment).
56
432 U.S. 63, 67 (1977).
57
Id. at 68.
58
Id.
59
Id. at 72, 76.
60
Id. at 84.
61
Id.
62
Prenkert & Magid, supra note 35, at 481-83.
63
Id. at 484.
64
Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 62-64 (1986).
65
Id. at 64-65.
66
Id. at 68-70.
67
Yunus, supra note 36, at 669.
68
EEOC v. Oak-Rite Mfg. Corp., No. IP 99-1962-C H/G, 2001 U.S. Dist. LEXIS 15621, at *53 (S.D. Ind. Aug. 27, 2001).
69
734 F.2d 1382 (9th Cir. 1984).
70
Sarah Abigail Wolkinson, Comment, A Critical Historical and Legal Reappraisal of Bhatia v. Chevron U.S.A., Inc.: Judicial Emasculation of the Duty of Accommodation, 12 U. Pa. J. Bus. L. 1185, 1194

(2010).
71
Id. at 1201.
72
Id.
73
Ruan, supra note 55, at 17.
74
EEOC v. Oak-Rite Mfg. Corp., No. IP 99-1962-C H/G, 2001 U.S. Dist. LEXIS 15621 (S.D. Ind. Aug. 27, 2001).
75
Id. at *2.
76
598 F.3d 1022 (8th Cir. 2010).
77
See EEOC, Compliance Manual §12, supra note 29. For a discussion of the level of deference a court should give the EEOC, see Marilee L. Miller, Comment, The Employer Strikes Back: The Case for a

Broad Reading of Title VII’s Bar on Retaliation, 2006 Utah L. Rev. 505 (finding that while EEOC guidelines are not accorded Chevron deference, they are entitled to respect under Skidmore v. Swift & Co.,

323 U.S. 134 (1944)). As the Comment discusses, there remains uncertainty surrounding the level of deference the EEOC should be given as the Supreme Court has vacillated on the issue quite a bit. See id.

at 526.
78
EEOC, Compliance Manual §12, supra note 29. For a discussion of disparate treatment, see supra Part III.B.
79
Religious-Based Charges, FY 1997-FY 2009, EEOC, http:// www.eeoc.gov/eeoc/statistics/enforcement/religion.cfm (last visited Sept. 6, 2011) (showing an increase in the number of complaints since

9/11/2001).
80
Webb v. City of Phila., 562 F.3d 256, 260 (3d Cir. 2009) (quoting United States v. Bd. of Educ., 911 F.2d 882, 890 (3d Cir. 1990)).
81
339 U.S. 629 (1950).
82
349 U.S. 294 (1955).
83
42 U.S.C. § 2000e-2 (2010).
84
Id. § 2000e-4 (2010).
85
See Ishra Solieman, Note, Born Osama: Muslim-American Employment Discrimination, 51 Ariz. L. Rev. 1069 (2009) (discussing the failures of Title VII in the context of national origin and religious based

discrimination).
86
432 F. Supp. 2d 1006 (D. Ariz. 2006). For further discussion of this case and Webb v. City of Philadelphia (discussed infra Part IV.B), see Kristin Moye Pruszynski, Comment, Living in a Post 9/11 World:

Religious Discrimination Against Muslims, 2 Phoenix L. Rev. 361 (2009).
87
432 F. Supp. 2d at 1009.
88
Id. at 1009.
89
Id.
90
Id. at 1013.
91
Id.
92
Id. at 1015.
93
Id. at 1014-15.
94
Id. at 1015.
95
EEOC v. White Lodging Servs. Corp., No. 3:06CV-353-S, 2010 WL 1416676, at *2 (W.D. Ky. Mar. 31, 2010).
96
562 F.3d 256 (3d Cir. 2009).
97
616 F.3d 265 (3d Cir. 2010).
98
Webb v. City of Phila., 562 F.3d 256, 258 (3d Cir. 2009).
99
Id.
100
Id. (quoting Webb v. City of Phila., No. 05-5238, 2007 WL 1866763, at *4 (E. D. Pa. June 27, 2007)).
101
425 U.S. 238 (1976) (holding that a policy regulating police officers’ hair grooming was rational and justified through the police department’s goal of having officers be readily recognizable to the public and

foster an “esprit de corps” among officers through similar dress and appearance).
102
475 U.S. 503 (1986) (holding that the First Amendment did not preserve the right to wear the yarmulke while uniformed and on duty in the Air Force). Congress has since passed 10 U.S.C. § 774 (2011),

which allows service men and women to wear reasonable religious garb.
103
Brief for American Civil Liberties Union of Pennsylvania et al. as Amici Curiae Supporting Appellant, Webb v. City of Phila., 562 F.3d 256 (3d Cir. 2009) (No. 07-3081).
104
10 U.S.C. § 774(a)-(b) (2010).
105
EEOC v. Geo Group, Inc., 616 F.3d 265 (3d Cir. 2010).
106
Id.
107
Id. at 272.
108
42 U.S.C. § 12111(10) (2010).
109
See e.g., Ransom v. State of Ariz. Bd. of Regents, 983 F. Supp. 895, 903 (D. Ariz. 1997) (holding that undue hardship is a “relational term” in that “costs that the employer must assume are measured in

relation to the benefits of the accommodation, including societal benefits of reducing dependency and nonproductivity”); Hutchinson v. United Parcel Serv., Inc., 883 F. Supp 379, 392 (N.D. Iowa 1995)

(“[C]osts and difficulties to employer, in light of employer’s financial health or survival, and the benefits to the employee [are] both relevant to the ‘reasonable accommodation’ inquiry [under the ADA].”).
110
Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 465 (1975).
111
527 U.S. 471, 475 (1999) (holding that: “the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual’s impairment, including, in this instance,

eyeglasses and contact lenses” and “that petitioners failed to allege properly that respondent ‘regarded’ them as having a disability within the meaning of the ADA”), superseded by statute, ADA Amendments

Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (codified as amended at 42 U.S.C. § 12101 (2009)).
112
534 U.S. 184, 198 (2002) (limiting the definition of “disability” even further by holding that “to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or

severely restricts the individual from doing activities that are of central importance to most people’s daily lives”), superseded by statute, ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553

(codified as amended at 42 U.S.C. § 12101 (2009)).
113
See 42 U.S.C. § 12101 (2009).
114
ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553.
115
See id. § 3(2).
116
432 U.S. 63 (1977). See supra text accompanying notes 56-62.
117
See supra note 77 and accompanying text.
118
Ruan, supra note 55, at 2.
80 UMKCLR 221
End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

RELATED TOPICS
Civil Rights
Remedies Under Federal Employment Discrimination Statutes
Untimely Filing of Equal Employment Opportunity Commission Charges

Preferences
My Contacts
Getting Started
Help
Live Chat
Sign Off
WestlawNext. © 2014 Thomson Reuters Privacy Statement Accessibility Contact Us 1-800-REF-ATTY (1-800-733-2889) Improve WestlawNext

Place your order
(550 words)

Approximate price: $22

Calculate the price of your order

550 words
We'll send you the first draft for approval by September 11, 2018 at 10:52 AM
Total price:
$26
The price is based on these factors:
Academic level
Number of pages
Urgency
Basic features
  • Free title page and bibliography
  • Unlimited revisions
  • Plagiarism-free guarantee
  • Money-back guarantee
  • 24/7 support
On-demand options
  • Writer’s samples
  • Part-by-part delivery
  • Overnight delivery
  • Copies of used sources
  • Expert Proofreading
Paper format
  • 275 words per page
  • 12 pt Arial/Times New Roman
  • Double line spacing
  • Any citation style (APA, MLA, Chicago/Turabian, Harvard)

Our guarantees

Delivering a high-quality product at a reasonable price is not enough anymore.
That’s why we have developed 5 beneficial guarantees that will make your experience with our service enjoyable, easy, and safe.

Money-back guarantee

You have to be 100% sure of the quality of your product to give a money-back guarantee. This describes us perfectly. Make sure that this guarantee is totally transparent.

Read more

Zero-plagiarism guarantee

Each paper is composed from scratch, according to your instructions. It is then checked by our plagiarism-detection software. There is no gap where plagiarism could squeeze in.

Read more

Free-revision policy

Thanks to our free revisions, there is no way for you to be unsatisfied. We will work on your paper until you are completely happy with the result.

Read more

Privacy policy

Your email is safe, as we store it according to international data protection rules. Your bank details are secure, as we use only reliable payment systems.

Read more

Fair-cooperation guarantee

By sending us your money, you buy the service we provide. Check out our terms and conditions if you prefer business talks to be laid out in official language.

Read more
Uncategorized