Legal Commentary

EEOC Concludes Company Should Have Reasonably Accommodated Employee?s Felt Religious Obligation to Wear a Headscarf

By Eugene Volokh

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 it?s 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.

Full post as published by The Volokh Conspiracy on March 15, 2010 (boomark / email).