Posted by Eugene Volokh:
Muslim Policewoman Has No Right To Wear a Religious Headscarf on the Job,
http://volokh.com/archives/archive_2009_04_05-2009_04_11.shtml#1239190311
the U.S. Court of Appeals for the Third Circuit [1]just held in Webb
v. City of Philadelphia (some paragraph breaks added):
[Kimberlie] Webb requested permission from her commanding officer
to wear a headscarf while in uniform and on duty. The headscarf (a
khimar or hijaab) is a traditional headcovering worn by Muslim
women. Webb�s headscarf would cover neither her face nor her ears,
but would cover her head and the back of her neck. Her request was
denied in view of Philadelphia Police Department Directive 78, the
authoritative memorandum which prescribes the approved Philadelphia
police uniforms and equipment. Nothing in Directive 78 authorizes
the wearing of religious symbols or garb as part of the uniform....
Title VII of the 1964 Civil Rights Act prohibits employers from
discharging or disciplining an employee based on his or her
religion. �Religion� is defined as �all aspects of religious
observance and practice, as well as belief, unless an employer
demonstrates that he is unable to reasonably accommodate to an
employee�s ... religious observance or practice without undue
hardship on the conduct of the employer�s business.� To establish a
prima facie case of religious discrimination [on this "religious
accommodation" theory -EV], the employee must show: (1) she holds a
sincere religious belief that conflicts with a job requirement; (2)
she informed her employer of the conflict; and (3) she was
disciplined for failing to comply with the conflicting requirement.
Once all factors are established, the burden shifts to the employer
to show either it made a good-faith effort to reasonably
accommodate the religious belief, or such an accommodation would
work an undue hardship upon the employer and its business.... An
accommodation constitutes an �undue hardship� if it would impose
more than a de minimis cost on the employer. Both economic and
non-economic costs can pose an undue hardship upon employers; the
latter category includes, for example, violations of the seniority
provision of a collective bargaining agreement and the threat of
possible criminal sanctions.
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.
For more details, including how the court dealt with various relevant
precedents, both from the Supreme Court and from other circuits that
had confronted similar problems, have a look at [2]the opinion, which
is pretty readable and not too long.
References
1. http://caselaw.findlaw.com/data2/circs/3rd/073081p.pdf
2. http://caselaw.findlaw.com/data2/circs/3rd/073081p.pdf
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