Legal Commentary

Prison Doesn?t Have to Exempt Female Muslim Employees from a No-Headgear Rule

By Eugene Volokh

So a panel of the U.S. Court of Appeals for the Third Circuit just held, by a 2?1 vote, in EEOC v. GEO Group, Inc.

Three Muslim women employees had claimed that the religious accommodation provision of Title VII of the Civil Rights Act of 1964 (as amended in 1972) required the prison to exempt them from the no-headgear rule. Many employers would indeed be required to grant a religious exemption in such a situation, since usually exempting an employee from a dress code won?t impose an ?undue hardship? on the employer (that?s the statutory test). Courts have set the ?undue hardship? bar pretty low, so that anything ?more than a de minimis cost? would constitute an ?undue hardship? that the employer need not bear. But generally letting an employee wear a yarmulke, a headscarf, a turban, or a skirt (some Christian religious groups have objected to women?s wearing pants) would impose virtually no cost on the employer.

Nonetheless, in this instance the court said that accommodating the objection would indeed be an undue hardship because of prison security concerns, and that therefore the statute did not require any such accommodation in this situation. Here?s a passage from the majority opinion:

GEO?s no headgear policy must stand on the testimony of Holm and Nardolillo that (1) khimars [i.e., headscarves ?EV], like hats, could be used to smuggle contraband into and around the Hill Facility, (2) that khimars can be used to conceal the identity of the wearer, which creates problems of misidentification, and (3) that khimars could be used against a prison employee in an attack. To be sure, GEO acknowledges that ?there were no reports of these types of incidents at [the Hill Facility] during Warden Nardolillo?s and Warden Holm?s tenure[s] at the facility,? but we agree with GEO that a prison ?should not have to wait for a khimar to actually be used in an unsafe or risky manner, risking harm to employees or inmates, before this foreseeable risk is considered in determining undue hardship.? In other words, because ?[i]n a prison setting, the safety of the employees and inmates is of top priority .... [GEO] should not be prevent[ed] from countering, through appropriate policies, the risks which might be posed by the plaintiff[s?] preferred accommodation.? 

Even assuming khimars present only a small threat of the asserted dangers, they do present a threat which is something that GEO is entitled to attempt to prevent. To GEO, the fact that inmates have other clothes that could also be used to strangle a guard ?does not mean that the facility would be out of line in banning something else which can also be used as such a weapon,? especially given that a khimar does not have a legitimate penological justification. It argues that unlike other clothing, ?the khimar is already located about the guard?s head, virtually around the neck already.?

The arguments presented by the parties make this a close case. The EEOC has an enviable history of taking steps to enforce the prohibition against religious discrimination in many forms and its sincerity in support of its arguments against the application of the no headgear policy to Muslim employees wearing khimars is evident. On the other hand, the prison has an overriding responsibility to ensure the safety of its prisoners, its staff, and the visitors. A prison is not a summer camp and prison officials have the unenviable task of preserving order in difficult circumstances.

Thanks to How Appealing for the pointer.

Full post as published by The Volokh Conspiracy on August 02, 2010 (boomark / email).