Religious discrimination doesn't just happen in France.

The law, lawyers, and the court.
Dec. 30 2003 3:32 PM

French Dressing

Lessons for America from the proposed French ban on religious garb.

When French President Jacques Chirac endorsed a recent proposal to prohibit French schoolchildren from wearing religious clothing in public schools, the United States was quick to criticize him. American Ambassador John V. Hanford indignantly claimed that "a fundamental principle of religious freedom … is that all persons should be able to practice their religion and their beliefs peacefully, without government interference." While the ambassador's statement appears unequivocal, it skirts an issue with significant implications for religious Americans: In condemning only "government interference" with religious freedom, Hanford glossed over a simmering domestic debate about employer interference with religious practices and beliefs. This is a critical issue for the many Americans of faith who are victims of employment discrimination due to such practices and beliefs.

If you think the problem doesn't exist here, try wearing your turban to the St. Louis courtroom of federal judge Michael Reagan. Last year, Reagan threatened to evict several fez-wearing spectators who came to observe a trial. When a woman protested that she was wearing a hat to show respect for her lord, the judge told her to "please leave, take it off, and come back in, or do not come back in. The choice is yours." The judge also made it clear that he was an equal-opportunity offender. When asked whether he would have been as dismissive of more traditional religious practices, Judge Reagan replied: "Jews will not wear yarmulkes. I am Catholic, and the pope would not wear a miter."

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It is hard to know why Reagan got so worked up by the sight of religious headgear, but he is not alone. Earlier this month, Sikhs gathered at the New Jersey Statehouse in Trenton to demand legislation to protect against the job discrimination they experience because they wear turbans. My boss, New York Attorney General Eliot Spitzer, had to step in a few years back when a well-known chain of hair salons fired a longtime employee after he started wearing his yarmulke on the job. And it's not just religious headgear that seems to tick off employers. Both the Equal Employment Opportunity Commission and the New York Attorney General's office sued Federal Express over its policy prohibiting employees who wear dreadlocks for religious reasons from being promoted to positions that require customer contact.

Workplace discrimination is not confined to blue-collar jobs, either. A few years ago, at a Columbia Law School forum, a partner at one of the country's largest law firms candidly observed that wearing a yarmulke to an interview will diminish one's job prospects. An informal study at Fordham Law School concluded that Jewish students on the Law Review who wore yarmulkes to their job interviews were far less likely than their classmates to be called back for a second interview. And New York law firms are far more progressive—and accommodating—than most.

There ought to be a law. And technically, there is. In 1972, Title VII of the 1964 Civil Rights Act was amended to require employers to "reasonably accommodate" the religious practices of their employees, unless that accommodation would impose an "undue hardship" on the employer. But in 1977 the Supreme Court held, in TWA v. Hardison, that anything more than a very minimal cost is an "undue hardship" that negates the employers' duty to accommodate workers.

Money costs are not the only possible source of undue hardship claims. Courts have found businesses' concerns about workplace morale or even "industrial peace" to be more compelling than a religious accommodation. One federal court even relied upon the claims about the negative impact on a restaurant's public image, in dismissing a claim brought by a Sikh employee who was fired after refusing to shave his beard.

And cases involving clothing or grooming are not the most difficult. Many religious discrimination cases involve the religious employee's need for time off for religious observances. In Hardison, the court held that it would be an "undue hardship" to require TWA to incur a $150 cost to accommodate an employee who refused to work on his Sabbath. While some courts have subsequently rejected claims advanced by large employers that relatively minimal expenses constitute undue hardship, others have upheld them.

To be sure, nobody expects the courts to direct businesses to incur substantial expenses to accommodate a single employee. Courts, and businesses, must draw a line beyond which accommodation is truly burdensome and therefore unnecessary. But the courts have been less than generous to religious employees when deciding where to place that line.

This inflexibility of courts and employers is striking in that it comes just as we have expanded the obligation to assist other members of society traditionally excluded from the workplace.

The most prominent manifestation of this trend is the Americans With Disabilities Act, legislation requiring employers to accommodate individuals with disabilities. Under the ADA, an employer's duty to offer a "reasonable accommodation" to the disabled includes offering "job restructuring … modified work schedules and reassignment to a vacant position." Claims of "undue hardship" are limited to those requiring a "significant difficulty or expense" when considered in light of the resources of the employer. In short, no major airline would be permitted to rely on a $150 cost to avoid its obligations to the handicapped under the ADA.

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