Friday, August 12, 2011

Sidhu on Religious Appearance Discrimination

Sidhu Dave Sidhu (New Mexico) has a terrific post over at PrawfsBlawg on religious appearance discrimination. With his permission, I'm cross-posting it here:

Earlier this year, the ABC News show, "What Would You Do?," aired a segment in which three job applicants – a Jewish man with a yarmulke, a Muslim woman with a headscarf, and a Sikh man with a turban – were denied employment at a restaurant, in front of and within earshot of customers, specifically because the applicants’ religious attire did not conform to the employer’s dress code policy.  The purpose of this hidden camera show is to ascertain how unsuspecting members of the public will respond to an underlying problematic situation played out by actors.  In this case, the objectionable situation designed to illicit a public reaction was the fact that the applicants were rejected solely because of their religious appearance.  For example, the restaurant manager informed the Sikh applicant that he could not be hired “looking the way you look” because the turban could be considered “threatening to anyone sitting here eating.”

Some patrons  took the bait -- they voiced concern that the restaurant manager’s decision was discriminatory and unlawful.  One witness, for example, likened the treatment of the Sikh applicant to discrimination on the basis of race -- can the manager “say the same to me about my color or my religious beliefs, it’s the same thing.” Another troubled witness told the manager, “I’m not sure you’re aware how illegal this is…. You’re lucky there are no lawyers around."

As it turns out, the assumption that such conduct is inconsistent with the law is a mistake.  For years, federal courts have enabled employers to engage in the behavior depicted in this broadcast.

Where, as with the above scenario, there is a conflict between an employee’s religiously-mandated appearance and an employer’s interest in avoiding possible negative customer reactions to the religious employee’s identity, federal courts are allowing employers to resolve this conflict by placing the religious employee out of public view or by refusing to hire him or her altogether.  In legal terms, courts faced with Title VII claims are reasoning that placing an employee with religious attire in the back is an acceptable “reasonable accommodation” of the employee’s religion or that to hire such an employee may result in economic costs that amount to an “undue burden.”

My recent research argues that these courts have it wrong.  It seems to me that the text of Title VII forbids such employer action and that this conduct reinforces majoritarian norms and perpetuates harmful stereotypes as to who the public wants to interact with.  Reserving social spaces for the familiar or likeable religions is problematic.  Moreover, other contexts, particularly principles from the civil rights movement, also point to the discriminatory nature of this employer conduct.

While this position may not be controversial, what may serve as a lightning rod is how the aforementioned employer conduct is being described.  In particular, if an employer places in the back an employee who looks different on account of his religious attire, or refuses to hire such an individual, can this be fairly termed "segregation"?  In other words, it seems, the employer is segregating an employer in the workplace (by placing him or her away from the public) and from the workplace (by refusing to hire him or her).   Title VII expressly prohibits "segregation" and language in the latest Workplace Freedom Restoration Act refers to this conduct as "segregation."  The term is charged, but the question is whether its use is accurate or prudent in this context.

rb

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Employment Discrimination, Scholarship | Permalink

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Comments

This reminds me from the Pan Am case from the 1960's (Diaz v. Pan American Airlines 5th Circuit-I think), where the court held that under Title VII an employer could not discriminate on the basis of customer preference, in that case, the sex appeal of airline stewards.

Posted by: Mitchell Rubinstein | Aug 12, 2011 5:35:55 PM

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