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No Right to Wear Religious Headscarf Under Uniform "Neutrality" Policy, Appeals Court Holds

By Lynn C. Outwater
  • May 11, 2009

The federal appeals court in Philadelphia has affirmed a lower court’s decision that the Philadelphia Police Department’s refusal to provide a religious accommodation to a female police officer seeking to wear a religious headscarf while on duty and in uniform did not amount to religious discrimination.  Webb v. City of Philadelphia, 2009 U.S. App. LEXIS 7169 (3d Cir. Apr. 7, 2009).

Kimberlie Webb, a practicing Muslim, was employed approximately eight years as a police officer with the Philadelphia Police Department before she requested permission from her commanding officer to wear a traditional Muslim headcovering (a khimar or hijaab) while on duty and in uniform.  The headscarf Webb wanted to wear would not have covered her face or her ears, but would have covered her head and the back of her neck.  The request was denied in light of a Philadelphia Police Department Directive outlining approved uniforms and equipment.  The Directive was described by the Department as a very strict dress code which did not authorize the wearing of religious symbols or garb as part of the uniform.

After Webb’s request was denied, she filed a complaint of religious discrimination under Title VII with the Equal Employment Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations Commission (“PHRC”).  While the matter was pending, Webb reported to work wearing the headscarf.  When she refused to remove it, she was sent home, pursuant to the Directive.  She wore the headscarf each of the next two workdays and was ultimately disciplined for insubordination and suspended for thirteen days.

Webb brought suit against the City of Philadelphia, the Philadelphia Police Department and the Police Commissioner, alleging that the Department discriminated against her in violation of (1) Title VII, on the basis of sex and religion, and (2) the Pennsylvania Religious Freedom Protection Act (“RFPA”).  The lower court granted summary judgment to the defendants on all claims, finding that Webb failed to exhaust her administrative remedies for the Title VII sex discrimination claim, failed to meet the statutory notice requirements for the RFPA claim and failed to raise a genuine issue of material fact as to the Title VII religious discrimination/retaliation claims.

Webb appealed only the religious and sex discrimination claims, and attempted to add constitutional claims to her appeal.  The constitutional claims were rejected by the U.S. Court of Appeals for the Third Circuit, which held that Webb waived these claims when she failed to raise them at the District Court level.  The Court also affirmed that Webb failed to exhaust her administrative remedies as to the sex discrimination claim.

In order to establish a religious discrimination claim, a plaintiff 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. 

Shelton v. Univ. of Med. and Dentistry of NJ, 223 F.3d 220, 224 (3d Cir. 2000).  If these 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.

Title VII religious discrimination cases frequently turn on questions of whether the employer can show that a reasonable accommodation would cause an undue hardship to the employer.  An accommodation constitutes an o;undue hardship” if it would impose more than a de minimis cost on the employer.  Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977).  A court may look to both economic and non-economic costs.  Such costs include, for example, violations of the seniority provision of a collective bargaining agreement and threat of possible criminal sanctions.  United States v. Bd. of Educ., 911 F.2d 882, 886 (3d Cir. 1990).

On review in Webb, the Third Circuit focused on the interests of a governmental entity in maintaining the appearance of neutrality and impartiality.  The Police Commissioner had argued that 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 the general public.”  The Court placed particular emphasis on the Commissioner’s reasoning with respect to neutrality, citing his testimony, “[I]n 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.”  The Court held that the Commissioner’s “thorough and uncontradicted reasons for refusing accommodations are sufficient to meet the more than de minimis cost of an undue burden.”

The Court went on to say, however, that in cases where an accommodation is made for medical reasons, it may sufficiently suggest discriminatory intent where a similar exception on religious grounds is refused, citing Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999).  In that case, the Court held that the police department must create a religious exemption to its “no-beards” policy to parallel its secular one, unless it could make a substantial showing as to the hypothetical negative effect of a religious exemption.

Employers with “neutral” policies regarding uniforms and garb should enforce these policies consistently and without exception.  Where exceptions necessarily are made for medical or other reasons, employers must be able to articulate a specific negative effect that a similar exception on the basis of religion would have on the employer, amounting to undue harm.  Jackson Lewis attorneys are available to answer your questions about Webb and workplace discrimination laws.

©2009 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Jackson Lewis P.C. represents management exclusively in workplace law and related litigation. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Jackson Lewis attorney with whom you regularly work.

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