VIEW: Two verdicts on hijab

By Rafia Zakaria

If the principles of religious neutrality in which the State is prevented from endorsing one religion over another were abandoned, Muslims as a religious minority in the United States would suffer severe adverse consequences

In recent days the United States courts have issued two different verdicts in cases involving the right of Muslim women to wear hijab while on the job. On June 6, 2007 a jury in Arizona awarded, Bilan Nur, a woman from Kenya, over USD 250,000 in punitive damages against Alamo Rental Car Association who had fired her for not removing her hijab. Contrastingly, on June 12, 2007 a judge in Philadelphia ruled against Kimberlie Webb who had alleged that the Philadelphia Police Department had discriminated against her in refusing to give her permission to wear the Khimar (a hijab covering head to waist) while performing her duties as a police officer.

The two cases and their divergent outcomes are instructive in illustrating how American jurisprudence deals with the issue of religious discrimination in the workplace. Both cases were brought by plaintiffs under Title VII of the Civil Rights Act of 1966 which prohibits an employer from discriminating against an employee on the basis of religion unless they can demonstrate that accommodating the religious practice would cause them undue hardship.

In the first case, which took place only months after 9/11, Bilan Nur had informed her managers at the Alamo Car Rental office that she would like to wear the hijab during the month of Ramadan. The Alamo Car Rental Company’s stated dress code did not say that head coverings of any sort were prohibited to employees. However, when Bilan Nur began wearing the hijab she received repeated warnings telling her that Company policy did not allow her to do so. She was later told that she could wear the hijab when working in the back of the office but not while serving customers at the counter. Ultimately, she was fired for failing to remove her hijab.

The judge hearing the case refused to dismiss the complaint on the grounds that the Alamo Car Rental Company had failed to provide any evidence of their attempts to “reasonably accommodate” Ms. Nur’s religious beliefs. In the first week of June 2007, nearly six years after Ms Nur was fired, a jury of twelve men and women in the state of Arizona found Alamo Car Rental guilty of religious discrimination and ordered them to pay nearly a quarter of a million dollars in punitive damages to Ms Bilan Nur.

In the second case, Kimberlie Webb filed a similar discrimination case against the Philadelphia Police Department for refusing her permission to wear a Khimar while on duty as a police officer. In this case, the Philadelphia Police Department had in place Police Directive 78 which prohibits the wearing of religious symbols on uniform and the wearing of religious apparel while on duty. When her complaint was initially heard by the Philadelphia Police Commissioner, himself a Muslim, it was found that her actions went against the existing rule and she was ordered suspended for thirteen days.

In his order dismissing Ms Webb’s case, the judge found that the Philadelphia Police Department had demonstrated that they could not “reasonably accommodate” Webb’s request without incurring a significant cost. Unlike the Alamo case, where Alamo Car Rental was unable to provide any evidence of why they were unable to accommodate Bilan Nur’s desire to wear her headscarf, the Webb case presented a different dilemma. Unlike a car rental agent, the court noted that a police officer is a paramilitary agent whose primary duty is to enforce the law. According to the court, since the police officer acts as a representative of the government, it is crucially important that they project an image of religious neutrality

In terms of the rights of individual Muslim women to both wear the hijab and serve in the Philadelphia Police Force, the Webb decision illustrates a vexing dilemma. In prioritising religious neutrality as an important goal when individuals represent the State, the court in Philadelphia was clear in stating that any individual religious duties come second to the State’s interests in promoting religious neutrality. Its decision was based not simply on cases involving Muslim women, but on similar decisions in which a Jewish psychologist in the military was prevented from wearing a yarmulke (Jewish cap) for the same reasons.

The prerogative is simple: when a police officer arrests someone or a military psychologist counsels someone, they are to be seen as agents of the government or the military and not as Muslims, Jews or Christians. In the Alamo case, such a prerogative did not exist, the company was a private one and had never before stated that religious symbols were not allowed. Thus the court and jury were both quick to punish a company that seemed to be using an arbitrary dress code to mistreat someone simply because she wished to wear a hijab.

While the verdict in the Webb case may well seem repugnant to some American Muslims, it is important to consider it in light of the larger protections it affords religious minorities.

If the principles of religious neutrality in which the State is prevented from endorsing one religion over another were abandoned, Muslims as a religious minority in the United States would suffer severe adverse consequences. Without the legal protections that prevent the majority religion (in this case Christianity) from being forced upon them in schools, public offices and other governmental institutions, it is reasonable to say that Muslims would feel both excluded and discriminated against because of their smaller numbers.

In light of this, it could even be argued that the two decisions on the rights of Muslim women to wear hijab both represent victories. In the Alamo case, a private employer was sent a clear message that an arbitrary dress code could not be used to discriminate against the religious practice of a Muslim woman. In the second, the abstract principle of religious neutrality was prioritised on the basis that allowing religious symbols in the police force could easily alienate religious minorities and arguably expose them to even more discrimination.

Rafia Zakaria is an attorney living in the United States where she teaches courses on Constitutional Law and Political Philosophy. She can be contacted at rafia.zakaria@gmail.com

Source: http://www.dailytimes.com.pk/default.asp?page=2007%5C06%5C23%5Cstory_23-6-2007_pg3_3