In a case of first impression in our state, a New Jersey appeals court has upheld a Muslim correctional officer’s dismissal for refusal to remove her religious head scarf at work. Tisby v. Camden County Correctional Facility, N.J. Appellate Division, 2016.

The Appellate Division upheld the trial court’s entry of summary judgment, dismissing the county employee’s law suit, despite the on-the-surface appearance of religious discrimination.  The Appellate Court decided the plaintiff’s claims of religious discrimination and management’s failure to reasonably accommodate her religious headgear failed when measured against the unreasonable hardship her request would have had on her County employer, if granted.

In its legal and factual analysis, the Appellate Court identified two serious risks:  First, Linda Tisby’s headscarf could have been taken by a pretrial detainee or inmate and used to choke someone, or to smuggle contraband into the jail.  Second, the County Jail had an interest in presenting a neutral and unbiased looking staff.

The appeals court noted with approval the reliance by the court below on two federal court rulings from the Third Circuit, Webb v. City of Philadelphia, barring the wearing of Muslim head coverings by a woman police officer, and EEOC v. Geo Group, finding that the right of women employees in a correctional facility to wear Muslim headgear was outweighed by safety concerns.

The plaintiff filed two lawsuits against Camden County alleging various grounds of religious discrimination.  Both were dismissed by the trial court.

On appeal, a three-judge panel used the burden-shifting approach created by the U.S. Supreme Court in a 1973 federal case, McDonnell Douglas v. Green, which the New Jersey courts also use to evaluate cases filed under the State’s Law Against Discrimination.  In this case, the judges decided Ms. Tisby established a facially valid case of discrimination, but further determined that the Defendants offered a legitimate and nondiscriminatory reason for their actions.

Said the Appellate Division:  “We do not minimize the religious significance of the [religious scarf] for the women who wear them. We recognize a compelling sense of religious obligation in the decision to wear [one]. However, the trial judge drew appropriate guidance from the [prior case law], as well as the evidence presented, when determining an accommodation would impose a hardship on defendants.”

By way of contrast, in 2015, the U.S. Supreme Court decided that a Muslim woman’s wearing of religious head garb was a protected right under Title VII of the U.S. Code, and the private employer had to yield, despite the employer’s written policy against employees’ wearing of hats and scarves on the job, for purposes of maintaining a certain “look”.  EEOC vs. Abercrombie & Fitch, 575 U.S. ___ (2015).  The obvious difference between that case and the Tisby case is the correctional/law enforcement setting, and the fact that the private company’s customers were not pretrial detainees or sentenced inmates.  Jail/prison security is almost always going to trump a request for religious accommodation, whether clothing or otherwise.

It is not clear whether the plaintiff, Ms. Tisby, will seek higher judicial review in New Jersey or even to the U.S. Supreme Court at some point.  The County’s asserted interest in uniformity may or may not hold up by reference to the Abercrombie case referenced above.  However, if the Tisby case goes up on further appeal, I predict the safety concerns articulated by the Appellate Division and trial court judges will be upheld, for the reasons stated above.

If you believe you have been the victim of workplace discrimination, including for religious reasons, you should contact experienced employment law attorneys for workers. At the law offices of Hanan M. Isaacs, P.C., we offer you compassionate counsel and tough advocacy.  Call 609-683-7400, or contact us online, to schedule a near-term and reduced fee initial consultation at our Central Jersey offices in Kingston.  We will listen to your facts, explain the law, and suggest pathways to civil and economic justice that are just right for you.  Call today.  You will be glad you did.