Not Religious Discrimination To Refuse Muslim CO’s Request To Wear Khimar

Linda Tisby began working as a corrections officer for the Camden County, New Jersey Correctional Facility in 2002. In 2015, Tisby reverted to the Sunni Muslim faith. On May 1, 2015, Tisby reported to work wearing, for the first time, a traditional Muslim khimar, a tight fitting head covering without a veil.

Tisby’s supervisor informed her she was not in compliance with the uniform policy and could not work unless she removed the khimar. Tisby refused to remove her khimar, so she was sent home and disciplinary charges were recommended.

Tisby refused to remove her khimar again on May 2, May 3, and May 6, 2015, stating the khimar was for religious purposes. Each day Tisby refused, she was sent home and disciplinary action was implemented. As a result of the May 6, 2015 events, Tisby received a two-day suspension.

In a May 11, 2015 memorandum, the Warden advised Tisby he considered her “position as a request for an accommodation under Title VII of the Civil Rights Act, as well as New Jersey’s Law Against Discrimination,” even though she had not formally submitted such a request. The Warden recognized Tisby’s religious beliefs were sincerely held but rejected her accommodation request because it would “constitute an undue hardship to the Department to allow an officer to wear head-coverings or other non-uniform clothing.” He informed Tisby no disciplinary action would be taken against her if she came to work in only the permitted uniform.

Tisby declined and continued to wear her khimar. She was fired on May 11, 2015, and brought a religious discrimination lawsuit against the County.

A New Jersey Appeals Court held that the County had not violated Tisby’s rights. The Court noted that “our courts have not previously addressed this issue, but other courts have. In EEOC v. Geo Group, Inc., the EEOC brought a religious discrimination case on behalf of Muslim women employees against a private employer running a corrections facility for refusing to allow an exception to the prison’s dress policy, which precluded them from wearing Muslim head coverings. Weighing the religious beliefs of the Muslim women against the employer’s safety concerns the Court agreed khimars, as well as other headgear, would present safety concerns in a prison setting because they could be used as a weapon to choke someone. In Webb v. City of Philadelphia, a Philadelphia police officer requested permission to wear a headscarf while on duty, and the request was denied. The City prevailed, arguing any accommodation would be an undue hardship because the “perception of its impartiality” of an officer was at stake.

“We do not minimize the religious significance of the khimar for the women who wear them. We recognize a compelling sense of religious obligation in the decision to wear a khimar. However, after weighing the safety concerns, including the safety risk and the ability to hide contraband in head coverings, as well as the necessity of uniform neutrality, the trial judge determined defendants met their burden of establishing accommodation was a hardship. Moreover, the employer’s reasons for denying an accommodation were not pretextual. Therefore, Tisby failed to overcome the finding of a hardship to defendants.”

Tisby v. Camden County Correctional Facility, 2017 WL 192887 (N.J. App. 2017).