The federal government has filed suit against a suburban Chicago school district for denying a public school teacher unpaid leave so that she could practice her faith.
The Berkeley School District denied the teacher her unpaid leave to go on a religious pilgrimage on grounds that it was unrelated to her professional duties and was not set forth in the contract between the school district and the teachers union.
In its complaint, the federal government argues that the school district violated the Civil Rights Act of 1964 by failing to reasonably accommodate her religious practices, and allges that the district compelled her to choose between her job and her religious beliefs. She chose her religious beliefs and resigned.
The lawsuit, based on charges of religious discrimination and filed on her behalf by the Equal Employment Opportunity Commission, seeks her reinstatement, back pay and unspecified damages, and an order requiring the district to adopt a policy designed to “reasonably accommodate the religious observances, practices and beliefs of employees and prospective employees.”
The rub, of course, is that the teacher is Muslim; the religious practice is the pilgrimage to Mecca in Saudi Arabia which every adult Muslim is supposed to make at least once in a lifetime if they are physically and financially able to. Millions go each year.
We don’t need to kid ourselves on this one. Had this teacher been Christian and had her religion required a similar act of faith, many people would be up in arms about the actions of the government. Because the teacher is Muslim, many of those same people will instead be siding with the government. For instance, the deliciously and typically inflammatory headline on the AtlasShrugged blog: “Department of Justice Enforces the Sharia: Sues Illinois School District for Muslim Teacher Hajj.”
The central issue for most critics won’t be about religion or about government or law or any separation of Church and State argument. For those critics, it’ll be strictly and solely about their contempt for Muslims. Sorry, but this will boil down to a simple matter of law.
First, a couple of particulars:
The teacher, Safoorah Khan, asked for 19 days of unpaid leave. She had put in the request twice before and was denied each time.
You can’t just do the pilgrammage any old time. It’s celebrated at a specific time of the year on the Islamic calendar. Because the Islamic calendar is a lunar calendar, eleven days shorter than the Gregorian calendar used in the Western world, the Gregorian date of the Hajj changes from year to year. We might argue that she could wait until the Islamic calendar doesn’t conflict with Chicago’s school calendar but we don’t know the woman’s financial circumstances. Traveling overseas isn’t cheap and this period in her life might’ve been the most fiscally opportune time for her to make the trip.
Now, the law.
While drawing conclusions based on personal feelings about Islam is to be expected, a thorough understanding of the law strongly suggests that the school district is wrong and Ms Khan will win her lawsuit.
The 1972 amendments to Title VII of the Civil Rights Acts of 1964 requires employers to give religious employees special exemptions from generally applicable job requirements so long as such an exemption doesn’t impose “undue hardship on the conduct of the employer’s business.”
It’s called the “reasonable accommodation” requirement, which means the employer’s duty is one of reasonable accommodation, not of accommodation, period. The fact that the employee is Muslim, and their religious beliefs thus stem from Sharia law rather than from their understanding of Jewish law or of Christian commandments, doesn’t strip them of their rights under that statute.
Some may raise questions about whether such requests were part of the contract the union negotiated with the school system (they weren’t), or whether or not the school district has made similar accommodations to any Christian or Jewish teacher for, say, a pilgrimage to the Holy Land or Rome. (Unknown.)
Plenty of teachers throughout the country get unpaid days off for religious reasons. Devout Jews take off annually for high holidays like Rosh Hashanah and Yom Kippur. Or is it that the only way to get a religious vacation is to be a member of the right religion? Well, of course, that’s not the question.
Should we frame the question differently? Is it not a right to practice one’s faith without fear of losing your job? Of course not, and the 1972 amendments to Title VII of the Civil Rights Acts of 1964 protect that right.
Such requests for extended leaves have been made before by members of another religious group: The Worldwide Church of God, the adherents of which apparently feel obligated to take eight to 10 days off every year to observe a holiday (the Feast of Tabernacles). The EEOC and the Justice Department have on several occasions sued on behalf of Worldwide Church of God members, claiming they have a right to religious accommodation.
Would we condemn these cases on the grounds that the courts, the EEOC, or the Department of Justice was “enforcing the Worldwide Church of God’s religious law”? No. The courts and the government were asking that American law be upheld. The same is so in the hajj case.
Naturally, this leaves open the question whether the school district could indeed accommodate Ms Khan without undue hardship. Maybe the EEOC and the Justice Department were right to conclude that the school district could indeed reasonably accommodate Ms. Khan.
Or maybe they were wrong, because of the nature of her job, its staffing mechanisms, any special tasks that need to take place in December, the likely burden on other employees, the possibly excessive interference with a seniority system set up in a collective bargaining agreement, and so on.
The question may boil down to whether 19 days of leave is so long that it would be unreasonable to ask the school district in this instance to accommodate it. (Many cases have held that it wouldn’t be an undue hardship for particular employers to accommodate Saturday observers, even when that meant changing the schedule for 50 days a year, and the 19 days of leave are only a one-time request, as opposed to the Worldwide Church of God members’ eight to ten days each year. But the school district might be able to argue that this particular request does impose an undue hardship in this particular case.)
Or perhaps the school district can show that Ms. Khan doesn’t sincerely feel the need to take all 19 days off, and might find it sufficient to take a shorter leave (though the school district’s position, as described in the Complaint, doesn’t seem to be that).
But in any event, and no matter what biases one has toward the Muslim faith, the Title VII rules, coupled with the Worldwide Church of God precedents, suggest that the federal government is acting pretty much the way that it’s supposed to act when a claim of violation of American antidiscrimination law is raised. It’s not showing special favoritism towards Muslims in this case. Rather, it appears to be applying to them the protections that Title VII mandates for all religions.
On the plus side, though, we must be glad that right wing fundamentalists have found a Berkeley they can love.