Webb v. City of Philadelphia, No. 07-3081 (3d Cir. Apr. 7, 2009)

| Apr 6, 2009 | Daily Developments in EEO Law |

A Muslim police officer loses her plea, under Title VII, to be allowed to wear a hijaab while on-duty. Although this particular case fails (possibly owing to a underdeveloped record), the Third Circuit opinion hints that the fight may not yet be over.

Webb v. City of Philadelphia, No. 07-3081 (3d Cir. Apr. 7, 2009):  After eight years of service, Officer Webb approached her commanding officer with a request to wear a headscarf at work.  The request was denied under Department Directive 78, which prescribes the approved uniform for police.  The Directive did not authorize the wearing of any religious clothing, insignia or coverings.  Officer Webb appeared at work three days wearing the scarf, in spite of the policy, and she was sent home (eventually, she was also disciplined with a thirteen-day suspension).

The district court granted summary judgment on Webb’s claims, and she took an appeal of the Title VII religious accommodation and sex discrimination counts (the latter dismissed for failure to file a charge).  On the former claim, the district court held that accommodating Webb would have posed undue hardship because it would intrude on uniformity, cohesiveness, cooperation and esprit de corps.

The Third Circuit affirms.  The case turned on the department’s blanket exclusion of all religious garb.  This was not a case, as in Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999), where the city allowed police to wear beards for medical (secular) reasons but not religious reasons.

The panel found uncontradicted in the record the city’s explanation for its blanket exclusion:

“If not for the strict enforcement of Directive 78, the City contends, the essential values of impartiality, religious neutrality, uniformity, and the subordination of personal preference would be severely damaged to the detriment of the proper functioning of the police department. In the words of Police Commissioner Sylvester Johnson, 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 to the general public.'”

The lack of record evidence contradicting the city doomed the appeal.  Belatedly, one of Webb’s amici curiae sought leave to file an appendix of other armed forces and police department that allowed the wearing of religious clothing, but the panel disregards this as not of record.  The panel also found irrelevant the record evidence that some officers had been allowed to display religious symbols, because the record did not reveal whether the department affirmatively authorized these deviations from policy.  Finally, the panel refuses to hear constititutional claims raised only for the first time on appeal. 

So while Webb loses this round, there remain some other arguments for officers in the future to raise.

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