The Third Circuit splits over the question of whether a private-contract operator of a Pennsylvania prison was required to accommodate Muslim head coverings (khimars) at work. The majority accepts the correctional-safety account, and affirms summary judgment; Ninth Circuit visiting-judge A. Wallace Tashima dissents.
EEOC v. GEO Group Inc., No. 09-3093 (3d Cir. Aug. 2, 2010): The prison – called the Hill Facility – “adopted and enforced a ‘zero tolerance headgear policy’ . . . According to GEO, the no headgear policy was adopted for safety and security reasons to prevent the introduction of contraband into the prison facility and to avoid misidentification.” There women who had previously been allowed to wear khimars were ordered, under the auspices of the new policy, to go cover-less. In litigation, the parties moved for cross-summary judgment on the defense of undue hardship, and the district court – citing another case about khimars, Webb v. City of Philadelphia, 562 F.3d 256, 258 (3d Cir. 2009) (involving police department employees) – dismissed the case on summary judgment.
The majority affirms. It rejects off the bat the employer’s suggestion that it offered a reasonable accommodation by allowing the employees to wear a hairpiece instead: “There is no evidence about the proposed hairpiece nor any details about the Muslim employee who found it acceptable. We are unwilling to delve into any matters of theology, and will therefore decline GEO’s invitation to decide on our own what might constitute a reasonable substitute for a khimar under the Islamic faith.”
The record presented by the parties included two defense witnesses (Nardolillo and Holm), both employees of the defendant (wardens), who testified – in addition to their concern about the use of head coverings to smuggle contraband, or cover a face – that a scarf could also be used to strangle or restrain the wearer. The EEOC submitted an expert report (the “Camp Report”) that, as summarized, stated that “(1) GEO’s professed reasons for denying any of its female employees the ability to wear a khimar lack merit and substance; (2) GEO made no genuine attempt to, nor reasonable offer of, an alternative method (of which several exist) for accommodating the wearing of the khimar; and (3) [t]here is no sound legitimate correctional reason for GEO to deny its female employees to wear a khimar within the secure perimeter of the facility.”
The panel holds that
“In the last analysis, GEO’s no headgear policy must stand on the [defense] testimony . . . that (1) khimars, like hats, could be used to smuggle contraband into and around the [prison], (2) that khimars can be used to conceal the identity of the wearer, which creates problems of misidentification, and (3) that khimars could be used against a prison employee in an attack.”
Though recognizing that the risk might be small, the panel holds that khimars “do present a Thereat which is something that GEO is entitled to attempt to prevent. To GEO, the fact that inmates have other clothes that could also be used to strangle a guard ‘does not mean that the facility would be out of line in banning something else which can also be used as such a weapon,’ especially given that a khimar does not have a
legitimate penological justification.”
The panel also points a curious omission in the record: “The EEOC never introduced a khimar into evidence. Although khimars may come in different shapes and sizes we note the description adopted by a sister circuit that stated ‘A khimar is a traditional garment worn by Muslim women that covers the forehead, sides of the head, neck shoulders, chest and sometimes their waist,’ EEOC v. Kelly Servs., 598 F.3d 1022, 1023 n.1 (8th Cir. 2010) (quotation and citation omitted), a description similar to that provided in the EEOC’s complaint. If that were the size of the garment worn by a staff member, the possibility of strangulation should not be
The panel takes several shots at the dissent as well, labelling its criticism of the defense-witness testimony as “unfairly cynical.” Ultimately, says the majority, “The Dissent appears to place more reliance on the testimony of the EEOC’s expert witness than on the testimony of the experienced prison officials on the site at issue. The Dissent’s view of how a prison should be run, particularly its minimization of the security concerns that motivated the change in headgear policy at the Hill Facility, runs counter to the direction we have been given by the Supreme Court [then, quoting at length, Turner v. Safley, 482 U.S. 78, 84-85 (1987)].”
The dissent regards the defense and EEOC witness clash as presenting genuine issues of material fact: “A close examination of the record reveals that Nardolillo and Holm’s testimony about how, why, and when the khimar policy was changed is internally inconsistent and is further called into question by the testimony of other witnesses and GEO’s own business records. The record also supports the inference that GEO’s stated rationales for banning khimars may be pretextual and are highly speculative. The majority characterizes this analysis of the record as ‘unfairly cynical.’ Maj. Op. at 16. I believe that it is merely the application of the proper standard of review [for summary judgment].”
The dissent, which exhaustively canvassed the record in favor of the non-movant EEOC, summarizes some of the testimony that presented what he saw as a triable issue of fact:
“[Charging party] Moss requested a religious exception. Nardolillo then told Moss that ‘no religion will be horned in the jail’ and that ‘he doesn’t care if it’s a Jewish person with a turban on his head or rosary beads around their neck.’ JA 159. When Moss asked why Muslim women visitors to the secured area of the prison were permitted to wear their khimars, but she could not, Nardillo replied, ‘that will be stopped, too.’ JA 159. Moss then asked why female inmates were permitted to wear khimars. The Warden replied, ‘[d]ue to Title 37, they have the right of freedom of religion.’ JA 159. Moss, pointing out that she was not incarcerated, asked why she did not have the same right. JA 159. Nardolillo replied, ‘[b]ecause you’re not. No religion will be horned.’ JA 159. Nardolillo continued to explain, ‘this the battle he’s choosing to fight.’ JA 159.”
The dissent also faults the majority’s legal analysis of the defense: “The majority’s approach allows an employer facing an asserted safety concern freely to discriminate on the basis of religion by merely inventing a post-hoc safety rationale for its refusal to accommodate its employees’ religious practices. An employer cannot evade liability for religious discrimination by merely asserting that it has a legitimate business interest, no matter how important, for refusing to accommodate an employee’s religious practice.”