Correctional Facility Did Not Improperly Discriminate Against Muslim Officer in Denying Her the Right to Wear Religious Headgear

Tisby v. Camden Cty. Correctional Facility, 448 N.J. Super. 241 (App. Div. 2017).  Plaintiff, a corrections officer at the defendant correctional facility(“CCCF”) since 2002, became a Muslim in 2015.  She began to wear a khimar (also known as a hijab), which is a tight-fitting head covering that Muslim women are obligated by their religion to wear.  Her supervisor told her that she was not in conformance with the facility’s policy regarding uniforms, which allowed only “authorized headgear as prescribed by prevailing departmental regulations.”  After some intermediate events, including a two-day suspension, plaintiff was relieved of her position when she continued to wear the khimar.

Though plaintiff never formally sought an accommodation, defendant had treated plaintiff’s situation as a request for an accommodation.  As Judge Gibbons Whipple recited in her opinion for the Appellate Division today, defendant’s Warden  “recognized plaintiff’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.”

Plaintiff filed two lawsuits.  One asserted that she had been wrongly suspended due to her religious beliefs, in violation of N.J.S.A. 11A:2-13, and that defendants had failed to accommodate those religious beliefs in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (“LAD”).  In that case, she sought reinstatement and back pay.  The other complaint sought damages and equitable relief for failure to accommodate under the LAD and (unlike the other case) asserted that defendants had “permitted other women, including Muslim women and women going through chemotherapy, to wear head coverings at CCCF.”

Defendants moved to dismiss both cases.  Though their motion was made under Rule 4:6-2(e), seeking dismissal for failure to state a claim, defendants submitted a certification from the Warden and other evidence that went beyond the complaint.  Plaintiff responded with her own certification.  The Law Division entered an order dismissing the first case described above (which was actually the second of the two cases filed), “with prejudice, in accordance with Rule 4:6-2(e), or, in the alternative, that summary judgment be granted to [CCCF], in accordance with Rule 4:46, dismissing the complaint.”  A different judge subsequently dismissed the other complaint based on the entire controversy doctrine.  Plaintiff appealed both dismissals, but the Appellate Division affirmed.

Judge Gibbons Whipple noted that since the Law Division judge who acted first had relied on materials beyond the complaint, his decision was a grant of summary judgment.  There was nothing improper about going beyond the complaint.

Under the LAD, Judge Gibbons Whipple observed, employers cannot require employees to violate “sincerely held religious practice or religious observance.”  There is an exception, however, where the employer, after making a “bona fide effort” to accommodate the employee’s beliefs, cannot do so due to “undue hardship on the conduct of the employer’s business.”  An “undue hardship” is defined as one “requiring unreasonable expense or difficulty, unreasonable interference with the safe or efficient operation of the workplace or the violation of a bona fide seniority system or a violation of any provision of a bona fide collective bargaining agreement.”

Plaintiff met her initial burden of showing a since religious belief.  But defendants countered that with legitimate, non-discriminatory “concerns for the safety, security and neutrality of CCCF,” which showed undue hardship.  The safety risks included “the ability to hide contraband in head coverings.”  Plaintiff did not overcome defendants’ showing of undue hardship.  There was no prior New Jersey case on point, but Judge Gibbons Whipple found two federal court decisions on comparable facts to be persuasive.  The panel then easily affirmed the dismissal of the other case on entire controversy grounds, since plaintiff “should have raised all of her claims, including the allegation that other women had previously been allowed to wear head coverings, in one action.”

At least since Goldman v. Weinberger, 475 U.S. 503 (1986), a constitutional law decision that upheld a military policy that banned the wearing of yarmulkes, it has been difficult for some of us to understand what the problem is with allowing at least some religiously-mandated apparel to be worn.  (The regulation at issue in Goldman was later overtaken by legislation that permitted the wearing of items of religious apparel while in uniform).

Here, certain hats were permitted by applicable regulation.  Those hats were not to be “crushed down,” so that, in theory, there was room beneath them for contraband.  In contrast, the “tight fitting” khimar at issue here left less, if any, room for contraband.  Nonetheless, courts have given great deference to prison authorities in this and related areas, such as beards for inmates, especially when concerns about contraband are raised, despite the occasional exception.  Today’s decision is just the latest of that kind.