The Third Circuit holds that a prison demonstrated that a deviation from its "no-headgear" policy to permit the wearing of khimars would create an undue hardship of ensuring the safety of its prisoners, staff and visitors.

The Equal Employment Opportunity Commission filed a lawsuit, alleging that a private prison operator violated Title VII and engaged in religious discrimination when it failed to accommodate a class of Muslim women employees in not allowing the employees to wear khimars at work. The employer, which had a "zero tolerance headgear policy," argued that a deviation from its policy would cause an undue hardship by compromising its interest in safety and security. Specifically, the employer relied on testimony that (1) khimars, like hats, could be used to smuggle contraband into the prison, (2) khimars could be used to conceal the identity of the wearer, and (3) khimars could be used against the wearer during an attack. The district court granted the employer's motion for summary judgment, relying heavily on the Third Circuit's reasoning in Webb v. City of Philadelphia. In Webb, the Third Circuit determined that a dress code adopted by the Philadelphia police department, which precluded the wearing of religious symbols as part of the police uniform, did not violate Title VII. In granting the prison's motion for summary judgment, the trial court concluded that "there was 'no meaningful distinction between prison guards and similar personnel, on the one hand, and police officers,' who were at issue in Webb." In affirming the lower court's decision, the Third Circuit concluded that a deviation from the "no headgear" policy would create an undue hardship, stating that "the prison has an overriding responsibility to ensure the safety of its prisoners, its staff, and the visitors" and "prison officials have the unenviable task of preserving order in difficult situations." In so holding, the Third Circuit reasoned that, like Webb, where "safety is undoubtedly an interest of greatest importance," the prison also demonstrated that its policy was created "based on its interest in safety" to prohibit contraband, to avoid misidentification, and to protect its employees from an attack. As a result, the Third Circuit determined that "[a] blanket policy to prohibit all headgear except those issued with the prison uniform seems the sensible solution."

Case Law Alert - 4th Qtr 2010