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Thursday, May 31, 2012

Employees with Religious Attire and the "Back of the Bus"

As a fellow at the Pluralism Project, a Harvard-based research center that explores the state of religious liberty in the United States, I examined an employment discrimination case involving Kevin Harrington -- a native New Yorker of Irish descent who converted to Sikhism as a youth and who has worked for the New York Metropolitan Transportation Authority since the 1980's. Harrington started working for the MTA as a bus cleaner, and for the last two decades has been an MTA train operator.  On 9/11, Harrington was able to reverse his Number 4 train, which was headed to the World Trade Center station, and safely discharge his passengers.  For this, Harrington was honored by the MTA.

Shortly after 9/11, however, Harrington claimed that the MTA discriminated against him on the basis of his religion.  Harrington specifically stated that the MTA informed him that he had two choices: that he could continue working as a train operator only if he wore a cap with MTA's logo, or that he could wear his religiously-mandated turban in the railyard, away from customers.  The MTA then told Harrington that he could wear a turban as a train operator only if he attached an MTA logo to it.  The MTA apparently explained that the logo was necessary to alert customers and passengers that the person at the helm of the train was indeed an MTA employee -- not, as some would say, a "runaway terrorist."  Newsday ran an editorial arguing that "perhaps [the logo] will ward off any biased fears that outsiders have commandeered the system."

The MTA was eventually sued by the Department of Justice, the Center for Constitutional Rights, and the Sikh Coalition, on the theories that the employer's generally applicable uniform policy was being selectively enforced against Sikhs and Muslims, including Harrington, and that the out-of-customer-view option was impermissible under Title VII.  A CCR attorney, for example, stated that the MTA engaged in "a calculated attempt" to hide certain workers "on the grounds that they 'look Muslim' and might alarm the public for that reason."  Yesterday, the MTA settled the case, agreeing to permit employees to wear religious headgear without the logo and to pay $184,500 to eight current and former MTA employees. 

As I noted in this forthcoming article, some may assume understandably that Title VII does not tolerate employers' attempts to place employees with conspicuous religious attire in the back areas, where these attempts are tied to actual or perceived customer preferences.  But federal courts have sided with employers in this context.  This settlement may help undercut the view that employers can place employees with distinct religious appearances out of sight without running afoul of Title VII's protections.

This case also lends support to the suggestion that the Department of Justice has taken great interest in religious liberty issues.  (Though, in fairness, I should note that an astute reader has expressed to me the concern that the Department may be conflicted or divided as to the extent to which it is willing to robustly enforce statutes safeguarding religous liberty, including RLUIPA.  The reader points specifically to the Solicitor General's position recommending that cert in a case involving a RLUIPA circuit split be denied or granted and summarily reversed. )

The title of  this post is taken from a Sikh Coalition attorney's comment that the MTA's initial choice to Harrington was a "back-of-the-bus solution."

Posted by Dawinder "Dave" S. Sidhu on May 31, 2012 at 02:41 PM in Employment and Labor Law, Religion, Workplace Law | Permalink


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More info on this case available at the Civil Rights Litigation Clearinghouse, here: http://www.clearinghouse.net/detail.php?id=10358. The settlement isn't there yet, but will be tomorrow (can't post it while I'm on the road).

Posted by: Margo Schlanger | Jun 4, 2012 8:08:37 PM

Skyes -- I agree fully.

UPDATE: This weekend, the New York Times published an editorial on the settlement. It notes, in part: "Prominent in the Justice case was Kevin Harrington, a subway train operator and a Sikh who wears a turban. After the 9/11 attacks, he was commended by the M.T.A. for helping his passengers to safety when the World Trade Center towers collapsed. But in 2004, he said, his superiors asked him to remove his turban, arguing that passengers might not recognize him as an employee during an emergency. Mr. Harrington recently dismissed this idea, noting that during the 9/11 emergency, nobody saw him as 'anything other than a train operator.' It is long past time for the M.T.A. to have figured that out."

The editorial is available here:

Posted by: Dawinder S. Sidhu | Jun 4, 2012 9:52:11 AM

No comment on the issue raised, but the extent to which Sikhs have borne the costs imposed by ignorant overreaction to Islamic terrorism is simply amazing.

Posted by: Sykes Five | Jun 1, 2012 11:22:25 AM

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