Religious Accommodation – The Undue Hardship Exception

The New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (the “LAD”) prohibits employers from discriminating against employees or employment applicants on the basis of, among other protected characteristics, creed or religion. The LAD expressly provides:

It shall be an unlawful employment practice … [f]or any employer to impose upon a person as a condition of obtaining or retaining employment, including opportunities for promotion, advancement or transfers, any terms or conditions that would require a person to violate or forego a sincerely held religious practice or religious observance, including but not limited to the observance of any particular day or days or any portion thereof as a Sabbath or other holy day in accordance with the requirements of the religion or religious belief, unless, after engaging in a bona fide effort, the employer demonstrates that it is unable to reasonably accommodate the employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.

N.J.S.A. 10:5-12(q)(1) (emphasis added).

Simply put, this provision requires that employers reasonably accommodate an employee or applicant’s religious beliefs, observances and practices unless the employer can demonstrate that such accommodation would cause an “undue hardship” to the business.

The term “undue hardship” is specifically defined by the LAD to include “an accommodation requiring unreasonable expense or difficulty, unreasonable interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system or a violation of any provision of a bona fide collective bargaining agreement.” N.J.S.A. 10:5-12(q)(3)(a) (emphasis added).

Effectively, the “unreasonable interference with the safe or efficient operation of the workplace” is an exception to an employer’s duty to reasonably accommodate religious beliefs.

What constitutes this type of “undue hardship”? Well, this exception was recently front and center before the Superior Court of New Jersey, Appellate Division, in the published opinion of Tisby v. Camden County Correctional Facility,N.J. Super. —, 2017 WL 192887 (App. Div. 2017).

Plaintiff Linda Tisby began working as a corrections officer for the Defendant, Camden County Correctional Facility (“CCCF”), in 2002. In 2015, Ms. Tisby reverted to the Sunni Muslim faith and, on May 1, 2015, Ms. Tisby reported to work wearing, for the first time, a traditional Muslim khimar (a tight-fitting head covering without a veil). Ms. Tisby’s supervisor informed her she was not in compliance with the CCCF’s uniform policy and could not work unless she removed the khimar. Ms. Tisby refused to remove her khimar advising that she wore it for religious purposes and was sent home.

This scenario played out on three additional days in May and led to a 2-day suspension. On May 11, 2015, the Warden of the CCCF advised Ms. Tisby, in writing, that he considered her position on the wearing the khimar as a request for religious accommodation (although she never formally requested one) but rejected it because it would “constitute an undue hardship to the Department to allow an officer to wear head-coverings or other non-uniform clothing.” Id. at *1. The Warden further informed Ms. Tisby that no disciplinary action would be taken against her if she returned to work wearing the permitted CCCF uniform but Ms. Tisby declined the offer and continued to wear her khimar to work. As a result, she was fired on May 11, 2015. Ibid.

On June 12, 2015, Ms. Tisby filed two lawsuits against the CCCF alleging that it failed to reasonably accommodate her sincere religious beliefs (the first lawsuit was filed under the LAD and the second under the Civil Service Act (the “CSA”) because Ms. Tisby was a civil service employee). Id. at *1-2. The CCCF filed a motion to dismiss both lawsuits supported by a certification from the Warden wherein he certified the CCCF’s Uniform Grooming Standards had been in place for over twenty years and neither religious nor secular head coverings were allowed. He further certified the uniform policy ensured “the safe and orderly operation of correctional facilities,” as well as “the very important public value of presenting a unified, neutral and unbiased force to the public and to the inmates the department is charged with protecting.” Id. at *2.

The Warden’s certification stressed that any accommodation to plaintiff would impose an undue hardship on the CCCF. Ibid. A trial judge dismissed the lawsuit filed under the CSA because “the judge determined accommodating [Ms. Tisby’s] request would impose an undue hardship on CCCF because of overriding safety concerns, the potential for concealment of contraband, and the importance of uniform neutrality.” Ibid. A different trial judge dismissed the LAD lawsuit under the entire controversy doctrine (a legal doctrine that essentially mandates that the adjudication of a legal controversy should occur in one litigation). Ibid. Ms. Tisby appealed both decisions and the appeals were consolidated by the Appellate Division.

The Appellate Division ultimately affirmed both dismissals. Id. at *4. The Appellate Division addressed the two lawsuits in turn, addressing the one filed under the CSA first because it was dismissed first. Although the Appellate Division affirmed the dismissal of the LAD lawsuit under the entire controversy doctrine, it nevertheless analyzed the issues presented before it under the CSA lawsuit utilizing principles applicable to LAD religious discrimination cases because a violation of the LAD would constitute an unlawful termination or removal under the CSA.

The Court first noted it was undisputed that Ms. Tisby had established a prima facie claim of religious discrimination under the familiar McDonnell Douglas burden-shifting paradigm. It then approved of the trial court’s reliance on the Supreme Court of the United States’ opinion of Kelly v. Johnson, 425 U.S. 238 (1975) for the proposition that the CCCF’s “choice of uniform for its personnel was entitled to a presumption of validity which had not been overcome by” Ms. Tisby. Tisby, 2017 WL 192887 at *3. The Court then also approved of the trial court’s reliance on Third Circuit precedent regarding both the safety concerns of headgear in the prison setting and the “perception of impartiality” of police officers. Ibid. The Appellate Division ultimately determined:

the trial judge drew appropriate guidance from the logic of [the Third Circuit precedent] as well as the evidence presented, when determining an accommodation would impose a hardship on defendants. After weighing the safety concerns, including the safety risk and the ability to hide contraband in head coverings, as well as the necessity of uniform neutrality, the trial judge determined defendants met their burden of establishing accommodation was a hardship. Moreover, the employer’s reasons for denying an accommodation were not pretextual. Therefore, plaintiff failed to overcome the finding of a hardship to defendants.

Id. at *4.

The Tisby case therefore provides an excellent example of how New Jersey courts apply the “unreasonable interference with the safe or efficient operation of the workplace” exception to the employer’s duty to reasonably accommodate. To be sure, this case will certainly be limited in precedential value to the specific factual setting of a request for a religious accommodation for religious headgear in a prison setting. There is no legitimate safety concern for hiding contraband in the khimar in an office setting and other settings where “uniform neutrality” is of no concern to the “efficient operation of the workplace”.

One final observation regarding the Tisby case is that it was decided on a motion to dismiss without any significant discovery undertaken. In fact, Ms. Tisby specifically opposed the CCCF’s motion to dismiss on the basis that further discovery was necessary to investigate past allowances of employees to wear head coverings in the CCCF’s prison. Id. at *4, fn. 4. The trial court and Appellate Division both rejected this argument and I think they got it wrong on that point. Employees should always be allowed to thoroughly probe the legitimacy of an employer’s proffered defense to a LAD discrimination claim. The safety claims could have been debunked or it could have been shown that the CCCF engaged in discriminatory selective enforcement of its Uniform Grooming Standards. As such, I hope Ms. Tisby and her attorneys seek Certification from the New Jersey Supreme Court of this case. A victim of discrimination should always be allowed to fully develop a robust factual record to have her or his claim thoroughly decided on the merits.

If you believe you have been the victim of religious or other forms of discrimination at your workplace, contact the attorneys at The Sattiraju & Tharney, LLP, located in Princeton, New Jersey, at (609) 722-7039 for a free telephone consultation. We fight for workers’ justice under a litany of employee-rights statutes including the LAD.