The Hijab and the Kufi: Employer Rights to Convey Their Business Image versus Employee Rights to Religious Expression

By Robinson, Robert K.; Franklin, Geralyn McClure et al. | Southern Law Journal, Spring 2012 | Go to article overview

The Hijab and the Kufi: Employer Rights to Convey Their Business Image versus Employee Rights to Religious Expression


Robinson, Robert K., Franklin, Geralyn McClure, Hamilton, R. H., Southern Law Journal


I. INTRODUCTION

In August of 2010, the Storyteller's Café in Disney's Grand Californian Hotel & Spa repeatedly sent a hostess home without pay. Her offense was her refusal to remove her hijab, a head scarf worn by some Muslim women. Eventually Disney maintaining that her hijab was not appropriate for the image of the themed restaurant in which she worked. When the Storyteller's Café dress policy was challenged on religious grounds, Disney stated that it had offered the employee several reasonable accommodations, all of which she refused. The employee charged that her employer's actions amounted to blatant religious discrimination and that she refused all the attempts at accommodation because they were "unacceptable" to her religious practices and rights as a citizen.

This article investigates the issue of religious accommodation in the workplace arising from disputes over employee appearance policies imposed on those workers whose primary duties require them to interact with customers as a condition of employment. Though federal courts have recognized the importance employee appearance plays in advancing a desired organizational image, they have also acknowledged that employers have an obligation to make reasonable accommodation for an employee's sincerely held religious beliefs, provided such accommodations do not create an undue hardship on the employer. This article also examines the clash between employer's dress codes and an employee's right to religious observance at work. In examining federal obligations to make religious accommodations, the criteria used in determining whether making a requested accommodation imposes an undue hardship on the employer is also reviewed. Finally, the likelihood of more such challenges resulting from advocacy groups willing to support litigation initiated by aggrieved employees will be addressed.

II. BACKGROUND ON ISLAMIC DRESS REQUIREMENTS

Islamic dress requirements are often a function of the specific Islamic sect or tradition to which an individual belongs. There are varying requirements for both men and women depending upon the sect's interpretation of shari 'ah. Shari'ah is loosely interpreted by westerners to be Islamic law, though Islamic law also includes the Qu 'ran. Shari'ah deals with prescribing appropriate religious rituals, religious doctrine, and business transactions, punishments for offenders, morals, and manners.1

Many Americans are under the assumption that the word hijab refers only to the headscarf worn by Muslim women. Actually, hijab has two meanings. First, it is a general term denoting all religiously proper clothing which covers a woman's body. Both the Qur'an 2 and shari'ah require that once a female reaches puberty, she must, for modesty's sake, keep her body covered from neck to ankle.3 What is an acceptable body covering and how much of the body must be covered may differ among the different Islamic traditions. Second, the term also refers to a particular head covering for women's dress, usually a scarf worn over the head with an open face. But, there are several types of head covers for Muslim women in addition to the hijab. The shayla, for example, is similar to the hijab but is bigger in size and reaches below the wearer's bust level. Another head covering worn by some Muslim women is the niqab, a veil which, unlike the hijab and the shayla, covers the face. A khimar is also used as a name for the garment with which women cover their heads and usually flows below the woman's hips.

Religious head coverings are not just prescribed for women. The taqiyyah (also called the kufi in the United States and Europe) is the original skull cap worn by Muslim men as a sign of humility and respect.4 In the Middle East, the kufi is worn beneath the shemagh (the long scarf seen frequently in Saudi Arabia) or under a wrapped scarf, the turban.5 In India, Bangledesh and Indonesia (the most populous Muslim nation in the world) the men wear a cap called the khadi or peci. …

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