Between a Stone and a Hard Place: How the Hajj Can Restore the Spirit of Reasonable Accommodation to Title VII

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ABSTRACT

Although section 701(j) of the Civil Rights Act of 1964 requires that employers reasonably accommodate their employees' religious practices and beliefs, many commentators acknowledge that the spirit of reasonable accommodation has not been realized because courts have drastically limited the scope of employers' duty. This may be especially true for Muslims, who, according to a 2012 study, are roughly half as likely to prevail in free-exercise and religious-accommodation lawsuits as are non-Muslim claimants. One of the central tenets of Islam, the hajj, poses significant challenges for Muslim employees seeking accommodation under Title VII. Because accommodating the hajj will almost always impose more than a de minimis cost on employers, a court is unlikely to find that Title VII requires employers to accommodate a Muslim employee's decision to complete the pilgrimage.

This Note attempts to articulate a new method for expanding Title VII's protection of employees' religious beliefs and practices. Specifically, this Note argues that increased involvement by the Equal Employment Opportunity Commission and the Department of Justice in hajj-accommodation cases offers a promising approach to developing a more balanced accommodation doctrine, or at least to realigning the scales so that they are not tilted so heavily in favor of employers. Despite clear precedent limiting an employer's duty to accommodate, increased intervention by the federal government in Title VII hajj-accommodation cases has the potential to shift the conception of reasonable accommodation. Though the government must pick and choose the cases in which to intervene, hajj-accommodation cases present an opportunity to further the dual purposes of the government's Title VII enforcement authority to implement the public interest as well as to bring about more effective enforcement of private rights. Intervention can restore the spirit of accommodation to section 701(j) and give employers more of an incentive to accommodate their employees' religious obligations.

INTRODUCTION

In August 2008, a Muslim schoolteacher named Safoorah Khan approached her supervisor to request three weeks of unpaid leave so that she could travel to Mecca, Saudi Arabia. (1) This was not simply a request for a vacation. Khan needed time off to complete the hajj, an obligatory pilgrimage that all Muslims are expected to complete once in their lifetime. (2) The superintendent of her Berkeley, Illinois, school district denied the request, explaining that the school could not afford to lose its only math-lab instructor so close to state testing. (3) In response, Khan submitted a letter of resignation but continued to teach until her scheduled departure for Mecca in December. (4)

The Department of Justice (DOJ) found something troubling about Khan's story. In the eyes of the DOJ Civil Rights Division, the school district's denial of Khan's request for unpaid leave "compelled Ms. Khan to choose between her job and her religious beliefs, and thus forced her discharge." (5) After Khan filed an employment-discrimination complaint with the Equal Employment Opportunity Commission (EEOC), the DOJ filed a lawsuit against the Berkeley school district "to enforce the provisions of Title VII of the Civil Rights Act of 1964." (6) Though the DOJ trumpeted the lawsuit as a part of its "ongoing commitment to actively enforce federal employment discrimination laws," (7) others were not convinced. A former DOJ civil-rights official from the Bush administration called it "a political lawsuit to placate Muslims." (8) Senator Lindsey Graham described the "curious decision" to file suit as having gone "too far." (9)

Whatever the motivation for bringing the lawsuit, the observation of former Attorney General Michael Mukasey was perhaps the most damning. In a Washington Post article, Mukasey opined that bringing the lawsuit was "a very dubious judgment and a real legal reach. …