http://blogs.seattleweekly.com/
When a prospective employer asks you why you were fired from your last job, they are probably not expecting you to say, “I didn’t shave my beard.” Unfortunately, that will be Seattle-area resident Abdulkadir Omar’s answer to that question. After working for American Patriot Security (APS) for nearly a year, Omar was fired for not following the company’s clean-shaven policy. He recently filed a lawsuit, in which he alleges that he was “harassed and discriminated against [and] eventually fired.”
Under Section 703 (m) of the Civil Rights Act of 1964, a company’s employment practice cannot be motivated by religion, race, color, sex or national origin. As the clean-shaven policy had been in place before Omar arrived, I do not believe that APS violated that clause. However, Sec. 703 (k)(1)(A)(i) states that disparate impact is established if “a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of … religion” and “the respondent fails to demonstrate that the challenged practice is job-related … and consistent with business necessity.” It appears that Omar may have a case after all.
Given these guidelines, the first question to consider is whether the impact of the APS policy was actually disparate. Because Omar’s beard has religious significance, unlike the facial hair of other employees, we could consider the impact to be disparate, as his beard is of a greater value.
The next question is whether the employment practice was job-related. As APS has not shown that the policy was job related, we must assume it was not, thereby preventing the business necessity defense from coming into play. In an interview, Omar actually made a great point when he asked, “What does my beard have to do with me doing my job?” After reviewing the evidence, I believe that the practice, though not targeted towards persons who practice Islam, did in fact have a disparate impact on Omar.
The lawsuit has received varying reactions. I’ve talked to some people who believe that, because the policy was in place before he was employed there, he should have shaved or left the company. Others have said that businesses should have the right to hire who they want, which means if they don’t want Muslims with beards, they should be able to turn them away. This is because Islamophobia is a powerful motivator, just like the Second Red Scare. The effect of this type of fear can be seen in the original text of the Civil Rights Act of 1964, in Sec. 107 (f), which allowed businesses to discriminate against people if they belonged to any Communist party or organization.
These people also fail to see that their policy recommendations are actually a double-edged sword that could have serious consequences in regards to their own employment. In the Bible, Leviticus 21:5 reads, “They shall not make bald patches on their heads, nor shave off the edges of their beards, nor make any cuts on their body.” Under the proposed policy of certain Islamophobes, Haredi and Hasidic Jews would also be discriminated against for wearing a beard. Also, non-Christian companies could then refuse to hire Christians.
The Civil Rights Act prohibits discriminating employment practices in order to protect all employees from discrimination. This is why opening the door to employment discrimination, by allowing businesses to discriminate against Muslims, is dangerous. In the case of APS, the clean-shaven policy, though not intended to discriminate against a specific religion, still had a disparate impact on Omar.
It is my belief that the company should settle before the case goes to trial. However, if the case does go to trial, we should all hope that the courts resist handing down a judgment allowing employment practices that have disparate effects on certain religions.
Ondo is a member of
the class of 2014.
