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ATLANTA-In two recent instances, the U.S. Equal Employment Opportunity Commission has waded into disputes between employers and workers who said they were fired after coming to work wearing head coverings in accordance with their Muslim faith. The cases, filed in the U.S. District Court for the Northern District of Georgia, serve to illustrate both a lack of training on the part of some managers and the difficulties of making a case when newfound religious devotion results in a sudden change on a worker’s part, say attorneys involved in the cases. In the most recent local case, a federal jury ruled against a woman who said she was forced to choose between her faith and her job when she showed up at work wearing a hijab, or head scarf. “I thought we had a pretty strong case,” says EEOC Atlanta staff attorney Lakisha Duckett, “so I was a little surprised by the verdict.” Duckett handled the case against Regency Health Associates on behalf of Hani Mohamed, who left her position as a medical assistant at the clinic after just 42 days on the job. According to her complaint, the first time Mohamed appeared at work wearing the hijab, she was advised that the head covering was in violation of the dress-code agreement she had signed upon employment, and that “no accommodation would be made for her religious beliefs.” She was told “if she continued to wear the hijab, she would no longer have a job with the company,” said the complaint, filed in September 2005. Not so, says Regina Molden of Molden, Holley, Fergusson & Thompson, who handled the case for Regency Health with colleague Kenneth Thompson Jr. “The doctors at Regency had known [Mohamed] for about a year and a half before she ever came to work there,” says Molden, “because she brought her own child there. They knew she was a Muslim and had been all her life. They had talked about it a lot. They liked her a lot.” That’s why the clinic, which was largely a pediatric practice at that time, was happy to hire Mohamed, who had been a medical assistant at another facility, Molden says. Her employers were not particularly concerned when she arrived with the head scarf, she says; it was what Mohamed said when they commented upon the new item of apparel that apparently led to the dispute. “She had never come in wearing a hijab or head scarf before,” says Molden, “and our clients assumed it was a just a fashion scarf. . . . In all the times she came in with her child, she’d never worn anything like that.” But Mohamed informed her co-workers that she was “getting more serious about her religion,” says Molden, adding that Mohamed said she would soon get to a point where the only skin showing would be her eyes. NO BURQAS, PLEASE Alarmed at the prospect of an employee in full burqa, or body covering, attending-and possibly frightening-small children unaccustomed to such garb, the office manager, according to defense pleadings, told Mohamed that, while the office could accommodate the head scarf, she would not be permitted to cover her face. “She said, ‘I need an assurance, before the end of the day, that you can accommodate me,’” says Molden. When the office manager consulted with the clinic associates, they agreed that any garb that allowed only Mohamed’s eyes to show would be unacceptable and told her so. “So she stormed out and never came back,” says Molden. While the issue of whether the head scarf itself or the prospect of a staff member in a burqa remained in dispute, the case eventually came down to whether Regency had complied with Title 7 of the Civil Rights Act of 1964. Under that section as applied to such cases, an employee must demonstrate a bona fide religious belief that requires the use of a hijab or other religious attire; inform the employer about such requirements; and inquire whether an accommodation may be reached without “undue hardship” on the business and-if so-determine whether a refusal to meet that accommodation results in an adverse impact on the plaintiff. Since Mohamed had been born Muslim and had a long-standing relationship with the clinic prior to showing up wearing the head scarf, says Molden, “it’s not like she had a conversion and, on the 43rd day of her job, came in and said, ‘I have to cover my hair!’ “Our point was that you have to inform the employer in advance that you have some special religious requirement before all these problems arise,” says Molden, who cited several prior opinions in her briefs to that effect. EEOC attorney Duckett disagrees. “The EEOC’s position is that, under the law, there is no requirement for an advance notice; case law is pretty clear on that point,” she says. In addition to wrangling over that point, says Molden, Mohamed also claimed she had been fired, while her employers said she had left of her own volition. “It eventually came down to a question of credibility,” says Molden, who placed the clinic’s chief executive officer, Diane Alexander, on the witness stand. “I think when she said, ‘[Mohamed] walked out and left all the babies there,’ that got to them,” Molden says. After a three-day trial before U.S. Magistrate C. Christopher Hagy, the jury took about an hour to rule for the defense, Molden says. “We are considering an appeal,” says Duckett, noting that approval for any additional action must come from the commission’s headquarters at the Justice Department. MORE CASES Duckett says she has noticed an increase in such complaints, and several employment lawyers confirmed that the EEOC seems to be bringing more such cases against employers. “We’ve been seeing more of these cases in our offices around the country,” says Julie Elgar of Ford & Harrison’s Atlanta office. EEOC statistics don’t seem to indicate any major upswing in religious discrimination cases, she says, “so it may just be that they’re paying more attention to these types of cases.” In June, the EEOC reached a settlement with AAA Parking, a company owned by Atlanta’s Selig Enterprises Inc., over a similar complaint in U.S. district court in Atlanta. According to court filings, Anissa Moussa said she was fired in October 2005 after her employers at AAA refused to allow her to wear a hijab during the Muslim holy month of Ramadan. “In the AAA case, the employee requested the accommodation, the employer met with her and said, ‘We can’t give you an accommodation’ and, within two days, she was fired,” says EEOC regional attorney Robert Dawkins. In that case, he says, “certain statements were made by witnesses that there was no attempt at accommodation.” As EEOC mediators tried to reach an accord, he says, “the facts indicate that the employers really didn’t have a good understanding of the law.” Alston Correll III of Kilpatrick Stockton, who defended AAA, says he is not permitted to discuss the case but, in its filings, AAA said it “was not given the opportunity to accommodate Ms. Moussa because she failed to provide advance notice that her observation of Ramadan would require her to violate its uniform policy and grooming standards.” AAA also denied suspending or terminating the employee. A spokesman for the company did not respond to a request for comment. The case was settled after AAA agreed to pay Moussa $5,000 in lost wages and $24,500 in compensatory damages. AAA also agreed to craft a company policy regarding accommodation of religious practices; institute a training program for employees; refrain from any retaliation against employees seeking religious accommodation; and, for a period of three years, provide regular reports to the commission of every request made to the company for religious accommodation. The company admitted no wrongdoing in signing the agreement. Both Dawkins and Duckett stressed that, any company dress code or attendance policy notwithstanding, employers must make a good-faith attempt to meet employees’ religious needs. “The law clearly states that if there is a sincerely held belief . . . federal law takes precedence over any agreements,” Dawkins says.
Greg Land is a reporter with the Daily Report , an ALM publication.

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