Webb v. City of Philadelphia: No Religious Discrimination If Accommodation Causes an Undue Burden

The Third Circuit U.S. Court of Appeals has upheld the Philadelphia Police Department’s dress code policy that forbids police officers from wearing any religious garb. When the city prohibited a female officer from wearing a Muslim head scarf with her uniform, she sued the city, alleging religious discrimination, retaliation/ hostile work environment, and sex discrimination in violation of federal civil rights law and the Pennsylvania Religious Freedom Protection Act. Even though the Court in Webb v. City of Philadelphia, 562 F.3d 256 (3rd Cir. 2009), found that the plaintiff established a prima facie case for religious discrimination, it upheld the department policy because an accommodation would result in an undue burden to the department.

Background

Kimberlie Webb was hired by the City of Philadelphia as a police officer in 1995. In 2003, Webb requested permission to wear a Muslim headpiece called a khimar with her uniform, as her religion required her to cover her hair. The khimar is a traditional garment worn by Muslim women that covers the hair, forehead, sides of the neck, shoulders and chest, and sometimes extends down to the waist. Webb said that she planned to wear the lower portion of the khimar tucked inside her police shirt, and to wear her police hat.

The police department denied Webb’s request, stating that Webb’s wearing the khimar would violate a department’s dress code directive that does not authorize the wearing of any religious symbols or clothing as part of the uniform.

Webb filed a complaint with the Equal Employment Opportunity Commission, and while that complaint was pending, she decided to “take a stand” and went to work wearing a khimar. She refused to remove it when asked, and she was sent home three days in a row. Finally she showed up in the regular uniform, but was charged with insubordination and neglect of duty and for refusing to obey her commanding officer’s orders. The police board of inquiry found her guilty and she was suspended for 13 days. She then filed this suit.

The district court granted the city’s motion for summary judgment, finding that the city’s policy “reflects the fact that the police force is a para-military organization in which personal preferences must be subordinated to the overall policing mission which requires the utmost cooperation among all officers.” Webb v. City of Philadelphia, 2007 WL 1866763, p*2 (E.D. Pa. 2007). The district court judge wrote that the wearing of religious symbols or clothing “would undermine these purposes and has the potential for interfering with effective law enforcement and even for causing harm to officers in a diverse community such as Philadelphia.” Id.

Undue burden of accommodation outweighs the prima facie case

On appeal, the Third Circuit Court of Appeals determined that Webb did meet each element required to establish a prima facie case of religious discrimination: 1) she held a sincere religious belief that conflicted with the job requirement; 2) she informed her employer of the conflict; and 3) she was disciplined for failing to comply with the conflicting requirement. Webb v. City of Philadelphia, 562 F.3d 256, 259 (3rd Cir. 2009). Once this prima facie case was established, the burden shifted to the police department to show either than it mad a good-faith effort to reasonable accommodate Webb’s belief, or such an accommodation would work an undue hardship upon the police department.

An accommodation creates an “undue hardship” on the employer if it would impose more than a de minimus cost – economic or non-economic – on the employer. Id. at 259-260 (citing Trans World Airlines Inc. v. Hardison, 432 U.S. 63, 83-84 (1977)). The Third Circuit found that the department’s refusal to accommodate Webb’s request was proper because any accommodation would create an undue burden on the department.

The Court agreed with the city’s argument that, without strict enforcement of the dress code, “the essential values of impartiality, religious neutrality, uniformity, and the subordination of personal preference would be severely damaged to the detriment of the proper functioning of the police department.” Id. at 261. Weighing heavily in the Court’s consideration was the testimony of former Police Commissioner Sylvester Johnson, also Muslim, who testified that the dress code was essential for the proper functioning of the police department, which must remain “a symbol of neutral government authority, free from expressions of personal religion, bent or bias.” Id.

The Court differentiated this holding from its decision in Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 259 (3rd Cir. 1999). In that case, the Newark police department banned police officers from growing beards, though it granted medical exceptions for beards as required by the Americans with Disabilities Act. Two Muslim officers, whose religion required them to grow beards, filed suit, claiming infringement of their First Amendment rights. The court held that the government could not discriminate between secular and religious motives – it could not create a medical exception to the “no-beards” policy but refuse to create a religious exception.

In Webb, no exceptions had been made to the dress code policy at all, for any reason – secular or otherwise. Because her request would pose an undue burden on the department, the department could rightfully prohibit her from wearing the religious scarf.

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Jeremy J. Gray

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