It was just a few fibers of cotton that cost Alamo Rent-A-Car employee Bilan Nur her job. Observing the Muslim holy month of Ramadan, Nur donned a traditional headscarf or Hijab, an act that allegedly violated the company's dress code requiring employees to have a "carefully cultivated image." When she refused to remove it, the company fired her.
The termination occurred just three months after September 11--raising concerns about backlash against Muslims in the U.S. The EEOC sued on Nur's behalf, calling the case a "post-9|11 backlash discrimination lawsuit." On May 26 the U.S. District Court in Arizona agreed with the EEOC and granted summary judgment against Alamo, finding that firing Nur was discriminatory as a matter of law. Although the number of religious discrimination suits filed with the EEOC has declined steadily since 2002, companies remain susceptible to claims if lower-level managers are unaware of the basics of the law.
"There is no logical reason why you could not allow someone to wear a head covering when they are serving people behind a service counter at a rental car agency," says Barbara Hoey, chair of Kelley Drye and Warren's Labor and Employment Practice Group.
The 9th Circuit relied on a three-part test to evaluate Nur's discrimination claim. She had to prove that she had a bona fide religious belief, that she informed her employer about a conflict between her belief and a company policy and that she was subjected to discriminatory treatment.
Alamo's primary defense was trying to cast doubt on the validity of Nur's religious belief, alleging that in the past Nur either agreed to remove the Hijab or did not wear one at all during Ramadan. That argument may have ultimately lost Alamo the case.
"The argument showed the narrow-mindedness of the company," Hoey says.
One way Alamo could have avoided the adverse ruling would have been to prove that accommodating Nur would cause the company "undue hardship." Alamo claimed that allowing her to wear her headscarf would open the floodgates to others violating the uniform policy. However, District Judge Roslyn Silver disagreed, stating, "undue hardships cannot be supported by merely conceivable or hypothetical hardships."
According to Sheryl Willert, former president of the Defense Research Institute, a national organization of defense lawyers, the only times companies typically succeed with undue hardship claims is if safety issues arise.
For example, in DeVeaux v. City of Philadelphia, a judge ruled in 2005 that a fire department's request that a firefighter shave his beard, which he grew for religious reasons, was not discriminatory. Because the beard could cause safety equipment to fit improperly, the department's request was justified. The same logic did not hold for Alamo.
One of the most troubling aspects of the Alamo case is that the plaintiff spoke to two managers about the conflict as well as to someone in Alamo's human resource department. However, Alamo's in-house counsel remained in the dark about the situation.
Had in-house counsel been informed, Alamo could have easily avoided some of its blatant mistakes.
"People need to be given diversity training," Willert says. "While diversity training may cause some eyes to roll, employers can minimize discrimination claims by spelling out what behaviors are not permissible."
Hoey typically advises clients to take a common sense approach to these types of situations. For instance, in Alamo's case, the company could have moved Nur to a comparable position outside of the customer service counter without running afoul of the law. Either way, companies need policies in place to ensure managers don't make unsound decisions.
"It's imperative that individuals from the general counsel level all the way down anticipate that there may be some problems that occur in the workplace when we have events like September 11 and try to put some guidelines into place so they have an understanding of what they can and cannot do," Willert says.