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In Tisby vs. Camden County Correctional Facility (CCCF), New Jersey’s Appellate Court decided in January of this year whether the trial court had properly found that the CCCF’s concerns for its safety, security and neutrality were legitimate non-discriminatory reasons why allowing plaintiff an accommodation would cause an undue hardship on defendants. New Jersey courts have not previously addressed this issue.
After reporting to work in a traditional Muslim khimar, a tight-fitting head covering, Tisby’s supervisor informed her she was not in compliance with the uniform policy and could not work unless she removed the khimar. When Tisby refused to remove her khimar, she was sent home and disciplinary charges were recommended. Even though she had not formally submitted a request, CCCF’s warden advised Tisby he considered her “position as a request for an accommodation under Title VII of the Civil Rights Act, as well as New Jersey’s Law Against Discrimination (LAD).” Following her removal, Tisby filed a complaint against the CCCF, asserting that she had been “wrongfully suspended without pay” due to her religious beliefs, in violation of N.J.S.A. 11A:2–13, and CCCF had failed to reasonably accommodate her religious beliefs pursuant to the LAD.
The core of Tisby’s complaint is a violation of her religious rights. Under the LAD, employers cannot impose any condition upon employees that “would require a person to violate … sincerely held religious practice or religious observance.” N.J.S.A. 10:5–12(q)(1). However, an exception exists if an employer cannot accommodate “the employee’s religious observance or practice without undue hardship on the conduct of the employer’s business” after putting forth a “bona fide effort” to accommodate. An “undue hardship” is defined as “an accommodation requiring unreasonable expense or difficulty, unreasonable interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system or a violation of any provision of a bona fide collective bargaining agreement.” N.J.S.A. 10:5–12(q)(3)(a).
After weighing the safety concerns, including the safety risk and the ability to hide contraband in head coverings, as well as the necessity of uniform neutrality, the trial judge determined that the CCCF had met its burden of establishing accommodation was a hardship. In addition, the CCCF’s reasons for denying an accommodation were not pretextual. Therefore, Tisby failed to overcome the finding of a hardship to the CCCF. Consequently, the Appellate Court held that summary judgment to CCCF had been properly entered.
Employers should be aware that this exception exists if they cannot accommodate an employee’s religious observance or practice.
For any questions, please contact Barry Brownstein at [email protected].