Karen Lugo

The head of the Department of Justice’s (DOJ) Civil Rights Division, Tom Perez, is taking strong steps to protect the rights of Muslims in America “because they are being targeted for abuse.” A new alliance between the DOJ and Equal Employment Opportunity Commission (EEOC) is apparently giving him firepower to do just that.

First-year Muslim math teacher Safoorah Khan of the Berkeley School District in Illinois, insisted on 19 days off during grading period to go on hajj, or pilgrimage – and she has won her case without ever having to go to court. The small-town school district “cried uncle” after a three-year fight with the combined forces of the DOJ and the EEOC. Khan, who had resigned her position when both her requests for unpaid leave were denied by the school district, received $75,000 in back pay, compensatory damages and court costs. The settlement, which is subject to federal court approval, poses many disturbing questions for a society based upon rules and processes of law - rather than government-selected minority causes.

First, this extraordinary result suggests a new standard for other government workplace religious observance requests, since the longest religious leave previously championed by the EEOC and the DOJ was a 10-day period for the Worldwide Church of God. The Supreme Court has generally been unsympathetic to these employee petitions, denying them as demanding too much of employer business considerations. As these cases have had full hearing in the courts - rather than being hammered out between behemoth government agencies and a village school district - respect for the employer’s right to deny requests that impose “undue hardship” on business operations are factored into the legal determination.

Another critical legal consideration that this settlement seems to have skipped over is the necessary test as to whether the employee request is a reasonable one. Judicial deliberations over how to apply the Title VII of the Civil Rights Act anti-discrimination provisions turn on what is deemed a reasonable balancing of the employer concerns and employee’s “sincerely felt religious obligations.”

Karen Lugo

Karen Lugo is the Founder of the Libertas-West Project and a co-director of the Center for Constitutional Jurisprudence.