Keeping the faith: advocates seek protection for religious rights at work.

Rose Hamid had been a flight attendant with US Airways for 12 years when she made a decision of conscience that nearly cost her her job.

An increasingly devout Muslim, Hamid resolved to abide by Islamic law that requires women to wear a head scarf, or hijab, in public. She wore the hijab to work when she returned from a prolonged medical leave. Her supervisors ordered her to remove it, saying scarves could not be worn with the flight attendant's uniform.

Hamid refused, and US Airways put her on unpaid leave. After filing a religious discrimination complaint with the U.S. Equal Employment Opportunity Commission (EEOC), she settled with the airline, which placed her in another job that did not require a uniform so she could wear the hijab.

Now the commission is considering whether to continue the case on the public's behalf to compel the company to more readily accommodate employees' religious needs in the future, said Rosalind Vinson, a Baltimore EEOC lawyer working on Hamid's case. (Equal Employment Opportunity Commission v. US Airways, Inc., No. 97-1037-A (E.D. Va. filed July 1, 1997).)

If Rose Hamid were a federal employee, there would be little question about the hijab. Under new guidelines issued by President Clinton last August, federal agencies must allow employees to express and exercise their religion at work "to the greatest extent possible, consistent with requirements of law and interests in workplace efficiency." The guidelines specifically mention the hijab, saying supervisors should allow it to be worn as long as it does not "unduly interfere with the functioning of the workplace."

Although the guidelines legally apply only to federal agencies, they should provide "very solid guidance" for private employers, said Marc Stern, an attorney with the American Jewish Congress who helped draft the document. The guidelines "are unusual in that they're not just blackletter rules but examples that cover most of the major situations that arise," he said.

Hamid's claim and others like it rest on Title VII, the federal civil rights law that prohibits job discrimination. Although the vast majority of Title VII cases involve race and sex discrimination claims, the law is increasingly being called on to protect workers alleging religious bias. The EEOC has seen a significant rise in religion-related complaints from 1,192 in 1991 to 1,564 in 1996.

"It's a small number of cases compared to overall discrimination cases, but I think interest in [religious discrimination] is increasing," said Dudley Rochelle, an Atlanta attorney who represents management in employment cases. "Three years ago I hardly ever talked to a labor lawyer who had handled a religion case. Now I run into a lot more of them."

Questions of religious freedom have always been considered among the knottiest in constitutional law, confounding everyone from small-town school officials to U.S. Supreme Court justices. When the issue arises in the workplace, courts have been asked to perform a classic constitutional balancing act: to find a practical equilibrium between the right of workers to express their religious beliefs on the job and the right of other employees to be protected from unwelcome proselytizing.

Many religious discrimination cases are similar to Hamid's, in which employees assert a right to wear religious clothing, keep religious articles in their work areas, pray in their offices, or talk about their beliefs with coworkers. Title VII requires employers to make religious accommodations unless they would cause "undue hardship on the conduct of the employer's business."

Congress left it to the courts to determine what constitutes an undue hardship. The Eighth Circuit Court of Appeals addressed that question in two cases decided in July 1995.

In one case, the court considered the claim of a Polk County, Iowa, employee fired for engaging in religious activities in the county's information services department. Isaiah Brown, the director of the department and a born-again Christian, had said prayers in his office with other employees before work, occasionally prayed and made references to his faith in department meetings, and told his secretary to type his Bible study notes. (Brown v. Polk County, 61 F.3d 650 (8th Cir. 1995).)

The county directed Brown to stop all religious activities and to remove all religious items from his office, including a Bible he kept in his desk.

The court affirmed a lower court ruling that the county could not be held liable for refusing to allow Brown to have his secretary type his Bible study notes and to open the office before work hours for prayers. But it held that the county had gone too far in issuing a blanket prohibition on religious speech, activity, and items like the Bible.

The court added that because Brown worked for a government agency, he had a legitimate First Amendment grievance as well as a Title VII claim.

"There was not the least attempt to confine the prohibition to harassing or intimidating speech," the court said. "Instead, Polk County baldly directed Mr. Brown to `cease any activities that could be considered to be religious proselytizing, witnessing, or counseling.' . . . That order exhibited a hostility to religion that our Constitution simply prohibits."

Drawing the line

But a three-judge panel of the same court had drawn the line on religious expression in a Nebraska case a few weeks earlier. An employee of U.S. West Communications sued after she was fired because of a dispute over an antiabortion button she wore depicting a midterm fetus. Christine Wilson said she had taken a vow to wear the button at all times.

According to the court, the button caused significant work disruptions, with some employees threatening to walk off the job. "Wilson's coworkers testified that they found the button offensive and disturbing for `very personal reasons,' such as infertility problems, miscarriage, and death of a premature infant, unrelated to any stance on abortion or religion," Judge John Gibson wrote for the panel.

The court held that a 40 percent drop in productivity in Wilson's department showed that allowing her to wear the button would be an undue burden for the company. The judges noted that her supervisors had tried to accommodate her by suggesting that she wear the button only in her work cubicle, cover it while at work, or wear another button with the same message but without the photograph.

"Title VII does not require an employer to allow an employee to impose his religious views on others," the court said. (Wilson v. U.S. West Communications, 58 F.3d 1337 (8th Cir. 1995).)

Indeed, some Title VII cases have been brought not by religious employees but by others who believe their coworkers have crossed the line from religious expression to harassment. In these cases, courts have used the same standards they have developed for evaluating sexual harassment claims.

A recent case involved a born-again Christian police chief and a dispatcher in Delphi, Indiana. The dispatcher, Jennifer Venters, sued the city and Police Chief Larry Ives, claiming she was fired because she rejected Ives's repeated attempts to "save" her soul.

A three-judge panel of the Seventh Circuit allowed her case to go forward. The judges noted several examples of Ives's proselytizing, including his telling Venters that the police station was "God's house" and that if she were to attend his church she might be saved. In one meeting, the chief allegedly told Venters that "she had a choice to follow God's way or Satan's way, and that she would not continue working for [him] if she chose the latter."

The court concluded that there was evidence suggesting that Ives made conforming to his religious views a condition of employment and that he created a hostile work environment for Venters. (Venters v. City of Delphi, No. 96-1355, 1997 WL 471341 (7th Cir. Aug. 19, 1997).)

The court acknowledged that the First Amendment affords Ives, as a government employee, the right to express his religious views, but they cautioned that speech rights are not absolute.

"Whatever the First Amendment may have entitled Ives to believe, to say, or to do, it did not permit him as a public official to require his subordinate to conform her conduct and her life to his notion of `God's rule book,'" Judge Ilana Diamond Rovner wrote for the panel.

Seeing the light

Advocates who represent people seeking religious accommodation at work say many employers need a much better understanding of both the requirements of Title VII and the religious practices of their employees.

"In many cases, employers are not really sure of the legitimacy of the demands" their workers make, said Mohamed Nimer, research director for the Council on American-Islamic Relations, a Washington, D.C., advocacy group. Last spring, the organization published An Employers Guide to Islamic Religious Practices to help employers evaluate Muslim workers' requests related to prayer time, dress, and fasting.

Similarly, the Rutherford Institute, a religious-rights organization in Charlottesville, Virginia, provides complaining workers with a pamphlet explaining Title VII and advises these workers to share it with their supervisors.

"In most instances, the supervisor will say, `I didn't realize that was the law, and I will accommodate you,'" said Stephen Kao, education counsel at the institute. "Sometimes it's just a matter of educating people."

Congress may step in to help. A "Workplace Religious Freedom Act" (S. 1124) currently pending in the Senate would amend Title VII to clarify what constitutes an undue burden on employers in religious accommodation cases.

Employment lawyers say increasing diversity in the workplace will require greater understanding among both the faithful and the nonreligious at work.

"If we're going to have a workplace where these things are going to be discussed at some level, like in real life, we need to communicate with one another when something is offensive," said Atlanta attorney Rochelle. "The boundaries are not automatically the same for everyone."