Court Upholds Firing of Muslim Prison Guard Who Wore Muslim Headscarf

Despite the finding of a prima facie case of race discrimination, a New Jersey appeals court has upheld the firing of a Muslim corrections officer who refused to remove her headscarf on the job.

Linda Tisby began working at the Camden County Correctional Facility in 2002 but became a Muslim in 2015 and one day reported to work wearing the khimar, or headscarf. She refused to remove it, was sent home and recommended for disciplinary charges. After continuing to report to work wearing the khimar, the Correctional Facility dismissed Tisby on May 11, 2015.

Tisby filed two separate suits against Camden County and the Camden County Correctional Facility. The first, filed on June 12, 2015, sought damages under the NJ Law Against Discrimination (“NJLAD”) and alleged that the jail had permitted other women to work with head coverings, including Muslim women and those undergoing chemotherapy. A month later, she filed a second suit, seeking reinstatement and back pay and asserting violations of the NJLAD.

The trial court dismissed the second complaint on August 7, 2015, finding that the jail would face an undue hardship if it accommodated Tisby’s request to wear the headscarf. That is, the scarf could be used to choke someone or to smuggle contraband into the jail. Additionally, the scarf undermined the facility’s goal of presenting a unified, neutral and unbiased force to the public and inmates. A different judge dismissed the first complaint was on August 21, 2015, based on the entire-controversy doctrine (all related claims to a particular controversy should be presented in one forum).

On appeal, the court applied the burden-shifting methodology from the 1973 U.S. Supreme Court ruling in McDonnell Douglas v. Green. The panel found that the plaintiff established a prima facie case of discrimination and the defendant articulated a legitimate, nondiscriminatory reason for its action. The court did not find that the employer’s reasons were pretextural. Ultimately, the appeals court found that the right of Ms. Tisby to wear Muslim headgear at work in a correctional facility was outweighed by safety concerns and any accommodation to Ms. Tisby in this context would impose a hardship on defendants.