Group 5:
Employment Discrimination
Hijab on
the Job: Groff v. DeJoy and the Impact on Muslim Women in the Workplace
Zeba A. Huq, Stanford Law School
Multiple empirical studies have shown that Muslim free-exercise
claimants in federal court are significantly less likely to prevail than
claimants of other faiths. These studies are particularly troubling in the
employment context because Muslims file a majority of EEOC claims, and of those
claims, most involve Muslim women requesting to wear hijab.
A survey of Title VII cases involving hijab show that employers’
defenses generally fall into one of three categories: (1) hijab undermines a
perceived need for uniformity; (2) the hijab causes safety and security risks
not present by other clothes nor mitigated by other means; and most overtly
bigoted of all, (3) hijabs scare off customers or other stakeholders who find
the hijab offensive.
This all has the potential to change with the Supreme Court’s recent
decision in Groff v. DeJoy, where the Court dispensed with Hardison’s “de
minimis” standard and shifted to an enhanced standard under Title VII for
religious accommodation: an employer must justify a denial of religious
accommodation by proving it would result in substantial increased costs in
light of the business’s operations. And the Court emphasized that speculative
or hypothetical hardships are not sufficient to meet the weighty burden.
As some of the most disadvantaged claimants over the past fifty years,
Muslim women who wear hijab stand to gain the most. But with the dismal success
for Muslim claimants, even under laws that generally favor religious
plaintiffs, it remains an open question if women in hijab will actually benefit
under Groff.
Negatively
Credentialed: Temp Workers with Criminal Records and Barrier to Permanent
Employment
Sarah Sallen, The University of Michigan Law
School
Temporary workers are an increasingly significant part of the U.S.
economy and labor market. Temporary work has nearly tripled since the
1990s. Many temporary workers have criminal
records: these “negatively credentialed” workers largely pursue temp work in
hopes of securing permanent employment, and work for years as “permatemps.”
However, employers rarely grant permanent employment to negatively credentialed
permatemps because of restrictive background check policies. But why do employers bar hard-working
permatemps with criminal records from permanent employment? This paper explores
the economic, legal, and social factors that incentivize employers to use
background checks to exclude these permatemps from permanent employment, the
impact of these polices on these workers and questions the validity of these
background check policies.
Discussant and Moderator: Katie Kronick, University of Baltimore School
of Law