Illinois Discrimination Case Raises Questions About Religion and the Workplace

Is it a case of legitimate discrimination? Or a Justice Department out of control? Those are two of the questions surrounding the case of Safoorah Khan, a 29-year-old math teacher and devout Muslim who, until December of 2007, taught at the MacArthur Middle School in Berkeley, Ill.

In mid-August of that year, Khan notified her employer that she wanted three weeks of unpaid leave in December to attend the Hajj, the Muslim pilgrimage to Mecca.

It happened to fall that year just prior to her students' final exams and the school district said no, leading Khan to resign. She took her case to the Equal Employment Opportunity Commission, which ruled in her favor and referred the case to the Department of Justice.

Last December, DOJ filed suit against the Berkeley, Ill., School Board in federal court in Chicago, claiming it violated Title Seven of the 1964 Civil Rights Act. The act prohibits an employer from discriminating on the basis of race, color, sex, national origin or religion.

Assistant Attorney General for Civil Rights Thomas Perez said in a recent interview that Khan's request to attend the Hajj was a "profoundly personal request by a person of faith."

But former Bush-era DOJ Civil Rights Division lawyer Hans von Spakovsky disagrees.

"The Justice Department is using its power and law to push frankly extreme cultural and other views that the ordinary American person does not agree with," Spakovsky said.

There is legal and federal regulatory precedence to support Khan's case. Federal rules require an employer to provide reasonable accommodations for the religious practices of employees unless doing so would result in "undue hardship" on the conduct of its business.

In 1977, the Supreme Court ruled in TWA v. Hardison that it is an "undue hardship" if the employer has to bear more than a "de minimus cost" [minimal cost] in order to provide the accommodation.

Given Khan's contention that she asked for an unpaid leave - not a paid leave - her employer incurred no cost and thus no "undue hardship."

But a key question is whether the court can factor into the definition of "undue hardship" the effect of her prolonged absence on students, and on staffing issues at MacArthur Middle School.

Constitutional scholar Eugene Volokh of UCLA's School of Law says Khan's case is not unique in American history.

"In one form or another this has been claimed by certain Christian denominations, by Jews and by others. Muslims are claiming the same kinds of rights that other religious groups have," he said.

But in a broader context, the case raises uncomfortable questions. When do special accommodations for religious and cultural minorities become paralyzing exceptions? Does three weeks off for Hajj open the doors for Christians to spend three weeks at a retreat? Or Wiccans at a festival? Atheists at a convention?

In recent weeks, the prime minister of England, the president of France and the chancellor of Germany all made remarkable statements to the effect that multiculturalism has been a failure in their respective countries. Each offered a stunning admission that Muslims had not assimilated into the larger Western culture.

In those cases, attempts at cultural accommodation proved to be cultural Balkanization. Some wonder if it's beginning to happen in the United States.