December 3, 2009

Sikh-Americans and Religious Liberty

With their distinctive appearance and religious practices, Sikh-Americans often find themselves at the center of workplace discrimination cases and other controversies involving their religious rights. And while Sikh groups have worked to carve out legal protections for the community’s religious practices, their efforts have not always met with success. In California, for example, Gov. Arnold Schwarzenegger recently vetoed a bill that would have required police in the state to receive training about the Sikh religion – including the faith’s requirement that believers carry a small sword known as a kirpan. The bill, which Schwarzenegger called unnecessary, will likely be reintroduced in the state’s next legislative session.

Meanwhile, national Sikh organizations have joined other religious groups to lobby the U.S. Congress to pass legislation guaranteeing the right of individuals to wear religious head coverings when being photographed for driver’s licenses and other official forms of identification.

To better understand religious liberty and accommodation issues involving Sikh-Americans, the Pew Forum turns to church-state scholar Robert W. Tuttle.

Featuring:
Robert W. Tuttle, David R. and Sherry Kirschner Berz Research Professor of Law and Religion, The George Washington University Law School

Interviewer:
Jesse Merriam, Research Associate, Pew Research Center’s Forum on Religion & Public Life


Question & Answer

Why have Sikh-Americans been part of so many legal disputes involving religious liberty issues?

I think it is largely because Sikhs must adopt distinctive elements of dress and appearance to comply with their religious beliefs. For example, under the five articles of the Sikh faith, believers must carry a kirpan – a small, curved sword meant to remind them of their responsibilities to protect the weak and promote justice – and men are required to keep their hair and beards uncut. Men are also required to wear a turban to cover their hair. In the United States, many non-Sikhs do not understand the deep religious significance Sikhs attach to these symbols of faith, and they find the distinctive appearance strange or perhaps even threatening. This was especially evident in the wake of the 9/11 terrorist attacks. Even though Sikhs were not involved in those attacks, some Sikhs were subjected to violence or discrimination because of their appearance.

Conflicts over Sikh religious practices can arise in a number of settings. An employer may bar employees from wearing beards, for example, or a prison may require inmates to keep their hair cut short. A school may treat the kirpan as a dangerous weapon and prohibit students and teachers from possessing the item on school grounds. The government may require people to remove headgear when taking a driver’s license photo, giving testimony in court or going through airport security. In all these circumstances, Sikhs are asked to do something that violates a core element of their faith.

Does an employer have an obligation to accommodate a Sikh employee’s religious practices?

The answer to that question starts with Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating on the basis of religion. Title VII also requires employers to make reasonable efforts to accommodate employees’ religious needs as long as the accommodation does not impose an “undue hardship” on the employer. For example, under Title VII, if an employer has a policy that requires employees to be clean shaven and a Sikh employee asks to wear a beard in accordance with his religious beliefs, the employer would need to grant permission or show that an exemption would unduly harm the employer’s interests.

In most employment disputes involving Sikh religious practices, the outcome depends on the reasons the employer gives for not allowing employees to wear a turban, facial hair or kirpan. If the employer can show that the rule is necessary to protect the safety of employees or the public, the employer usually prevails. One 1984 case involved a Sikh whose job potentially exposed him to toxic gases. The employer required all employees in this position to be clean shaven because facial hair interferes with the use of a gas mask, and employees might need to use a gas mask in an emergency. The Sikh employee asked for an exemption, but the employer refused. Instead, the employer offered him a lower-paying position that did not involve potential exposure to toxic gases. The employee filed a discrimination lawsuit, and the U.S. Court of Appeals for the 9th Circuit sided with the employer, ruling that the employer’s concern about workplace safety justified the decision not to exempt the Sikh employee from the ban on facial hair.

But courts have been less sympathetic when the employer refuses to accommodate a Sikh practice simply because it would involve wearing something other than the required employee uniform. “Uniformity” usually is not considered a legitimate reason to deny an accommodation for Sikhs who want to wear their articles of faith. For instance, in settling a lawsuit filed by a Sikh security guard in 2007, the U.S. Department of Homeland Security in October 2009 changed its grooming and uniform policies for those who guard federal buildings to accommodate Sikh religious practices. Many police departments allow Sikh officers to wear turbans and beards, and for the first time in many years, the U.S. Army has granted an exemption to a Sikh doctor, permitting him to keep his hair uncut and wear a turban and beard while serving on active duty.

The most difficult and controversial cases involve employers who refuse to accommodate Sikh practices because, they say, customers prefer employees that have a certain “look.” The U.S. Equal Employment Opportunity Commission (EEOC) says that customer preference is not a sufficient reason to deny an employee’s request to wear religious attire.

Some courts have agreed with the EEOC’s position, but others have said that employers may use customer preference as a defense. For example, in 1981 a U.S. district court in Georgia rejected a Sikh restaurant worker’s request for an exemption from a ban on facial hair. The restaurant claimed that customers were uncomfortable with beards on those who prepare and serve food and that an exemption for the Sikh employee would result in lost business. The court sided with the employer. In a 2002 case, the U.S. District Court for the Northern District of Illinois found that an airline did not discriminate against a Sikh employee when it refused to let him wear a turban while serving in a customer service position. The court said that the airline satisfied its obligation under Title VII by offering the employee alternate positions that had no face-to-face contact with customers.

What about school-related conflicts involving Sikh-Americans. How have those cases come out?

Two main types of conflict have arisen in schools. The first type involves Sikh public school teachers who want to wear a turban and other religious apparel. Several states, including Oregon, have laws that prohibit public school teachers from wearing distinctively religious clothing. These statutes were fairly common in the late 19th and early 20th centuries and arose out of concern that teachers – primarily Roman Catholic nuns and brothers teaching in public schools – might expose students to inappropriate religious influences. Most states have removed these laws, but they are still enforced in Oregon, Pennsylvania and Nebraska and effectively prohibit observant Sikhs from serving as public school teachers in those states. In the summer of 2009, Sikhs in Oregon failed in their efforts to enact legislation that would have removed this ban.

A second type of conflict involves whether Sikh students should be allowed to bring kirpans into school. This is a tough question for courts to resolve because the interests on each side are quite compelling. The school’s concern is obvious: schools do not want students carrying dangerous items on school premises. But a Sikh student’s interest is also strong: the articles of faith require Sikhs to carry their kirpans at all times. Under the U.S. Supreme Court’s interpretation of the Free Exercise Clause, a Sikh student would probably lose any federal constitutional challenge to a school’s ban on carrying the kirpan. The federal standard only requires public authorities not to discriminate against religion, and a ban on weapons at school may apply equally to a kirpan or a switchblade.

Some states have statutes or constitutional provisions that offer more protection of individual religious liberty. These rules typically require the government to make some reasonable effort to accommodate religious practices that conflict with laws. Where that effort is required, schools have been able to reach reasonable compromises with students who want to carry a kirpan at school. In a California case, litigated in the early 1990s under a standard that required reasonable accommodation of religion, the court concluded that such a compromise was possible. The court found that the risk posed by the kirpan could be eliminated if the student was required to keep the kirpan’s blade dull and demonstrate that the kirpan was sewn tightly into its sheath so it could not be drawn. In a similar lawsuit in Canada, the Canadian Supreme Court in 2006 recommended the same accommodation for Sikh students in that country’s public schools.

Has the government made any special efforts to accommodate the Sikh community’s religious needs?

As a practical matter, the most significant legal safeguards for Sikhs are found in laws that protect the practices of all religious groups, such as Title VII’s requirement that employers make reasonable accommodations for the religious needs of employees. For Sikhs who are incarcerated or confined to government institutions, the Religious Land Use and Institutionalized Persons Act (RLUIPA) has been used to gain exemptions from prison rules on hair length or headgear. Under RLUIPA, if a rule “substantially burdens” the religious practice of an inmate, the government must show that the burden furthers a “compelling government interest” that cannot be achieved by less restrictive means. Prison officials often defend restrictions on beards, long hair or turbans as necessary for security – they can be used to hide weapons, for example, or a prisoner who escapes might cut his beard or long hair to quickly change his appearance. But courts and many prison systems have found effective alternatives to bans on these Sikh practices, especially when the affected prisoners have no history of violence. Such alternatives might include the prison maintaining a digitally altered photograph of the prisoner, which would show his appearance without a beard or long hair.

One topic of continuing concern for Sikhs is the requirement, now being considered in several states, that driver’s license photographs show the full head and face. U.S. passport regulations allow people to wear religious headgear in official pictures, and most states follow the same rule for driver’s licenses, but the federal Constitution does not require states to make an exception for religious headgear. If a state wanted to ban all headgear in driver’s license photos, it would be free to do so. Under the U.S. Supreme Court’s 1990 decision in Employment Division v. Smith, a statute does not violate the Free Exercise Clause unless it singles out religious conduct for disfavored treatment. So a general ban on headgear in driver’s license photos that treats religious and nonreligious headgear on equal terms would not violate the Free Exercise Clause.

To address this concern, Sikh civil rights organizations have sought to add an amendment to the so-called PASS ID Act of 2009, a measure now pending before the U.S. Congress that would establish uniform, national standards for driver’s licenses and other state identification cards. The Sikh groups want the legislation to expressly protect the rights of individuals to wear turbans, yarmulkes, hijabs and other religious head coverings when obtaining identification documents.

The government has made some noteworthy attempts to educate officials about the practices of Sikhs and other religious communities. The best example can be found in the Transportation Security Administration’s (TSA) instructions for airport security screening. Before these instructions were issued in 2007, Sikhs were regularly required to remove their turbans – in public – while going through security. Now the TSA teaches its agents about the religious significance and sensitivity of the turban and requires them to follow specific steps that avoid unnecessary intrusion or embarrassment. Sikhs are no longer required to remove their turban as a matter of course but may instead show that no objects are hidden under it by using their own hands to pat down the garment. If the agent still needs to search the turban, TSA rules require that the search be done in a private room, allowing removal of the turban outside of public view and in a place where the Sikh has time for the elaborate process of replacing the turban.

Likewise, many state and local governments have instructed their police forces that Sikhs carry kirpans not as weapons but for religious reasons. The California Legislature recently passed a bill that would have required California law enforcement officers to receive training on how to deal with Sikhs carrying kirpans. Gov. Arnold Schwarzenegger vetoed the bill, however, saying the state Commission on Peace Officer Standards and Training should set such guidelines, not the Legislature.


This transcript has been edited for clarity, spelling and grammar.

Photo credit: Getty Images