$75,000 Settlement for Muslim Teacher Denied 19 Days’ Unpaid Leave for Hajj (Pilgrimage to Mecca)

A Justice Department press release, issued yesterday, reports:

The Department of Justice announced today that it has entered into a consent decree with the Board of Education of Berkeley School District 87 in Berkeley, Ill. that, if approved by the court, will resolve a religious accommodations lawsuit filed in December 2010. In its lawsuit, the United States alleged that the school district violated Title VII of the Civil Rights Act of 1964 by failing to reasonably accommodate the religious practices of Safoorah Khan, a Muslim teacher at McArthur Middle School.

“Employees should not have to choose between practicing their religion and their jobs,” said Thomas Perez, Assistant Attorney General for the Civil Rights Division. “The facts of this case show the consequences of an employer refusing to engage in any interactive process to understand and work with an employee to find an accommodation of the employee’s religious beliefs that will not cause undue hardship to the employer. We are pleased that Berkeley School District has agreed to implement a training program that puts into place an interactive process to ensure that each request for a religious accommodation will be considered on a case-by-case basis and granted if it poses no undue hardship on the school district.”

The government’s complaint, filed in the U.S. District Court for the Northern District of Illinois in Chicago, alleged that Ms. Khan requested an unpaid leave of absence in December 2008 to perform Hajj, a pilgrimage required by her religion, Islam. According to the complaint, Berkeley School District denied Ms. Khan a reasonable accommodation of her religious practice, compelling Ms. Khan to choose between her job and her religious beliefs, thus forcing her discharge. The United States also alleged that the school district maintains a policy under which it refuses to grant leave to non-tenured teachers as an accommodation for their religious practices if the leave requested is not already provided for in the school district’s leave policy….

Under the terms of the consent decree, Berkeley School District will pay $75,000 to Ms. Khan for lost back pay, compensatory damages and attorneys’ fees. Berkeley School District also is required to develop and distribute a religious accommodation policy consistent with Title VII’s requirement to reasonably accommodate the religious beliefs, practices and/or observances of all employees and prospective employees. In addition, Berkeley School District is required to provide mandatory training on religious accommodation to all board of education members, supervisors, managers, administrators and human resources officials who participate in decisions on religious accommodation requests made by its employees and prospective employees….

For more on this case, including some past cases involving Justice Department lawsuits over refusals to give leave — usually 8 to 10 days’ worth — for a Worldwide Church of God religious convocation, see here. For the Justice Department’s Complaint in the case, see here. Thanks to Education Week’s School Law Blog for the pointer.

UPDATE: Note that the Seventh Circuit, where the case was filed, takes the view that failure to engage in an interactive process is not itself an antidiscrimination law violation. (Other circuits might take the same view as well; I just haven’t checked.) From Rehling v. City of Chicago (7th Cir. 2000), which dealt with accommodations under the Americans with Disabilities Act; my sense is that the rule as to this question is the same for religious accommodations and disability accommodations:

[T]he ADA does envision a flexible, interactive process by which the employer and employee determine the appropriate reasonable accommodation, and we have stated that this process requires “a great deal of communication.” However, we have also stated that “[t]he interactive process the ADA foresees is not an end in itself; rather it is a means for determining what reasonable accommodations are available to allow a disabled individual to perform the essential job functions of the position sought.” Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1023 (7th Cir.1997). Because the interactive process is not an end in itself, it is not sufficient for Rehling to show that the City failed to engage in an interactive process or that it caused the interactive process to break down. Rather, Rehling must show that the result of the inadequate interactive process was the failure of the City to fulfill its role in “determining what specific actions must be taken by an employer” in order to provide the qualified individual a reasonable accommodation.

Although the interactive process is not an end itself, we recognize that this Court has previously upheld judgments against employers, or precluded summary judgment for employers, in cases where there was an issue as to whether the employer engaged in an appropriate interactive process or caused such a process to break down. However, those cases did not involve reasonable accommodation claims based solely on the employer’s failure to engage in an interactive process, nor did those cases hold that the breakdown of an interactive process could render an otherwise reasonable accommodation unreasonable. Rather, in those cases this Court found potential liability based on an employer’s failure to engage in an interactive process in circumstances where the plaintiff alleged that the result of that breakdown was the employer’s failure to provide a reasonable accommodation.

Our conclusion that a plaintiff cannot base a reasonable accommodation claim solely on the allegation that the employer failed to engage in an interactive process is consistent both with this Court’s assertion that the interactive process is a means and not an end in itself, and with the remedial purposes of the ADA, see 42 U.S.C. § 12101(a)(8) (“[T]he Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals.”). The ADA seeks to ensure that qualified individuals are accommodated in the workplace, not to punish employers who, despite their failure to engage in an interactive process, have made reasonable accommodations. To hold employers liable for the failure of an interactive process regardless of whether a reasonable accommodation was made would not serve the underlying purposes of the ADA, and would, contrary to our own precedent, elevate the ADA’s interactive process requirement to an end in itself.