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More on Religious Accommodation Requests:

The Telegraph (U.K.) reports (thanks to my friend Manny Klausner for the pointer):

[Muslim w]omen training in several hospitals in England have raised objections to removing their arm coverings in theatre and to rolling up their sleeves when washing their hands, because it is regarded as immodest in Islam.

Universities and NHS trusts fear many more will refuse to co-operate with new Department of Health guidance, introduced this month, which stipulates that all doctors must be "bare below the elbow".

The measure is deemed necessary to stop the spread of infections such as MRSA and Clostridium difficile, which have killed hundreds.

Minutes of a clinical academics' meeting at Liverpool University revealed that female Muslim students at Alder Hey children's hospital had objected to rolling up their sleeves to wear gowns.

Similar concerns have been raised at Leicester University. Minutes from a medical school committee said that "a number of Muslim females had difficulty in complying with the procedures to roll up sleeves to the elbow for appropriate handwashing".

Sheffield University also reported a case of a Muslim medic who refused to "scrub" as this left her forearms exposed.

Documents from Birmingham University reveal that some students would prefer to quit the course rather than expose their arms, and warn that it could leave trusts open to legal action....

A few thoughts:

1. Certainly hospitals should insist on maintaining proper levels of hygiene, even if that violates some doctors' or students' religious views. Reasonable accommodations of religious beliefs are generally good, but an accommodation that puts patients' health at risk is not reasonable. And while I'm not an expert, my sense is that the hospitals' insistence on not leaving garments hanging below the elbow is sound.

2. At the same time, hospitals should be open to proposed accommodations that would satisfy the Muslim women doctors' and students' felt religious obligations but at the same time protect patients' health. For instance, if it is possible -- as the Islamic Medical Association's spokesman suggests -- to have "long, sterile, disposable gloves which go up to the elbows," that might well be a reasonable accommodation.

3. More broadly, my sense is that such reasonable accommodations are not only good for religious observers, but good for the rest of us, too. When Islamic women go into respected professions, that undermines conservative Islam's subordination of women, and brings Islamic culture closer to Western norms. "Women have bare arms" vs. "women have gloves on their arms" is a relatively small cultural difference. "Women become doctors" vs. "women don't become doctors" is a much bigger cultural difference.

It may well be that as conservative Muslim women become more professionally liberated, women's standards of dress will become more relaxed, too. The two have gone hand in hand in the West. But even if the standards of dress will remain, both Western society and Islamic women will be better off when more Islamic women become professionals. Reasonable, safe accommodations (if these are possible) that help pull more Islamic women into medicine are thus better than refusing all accommodations and thus pushing some Islamic women away.

Ben P (mail):
In my opinion scrubbing is probably one of those things thats so closely tied to the proper practice of the profession that it just can't be compromised. You just can't have a doctor saying they're not going to conform to a practice that's necessary to proper hygiene in the operating room.

I suppose elbow length gloves might be an option, but I would think that sort of alternative should be on the individual who wants to use it.
2.5.2008 3:06pm
Rambo gal:
How pathetic, Eugene. Accommodation. Are these immigrant bitches in UK observing striclty ALL the Muslim laws, starting with killing Jews?
2.5.2008 3:06pm
donaldk2 (mail):
Pretty simple matter: conform or get out.

And as to the legal actions anticipated, that will be an acid test of the health of British society. No society can endure, which countenances such insults.
2.5.2008 3:25pm
John (mail):
I could go along with this, so long as a sign is required on their outfits that says, "I won't wash my hands for religious reasons, but I'm wearing a long glove that was sterile when I put it on. You have the right to be treated by some one else if you desire."
2.5.2008 3:34pm
Elliot123 (mail):
Prof. Volokh,

Would you allow everyone the same exemption you propose for Muslims?

Would you support allowing patients to refuse to have people who do not follow the existing regulations removed from their treatment team?
2.5.2008 3:36pm
Richard Aubrey (mail):
Seems to me the question is not about sterility or bare arms.
It's about how far the Brits can be pushed. That would be, IMO, the reason for the issue to be raised at all.
Cultural sensitivity and religious strictures are the cover.
Can Britain be rolled? Sure looks like it. The only question is how fast.
Let's presume they go ahead with the suggested gloves. Presume further somebody wants to track the infection rates by gloves vs. scrubbed bare arms. Would that be allowed? If the gloves were associated with increased rates of infection, would that information be allowed to be public?
2.5.2008 3:41pm
John425:
"Muslim women becoming professionally liberated"? Using an opaque sterile glove that reaches to the elbow is hardly "liberating". It merely exchanges one method of servitude for another. I wouldn't allow a surgeon near me who would allow dirty hands slipped into a sterile glove.
2.5.2008 3:51pm
Brian K (mail):
excellent analysis eugene
2.5.2008 3:52pm
GEORGE LARSON (mail):
I may be confused but it was not the scrubbing they objected to but exposing their arms. Wouldn't they need to expose theri arms to wear arm length gloves?

Don't we expect surgeons to scrub their hands before donning sterile gloves? Surgeons can get quite deep into a patient if they are obese. Wouldn't sterile arms be needed too?
2.5.2008 4:02pm
A.C.:
I thought the whole POINT of seriously restrictive dress codes was to limit women's mobility and options. A few pioneers in the west went into the professions while still encumbered by the rules of traditional dress, but in general all the old restrictions fell at about the same time. Expecting it to work any other way for Muslims is silly. They should scrub like all the other doctors, and if they don't like it they can do something else.

Or, to put it another way, I support Muslim women who recognize this rubbish for what it is and fight against its imposition. The ones who are actually working to impose it, not so much. And my position on this matter becomes less accomodating every time someone pushes for something like this.
2.5.2008 4:13pm
Thoughtful (mail):
Universities and NHS trusts fear many more will refuse to co-operate with new Department of Health guidance, introduced this month, which stipulates that all doctors must be "bare below the elbow".
--
Wow. I can certainly understand their objecting to THAT!

What? Just the extremities...? Oh, never mind...
2.5.2008 4:18pm
MDJD2B (mail):
No, Prof. Volokh. Long gloves will not be a satisfactory solution. Clothing contains bacteria in the interstices. When you do surgery, your gloves tear from time to time. You have to scrub far enough up your forearms, and have bare skin far enough up your forearms that the patient will never come into contact with the clothing on your in the operating room.

The gowns are sterile, and the scrub suits are washed and are supposed to be changed between cases (not always done, but not right underneath a gown and gloves that goes inside the patient, either).
2.5.2008 4:19pm
byomtov (mail):
I wonder about this. Judaism, as I understand it, has a broad exception to religious requirements where the violation is for life-saving purposes. An orthodox physician is free to provide emergency treatment on the Sabbath, for example. Indeed, IIRC there are situations where one is actually required to violate the rules in the interests of life or health.

Does Islam truly allow no such exemptions? I find that hard to believe, though I don't really know. Further, I'm puzzled by this modesty business. These women want to be doctors. That is not an ideal profession for those who place a high premium on physical modesty. Will they treat only female patients?
2.5.2008 4:26pm
Marklar (mail):
Accomodation and adjustment is always an issue. Going by people like Rambo Gal, I suspect the problem isnt whether Muslims wash, or glove, or practise medicine - its that there's any of us alive, period.

Nevertheless, I'd be stunned if the "bare arms" was an issue for more than five people tops, in the entire country. My wife is a Muslim physician (Ob Gyn), and we know several Muslim surgeons, both here and in the United Kingdom. Its simply never come up.
2.5.2008 4:28pm
John Burgess (mail) (www):
Islam can be explicit in offering exemptions, depending on who's doing the interpretation. Eating pork is permitted if the option is starvation. Not observing Ramadan because one is traveling, pregnant or nursing, on active military duty are all permitted, but one is expected to do the fasting at a later date.

Clearly, the objecting women do not have a religious leader who realizes how accommodating Islam can be and is insisting on 'letter of the law'.
2.5.2008 4:34pm
A.C.:
Marklar -

The problem is, will giving this sort of concession to the five people currently asking for it put more pressure on all the sensible Muslim women who currently do what all the other doctors do? Fundamentalist restrictions on women seem to have a creeping quality about them. Somebody gets a wedge in the door and a generation of progress gets wiped out.
2.5.2008 4:45pm
JK:
I worry about making to many religious acomodations in the hospital setting. Medical care often runs into conflicts with religious believes, and it could be quite burdensome on the system to accomidate for all of them even if each individual accomodation doesn't seem particularly burdensome. Hospitals should make a good faithed effort to make reasonable accomodations, but if you work in a hospital you must be williing to perform your assigned duties if the accomidation isn't available. By all means provide the gloves if they are an effective alternative and not overly expensive, but if the gloves run out and aren't restocked in time, you need to be willing to do the surgery.
2.5.2008 4:55pm
Scote (mail):

2. At the same time, hospitals should be open to proposed accommodations that would satisfy the Muslim women doctors' and students' felt religious obligations but at the same time protect patients' health. For instance, if it is possible -- as the Islamic Medical Association's spokesman suggests -- to have "long, sterile, disposable gloves which go up to the elbows," that might well be a reasonable accommodation


No, this would not be reasonable. Surgeons and nurses scrub their hands and wrists, then don sterile surgical clothing and put the gloves on over that. The idea of scrubbing is reduce contamination in the whole process. If gloves were the answer, surgeons wouldn't need to wash their hands before surgery.

These women don't want to expose their wrists let alone their forearms. Anti-sepis is one of the most fundamental aspects of modern medicine. We can't compromise it to to acquiesce to the medieval notions of any religious group. These are people who would rather risk killing patients rather than scrub properly--with the believe that their god would prefer that people die rather than women should expose their wrists. Such a belief has no place in a hospital or in science.
2.5.2008 4:57pm
Richard Aubrey (mail):
The good professor thinks the idea of Muslim women being doctors would be a useful item in the anti-Seventh Century movement. So accomodate.

How about women could be doctors if it weren't for the stupid culture/religion? Wouldn't that be a motivator?
2.5.2008 5:05pm
Marklar (mail):

The problem is, will giving this sort of concession to the five people currently asking for it put more pressure on all the sensible Muslim women who currently do what all the other doctors do? Fundamentalist restrictions on women seem to have a creeping quality about them. Somebody gets a wedge in the door and a generation of progress gets wiped out.



Two seperate issues. First of all, fundamentalism does NOT always inevitably expand. Think about it. It can't. Otherwise, we'd all be fundamentalists. And a little history will show you that the Muslim world is a lot more open now than it was a century ago. Fundamentalists have been losing, not gaining ground; the notion of female doctors appeasing British fundies is insane.

Their very existence is anathema to the fundies. For the "illiterate, barefoot and pregnant" brigade, nothing makes their head explode like a female doctor, period.

Second, does this accomodation make it more or less likely that other Muslim female physicians feel pressure to conform? I dont think so. If one Jewish doctor/attorney wears a yarmulke today, does that mean that the every single one in the hospital or firm will do so next year, or in the next decade? Of course not.
2.5.2008 5:07pm
gab:
I don't know about you guys, but elbows really turn me on...
2.5.2008 5:39pm
Ken Arromdee:
Second, does this accomodation make it more or less likely that other Muslim female physicians feel pressure to conform? I dont think so. If one Jewish doctor/attorney wears a yarmulke today, does that mean that the every single one in the hospital or firm will do so next year, or in the next decade? Of course not.

The idea is not that accommodations in general do that. It's that the kind of accommodations Muslims want are generally enforced by pressure on other Muslims and making it helps them. If the pressure for Jews to wear yarmulkes was so strong that it bordered on harassment, then letting some doctors wear them could indeed make it easier to pressure others to do so.
2.5.2008 5:57pm
rEason:
OK, Eugene. Now, please test you thesis substituting these few Muslim women by a doctor who wants to wear yarmulka during brain surgery.

And speaking of dirt, you own neck tie Eugene is the dirties thing you own. I kid you not. When was the last time you washed it? I read last year, that there cooking some laws in Muslim Indonesia no less, to address this serious health concern.
2.5.2008 6:24pm
J.Prufrock:
>>Documents from Birmingham University reveal that some students would prefer to quit the course rather than expose their arms, and warn that it could leave trusts open to legal action.<<

Let them quit, then. Better yet, kick them out. If I were a lawyer in the UK I'd land on the hospital and these practitioners who didn't wash to the elbows like a ton of bricks. The standard of practice of other medical practioners in the area sets the required duty of care for a reasonably skilled practioner, so if my client developed a subsequent infection, well, a few successful wrongful death lawsuits later and no hospital would be talking about any "accomodation" for this sort of nonsense.
2.5.2008 6:35pm
Elliot123 (mail):
I suppose one might look at how they wash up in Saudi Arabia.
2.5.2008 6:52pm
Richard Aubrey (mail):
Elliot.

Ewww. Did you have to?
2.5.2008 6:58pm
Richard Aubrey (mail):
Speaking of expanding fundamentalism, see Bruce Bawher on gays in Amsterdam. Hint: It's worse for them than it used to be and the perps are all "youths" as the French call them.
2.5.2008 7:05pm
Scote (mail):

Elliot123 (mail):
I suppose one might look at how they wash up in Saudi Arabia.

What, do they only perform surgery with their right hands?
2.5.2008 7:09pm
Laura (mail):
Second, does this accomodation make it more or less likely that other Muslim female physicians feel pressure to conform? I dont think so. If one Jewish doctor/attorney wears a yarmulke today, does that mean that the every single one in the hospital or firm will do so next year, or in the next decade? Of course not.

I've got to respond to this one too. Marklar, Jews don't have a death penalty for those who leave the religion. Jews don't riot and hold up signs insisting on the beheading of anyone. I've never read about honor killings of Jewish women whose fathers think they haven't been modest enough.

Also, everywhere I said "Jews" or "Jewish" above, feel free to substitute "Christian," "Buddhist," "Hindu," etc.

Surely you can see it is pure folly to compare the peer pressure that can exist Islam to that of other religions.
2.5.2008 7:24pm
Bill Poser (mail) (www):
Even in ultra-conservative Saudi Arabia, there are female doctors. They allow them because they don't like having male doctors treat women, and enough men in the ruling class care about the health of their women and want them to see doctors.
2.5.2008 7:24pm
MDJD2B (mail):

OK, Eugene. Now, please test you thesis substituting these few Muslim women by a doctor who wants to wear yarmulka during brain surgery.

Please, "rEason"-- explain how wearing a yarmulke under a scrub cap compromises aseptic technique. If you can do this, maybe your analogy would make some sense.

It is common for Jews to wear yarmulkes ande Sikhs to wear turbans in the OR, with these being completely covered. Most surgeons I know (maybe you'd do things differently if you did surgery) don't touch the patient's surgical wound with their heads.

And,BTW, surgeons are not even allowed to wear rings or watches into the OR because of the reasons that I and others have discussed. Some OR's ban eye makeup for the same reason.
2.5.2008 8:18pm
MDJD2B (mail):

OK, Eugene. Now, please test you thesis substituting these few Muslim women by a doctor who wants to wear yarmulka during brain surgery.

Please, "rEason"-- explain how wearing a yarmulke under a scrub cap compromises aseptic technique. If you can do this, maybe your analogy would make some sense.

It is common for Jews to wear yarmulkes ande Sikhs to wear turbans in the OR, with these being completely covered. Most surgeons I know (maybe you'd do things differently if you did surgery) don't touch the patient's surgical wound with their heads.

And,BTW, surgeons are not even allowed to wear rings or watches into the OR because of the reasons that I and others have discussed. Some OR's ban eye makeup for the same reason.
2.5.2008 8:18pm
TerrencePhilip:
I for one will not be content till we hear from neurodoc and get his take on this . . .
2.5.2008 8:21pm
Javert:
Eugene wrote


More broadly, my sense is that such reasonable accommodations are not only good for religious observers, but good for the rest of us, too.


It's "good" for a patient and other health care workers to be exposed to potentially deadly infections?! This sounds like you're calling for the sacrifice of an individual patient in order to promote cultural progress for people stuck in the Middle Ages.
2.5.2008 9:01pm
H Bowman, MD:
If the muslim medical students and physicians wish to practice 7th century medicine, they don't need to be in modern facilities or schools....

I wash my hands probably 40 times per shift (I'm an Emergency Physician). I don't wear jewelry at work, nor do I use personal hygiene products (deodorant, soap, shampoo, etc) that has a scent. Why? Because it's better for my patients.

I anticipated this very situation a few weeks ago when the Brits proposed their policy. I'm actually stunned that it took weeks, instead of days, to come up.
2.5.2008 10:08pm
Mike G in Corvallis (mail):
Rambo gal phrased the question rather inelegantly, but I believe she had a point worth considering:

There are other concerns about the issue than the risk of infection. These health care workers are so hard-core that they interpret the command for women to be "modest" as a requirement to cover their forearms at all times. As I understand it, this is an extreme view among Muslims. For example, Queen Rania of Jordan is married to a direct descendant of the Prophet Mohammed, and yet she doesn't observe this "requirement."

Given this, can these women really be trusted to ignore certain other teachings of their religion, which extreme interpretations of Islam take to mean that idolators and infidels must be killed? Suppose a heart patient is ... oh, I dunno ... a homosexual atheist? Perhaps one of these women wouldn't do something bad deliberately, but accidents do happen ... and performing surgery on an unbeliever might make one wielding a scalpel or monitoring an anesthetic or handling sterile sutures a bit accident-prone.

[9:14] You shall fight them, for ALLAH will punish them at your hands, humiliate them, grant you victory over them, and cool the chests of the believers.


"At your hands," indeed. It's a question of trust, and I wouldn't have complete trust in any of these women. I'd be worried about them cooling the chests of unbelievers ... all the way to room temperature.
2.5.2008 10:38pm
Mike G in Corvallis (mail):
Dang! I should have checked that embedded URL:

Queen Rania of Jordan
2.5.2008 10:42pm
Bored Lawyer:
Maybe I am missing something here, but is the problem baring the forearm per se or doing so in front of men? Is it considered immodest to bare the forearm in front of only women? Or, say, in complete privacy?

I assume that these Moslem women do take off their clothes to bathe, including baring their forearms.

And, for that matter, I vaguely recall a National Geographic article from years ago about Saudi Arabian women that showed them much more exposed when meeting only with other women than when in public with men.

So would a possible accomodation be allowing these women Drs. to scrub in privacy and/or in an all-female environment? They can then cover up with a gown and/or arm-length glove.
2.5.2008 11:01pm
Toby:

I suppose one might look at how they wash up in Saudi Arabia.

Easy. Anyone who can afford it gets their treatment at the Clevelnad Clinics where there is no such fatuousness.

So would a possible accomodation be allowing these women Drs. to scrub in privacy and/or in an all-female environment? They can then cover up with a gown and/or arm-length glove.

Let lawyers quibble first about possible accomodations. For doctors, there is the explicit "First, Do no Harm". Dragging garments through multiple patients, however well washed at the beginning of the day, went out in mid nineteenth century with the discovery that doing so, in Watson's words, was necessary "to prevent the practitioner becoming a vehicle of contagion and death between one patient and another."

Some accomodations are simply not reasonable. Or perhaps you are a malpractice lawyer seeking a new source of customers?
2.6.2008 12:25am
Thomas_Holsinger:
British hospital cleanliness standards have already collapsed. The places are filthy havens for disease. This will merely make it official.
2.6.2008 12:31am
Baback:

"It is common for Jews to wear yarmulkes ande Sikhs to wear turbans in the OR"


Why stop there? Can you imagine this guy operating on you while hiding his real outfit under?

http://www.bobmarley.freeserve.co.uk/petertosh.jpg
2.6.2008 9:29am
Happyshooter:
Making me, the patient, less safe is bad. Their faith ends where I begin. No compromise, follow all the safety rules for me or you are out.

As to letting them bring their faith into the profession generally, also not a good idea. Taken to its usual conclusion that will mean ghettoising the profession into male and female care givers and patient areas, which is less efficent and more costly.

Also, their ideas on pigs and such usually do not bow to modern science facts and methods (unlike the modern major faiths). That holds them back from proper health care.

If a pharm is ordered by law to give out abortion pills, then a muslim can darn sure follow the rules and give the correct level of care.
2.6.2008 9:54am
Public_Defender (mail):
Comments from two different posters:


Some accomodations are simply not reasonable. Or perhaps you are a malpractice lawyer seeking a new source of customers?

Making me, the patient, less safe is bad. Their faith ends where I begin. No compromise, follow all the safety rules for me or you are out.


I don't know if the requested accommodation is reasonable, but neither of you has shown that the proposed accommodation would compromise patient safety.

This is a fact-specific question, and baldly asserting "no compromise" doesn't answer the question of whether the accommodation actually decreases patient safety.


These health care workers are so hard-core that they interpret the command for women to be "modest" as a requirement to cover their forearms at all times. As I understand it, this is an extreme view among Muslims.


You are right to a certain extant. I wouldn't want to take bets one where the majority opinion is, but many Muslims believe that such coverings are not required. But so what? Many, if not most, Jews don't keep Kosher, does that mean that the observant Jews can't seek accommodations? Same with work on Saturday. Same with married women and head coverings. Same with many other things.

The question is whether the employee has a good faith religious belief, not whether that belief is religiously correct. We don't want courts deciding who is and is not a "real Muslim," a "real Jew," or a "real Christian."
2.6.2008 10:31am
Richard Aubrey (mail):
Public defender:
It appears the specific facts are addressed in the various protocols for keeping the OR as sterile as possible.
I think you'd be in a position to have prove that these practices, common for decades in civilized hospitals, are excessive and falling back from them will not hurt anybody.

I have an idea. You first.
2.6.2008 10:37am
Public_Defender (mail):

These health care workers are so hard-core that they interpret the command for women to be "modest" as a requirement to cover their forearms at all times. As I understand it, this is an extreme view among Muslims.

Another thought on this: One way to try to work this out is to ask to speak with the workers' clergy. Maybe the clergy is stubborn and unyielding, but even very conservative clergy often see exceptions to religious rules where lives are at stake. Those clergy might be able to convince the workers that no accommodation is needed.

Of course, the clergy may just say, "If women can't do the work, they should stay home." But if they do, you're no worse off than when you started.
2.6.2008 10:40am
SG:
We don't want courts deciding who is and is not a "real Muslim," a "real Jew," or a "real Christian."

Fair enough. But we also don't want courts deciding unnecessary wrongful death suits either. If you want to be a doctor, wash your hands and arms. If you're unwilling to follow the standard practices, find another job.

If someone is so inclined, they're more than welcome to conduct a study to find out how much hygiene is necessary (good luck getting the informed consent on that one...), and if it turns out that the current best practices are overkill, than by all means change them. But until that's done, taking unnecessary risks with patients lives to accommodate a religious belief is asinine.

BTW, if taken seriously, doesn't the request imply that these women never wash? How is that possible? How do they perform basic hygiene? They must stink to high heaven. Assuming that they do in fact bathe occasionally, then they must be capable of reconciling washing with their religious beliefs. I seriously question their good faith in making this request.
2.6.2008 10:49am
Richard Aubrey (mail):
SG. I too question their good faith. This is an effort to expand influence, using threats of accusations of racism and Islamophobia and so forth. Or blowing stuff up.
It's a version of the non-flying imams of recent notoriety.
And, no, no compromise is possible unless it includes a complete cave, called "compromise" by the NHS.
2.6.2008 11:26am
A.C.:
A better analogy than the yarmulke (which doesn't affect the part of the doctor that's inside the patient) might be beards. A lot of men wear beards for religious reasons. Beards make it impossible to use certain kinds of respirators and other breathing apparatus in industrial or hazardous materials settings. Men who won't shave or trim their beards can't use the safety gear, which doesn't seal well over facial hair, so they can't do the jobs that require it.

I've even known men who grew beards specifically to avoid having to do jobs that required them to wear respirators.

The main differences I see between this situation and the case of doctors scrubbing are:

1. It's men this time,
2. The jobs are mostly blue collar, not as prestigious as medicine, and
3. The rule is to protect the workers, not the customers.

Both rules help protect employers from liability, so that consideration cancels out. And because Islam is one of the beard religions, let's take any specific considerations about Islam off the table for the following thought experiment.

If you come up with different rules for the women who won't uncover their arms and the men who won't uncover their faces, which of the three factors above account(s) for the difference? Do you think religious rules about female behavior require a different degree of deference than religious rules about male behavior? Do educated professionals get different rights from blue collar workers? Does it matter which people the rule protects? Or is something else in play that I haven't thought of here?
2.6.2008 11:46am
Bored Lawyer:

Dragging garments through multiple patients, however well washed at the beginning of the day, went out in mid nineteenth century with the discovery that doing so, in Watson's words, was necessary "to prevent the practitioner becoming a vehicle of contagion and death between one patient and another."


Did you bother reading the post before posting this tripe? The issue is not a new gown or new gloves for each patient. That much is a given. The issue is whether scrubbing up is required, and if so how to do it.


Some accomodations are simply not reasonable. Or perhaps you are a malpractice lawyer seeking a new source of customers?


Try to avoid ad hominem attacks. They detract from your argument.

True, "some accomodations" are not reasonable, others are. That is the question here.

To restate it, what is unreasonable about the following policy:

1. Every surgeon must scrub up, up to the elbows (or whatever is required of any other surgeon). But if a surgeon cites modesty reasons, she can scrub up in private and/or in a single-gender room.

2. Arms can then be covered with a sterile gown and/or with a new sterile rubber glove. (Or latex or whatever they make it out of.)

Anything about the above unsafe for a patient or compromises hygiene? Would it satisfy the religious objections of the Muslim women surgeons at issue?
2.6.2008 12:03pm
Richard Aubrey (mail):
Bored.
Let's assume it does compromise hygiene:
What difference--not to you but in the real world of British society and the NHS in particular--will it make?

Not what difference it should make. In real life.
2.6.2008 1:00pm
Thomas_Holsinger:
Bored &Aubrey,

This will make little if any difference in real life because British hospitals have become so filthy and unsanitary. It doesn't matter how clean the operating room and staff are if the recovery room and all patient rooms have feces smeared on the walls and the staff for those rarely washes.

British medical statistics on deaths and prolonged recoveries due to hospital-borne infections have been fudged for years. This is true for public hospitals and many private ones.
2.6.2008 1:41pm
Bored Lawyer:
Richard Aubrey:

Not being familiar with the British health system, I have no idea what difference it will make in the real world.

If you are assuming it compromises hygiene, then my vote would be to say, tough, you have to maintain the standards of hygiene of the profession. Don't like it, get another job.

But whether that assumption is true has yet to be proven.
2.6.2008 1:41pm
Bored Lawyer:

This will make little if any difference in real life because British hospitals have become so filthy and unsanitary. It doesn't matter how clean the operating room and staff are if the recovery room and all patient rooms have feces smeared on the walls and the staff for those rarely washes.

British medical statistics on deaths and prolonged recoveries due to hospital-borne infections have been fudged for years. This is true for public hospitals and many private ones


If true, one shudders at the thought that (some) politicians in the U.S. are seeking to impose a similar system here.
2.6.2008 1:49pm
Mike G in Corvallis (mail):
These health care workers are so hard-core that they interpret the command for women to be "modest" as a requirement to cover their forearms at all times. As I understand it, this is an extreme view among Muslims.


You are right to a certain extant. I wouldn't want to take bets one where the majority opinion is, but many Muslims believe that such coverings are not required. But so what? Many, if not most, Jews don't keep Kosher, does that mean that the observant Jews can't seek accommodations? Same with work on Saturday. Same with married women and head coverings. Same with many other things.

The question is whether the employee has a good faith religious belief, not whether that belief is religiously correct. We don't want courts deciding who is and is not a "real Muslim," a "real Jew," or a "real Christian."


Public_Defender, you completely misunderstand the point of my comment. My point was not whether accommodation of the Muslim women's belief was reasonable or not. Instead, I was trying to point out that people who hold extreme religious beliefs that are manifested in one aspect may manifest them in other aspects as well, and that these other aspects may make them untrustworthy and even dangerous as health care workers.

Let me give you an analogy: Suppose a hospital had several doctors and nurses who were members of Fred Phelps' Westboro Baptist Church, and these health care professionals demanded the right to wear "GOD HATES FAGS" buttons and T-shirts to work. In an effort to reach an accommodation with their religious beliefs, some might say that it wold be "reasonable" for them to wear their buttons and T-shirts under scrubs, as long as they don't get in the way in the OR. And I'd be saying that, accommodation aside, it would be a very risky thing for these particular religious fanatics to be performing medical procedures on homosexuals, or AIDS patients, or military personnel, or anyone else that these whackos might have decided is an abomination unto the Lord.
2.6.2008 2:14pm
Richard Aubrey (mail):
Bored. I wasn't--I thought I'd been clear--asking for your opinion on what happens in hygiene is compromised.

Let me put it another way: If hygiene is demonstrably compromised leading to death and illness, will actions taken to rescind the accomodation survive accusations of discrimination and islamophobia?

My guess is no.
2.6.2008 2:19pm
wfjag:

If true, one shudders at the thought that (some) politicians in the U.S. are seeking to impose a similar system here.


Dear Bored:

That is one of the best observations made in this post. Unfortunately, there has been little to no "investigative journalism" or public discussion of the subject. You can, however, find articles in the Canadian, UK and European press discussing the consequences.
2.6.2008 3:11pm
MDJD2B (mail):

1. Every surgeon must scrub up, up to the elbows (or whatever is required of any other surgeon). But if a surgeon cites modesty reasons, she can scrub up in private and/or in a single-gender room.

2. Arms can then be covered with a sterile gown and/or with a new sterile rubber glove. (Or latex or whatever they make it out of.)

Anything about the above unsafe for a patient or compromises hygiene? Would it satisfy the religious objections of the Muslim women surgeons at issue?

This almost works. Problems:

1.Scrubbing is immediatley adjacent to the OR, and gowns are donned in the OR. You cannot leave the OR in a sterile gown.

2. Gown changes during surgery are not uncommon. Does she have to leave the OR and go bact to the private changing room (which also has a special clean tunnel to the actual OR, I suppose-- see my comment #1)
2.6.2008 4:51pm
Public_Defender (mail):

Public defender:
It appears the specific facts are addressed in the various protocols for keeping the OR as sterile as possible.
I think you'd be in a position to have prove that these practices, common for decades in civilized hospitals, are excessive and falling back from them will not hurt anybody.

I have an idea. You first.


Perhaps Professor Volokh could expound on the burdens of proof in court. But here, I'm just saying that no one has proven that the women's claim is specious. If you want to say they are wrong as a matter of fact, you have to show that their proposed accommodation is not sufficient to protect patient safety.

I don't have enough facts to judge whether they should win or lose, and neither, apparently, do you.
2.6.2008 6:29pm
Public_Defender (mail):

Instead, I was trying to point out that people who hold extreme religious beliefs that are manifested in one aspect may manifest them in other aspects as well, and that these other aspects may make them untrustworthy and even dangerous as health care workers.

I agree that many Muslim women believe that they don't need to cover themselves this much. But given the huge number of Muslim women who believe that their religion requires this kind of coverage, I don't think it's fair to say that this woman's claim is so extreme as to make it untrustworthy.
2.6.2008 7:45pm
Richard Aubrey (mail):
Bored.
The specific accomodation is forbidden in currrent protocols. That's why they specify scrubbing, gloves in a certain way and no other, at a certain sequence, maximum sleeve length. The only thing missing in current protocols is a mention of Islam.
So the protocols will have to be, in effect, broken.
There are two possibilities. One is that the protocols have been excessive and beyond the point of diminishing returns, so the accomodations, although breaking the protocols, will have no adverse effect. The other is that this part of the protocols actually does have a use.
What's your guess?
2.6.2008 8:20pm
Mike G in Corvallis (mail):
Instead, I was trying to point out that people who hold extreme religious beliefs that are manifested in one aspect may manifest them in other aspects as well, and that these other aspects may make them untrustworthy and even dangerous as health care workers.


I agree that many Muslim women believe that they don't need to cover themselves this much. But given the huge number of Muslim women who believe that their religion requires this kind of coverage, I don't think it's fair to say that this woman's claim is so extreme as to make it untrustworthy.


Public_Defender, what in the world are you talking about? "I don't think it's fair to say that this woman's claim is so extreme as to make it untrustworthy." I don't think their claim is untrustworthy, I worry that they the nurses might not be trustworthy.

My point is that these women apparently subscribe to a fundamentalist version of their religion -- one that also holds that the Koran is the living, absolutely true word of God ... and that this word of God tells them that non-Muslims are their enemies and must be killed, subjugated, or converted. (See, for example, verses 3:28, 4:89, and 9:5).

I believe that some of these women might be a risk in a hospital setting because I do them the honor of taking their beliefs seriously. Several of the widely accepted schools of thought in Islam hold that idolators, apostates, atheists, adulterers, and homosexuals should be killed outright. Some modern religious leaders admonish all good Muslims to go out and kill Jews.

Now, not all Muslims will act on these precepts, perhaps only a tiny minority ... just as the vast majority of people who call themselves Baptists would recoil in disgust from Fred Phelps and his Westboro Baptist Church. Most Muslims are good people! On the other hand, British opinion surveys indicate that among Muslims under the age of 30, roughly a quarter believe that the London Underground bombings were "justified," so I don't think the risk is negligible.

Perhaps Professor Volokh could expound on the burdens of proof in court. But here, I'm just saying that no one has proven that the women's claim is specious. If you want to say they are wrong as a matter of fact, you have to show that their proposed accommodation is not sufficient to protect patient safety.


This is absurd! A hospital is not a court of law, in which everyone must be presumed innocent of having performed harmful acts until after lawful conviction. The purpose of a hospital is to prevent harm. The protocols were established to reduce risks to the patients being treated. If you deliberately violate protocols and a patient dies, then you'll understand the relevance of a court of law to this controversy.
2.6.2008 11:04pm
Public_Defender (mail):
Um, this is not about a worker whose religious beliefs call her to "go out and kill Jews." It's about a Muslim woman who wants to stay covered. I grant that not all Muslims believe that, but if you don't think that's well within the mainstream of Muslim belief, you are so irrational that it's not worth arguing with you. So this will be my last post on the point unless someone else posts.

I take no position on who should win on the facts because I don't know the facts to make a decision. But you say that you know for certain that her accommodation would put patients at risk. So, explain yourself. If she were commenting here, I'd ask her to justify her position, too.

Almost all religious accommodation claims ask for changes to existing protocols, and many of those protocols concern safety. Just saying, "She wants to change the protocols" does say whether her proposal is reasonable.
2.7.2008 5:24am
Richard Aubrey (mail):
You may recall our lengthy discussion on women in the military, particularly the combat arms.
Among the schools of thought were two that stand out. One was that physical strength was not relevant.
When forced to admit it might be relevant, Dilan, among others, pointed out that we routinely sacrifice soldiers for the moral good, such as ROE which can be simultaneously better for civilians but increased Americna casualties incrementally.
So, why not for women's equality, he asked.

Here we have one school of thought which is that the protocols for safety are overdone--otherwise breaking them would be dangerous. The "overdone" piece will have to be proven, IMO.

The other is waiting in the wings, which is to ask how many lives is it worth for social comity? Some of those people were going to die, anyway. Presuming this was about social comity in the first place is nucking futz, but that's the argument we'll hear.

The point made earlier has been missed. Women who are this fixated on arms are not "moderate". It would be odd if they were this fixated on arms but moderate in all else. What do they think about such things as Jews? Israeli docs routinely work on Palestinians, even those injured trying to kill Israelis. Will wackjob, arm-hating Muslims return the favor?

In situations like this, nothing can be "proven", in the scientific sense, which proponents know and take advantage of. No scenario can be re-run with only one variable varying, so there can be no "experiment". Ah ha!, say the proponents. You can't prove it!
We could only compare stats from different situations; a technique providing great scope for proponents who have no interest in reality. There would always be some other variable which could not be proven to be irrelevant.
Well, the Brits are going to roll, people will die of it, and the process will accelerate.
I just don't understand why some Americans think this is a good idea. I just don't.
2.7.2008 8:20am
SG:
I just don't understand why some Americans think this is a good idea. I just don't.

I second that question. Why is anyone arguing that we should increase the risk of infection to a patient in order to accommodate a religious belief?

Public_Defender: Do you believe biology classes should teach Creationism?
2.7.2008 11:05am
Randy R. (mail):
This is an excellent example of a solution looking for a problem. The solution is that all religious beliefs must be accommodated. So some people go around looking for problems where their beliefs are somehow compromised and then raise a ruckus.

Count me in as those who believe this is not done in good faith.

And it certainly won't end here.
2.7.2008 11:40am
Randy R. (mail):
public defender: But given the huge number of Muslim women who believe that their religion requires this kind of coverage,...

Then such women should choose a profession where their religious beliefs can be safely accomodated.

I cannot believe that there is a person on this planet who doesn't know that the standard uniform for a doctor, male or female, is a clean white coat.
If a religious woman a problem with that, then she should simply choose another profession which doesn't require such a uniform.
2.7.2008 11:45am
A.C.:
Who ever said that ALL religious beliefs have to be accommodated? Anyone trying to revive the Aztec human sacrifice religion would discover the fallacy of this position quickly enough.

The question before us is where this particular accommodation falls on the continuum between no-nevermind and Aztec human sacrifice. We accommodate the former and not the latter, but there's an enormous range in between and the line has to go somewhere.

The secondary question is what factors to consider in drawing the line. Good faith does seem important, as does the reasonableness of the request given the situation (need to maintain sterile conditions in the OR). Long sleeves wouldn't present a problem in a law office.

I submit that the student in question, even if she is permitted to train with the long gloves on, should consider a career in pathology. Less potential for contact with, well, people.
2.7.2008 11:58am
Public_Defender (mail):

Who ever said that ALL religious beliefs have to be accommodated?


Sigh. No one has said that. Many requests for religious accommodation are reasonable. Many aren't. Grant the reasonable ones, deny the others. There will be difficult gray areas, but life is full of difficult gray areas.

And if this Muslim woman's request would really put patients at risk, it's unreasonable and should be denied. I just don't know if it really would put patients at risk.
2.7.2008 7:52pm
dweeb:
When Islamic women go into respected professions, that undermines conservative Islam's subordination of women, and brings Islamic culture closer to Western norms.

Ad since when is it any of your or my business how Muslims view gender roles? Who died and appointed you the arbiter of the doctrinal paths for other people's religions. A lot of animosity from the Muslim world could be avoided if we kept took a truly libertarian approach to their faith, rather than trying to play social engineers. The only legitimate business we have in this is making sure that every adult IN OUR COUNTRIES is free to choose their faith.
2.7.2008 8:21pm
Mike G in Corvallis (mail):
Um, this is not about a worker whose religious beliefs call her to "go out and kill Jews." It's about a Muslim woman who wants to stay covered. I grant that not all Muslims believe that, but if you don't think that's well within the mainstream of Muslim belief, you are so irrational that it's not worth arguing with you. So this will be my last post on the point unless someone else posts.

Sigh. If you feel that it's necessary to blatantly misrepresent my position, then yes, it isn't worth discussing.
2.7.2008 8:25pm
Richard Aubrey (mail):
Not all Muslims believe in the duty to go out and kill Jews, either.
If I were a Jew, I'm not sure how much that would comfort me.

Point is, is one manifestation of whackjob fundamentalism a predictor of other manifestions of whackjob fundamentalism, or is it, in effect, sui generis with no connection to other areas of belief?
2.7.2008 11:40pm