Court of Appeals reinstates religious accommodation case under Title VII

The Court of Appeals holds that a female corrections officer who is also a practicing Muslim may sue the Department of Corrections after a male supervisor forced her to remove her hijab in his presence, contrary to her religious principles. The Court holds that, in requiring her to remove the hijab in the presence of a man outside of her family, DOCCS subjected her to an adverse action in violation of Title VII's prohibition against religious discrimination.

The case is Billings v. Murphy, a summary order issued on February 6. I briefed and argued the appeal. The case was brought by Frederick K. Brewington, Esq. 

The case began when plaintiff requested a religious accommodation that would allow her to wear a hijab at work. Since she worked in a state prison, the concern was that an inmate could grab the hijab and choke her, so DOCCS directed her to submit to a demonstration showing the hijab could be removed without causing her any harm. A male supervisor, Artuz, was assigned to perform the demonstration. Plaintiff objected to Artuz's role in the demonstration because that would mean she would have to remove the hijab in his presence. Artuz told her to comply with his demand anyway, and she did, suffering a panic attack moments later over the violation of her religious principles. Plaintiff's religious accommodation request sought to have a female officer conduct the demonstration with her. The argument is that having a man present during the demonstration violated her religious rights.

While the district court, in dismissing the case under Rule 12(b)(6), held that plaintiff did not suffer an adverse action, dooming her religious discrimination claim, the Court of Appeals reverses and says plaintiff makes out a prima facie case. Defendants acknowledged at oral argument that the denial of a reasonable religious accommodation absent a showing of undue hardship alters the "terms, conditions, or privileges of employment" under Title VII.

The Court of Appeals (Lohier, Nardini and Jacobs) thus holds, "We conclude that the refusal to accommodate Billings’s request to remove her hijab in front of a female supervisor constitutes an adverse employment action because it is a 'materially adverse change in the terms and conditions of employment' that is 'more disruptive than a mere inconvenience or an alteration of job responsibilities.' While the district court held that plaintiff was required to allege an additional adverse action beyond the denial of her request for a religious accommodation, that was incorrect, the Second Circuit holds. The reasonable accommodation denial is the adverse action. I do not believe the Court of Appeals has previously reached such a holding, which is why the Department of Justice submitted an amicus brief on this appeal and shared the oral argument with me.

Plaintiff also asserts an inference of discrimination, the Court of Appeals says, rejecting the district court's contrary conclusion. "Billings alleges that she began wearing her hijab on or around April 28, 2017, and that she was dismissed on May 2, 2017, removed from payroll on May 27, 2017, and unable to return to work from May to December 2017.  Given Billings’s 'minimal' burden at this stage, these allegations support a plausible inference of discrimination."