(CN) – Female Muslim employees at a prison in Pennsylvania are not permitted to wear head scarves while working because they pose security risks, the 3rd Circuit ruled.
A class of female Muslim prison employees sued their employer GEO Group, the manager of a correctional facility in Delaware County, Pa., for prohibiting them from wearing their khimars, or head scarves, while on duty.
The women complained that the rule was discriminatory and burdened their right to religious freedom.
The district court ruled that the correctional facility has a right to implement guidelines that will contribute to safety and security in the prison.
The court based its ruling on the prison’s argument that the head scarves make it hard to identify people, could potentially be used to strangle the person wearing it because it wraps around the neck, and that contraband could be hidden in the headband of the khimar.
The women appealed the district court’s ruling, arguing that the prison’s reasons for disallowing the scarves lacked substance and merit, and that the prison had failed to offer any alternatives to replace the scarves.
The prison argued that it did offer the women the opportunity to wear headpieces that satisfy the religious requirement that the hair be covered. But the appeals panel refused to acknowledge that argument because of lack of evidence in support of that claim.
“We are unwilling to delve into any matters of theology, and will therefore decline GEO’s invitation to decide on our own what might constitute a reasonable substitute for a khimar under the Islamic faith,” Judge Dolores Sloviter wrote for the Philadelphia-based panel.
The 2-1 majority did however agree with the district court’s conclusion that that the prison has a right to monitor its security by implementing rules that help enforce it.
“Even assuming khimars present only a small threat of the asserted dangers, they do present a threat which is something that GEO is entitled to attempt to prevent,” the panel ruled.
In a dissent that the majority called “cynical,” Judge Wallace Tashima wrote, “The majority’s approach allows an employer facing an asserted safety concern freely to discriminate on the basis of religion by merely inventing a post-hoc safety rationale for its refusal to accommodate its employees religious practices.”