The Blog

The Blog is now retired.

My posts after May 2014 on issues of “dressing constitutionally” can be found over at Constitutional Law Professors Blog and at the CUNY Academic Commons.

The posts from May 2013 – May 2014 remain available and searchable.

Parting shot

Cover of Puck magazine, 6 April 1901. “Columbia’s Easter bonnet / Ehrhart after sketch by Dalrymple.” via


EEOC Issues New Guidelines for Religious Garb and Grooming Discrimination

EEOCIn response to increasing complaints about dress- and appearance-based religious workplace discrimination, the Equal Employment Opportunity Commission has released new guidelines for employers to insure compliance with laws protecting religious garb and grooming. The guidelines include a question-and-answer sheet on rights and responsibilities and a fact sheet on the applicable law. As reported, EEOC spokesperson Justine Lisser attributed the new guidance to a “persistent uptick in religious discrimination charges” and said the EEOC is responding to religious groups, who “asked for more EEOC outreach in this area.”

Title VII of the Civil Rights Act of 1964 protects against discrimination based on religious dress and grooming. According to the EEOC press release, Title VII-covered employers “must make exceptions to their usual rules or preferences to permit applicants and employees to follow religiously-mandated dress and grooming practices unless it would pose an undue hardship to the operation of an employer’s business.  When an exception is made as a religious accommodation, the employer may still refuse to allow exceptions sought by other employees for secular reasons.” Underlying this new discussion of existing protections and new guidelines is the fact that, according to the press release, complaints of religious discrimination have more than doubled since 1997.

We have reported on dress- and grooming-based job discrimination and policy changes over the past year (here concerning hijabs at work, here at the Pentagon, here on the costs of litigating these issues, and here concerning gendered hair policies) and more examples of religious discrimination are noted here. Constitutional protections for religious dress and grooming in a variety of settings are discussed in the Dressing Religiously chapter of Dressing Constitutionally.

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Right to Wear a Beard in Prison Going to United States Supreme Court

The United States Supreme Court today granted certiorari in Holt [Muhammad] v. Hobbs, issuing a clarifying order:

The petition for a writ of certiorari is granted limited to the following question: “whether the Arkansas Department of Correction’s grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U. S. C. §2000cc et seq., to the extent that it prohibits petitioner from growing a one—half—inch beard in accordance with his religious beliefs.”


The Eighth Circuit’s opinion was typically cursory at three pages, basically deferring to prison officials, and relying on a previous Eighth Circuit case, Fegans v. Norris.  Chapter 6 of Dressing Constitutionally extensively discusses the problem with Fegans:

Michael Fegans, an inmate in Arkansas and a member of the Assemblies of Yahweh, argued that the newly enacted hair-length regulation for male inmates did not withstand the “least restrictive means” requirement of RLUIPA. The Eighth Circuit, however, was not convinced by Fegans’ arguments that the Arkansas policy was more restrictive than other prison policies and was also gendered, mandating hair above the ears and no longer than the middle of the nape of the neck in the back for male prisoners and the allowance of shoulder-length hair for female prisoners.  The court found it important that these arguments were contradicted by the testimony of prison officials, even if the officials’ statements seemed to be bare declarations.  For example, Norris, the Director of the Arkansas Department of Corrections, testified that more liberal policies would be “less effective” in the Arkansas system since “he had seen one of these policies at work in the past” and “security wasn’t nearly as good then as it is now.”  Similarly, Director Norris had something to say about gender differences: “Women are not generally as violent as men. They are not as escape prone as men. They are not as prone to give us problems with contraband as men.”  In neither case did Fegans contradict this testimony. As the dissenting judge in Fegans v. Norris correctly argued, however, Fegans did not have to refute Norris’ statements. Under RLUIPA, the prison authorities have the burden and mere assertions should not meet that burden.

Fegans v. Norris illustrates the precarious relationship between RLUIPA and the religion clauses of the First Amendment.

There’s more analysis of the Court’s grant of certiorari over at Constitutional Law Professors Blog.

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Incarcerated Native Americans Challenge Alabama DOC’s No Long Hair Policy

In its opinion in Knight v. Thompson, the Eleventh Circuit upheld an Alabama Department of Corrections (DOC) policy that bans long hair for incarcerated men. A group of Native Americans initially challenged the policy in 1993, alleging it unlawfully burdens their religious tenet to wear unshorn hair. Over the last two decades, the case has worked its way to the Supreme Court with the group now petitioning the Court to hear their appeal.


In total, Alabama prisons and jails house approximately 200 persons who practice the Native American faith of which having long hair is a fundamental belief. Despite numerous requests, the DOC has not given incarcerated Native Americans a religious exemption from the ‘no long hair’ policy. Thus, the group claims the policy is unlawful under Religious Land Use and Institutionalized Persons Act (RLUIPA).

RLUIPA allows a policy to infringe on incarcerated persons’ beliefs if the policy furthers a compelling interest and is the least restrictive means to achieve that interest.  So, in defense of the policy, the DOC argues that safety concerns require the long hair ban — incarcerated persons could hide contraband in their hair or grab the hair during fights — and that long hair encourages gangs, undermines order and control, and raises hygiene issues. The challengers, however, argue that a total ban is not the least restrictive means to achieve safety and order — after all, Alabama’s women’s prisons allow long hair and over 38 men’s prisons in the U.S. do as well. But the lower court found that incarcerated women pose “less risk of violence and escape” than men based on warden testimony, and the circuit court also found that other prisons allowing long hair does not necessitate Alabama to do the same. Ultimately, the court denied the Native Americans’ claim, saying RLUIPA “does not give courts carte blanche to second-guess” prison officials.

The challengers also put forward a slew of Constitutional arguments — they claim the policy violates their 1st Amendments rights to free exercise of religion and freedom of association, and the right to due process and equal protection, among others. The court addressed only the equal protection claim, saying the remaining claims were not properly raised. And the court again upheld the policy, rejecting the equal protection challenge: given the finding that women pose less of a safety concern than men, it is not arbitrary or unreasonable to allow incarcerated women long hair but not men.

img_1275As discussed in Dressing Constitutionally, dubious rationales rooted in anecdotal evidence and broad generalizations are typically sufficient to justify a prison’s policy that treats groups differently. Indeed, despite lack of evidence or a challenger’s showing to the contrary, courts give a hefty deference to prison officials because of the weight given to safety concerns. 

In response to the loss in the circuit, a member of the Native American petitioners told reporters, “I wish the courts could see or feel how something as simple as a lock of hair can mean.” Perhaps if confronted with the full meaning and the right (or lack thereof) at issue for an incarcerated person, the court might not be so quick to uphold a prison policy without a more rigorous showing of substantiated facts — adequately justifying why a prison finds it necessary to control a person’s physical appearance and thwart his personal, religious, or spiritual expression.

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New Jersey Employer Orders Woman to Remove Hijab

Last month, the Council on American-Islamic Relations New Jersey (CAIR-NJ) filed a complaint with the Equal Employment Opportunity Commission (EEOC) on behalf of a woman whose employer ordered her to remove her hijab, causing her to lose her job.  

According to reports, the complaint alleges that Ms. Naima Mnasri “ was ordered to remove her hijab at her second day of work” when she was waiting to start her shift at a factory that manufactures plastic bottles. Supervisors told her that she needed to remove her head scarf for “safety reasons” and that “no religious symbols were permitted at the factory.” When asked by reporters if she felt her hijab was a potential “safety hazard,” Ms. Mnasri said “absolutely not.” Removing the hijab would violate Ms. Mnasri’s religious beliefs, so she had to leave her job.

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Filing a complaint with the EEOC on her behalf, CAIR-NY is a civil rights organization that frequently advocates for Islamic civil liberties in the U.S. Their complaint alleges that the supervisor’s order violated state and constitutional law. It states that the ban of religious symbols “directly violates the U.S. Constitution and the very foundations the country was built upon.”

Ms. Mnasri recounted the incident for reporters:

“It’s upsetting.  I was upset.  I know I live in this country.  The constitution protects my rights.  I even told him that I have rights in this country and I’m going to pursue my rights … He said, ‘ma’am either you take that off, meaning the hijab, or you go home.’ I told him it’s part of my religion. I cannot take it off.”

Professor Ruthann Robson has previously discussed this kind of “Hijab Hysteria” last year, saying that an employer need not claim safety reasons in order to bar hijabs from the workplace. Instead, as the Tenth Circuit suggested in 2013, the burden is on the woman to explicitly inform her employer that she wears the hijab for religious reasons and request accommodation.

But Professor Robson suggests that rather than focus on the reasons why a woman chooses to wear a hijab, religious or secular, “we should be more worried about the beliefs and biases of those who seek to control women’s attire, whether they are focused on headscarves or something else.”

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Pentagon Changes Dress Code Policy for Religious Accomodation

Earlier this month, the Pentagon announced it is relaxing dress code rules for religious accommodations. As reported, on a case by case basis, the new policy allows troops to wear religious clothing and other forms of outward expression when they are approved by higher-ups.

398px-Zalman_LipskierWith the relaxed policy, service persons can now wear hairstyles, beards, piercings, or even tattoos that would otherwise be barred. The policy was adapted “to promote the climate necessary to maintain good order and discipline [and] reduce both the instances and perception of discrimination among those whose religious expressions are less familiar to the command.”

But not all accommodations will be made — commanders will deny a request if it has an “adverse effect on military readiness, mission accomplishment, unit cohesion, and good order and discipline.” As the Pentagon explained, “religious apparel that ‘impairs’ the safe operation of weapons, poses a safety hazard to others, or interferes with special equipment like helmets and flak jackets will not be permitted.”

388px-CaptRattansikhThe policy is not limited to any particular organized or recognized religions. NBC News reports that “the military will make every effort to accommodate ‘individual expressions of sincerely held beliefs’ (conscience, moral principles, or religious beliefs) of service members.” Indeed, in speaking to the press, the Pentagon stated that they place “a high value on the rights of members of the Military Services to observe the tenets of their respective religions and the rights of others to their own religious beliefs, including the right to hold no beliefs.”  

Reporters speculate that the policy change came in response to Sikh soldiers’ complaints over discrimination through dress.When it comes to the Constitution, the military receives special legal considerations for curbing traditional notions of free speech and exercise of religion, and challenges to policies are often difficult, if not impossible, to make. The military has also traditionally championed oneness and uniformity as ideal. As a result, many welcome the move as enhancing fundamental rights that would otherwise be difficult to uphold in the military context.  

However, Americans United, a group dedicated to the Constitution’s mandate of separation of church and state, issued a more cautious response, saying:

“Americans United fully appreciates the need and value of religious accommodations in the Armed Services. Yet, even as we support religious accommodations, we recognize the equally important and coextensive need to ensure that service members are not subject to coercive religious practices or unwanted proselytizing. Religious freedom means both the right to practice religion and the right to be free from government endorsement and coercion.”

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Brooklyn Principal “Chastises” Parents for Exemptions from School Dress Code

As reported, Principal Lorenzo Chambers of Brooklyn’s P.S. 279 sent a letter to parents in which he questioned their alleged religious motives for opting their children out of the school’s dress code.

16990In New York City, a public school can voluntarily adopt a mandatory uniforms for their pupils. At Brooklyn’s P.S. 279, the required uniform consists of polos and blue khaki pants, but students may be exempt from the mandatory dress code for several recognized reasons, including religious. New York City law provides that “students have a right to … determine their own dress within the parameters of the Department of Education policy on school uniforms and consistent with religious expression.” To avoid disciplinary action, parents have 30 days to apply for the exemption, and students can face suspension and other punitive measures for violating the uniform requirement.

According to the letter sent to parents last month, Principal Chambers became alarmed by parents claiming religious exemptions for their children after he deduced parents were falsely invoking religious expression claims “when clearly there are no such reasons.” He concluded this “because some of [the] children wore their uniforms last year and not this year.”

He added, “school is about learning, not about what we look like and asserting one’s individuality through what he/she wears,” and that “children should assert their individuality by who they are as a person — how hard they work or how kind they are to their peers or how respectful they are to adults.”

However, Chambers may be overlooking the real reason behind the alleged false exemptions — rather than parental concern over a child’s self-expression, parents may seek exemption from the mandatory uniform because, simply, uniforms are expensive.

Screen Shot 2014-01-21 at 6.12.43 PMIndeed, one P.S. 279 mother told reporters that she needed a month to save the money just to buy the uniform. “If you go to school without the uniform, they make you change and put one on … It’s not good sometimes if you don’t have enough money. It’s $15 for pants and $7 for a shirt. It adds up.” The uniform can be purchased online at

While for some “it’s just a uniform,” for others who struggle to make ends meet, it can be a very serious expense with drastic consequences. And though the Constitution’s right to freedom of religion may afford a student exemption from the mandatory dress codes, unfortunately for many New York City families, economic hardship is not also protected in this way.

As far as the administration goes, the school might be better served if there were first inquiry into the reasons for claimed religious exemptions, rather than accusations of lying and telling parents they do a “‘disservice” to the community by opting out of purchasing uniforms. Indeed, given the outspoken critics of Principal Chamber’s letter, attempting to ameliorate the need for exemptions, rather than chastising parents, might just be a better strategy all around.  

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Update on NYC Suit Against Jewish Orthodox-owned Stores for Alleged Discrimination

As previously discussed on Dressing Constitutionally, the New York City Commission on Human Rights recently filed complaints against seven Jewish Orthodox-owned stores that allegedly violated City law by discriminating against the “gender and creed” of patrons through the stores’ dress code.

This Tuesday, The New York Times reports the City’s action against the stores is settled, requiring the Brooklyn-based stores to pay nothing. Though the Commission’s originally sought fines against the stores, the 800px-Satmar_community_Williamsburg_brooklyn_new_yorkCommission is now “satisfied that the store owners understand their obligations under NYC Human Rights Law.” The Commissioner also assured reporters that if the stores “were to post new signs in their windows, they would say that while modest dress is appreciated, all individuals are welcome to enter the stores free from discrimination.”

The attorney representing the stores pro bono told the Times, “it’s inconceivable that it could be a human rights violation for Hasidic Jews to make the same statement that stores and restaurants all over the city make,” referring to the various gendered dress codes across New York City which result in blatant discrimination similar to that alleged against the Williamsburg stores. 

Asked about the settlement, newly elected New York City Mayor Bill de Blasio did not initially comment because he was not aware of the issue. As Yeshiva World News reports though, the Mayor eventually told reporters, “we want to respect every community in everything we do” but adding “we also have laws that we are here to uphold.”

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Modest Dressing at the Frick Collection

Apropos of discussions about “hijab” as modest dressing including head covering for women, Vermeer’s famous painting “Officer and Laughing Girl,”


now on exhibit at the Frick bears an interesting description: “A gentle radiance illuminates an officer and a modestly dressed young woman engaged in the pleasantries of courtship.”

Is it the headcovering that makes the woman in the 1657 Dutch painting modestly dressed?


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Hijab Hysteria

From my piece over at Women’s Review of Books:

The legal policing women’s headscarves is rooted in a mélange of sexism, xenophobia, religious bias, and racism. Unlike the niqab (veil), hijab as sartorially expressed by the headscarf does not obscure the face. While the niqab can raise concerns about identification and anonymity, which may be rational in some situations, such as a trial in which the identity of a person is a central issue, the headscarf evokes anxieties of a less logical sort.


Read more here.

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