This article in The Philadelphia Inqurier raised an eyebrow or two:
A federal appeals court has upheld the Philadelphia Police Department’s policy that forbids officers to wear Muslim head scarves on the job.
The U.S. Court of Appeals for the Third Circuit ruling, issued Tuesday, affirmed a lower court’s ruling in a 2005 lawsuit filed by Officer Kimberlie Webb of the 35th Police District. Webb, who became a Sunni Muslim two years after joining the force in 1995, contended that the ban on the scarves, known as hijabs, violated her civil rights.
In 2007, a federal judge ruled in the city’s favor, and the Third Circuit said accommodating Webb would severely damage the department’s appearance of "religious neutrality."
Certainly not the first religious discrimination case raised against the government. Some background:
Congress initially enacted the Religious Freedom Restoration Act (RFRA) in 1993 to counter the Supreme Court’s decision in Employment Div., Dept. of Human Resources v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990), which held that neutral and generally applicable laws are not susceptible to attack under the Free Exercise Clause of the Constitution even if they incidentally burden the exercise of religion. RFRA provided that any legislation imposing a substantial burden on religion would be invalid unless it was the least restrictive means of furthering a compelling state interest. 42 U.S.C. § 2000bb et seq. Shortly thereafter, the Supreme Court in City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997), struck down RFRA as it applied to the States because it exceeded Congress’s remedial power under Section 5 of the Fourteenth Amendment.
Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 261 (3d Cir. 2007). In addition to the Constitutional / First Amendment claims, last year the Third Circuit pointed out that, even if the federal RFRA was struck down, there are still numerous protections:
Although there are differences among the various federal and state religious protection statutes, most contain, at their core, the same fundamental structure and purpose. They recognize that neutral laws of general applicability may burden religious exercise as significantly as laws intended to interfere with religious exercise. The federal statutes, Pennsylvania’s [Religious Freedom Protection Act (RFPA)], and a majority of the state statutes also acknowledge the government need not justify every action having some effect on religious exercise. Under those statutes, only substantial burdens trigger heightened scrutiny. RFPA’s four definitions of ‘substantially burden’ emphasize the importance of this threshold. See 71 Pa. Stat. Ann. § 2403 (‘significantly constrains or inhibits’; ‘significantly curtails’; ‘denies . . . a reasonable opportunity to engage in activities . . . fundamental to the person’s religion’; ‘violates a specific tenet of a person’s religious faith.’) (emphasis added).
Combs v. Homer-Center Sch. Dist., 540 F.3d 231, 261–62 (3d Cir. 2008).
The problem in the Webb case just decided is that, apparently, plaintiff’s constitutional, state religious freedom, and sex discrimination claims were all waived. As noted by the opinion,
On October 5, 2005, Webb brought suit against the City of Philadelphia,2 asserting three causes of action under Title VII—religious discrimination, retaliation/hostile work environment, and sex discrimination—and one cause of action under the Pennsylvania Religious Freedom Protection Act (RFPA), 71 Pa. Stat. Ann. § 2401. … The District Court granted summary judgment on all claims, finding Webb failed to exhaust her administrative remedies for the Title VII sex discrimination claim, failed to meet the statutory notice requirements for the RFPA claim, and failed to raise a genuine issue of material fact for the Title VII religious discrimination and retaliation/hostile work environment claims.
Webb appeals only the adverse judgments on the religious discrimination and sex discrimination claims. She also raises, for the first time on appeal, certain constitutional claims.
The Third Circuit affirmed on all counts, which is to say, except for the religious discrimination claim, all of plaintiff’s claims were dismissed for procedural reasons, either because they were initially filed the wrong way or were not raised until appeal.
It is easy to blame the lawyers for the outcome here, but the fault really lies with the roadblocks raised by federal and state statutes for the primary purpose of making it harder to file these claims. Each type of claim that could be raised here — Federal free speech, Title VII discrimination (of two different types), Pennsylvania discrimination, and Pennsylvania religious freedom — must be filed in a different way.
A federal free speech claim is a lawsuit brought under 28 U.S.C. 1983, filed directly with the District Court. Each Title VII discrimination claim, however, must first be raised specifically in a complaint (generally drafted on-site without the assistance of an attorney) to the Equal Employment Opportunity Commission. The same is true of state discrimination claims before the Pennsylvania Human Relations Commission. The Pennsylvania RFPA, in turn, has its own independent statutory requirements for suing the government, requiring that the plaintiff
give written notice to the governmental entity by certified mail, informing that agency of all of the following:
(1) The person’s free exercise of religion has been or is about to be substantially burdened by an exercise of the agency’s governmental authority.
(2) A description of the act or refusal to act which has burdened or which will burden the person’s free exercise of religion.
(3) The manner in which the exercise of the governmental authority burdens the person’s free exercise of religion.
Webb v. City of Philadelphia, No. 05-5238, 2007 U.S. Dist. LEXIS 11762, at *11–12 (E.D. Pa. Feb. 20, 2007).
Got all that? Making matters worse, often times the EEOC will send you to the PHRC, and vice versa, depending on how overburdened they are.
In that context, it’s not surprising to see plaintiffs inadvertantly waive claims — that’s just what the system was designed to do.