Document Type

Article

Publication Date

2021

First Page

115

Journal Title Abbreviation

Berkeley J. Gender L. & Just.

Abstract

“Good morning, Your Honor, AA, here on behalf of the United States government.”1 AA recounted her proudest moment: appearing in federal district court as an attorney for the Department of Justice (DOJ) in a religious accommodation case under Title VII of the Civil Rights Act of 1964.2 There she stood, an Ivy League graduate and the granddaughter of sharecroppers. She appeared before the court as an African-American Muslim woman in hijab representing the government to uphold the constitutional rights of another Muslim woman.3 The complainant, Safoorah Khan, was employed as a teacher in a small Illinois school district and had requested a religious accommodation to make the annual Islamic pilgrimage to Mecca (hajj).4 The school district denied Ms. Khan’s request.5 Although the employer raised economic hardship as its legal defense, trends suggest that the school district may have denied Khan’s request because her secular practices, in its view, did not align with her claim that she had a religious obligation to make hajj.6 AA successfully settled Khan’s case against her employer and secured $75,000 for Khan in lost wages.7 I argue that because Khan did not perform her religion as the employer expected, such as by wearing hijab, the employer challenged the sincerity of her religious belief.8 Specifically, I argue that Khan experienced the effects of what I refer to as inverted masking when the school district denied her request. In the inverted masking paradigm, employers are more prone to challenge employees’ religious accommodation requests when the employee is inconsistent in religious practices or fails to perform a religious identity as the employer would expect. An array of large-scale employment litigation over discrimination against specifically Muslim employees provides evidence of the inverted masking paradigm in action.9

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