Fox Mocks DOJ For Bringing Lawsuit To Defend Religious Practices Of Muslim

››› ››› MATT GERTZ & BRIAN POWELL

Bill O'Reilly, Jeanine Pirro, Gretchen Carlson are ridiculing and attacking the Justice Department for suing a school district for discrimination on behalf of a Muslim teacher who resigned after her request for time off to make hajj, a religious pilgrimage observant Muslims must take, was denied. But the Justice Department is acting on the recommendation of the U.S. Equal Employment Opportunity Commission, which previously engaged in a similar lawsuit during the Bush administration, and even Fox's Megyn Kelly has acknowledged that the DOJ may have a case.

O'Reilly, Pirro, Carlson Targeted DOJ And Teacher Over Lawsuit

Pirro Said DOJ Lawsuit Is "Ridiculous," Suggests Teacher Is Lying About The Depth Of Her Faith During a guest appearance on Fox News' Fox & Friends, Jeanine Pirro, host of Fox News' Justice With Jeanine, said:

STEVE DOOCY: Alright, some have said, OK there's a legal path here, a reason for the Justice Department to do that, others have said, well clearly this is just the Obama administration trying to reach out to Muslims. What do you think?

PIRRO: I think the whole thing is ridiculous. I mean, think about the fact that if you hire someone, the first year on the job they say, 'hey by the way I'm gonna take 19 days because I want to take a hajj, which is a pilgrimage to Mecca. If you work for me the first year you didn't get vacation.

So then you say well wait a minute, maybe there's something in the teacher contract that allows them to take something this extended a period of time, and there isn't. And, by the way, a hajj is something you can take once in your lifetime. She's 28 years old, she gets a job -- the first year after nine months, she says "I'm being called to Mecca, I need to leave" in a critical time.

DOOCY: This is the hajj she wants to go to, though. And if you don't give her the time off, you're discriminating against her based on her religion.

PIRRO: Well, she says that she is fighting for the liberty, the religious liberty, that our forefathers fought for, and I say "hogwash." Here's the bottom line: you take a job as a teacher, you owe those kids an education. How dare you leave, put the other teachers on the lurch, drop those kids to go on this -- by the way, why is this the first time you're going? Is it maybe because you got a job and you think someone should pay for it? This is ridiculous. [Fox News, Fox & Friends, 3/25/11]

Fox & Friends Host Gretchen Carlson: Our "PC Society" Is To Blame For Teacher's Request. From the March 25 edition of Fox & Friends:

CARLSON: That's my point and my question is that we live in a PC society now where everyone expects that they can do that. Doesn't that factor into this?

PIRRO: Gretchen, you hit the nail on the head. The Obama administration is taking this case as one of the cases that they think shows the pushbacks against Muslim Americans. Well that's ridiculous. Even Michael Mukasey, the former attorney general, says Eric Holder and his administration are off on this one. And they are. You don't, you know, take a case like this and say "we're gonna run with this one." She's got a contract with the school, the law of Islam as far as I'm concerned, should respect the contract, it should respect the kids who are in school, who are at a critical point in their education, and you know what -- take the hajj at another time. [Fox News, Fox & Friends, 3/25/11]

O'Reilly And Pirro Slammed "Foolish" Holder For Pursuing "Crazy" Case. During The O'Reilly Factor, O'Reilly and Pirro discussed Holder's case against the school district:

O'REILLY: Fascinating. This is the first time I've ever heard about this getting to that level.

All right. On the same -- on the same street, OK, on the same street, our pal, Attorney General Eric Holder, big "Factor" fan, loves us, right? - - is litigating on behalf of a Muslim teacher in Chicago who said -- and we reported this a few weeks ago -- "I've got to go on the Hajj. I've got to -- I've got to take three weeks off and go over to Saudi Arabia for my religion. And then I want to come back and resume my job."

And the school said -- the school district said, "No way you're taking three weeks off in the middle of the term. Kids will be hurt. You're out of here if you do it." She left; she got fired.

And now Attorney General Holder is litigating on her behalf. We should all be so lucky.

PIRRO: Well, look, I've always wanted to go to Lourdes. But I never had the gall to go my boss and says, "Look, I need 19 days off. I need to do a pilgrimage."

Here's what's outrageous about this. This is a political decision that is made by the Justice Department. This woman isn't on the job nine months. Can you imagine going to your first boss and saying, "Look, I need three weeks off, because I want to do a Hajj. And by the way, I can do it at any point during my lifetime. But now I have a job with you, and you're paying me now. I can afford it. So the hell with the kids. Let's just go do the Hajj." That's hogwash.

O'REILLY: So why is Holder, if you -- if what you're saying is right, I mean, and I think it is, why would Holder put himself up to scorn, all right, by taking this woman and spending our tax money, by the way, on this case. It's going to run into hundreds of thousands of dollars. [...]

O'REILLY: Holder is absolutely making himself look foolish.

PIRRO: And by the way, isn't she on probation her first year?

O'REILLY: I don't know.

PIRRO: Who gets three weeks off? That's crazy.

O'REILLY: I just think this is such an affront to the taxpayer that this would be the priority of the American Justice Department. [Fox News, The O'Reilly Factor, 3/24/11, via Nexis]

DOJ Filed Suit Under Title VII Of The Civil Rights Act of 1964 Following Referral From EEOC

DOJ: Teacher Was Denied Unpaid Leave To Make Hajj. From a Justice Department press release:

The Justice Department today announced it has filed a lawsuit against Berkeley School District, Berkeley, Ill., alleging that the school district violated Title VII of the Civil Rights Act of 1964 by failing to reasonably accommodate the religious practices of Safoorah Khan, a Muslim teacher at McArthur Middle School.

The government's complaint, filed in the U.S. District Court for the Northern District of Illinois in Chicago, alleges that Ms. Khan requested an unpaid leave of absence in December 2008 to perform Hajj, a pilgrimage required by her religion. According to the complaint, Berkeley School District denied Ms. Khan's request because the purpose of her leave was not related to her professional duties nor was it leave for any of the specific purposes set forth in the Professional Negotiations Agreement between the district and the teachers' union. The United States further alleges that, because Berkeley School District denied her a religious accommodation, the district compelled Ms. Khan to choose between her job and her religious beliefs, and thus forced her discharge.

[...]

In the lawsuit, the United States seeks an order requiring Berkeley School District to adopt a policy designed to reasonably accommodate the religious observances, practices and beliefs of employees and prospective employees. In addition, the United States seeks back pay, compensatory damages and reinstatement for Ms. Khan. [Press release via Justice.gov, 12/13/10]

Teacher's Lawyer Said She Was Acting Based On Her "Religious Belief." From The Washington Post:

Khan, 29, who grew up in North Carolina and Arkansas, was happy in the job, said her lawyer, Kamran A. Memon. But she longed to make the hajj, one of the five pillars of the Islamic faith, which Muslims are obligated to do once. It would not have fallen on her summer break for about nine years.

"This was the first year she was financially able to do it," Memon said. "It's her religious belief that a Muslim must go for hajj quickly . . . that it's a sin to delay." Khan declined to comment. [Washington Post, 3/22/11]

DOJ Filed Suit To Enforce Title VII Of Civil Rights Act Of 1964 After Case Was Referred By EEOC. From the Justice Department's complaint:

This action is brought on behalf of the United States of America ("United States") to enforce the provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII").

[...]

Ms. Khan filed a timely charge with the United States Equal Employment Opportunity Commission ("EEOC") (Charge No. 440-2009-01534) on or about November 22, 2008, alleging that Defendant Board of Education discriminated against her in employment because of her religion. Persuant to Section 706 of Title VII, 42 U.S.C. § 2000e-5, the EEOC investigated the charge, found reasonable cause to believe that Ms. Khan's allegation of discrimination based on religion was true, attempted unsuccessfully to achieve through conciliation a voluntary resolution of the charge, and subsequently referred the matter to the Department of Justice. [DOJ complaint, 12/13/10, via Volokh.com]

Title VII Requires Employers To "Reasonably Accommodate" Employee's "Religious Observance Or Practice." Title VII states:

For the purposes of this subchapter:

[...]

(j) The term "religion" includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business. [Civil Rights Act of 1964 , as amended, 42 U.S.C. §§ 2000e, via Law.Cornell.edu, accessed 3/25/11, emphasis added]

Title VII further states:

It shall be an unlawful employment practice for an employer -

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. [Civil Rights Act of 1964 , as amended, 42 U.S.C. 2000e-2, accessed 3/25/11, via Law.Cornell.edu, emphasis added]

U.S. Government, Courts Have Previously Supported Right To Extensive Leave Based On Religious Beliefs

EEOC Filed Lawsuit in 2007 Under Bush Administration Against Hospital That Refused To Allow Employee To Take Three Weeks Of Leave For Hajj. From The Tennessean:

The U.S. Equal Employment Opportunity Commission has filed suit against a Nashville hospital alleging that it discriminated against a health-care technician because of his religion.

According to the suit, filed last week, Wali Telwar had worked at Southern Hills Medical Center for nearly three years when in 2005 he requested paid time away from work he accumulated to attend the hajj.

Every Muslim is required to attend the hajj an annual pilgrimage to Mecca, Saudi Arabia, birthplace of the Islamic religion and its prophet in their lifetime. The hospital allegedly refused to grant Telwar the time, according to the suit filed by the EEOC in Nashville's federal district court Sept. 28. Telwar also was allegedly told that if he insisted on attending the hajj he would have to quit and reapply when he returned. [The Tennessean, 10/4/07, via Nexis]

  • Hospital Settled Case. From the EEOC's 2009 annual report:

In EEOC v. Southern Hills Medical Center (M.D. Tenn. April 27, 2009), EEOC alleged that a community hospital in Nashville, Tennessee failed to accommodate the religious beliefs of a Muslim employee and discharged and failed to rehire him due to his religion. In early November 2005, the employee, a medical technician who had worked for defendant since March 2003, submitted a written request to use accrued paid leave for a 3-week leave of absence beginning December 27 to make a pilgrimage (hajj) to Mecca with his family. Defendant denied the request, and told the employee he would have to resign and then reapply after he returned. The employee resigned, and when he reapplied on January 17, 2006, defendant refused to rehire him. The 2-year consent decree provided the employee $70,000 and enjoins defendant from refusing to reasonably accommodate the sincerely held religious beliefs of any employee. Defendant must amend its policy manual to include specific instructions for accommodating a sincerely held religious belief. [EEOC.gov, accessed 3/25/11]

Libertarian UCLA Legal Expert: Previous Requests For "Weeks-Long Leaves" Have Been Supported By The U.S. Government And At Times By Courts. On his blog, Eugene Volokh, a libertarian UCLA law school expert on religion and the law, discussed the government's previous activity pursuing cases similar to Khan's:

[I]t turns out that requests for weeks-long leaves (as opposed to the more common Sabbatarian requests to have each Saturday and Friday night off) have been made before by members of another religious group -- and supported by the U.S. government. That group is the Worldwide Church of God, the adherents of which apparently feel obligated to take eight to ten days off every year to observe a holiday (the Feast of Tabernacles).

The EEOC and the Justice Department have on several occasions sued on behalf of Worldwide Church of God members, claiming they have a right to religious accommodation.

See EEOC v. Firestone Fibers & Textiles Co. (4th Cir. 2008), EEOC v. Universal Manufacturing Corp. (5th Cir. 1990), and U.S. v. Board of Trustees of Southern Illinois Univ., 1995 WL 311336 (S.D. Ill.). And some courts have held that denial of leave indeed violated Title VII, because on the particular facts of the case the employer has not shown that granting leave would cause undue hardship. See, e.g., Board of Trustees of Southern Illinois Univ.; Wangsness v. Watertown School Dist. (D.S.D. 1982); Edwards v. School Bd. of City of Norton (W.D. Va. 1980) (partly modified on other grounds by the Fourth Circuit); Willey v. Maben Mfg., Inc. (N.D. Miss. 1979); Rankins v. Comm'n on Professional Competence (Cal. 1979) (discussing Title VII standards, though in a case decided under then-existing Free Exercise Clause caselaw); Neiderhuber v. Camden County Vocational & Technical School District Board of Ed. (D.N.J. 1980) (likewise). Other courts have held otherwise, based on the particular facts of those cases. Firestone Fibers; Favero v. Huntsville Indep. School. Dist. (S.D. Tex. 1996); Smith v. United Refining Co., 1980 WL 98 (W.D. Pa.). And at least one court has remanded for more factual determinations about whether there would be undue hardship. Universal Manufacturing Co.. (Note that these sorts of cases could be brought either by private plaintiffs themselves, or by the EEOC or DOJ defending the rights of those plaintiffs.) [Volokh.com, 12/14/10, emphasis added]

Even Fox News Host Megyn Kelly Agreed That The School Must Prove In Court That It Didn't Discriminate

Kelly: "The School Needs To Prove That It Could Not Spare This Teacher... If They Cannot, They Will Lose" Discussing the DOJ case on Fox News' America Live, Megyn Kelly had this exchange with former prosecutor Jonna Spilborn:

KELLY: Alright Jonna, so it's not just this woman, Safoorah now, fighting on her own behalf. Eric Holder, the Justice Department has stepped in. They're going after this school saying, "You're intolerant against Muslims. You should have let her go on this three-week pilgrimage, even though it was in the middle of December." Is the DOJ right?

SPILBORN: I think they are. And let me just go on record, as an employer I don't love Title VII in all of its parts, I don't. But, it is the law, and them's the rules. And Title VII says, if you're an employer of over 15 people, you have to reasonably accommodate a person's religious beliefs. Just like you have to accommodate a nursing mother, or pregnant women, and the list goes on.

KELLY: Or an observant Jew who comes and says "I don't want to work Friday night or Saturday' or a Catholic who doesn't want to work on Sunday.

SPILBORN: Exactly, so those are the rules, and they need to be abided by, and this school has not. And in order for the school to prevail, they're going to have to show some sort of hardship. I don't think they can do it.

[...]

KELLY: It's not legal for a school district to be intolerant against members of the Muslim community, if there are teachers who are making a legitimate request, right?

SPILBORN: Well, exactly. So, while you could turn it into a political argument, if you look at it factually I don't think it has anything to do with politics.

KELLY: Well it's a really interesting case, and it is unusual for the Department of Justice to step in on something like this rather than just say - normally they say "you go ahead and you pursue it and we'll see how it turns out." Jonna, Mercedes, thank you.

One final word for our viewers -- the school needs to prove that it could not spare this teacher for the three weeks during the school year. Can it do that? I have no idea. It hasn't offered that evidence to date. It will have to prove that in a court of law, and if it can, it will win. If it cannot, the Department of Justice will win. Period. [Fox News, America Live, 3/23/11]

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