Head Scarf Comments Are Direct Evidence of Discrimination

In May 2004, Angela Harper, an African-American Muslim, was working as a dishwasher at Starlight Restaurant in Ellensburg, Washington. As a part of her religion, Harper wore a head scarf, or hijab. After Harper became a waitress, she was allowed to work only breakfast and lunch shifts and was denied the more lucrative dinner and cocktail shifts, even though her immediate supervisor considered her qualified.

    Harper attempted to transfer to the position of cocktail waitress, but said she was told “It wasn’t about your race, it was more about your scarf thing.” The restaurant owner, Doris Morgan, made negative comments about Harper’s scarf, expressed a preference for white waitresses and said that restaurant patrons would not want “a girl like that” serving cocktails. Harper was offered a job as a cocktail server, but considered the offer “insincere” and resigned.

    On Harper’s behalf, the Equal Employment Opportunity Commission filed suit in U.S. District Court for the Eastern District of Washington, alleging claims for discriminatory refusal to promote and constructive wrongful termination in violation of Title VII of the Civil Rights Act of 1964.

    The district court denied Starlight’s motion for summary judgment on a Title VII claim. The EEOC presented evidence that Morgan had asked Harper to “wear a fancier headdress” and stated that she did not understand “the whole Muslim thing.” Morgan also told the dining room manager that she wanted only “really gorgeous girls” serving cocktails and preferred “hot white girls.” The court ruled that the evidence was more than sufficient to show unlawful discrimination on the basis of religion or race and for constructive termination because a reasonable jury could find that Harper was “driven from the workplace.” EEOC v. Starlight, LLC, 2008 U.S. Dist. LEXIS 60257, E.D. Wash. (8/4/08).

    Impact: An employer’s derogatory comments about an employee’s religious clothing may provide direct evidence that its refusal to promote was prompted by the employee’s religious beliefs.

Workforce Management, September 22, 2008, p. 13 — Subscribe Now!