The Equal Opportunity Tribunal of Trinidad and Tobago today ruled in favour of a Complainant who claimed she was discriminated upon, when in March 2012, she was fired for wearing her hijab after having converted to Islam. The Company claimed that this conflicted with its set uniform policy.

The judgment was read by Chairman of the Tribunal, His Honour Rajmanlal Joseph.

In making its decision, the Tribunal considered the case of Sumayyah Mohammed v Moraine and Another (1995) 49 WIR 371, which concerned a Muslim girl who had passed the Common Entrance Examination for her first choice, which had school regulations requiring pupils to wear the school uniform. The applicant’s parents asked the school to permit the applicant to wear the dress conforming to the hijab. The principal of the school and its board of management refused to allow any such exemption, although they accepted the sincerity of the belief of the applicant and her parents that she was required by the Islamic faith to conform to the hijab. The principal and board of management explained that if an exemption were allowed, other parents would also seek exemptions; further, that the uniform was a useful tool in administration, was conducive to good discipline, and created a sense of unity and family. The applicant attended school wearing a modified version of school uniform which conformed to the hijab, but she was not allowed to attend classes and was in effect, suspended. That decision was challenged in the high Court of Justice and after a lengthy Trial the court quashed the decision of the respondents, holding that they had applied the school regulations inflexibly and had not taken into account the psychological effect on the applicant of refusing to allow her to conform to the hijab.

The Tribunal further considered Civil Appeal No. 153 of 2006 Between Isreal Khan and Sherman Mc Nicholls, a case where the Respondent (then Chief Magistrate) refused the Appellant the right of audience in his court on the basis that the Appellant was not properly attired (not wearing a jacket and tie) but was wearing a full Nehru Suit. The Court of Appeal in the course of deciding this case noted at page 13 and 14 of its decision delivered on January 12, 2012 that: “There was a time when women never wore trousers to the Courts. Now they do. There was a time when a conventional jacket was expected, even over a dress. Now that is not so and there is much more variety in what is considered a ‘jacket’. Indeed, dresses per se are now also worn and there is no uniformity as to style, cut or cloth. Furthermore, saris have been worn in all the courts of the land, even in the High Court with advocates’ collars and bands. And recently, Muslim women have been wearing hiiabs in all the Courts of Trinidad and Tobago, also with advocates’ collars and bands”.

Anti-discrimination law in the United Kingdom was also examined, as the Tribunal considered the case of Eweida and Others v The United Kingdom [2013] Eq LR 264 wherein Ms. Eweida a practising Coptic Christian was employed with British Airways which required all their staff in contact with the public to wear a uniform; but the company did concede an accommodation to allow male Sikh employees to wear a dark blue or white turban… and [or female Muslim ground staff to wear the Hijab in British Airways approved colours. On September 20, 2006 Ms. Eweida was sent home from work because of her refusal to conceal a crucifix she wore around her neck, in breach of the company’s uniform code. Ms. Eweida challenged the company’s decision in the local (English) Courts and failed. She then appealed to the European Court of Human Rights, which found that a fair balance was not struck in this case by the lower courts, in that it did not strike the right balance between protection of her right to manifest her religion and the rights and interest of others. The Court further considered that the violation of her right to manifest her religious belief must have caused her considerable anxiety, frustration and distress.

The position in the United States was also considered, with the case of  Equal Employment Opportunity Commission (EEOC) v Abercrombie and Fitch Stores, 575 US (2015) in which Samantha Elauf, a practising Muslim who, consistent with her understanding of her religion’s requirements, wore a headscarf (hijab). She applied for a position in an Abercrombie Store and was interviewed by the Assistant Manager, who using the store’s ordinary system for evaluating applicants, gave Ms. Elauf a rating that qualified her to be hired. However, the Assistant Manager was concerned that Ms. Elauf‘s headscarf would conflict with the store’s “Look Policy”, that is, dress code. The Assistant Manager sought guidance from her district manager who indicated that Ms. Elaui‘s headscarf would violate the “Look Policy” and directed her not to hire her. The EEOC sued Abercrombie on Ms. Elaui’s behalf, claiming that the store’s refusal to hire Ms. Elauf violated her Title VII of the Civil Rights Act, 1964 protection which prohibits religious discrimination in hiring.

The Tribunal noted that accommodations were made at the Respondent company for other faiths such as requests by Seventh Day Adventist to have their Sabbath day free of work duties, but that the company was not prepared in any way to make accommodations to the Complainant.

In its judgment, the EOT stated:

“It is the considered opinion of the Tribunal that the discrimination of the Complainant by the Respondent was serious, in that the discriminatory act was not a one-off incident but continued for some time, including the discomfort of a Tribunal hearing and eventual dismissal.”

The Tribunal eventually  ruled that the Complinant be compensated to the value of 150,000.00 with interest at a rate of 6% per annum from the date the complaint was filed. In arriving at this quantum, the Tribunal considered recent defamation judgments in Trinidad and Tobago, which contemplated issues such as “anxiety, frustration and distress”.

Giselle Glaude
Photo courtesy Nicole Drayton of the Trinidad and Tobago Guardian newspaper.

This matter was conducted by the Legal Aid Clinic of the Hugh Wooding Law School, with research by students of the Human Rights Law Clinic.

The featured image used in this post is by Paul Keller, used under an Attribution-NonCommercial-ShareAlike 2.0 Generic Creative Commons license. Visit Paul Keller’s flickr photostream.

About The Author Jason Nathu

Jason Nathu is an Attorney-at-Law and Tutor attached to the Legal Aid Clinic at the Hugh Wooding Law School.