Randy Singer: Fatal Convictions

For the next several minutes, Alex switched into lecture mode and explained the impact of Title VII of the Civil Rights Act. Employers have a duty to reasonably accommodate employees’ sincerely held religious beliefs unless doing so would impose an undue hardship on the company. Aisha’s scarf, Alex argued, would certainly not create an undue hardship.

“Atlantic Surf says the purpose of its Look Policy is to enhance its brand by reflecting the type of look acceptable to its customers. But I would submit to you that its customers look very different from these store employees. Here are pictures of the first twenty customers that went into the store on the day I visited.”

The people were a typical slice of beach life-tattooed, underweight, overweight, dyed hair, skimpy bathing suits… and lots of painted fingernails.

“And for your review, here are the store employees.” Alex returned to his pictures of Atlantic Surf’s staffers-beautiful and buff, all dressed in tight T-shirts that showed off hard bodies.

“In this sea of skin-deep beauty, is there not room for one teenager who believes in honoring God with modest dress and hair covering? Even though I disagree with the store’s implicit requirement that you have to be beautiful to work there, Aisha fits that criteria. Where she fails is in her desire not to flaunt it.

“We don’t live in the Aryan Nation,” Alex continued. “We live in America. We allow people to be themselves. Diversity is a way of life. Religious. Political. And yes, even in the way we dress.

“In America, you should not be forced to turn yourself into a sex object just to get a job selling surfboards.”

Kendall Spears could have landed a job at the Atlantic Surf Shop with no problem. He was tall with thick black hair, deep-set eyes, and a chiseled jaw. He wore a Brooks Brothers suit. He was a rising star in a large downtown Norfolk firm. He spoke in a rich, bass voice.

If Kendall Spears was anything, he was smooth.

“Airline pilots wear uniforms. So do gymnasts, basketball players, Olympic swimmers, and Supreme Court justices.

“Every hospital and fast-food restaurant in America has hygiene standards, or at least they ought to. And who wants to go to Radio City Music Hall and see Rockettes who weigh two hundred pounds? This case isn’t about whether companies can have dress codes or body-weight standards or other policies about how their employees present themselves. This case is supposed to be about whether Atlantic Surf Shop can reasonably accommodate Ms. Hajjar’s sincerely held religious beliefs without undue hardship.”

Kendall took a sideways step and fired up his own PowerPoint. “To answer that question, we need to understand the plaintiff’s sincerely held religious beliefs. So I asked her some questions about those beliefs during her deposition.”

For the next few minutes, the jury watched a video of Aisha’s deposition, in which she explained the reasons she wore a hijab. She talked about modesty and honoring her parents and her religious traditions. She talked about not wanting to attract the wrong kind of men. She talked about being willing to stand up for her faith even when others ridiculed her.

It was, Alex thought, very compelling testimony. He had been proud of Aisha three weeks ago when he had defended her deposition. But as he watched her now, he had a sick feeling bubbling up in his stomach. Opposing lawyers didn’t show your client’s best answers unless they had something up their sleeve.

Alex slid to the edge of his seat, ready to object.

“Frankly, it all sounded pretty compelling,” Kendall said, “until I went to her Facebook page.”

Alex felt his heart skip a beat. Her Facebook page! Why hadn’t he checked that?

“This is a picture that one of her high school friends tagged,” Kendall explained. It showed Aisha and two of her friends at the beach in bikinis. Aisha’s was orange and skimpy and looked like it might be a size too small. A small tattoo peeked out on her left hip. The next picture was a close-up of her head. “You’ll notice that she’s not wearing a head scarf,” Kendall said, suppressing a grin. “And not much else either, for that matter.”

A few of the jurors snickered, and Alex knew he was toast. He would have a few minutes to try to rescue this case during rebuttal. But right now, he couldn’t think of a thing to say.

“I ask you,” Kendall continued as the camera zoomed back out, “does this look like someone who has a sincerely held religious belief that she must be covered from head to toe? Or does this look like someone who has a sincerely held belief that she might be able to cash in on the Atlantic Surf Shop Look Policy?”

Before Alex stood, Aisha leaned over and whispered in his ear. “It was spring break with my friends,” she said, her voice tentative and shaky. “I borrowed one of their bikinis. The tattoo’s not even real.”

Alex looked at his client and saw the tears beginning to form in her eyes. She was certainly embarrassed, maybe even humiliated. “It’s okay,” he said. He put a hand on her shoulder and stood to face the jury.

He walked to the jury box, carrying no notes. He stood there for a moment without saying a word. He definitely had their attention.

“Have you ever done something you regretted later?” Alex asked. “Even something against your religious beliefs?”

He looked down, thinking of examples. “Maybe you went out and tied one on with the boys. Or you cursed and took the Lord’s name in vain. Or in a worst case, you had an affair. Does that mean you should be forced to drink or swear or have sex with someone just to get a job?”

The questions at least had them thinking-he could see it in their eyes. “Doing something against your beliefs doesn’t make those beliefs go away. It doesn’t make you a pagan; it just means you’re human. In my religious tradition, the apostle Paul said that he had the desire to do what was good but he couldn’t carry it out. Instead, he kept doing what he knew he shouldn’t do. Did this make him an atheist? No, it made him normal. A believer beset by his own human nature.

“C’mon, folks. These were three girls on spring break. Aisha didn’t post that picture on her Facebook page; one of her friends did. A sixteen-year-old girl borrowed a bikini because she wanted to be like her friends for a week and not stand out. She rubs on a fake tattoo. And now Mr. Spears wants you to believe that this whole lawsuit is just a scam.”

Alex shook his head, as if he couldn’t believe his opponent could stoop so low. “During the week, I’m a lawyer. But on Sundays, I serve as the pastor of South Norfolk Community Church. And I’ll tell you one thing-if pictures from my college spring break trips were the litmus test, I wouldn’t be preaching very long.

“We all stumble sometimes. That’s why we all need a little grace. If you’ve ever been shown grace, maybe you could extend some yourself. I know that Aisha would really appreciate it.”

Alex thanked them and returned to his seat.

“My dad is going to kill me,” Aisha whispered.

While the jury deliberated, Alex tried to do what he did best-cut a deal. He proposed to Kendall Spears that Atlantic Surf Shop hire Aisha part-time. “She’s even willing to spend most of her time in the stockroom,” Alex offered.

But Horse-Trading 101 was apparently no longer offered at Harvard. “I’ll take my chances with the jury,” Kendall said, his arrogance on full display. “Win or lose, we’ve gotten some great publicity out of this case.”

That’s when it hit Alex. There were four camera crews waiting on the courthouse steps. Judge Thomas had allowed one camera into the courtroom as the pool camera, and the newspaper had also sent a reporter. Alex had played right into the defendant’s hands. Atlantic Surf didn’t care whether the politically correct crowd liked their policies or not. They sold merchandise to surfers. And Alex’s little slide show had put the employees on beefcake parade, generating free publicity from all four local networks.