Federal employee can potentially wear sword to work as religious symbol says 5th Circuit.

Tagore v. United States of America No. 12-20214 (5th Cir. November 13, 2013).

This is a religious freedom case which, even though the case deals with federal agency compliance, the analysis is helpful for local government RLUIPA and TxRFRA land use matters.

Plaintiff Tagore (“Tagore”) was refused permission to wear a kirpan (a Sikh ceremonial sword) with a blade long enough to be considered a “dangerous weapon” under federal law inside the federal building where she worked for the Internal Revenue Service (“IRS”). Tagore sued the United States and various federal agencies and employees, alleging violations of her religious rights. The trial court granted the defendants’ summary judgment and Tagore appealed. The 5th Circuit reversed and remanded her for further development of evidence concerning the government’s compelling interest in enforcing against this plaintiff (and yes the opinion actually underlined the emphasis).

In April 2005, Tagore participated in an Amrit Sanskar ceremony, pursuant to which she was formally initiated into the Sikh faith. Following the ceremony, Tagore began wearing the five articles of the Sikh faith, including an approximately 9- inch sword. Her supervisor advised she needed to seek a security waiver. She provided a letter from the Sikh Coalition noting the sword as a mandatory article of faith. The IRS convened a working group to try and resolve the conflict and went to some surprising lengths for accommodation; however, none were satisfactory to Tagore. Tagore did reduce the blade length to 3.5 inches in length, but it still violated security regulations. Ultimately, Tagore was terminated. She sued but the trial court ruled against her on cross-motions for summary judgment and she appealed.

On appeal, Tagore asserts that her evidence creates a genuine issue of material fact concerning the sincerity of her religious practice. The sincerity of a plaintiff’s belief in a particular religious practice is an essential part of the plaintiff’s prima facie case. The 5th Circuit held that the “sincerity” in espousing that practice is largely a matter of individual credibility.  As a result, she provided sufficient evidence to create a fact question on her sincerity.  Further, while protecting federal buildings is a compelling interest, the law requires government to explain how applying the statutory burden “to the person” whose sincere exercise of religion is being seriously impaired furthers the compelling governmental interest. The evidence established that regulations could be excepted and had in the past to allow for Kirpans in other federal buildings, so the matter needed to be remanded for consideration of Tagore’s specific circumstances.  The Title VII analysis centered on the fact that other agencies control security regulations, not the IRS (so it could not be deemed legally responsible) and the IRS proved its affirmative defense that it could not accommodate her without undue hardship. Costly accommodations would place the religious practitioner in a more favorable position, at the employer’s expense, than her coworkers. Further, more than de minimus adjustments could require coworkers unfairly to perform extra work to accommodate the plaintiff.  As a result, the trial court did not error in dismissing the Title VII claims.  So, the religious freedom RFRA claims were remanded and the Title VII claims were dismissed.

If you would like to read this opinion click here.