U.S. Equal Employment OPportunity Commission
Houston District office
Kawaljeet Kaur REDACTEDComplainant
v.
/ EEOC Case No. 460-2007-00023X
Agency No. TD 06-2236
Henry M. Paulson, Jr.,
Secretary of the Treasury,
Internal Revenue Service
Agency
Complainant’s Opposition to Agency’s Motion for
Decision Without a Hearing and Dismissal
I. INTRODUCTION
This complaint arises from allegations by Kawaljeet Kaur REDACTED of employment discrimination committed by the Internal Revenue Service (“IRS”). The IRS 1) required Ms. REDACTED to work from home for over nine months, 2) deemed her absent without leave, and 3) ultimately terminated her, after it forced her to choose between her continued employment or her religious faith, and she chose the latter.
Ms. REDACTED carries a kirpan, a religious article of the Sikh faith. The IRS maintains that a conflict exists between Ms. REDACTED’s religious mandate, and it’s internal workplace requirements as well as federal law. Ms. REDACTED alleges that the IRS, by failing to grant an accommodation that would have permitted her to work as an Internal Revenue Agent while carrying a kirpan,, violated Title VII of the Civil Rights Act of 1964.
Put in simpler terms, this case is about a Sikh-American who wanted to serve as an IRS Revenue Agent and practice her religion. Regrettably, Ms. REDACTED was forced to make what the Honorable United States Supreme Court Justices Thurgood Marshall and William Brennan once described as the “cruel choice” between surrendering one’s religion or one’s job. See Trans World Airlines v. Hardison, 432 U.S. 63, 87 (1977)
In the Agency’s Motion for Decision Without a Hearing and Dismissal, the IRS asserts that, as a matter of law, it is entitled to judgment on the religious discrimination claims asserted by Ms. REDACTED as well as dismissal of the complaint. However, Ms. REDACTED presents substantial evidence demonstrating numerous genuine issues of material fact that preclude summary judgment under Rule 56, Fed. R. Civ. P. and dismissal under 29 C.F.R. § 1614.109(g)(1). Accordingly, the IRS’ Motion should be denied.
II. Issues Accepted[1]
The Department of Treasury accepted the following issues for investigation of Complainant REDACTED’s complaint of discrimination:
1. Was the Complainant subjected to disparate treatment based on her religion (Sikhism) when beginning April 2005 and ongoing, she was not allowed to wear her Kirpan in the workplace; and thereafter she was placed on Flexi-place until the situation regarding her Kirpan was resolved. Subsequently, on January 30, 2006; and thereafter, she was charged with being Absent Without Leave (AWOL) regardless of whether she has been able to enter the building wearing her Kirpan; and
2. Was the Complainant discriminated against based on her religion (Sikhism) when the employer failed to reasonably accommodate her religious practices, when beginning April 2005 and ongoing, she was not allowed to wear her Kirpan in the workplace; and thereafter she was placed on Flexi-place until the situation regarding her Kirpan was resolved. Subsequently, on January 30, 2006; and thereafter, she was charged with being Absent Without Leave (AWOL) regardless of whether she has been able to enter the building wearing her Kirpan?
See Investigative File (hereinafter “I.F.”) at 2-3.
III. Contextual and Informational Case BackgrounD[2]
A. The Sikh Religion and the Kirpan
The Sikh religion is a monotheistic religion that originated in the late fifteenth century in the northwestern area of South Asia that is known today as Punjab. See I.F., tab 4 at 43-44.[3] It is a distinct and independent religion and is not affiliated with any other religion. See generally id., tab 4 at 43-48. With over 20 million followers worldwide, Sikhism is the fifth largest religion in the world today. See id., tab 4 at 47.
On or about April 14, 1699, the tenth Sikh Guru[4] decreed that all Sikhs take amrit (be initiated into the Sikh faith), and keep five articles of faith, including the kirpan. See id., tab 4 at 44 – 45; see also REDACTED Dep. at 85. Since that time, Sikhs have been required, as a matter of religious belief and practice, to take amrit and maintain five articles of faith, including the kirpan, on or as part of their person. Ex. 2, Rehat Maryada at 26; see also I.F., tab 4 at 44 – 45; Ex. 1, REDACTED Dep. at 77 – 78, 85; These articles of faith are physical manifestations of cores Sikh spiritual values, reminding their bearer that her actions should be consistent with her beliefs. The obligation of Sikhs to keep these articles of faith is a cornerstone of the Sikh religion and is commonly viewed by members of the Sikh faith to be among the central requirements of the Sikh religion.[5]
A kirpan, the Sikh article of faith at issue in this case, commonly resembles a sword but varies in length, and the portion representative of a “blade”[6] is often not sharp. See, e.g., Ex. 1, REDACTED Dep. (pictures of Complainant’s kirpan[7]). Although there is no prescribed length, kirpans are often six to eight inches in length; about half of that length is usually representative of the “hilt” and the other half, the “blade.” See id. As a matter of practice, a kirpan is kept in a tight sheath. See, e.g., Ex. 3, REDACTED Decl. at ¶ 3. Consistent with the Rehat Maryada (the Sikh Code of Conduct) the kirpan is to be worn using a gatra, a strap typically worn across the chest and over the shoulder that enables a kirpan to be suspended at one's waist or tucked inside one's belt. See Ex. 2, Rehit Maryada at 24; Ex. 3, REDACTED Decl. at ¶ 3.
The word “kirpan” comes from two Punjabi words. 'Kirpa' means an act of kindness, a favor; and 'aan' means honor, respect, self-respect. See Ex. 1, REDACTED Dep. at 89.[8] The kirpan is therefore a religious article that obligates a Sikh to the highest ideals of generosity, compassion, and service to humanity. See Ex. 1, REDACTED Dep. at 88; I.F., tab 4 at 45. It acts as a constant reminder to its bearer of a Sikh’s solemn duty to protect the weak and promote justice for all. See Ex. 1, REDACTED Dep. at 88; I.F., tab 4 at 45.[9]
Moreover, the kirpan is an allusion to the transcendental knowledge that cuts through ignorance and sin, as described in the Sikh scripture, the Sri Guru Granth Sahib[10]:
From the Guru, I have obtained the supremely powerful sword of spiritual wisdom. I have cut down the fortress of duality and doubt, attachment, greed and egotism. The Name of the Lord abides within my mind; I contemplate the Word of the Guru's hymns.
Venerable Sikh theologian Kapur Singh further explains[11]:
One meaning of the kirpan has already been referred to as a weapon [used figuratively], which cuts at the very roots of avidya, nescience, that separates the transient, puny, individual self from the abiding, immortal, Universal Self. The kirpan, therefore, is symbolic of the Transcendental Knowledge, the brahmanjnana, which destroys the illusion of the temporalia, the world of Time and Space, and leads to the Life everlasting. It is symbolic of the Guru Himself who is the Destroyer of Ignorance; it is nothing less than an Attribute of God to which a reference is made in the Muslim Sufi literature, as, alhadt.
Thus, contrary to the IRS’ characterization of the kirpan as a sword or weapon, the kirpan is an article of faith and, as described above, functions quite differently from the other two.
B. History of Sikh Migration to the United States
Sikhs first migrated from the Punjab region of India to the United States in the early 1900’s, arriving in British Columbia, Canada, in 1902.[12] From Canada they migrated south, settling in the states of California, Oregon and Washington. According to N. Gerald Barrier, a professor of Sikh Studies at the University of Wisconsin, when this group of immigrants first arrived in the United States, “[t]he numbers were not large, but the specter of a ‘Hindu’ or ‘turban[13]’ tide, when combined with the current racial attitudes and fears about Asian immigrants as a whole, caused a backlash and led to a series of administrative and legislative measures that put . . . limits on future migration during the second decade of the century.”[14]
By the 1960’s, however, a second wave of Sikh immigrants arrived on the eastern coast of the United States, taking positions of employment mostly in the fields of medicine, science, and business. A third wave of Sikh immigrants arrived in the United States in the 1980’s and 1990’s, partly as a result of political conflict in their homeland of Punjab. These immigrants have taken a variety of employment positions, ranging from day laborers and taxi drivers to information technology consultants. Today, approximately 500,000 Sikh Americans reside in the United States.[15]
In the aftermath of the tragic events of September 11, 2001, Sikhs across the country were subject to a variety of forms of discrimination and harassment that was largely based on a mistaken perception that they are of Arab and/or Muslim background.[16] Relative to other vulnerable minorities, Sikhs have been disproportionately targeted for discrimination because they wear turbans and keep unshorn hair (including facial hair).[17] The forms of discrimination that Sikhs have been subject to include illegal profiling by law enforcement authorities, the commission of hate crimes by civilians (including fatalities), and employment discrimination.[18]
C. Courts Consistently Recognize that Kirpans are Not Weapons but Articles of Faith
Misunderstanding regarding Sikhism and Sikh practices, including the wearing of the kirpan, is not uncommon. Indeed, since 2001, the Sikh Coalition,[19] a Sikh advocacy organization, has assisted Sikhs in seventeen separate criminal cases in which the individuals were arrested or prosecuted for carrying what the local authorities mistakenly deemed a “weapon” under state or local criminal statutes. Ex. 4, Bhalla Decl. at ¶ 3. In all seventeen cases, formal criminal charges against the individuals in question were dropped or dismissed because the prosecutors consistently came to understand that kirpans are not weapons but instead are articles of faith. Id. at ¶ 4. For example, Gerald J. Coyne, Deputy Attorney General for the State of Rhode Island wrote:
During our review of the Sher Singh case, it was clear to us that Mr. Singh carried a kirpan only as a religious symbol, and had no intention of using the kirpan as a weapon. Thus, we advised the City of Providence that had brought the criminal against him, that this Department would not prosecute Mr. Singh if his case reached this office.
We are hopeful that law enforcement agencies will recognize the inherent religious nature of a kirpan, and also recognize that those who carry a kirpan only as a symbol of faith should not be subjected to criminal prosecution.
I.F., tab 4 at 49.
Moreover, of the three criminal cases that have been litigated regarding a kirpan in the United States, none has resulted in a conviction. Courts have consistently recognized that kirpans are not weapons but are instead articles of faith. In People of the State of New York v. Partap Singh, the Court dismissed prosecution of the criminal charges against a kirpan-wearing[20] Sikh sua sponte in the interests of justice. 135 Misc. 2d 701, 706; 516 N.Y.S.2d 412; 1987 N.Y. Misc. LEXIS 2292, in I.F., tab 4 at 52-56. In State of Ohio v. Harjinder Singh, the Ohio appellate court found “no evidence that [the defendant] possessed or carried the kirpan[21] as a weapon and no evidence that the kirpan was designed or adapted for use as a weapon.”[22] 690 N.E.2d 917, 920 (Ohio Ct. App. 1996), in I.F., tab 4 at 57 – 62.
In City of Detroit v. Sukhpreet Singh Garcha, the court considered whether a local criminal law banning possession of a knife was applicable to the kirpan[23]-carrying defendant. The court found that the law contained exceptions permitting good faith possession of knives [24] which indicated “that the ordinance was intended to apply to persons carrying a knife as a weapon or for some unlawful purpose.” See Ex. 5, Slip op., No. Z-775606, *3 (36th Dist. Ct., City of Detroit), attached in appendix; see City of Detroit Ordinance §38-10-42. Because “the Defendant was carrying the Kirpan ‘in good faith’” the court found the ordinance “inapplicable.”
The courts appear to have understood what the Honorable J. Painter (appellate judge) articulated in his concurrence in the Ohio case, that “[t]o be a Sikh is to wear a kirpan – it is that simple.” Harjinder Singh, 690 N.E. 2d at 921, in I.F., tab 4 at 57 – 62. See I.F., tab 4 at 50 (“The matter of Mr. Singh carrying a non-lethal, ceremonial, religious knife has come before the court of Menomonee Falls and it has been determined, out of respect for Mr. Singh’s religious requirements, that he does not present any type of threat whatsoever to the general public.”)
IV. Facts
Complainant Kawaljeet Kaur REDACTED was born in Delhi, India on March 27, 1973. Ex. 1, REDACTED Dep. at 8. Ms. Kaur was born into a family that practices the Sikh faith; her parents, grandparents, and extended family are all Sikh. Id. at 19 – 20. Several members of her family (her father, a brother, and a sister) are amritdhari, meaning that they are Sikhs who have taken amrit, who have been formally initiated into the faith. Id. at 80 – 81. Faith is of immense importance to Ms. REDACTED. Ms. REDACTED considers herself Sikh and believes that religion has made her “a better person” and has taught her “good things in life.” Id. at 20, 23.
Like many Sikhs before her, she immigrated from India to the United States, specifically to Houston, Texas, where she presently resides. Id. at 8. She was 16 years old at the time and came with her parents, brothers, and sisters to join members of her father’s family, who had immigrated previously. Id. at 8 – 10. Ms. REDACTED spoke English and had no problems integrating into the United States. Id. at 10. She enjoyed the move and living in America. Id. at 10. Despite being far from India, however, her faith remains important to her. For example, she volunteers at a gurdwara (Sikh house of worship) in Houston at least twice per week. Id. at 11 – 12.