The Supreme Court is being urged to take up a discrimination case from a Muslim bus driver in California who claims she was fired unfairly after being pressured not to wear her hijab.
With the petition Cross v. Central Contra Costa Transit Authority, Shannon Cross asked the high court to reverse a lower court’s decision to summarily dismiss her lawsuit alleging she was fired for a discriminatory reason after facing mockery and hostility for wearing her hijab as part of her religious beliefs, despite her supervisors’ characterization of her termination as a result of her collision with a biker. Cross alleged other drivers kept their jobs after similar collisions.
Cross alleged that she was initially barred from wearing her hijab, with her employers pointing to a no-hat policy, but was later granted a religious exemption. She claimed that she was verbally harassed multiple times for wearing her hijab, saying that human resources declined to do anything after she reported the repeated alleged harassment. Cross said she was fired six weeks after complaining to HR, after being involved in a collision with a cyclist while driving the bus. She alleges that both video evidence and a bicycle safety expert’s testimony proved that the cyclist was at fault, but that she was fired regardless, and that one of the people who made the decision had previously harassed her about her hijab.
“Cross’s termination was a stark departure from County Connection’s disciplinary practices and its own policies,” the petition to the Supreme Court reads. “This was Cross’s first and only collision. Her driving record was clean, with no accidents or incidents. Yet she was fired immediately, without the progressive discipline that company policy required — warnings and retraining for a first collision within a twelve-month period.”
The transit authority defended the firing in lower courts by pointing to the police report that found Cross at fault for the collision, and it said the resistance to her wearing a hijab was due to officials seeking to enforce the employee dress code. A federal district court accepted that explanation and ruled in favor of the transit agency without oral arguments or a jury trial, and a federal appeals court affirmed that decision without oral arguments.
Cross’s lawyers have asked the Supreme Court to look at whether the lower courts’ use of the framework for determining summary judgment in Title VII discrimination cases, as set forth in 1973’s McDonnell Douglas Corp. v. Green, was improper. The three-step McDonnell Douglas framework requires a preponderance of evidence that discrimination may be occurring, then moves the burden to the employer to provide a nondiscriminatory reason for the action in question, which shifts the burden back to the employee to show the employer’s stated reason is disingenuous.
Her lawyers allege the framework “required Cross to disprove the employer’s stated reasons and obscured the full body of evidence that would allow a reasonable jury to find her religious practice and protected conduct was a motivating factor in her termination.”
“The error below is not merely that the panel got the facts wrong,” the petition added. “It is that McDonnell Douglas required the panel to get them wrong — to treat the employer’s stated rationale as dispositive unless Cross could disprove it.”
The Supreme Court could discuss the possibility of elevating the case to its docket for the new term as soon as its next closed-door conference, which is set for Sept. 28.
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Among the cases already set for the next term, the Supreme Court will hear a religious liberty case involving an Orthodox Jewish man who is suing officials in the Ohio city of University Heights for religious discrimination for telling him he needed a permit to pray with a group of his friends in his home.
The Supreme Court’s next term begins on Oct. 5, with oral arguments in a case yet to be scheduled. Other major cases the Supreme Court will hear in the term include cases about “assault weapons” bans and Colorado barring Catholic preschools from its universal preschool program.