The Story Behind One of the Most Ironic Religious Freedom Lawsuits Ever Filed
The U.S. Commission on International Religious Freedom (USCIRF) is being sued for religious discrimination. On Monday, Safiya Ghori-Ahmad's case against the USCIRF took another step closer to trial. It is now in the hands of a federal judge to decide whether to dismiss some of Ghori-Ahmad's complaint or allow the entire religious discrimination case to go to trial.
Ghori-Ahmad's case against the USCIRF goes back to 2009, but it literally took an act of Congress for it to become a federal lawsuit. Congress created the U.S. Commission on International Religious Freedom in 1998 as a watchdog to investigate violations of religious liberty worldwide. But before last December, the USCIRF remained exempt from civil rights laws that prohibit discrimination based on religion. According to a lawsuit filed in June, the commission had a history of discrimination against Muslims, including retracting an employment offer to a researcher because of her Muslim faith and her work with a Muslim organization.
Safiya Ghori-Ahmad's Complaint
According to the lawsuit, Safiya Ghori-Ahmad applied for a position as a South Asia policy analyst at USCIRF. Ghori-Ahmad was one of 300 applicants for the position, and she was unanimously recommended for the job and approved by the executive director. Ghori-Ahmad earned a masters degree in international development and a law degree; has native-speaker proficiency in Urdi and Hindi and is proficient in Arabic (she was born in the U.S.); and worked on religious issues for the Muslim Public Affairs Council (MPAC).
Ghori-Ahmad says in her complaint that she was warned by some members of the staff that her "background" would be controversial for a couple of the commissioners. USCIRF commissioners are nominated by the President and by leaders of both political parties in the House and the Senate. In 2009, commissioners represented leaders from Christian, Jewish, and Muslim organizations, including Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, and Imam Talal Y. Eid, founder of the Islamic Institute of Boston.
Four weeks after Ghori-Ahmad accepted the job offer and resigned from the MPAC, USCIRF rescinded its offer, giving Ghori-Ahmad only a temporary job without benefits and with reduced responsibilities.
Ghori-Ahmad's complaint charges that she lost the job because of pressure by commissioners, particularly Nina Shea, a civil rights lawyer who directs the Religious Freedom Center at the Hudson Institute. Ghori-Ahmad alleges that Shea objected to her because of her religion (she is Muslim), her work with MPAC on behalf of Muslims, and her ancestry (her family is from India, but she says USCIRF commissioners assumed she was of Pakistani descent).
"The whole theory of the case is wrong," Shea told Christianity Today. "I was not part of [the USCIRF] Executive Committee at the time. I would not have been able to 'force' the commissioners or staff to do anything."
Shea said that she opposed hiring Ghori-Ahmad; instead she supported two other Muslim candidates who Shea said were more qualified.
Shea said that she expressed opposition to Ghori-Ahmad not because of her religion but what Shea considered factual errors and a lack of objectivity in her writings. Shea was concerned by her writings on the Mumbai bombings, an article on the treatment of Islamic marriages in U.S. courts, and a blog posting where she referred to the case of Sami Al-Arian as a Justice Department "witch-hunt."
Shea said that she was very familiar with MPAC because of her work with a previous commissioner, Laila al-Marayati, who was on the board of MPAC and is the wife of MPAC president Salam al-Marayati. Shea described her differences with Laila al-Marayati and others at MPAC in an internal email critiquing Ghori-Ahmad's qualifications. Shea compared Ghori-Ahmad's views to those of Laila al-Marayati's, calling them "political correctness in the extreme."
The crux of the issue is whether USCIRF acted because of Ghori-Ahmad's religion, her work with MPAC, or perceived problems with Ghori-Ahmad's research abilities. This is a difficult issue to untangle. For example, in her complaint Ghori-Ahmad makes the following claim:
Ms. Shea continued to vehemently oppose the hire of Ms. Ghori-Ahmad in emails and conversations with USCIRF Commissioners and staff. Each reason she gave related to Ms. Ghori-Ahmad's faith or national origin. For example, Ms. Shea described in an internal email her own past differences with other Muslims about policy and faith issues as a reason to reject Ms. Ghori-Ahmad. Ms. Shea complained that "they will play semantics and practice verbal contortionism."
Shea said that the "they" she was referring to was MPAC and the Marayatis. The email cited in the complaint focused on Ghori-Ahmad's writing on Shari'ah law on marriages, which Shea considered to be typical of MPAC thinking on the issue. She provided additional sections of the email to Christianity Today.
"Here is a prime example from this article in which she [Ghori-Ahmad] does verbal contortions to discuss the unfairness of the sharia family law in question." Shea wrote in the email. After discussing some specific issues she had with the article, Shea continued, "This is the consistent problem of MPAC and the Marayatis—They will not criticize sharia...though they will play semantics and practice verbal contortionism."
MPAC describes itself as a representative of the Muslim community in America. In 2008, Rick Warren gave the keynote speech at MPAC's national convention.
"[Ms. Ghori-Ahmad] and the Marayatis are entitled to their views," Shea told CT, "but I think their analysis lacks objectivity and would not serve us well on the research staff."
Ghori-Ahmad was not given a permanent position. The day before the end of her temporary assignment, all seven members of the professional staff wrote to the full commission asking them to keep her at her position. One, Bridget Kustin, resigned. She told the USCIRF that she would not "remain part of an organization that would be willing to engage in such discrimination."
Shea says she has a record of working for the rights of Muslims. Former Indonesian president Abdurrahman Wahid wrote the foreword to Shea's book Silenced: How Apostasy & Blasphemy Codes Are Choking Freedom Worldwide. The Ahmadiyya Muslim Community USA awarded Shea a humanitarian award in 2011.
While at USCIRF, Shea supported condemnations of bans on head scarves and religious garb in France and Turkey. She did not, however, support a condemnation of a Swiss ban on minarets that occurred while Ghori-Ahmad was at the USCIRF. Shea says that the Swiss ban was "not a ripe issue" and was "more complicated legally and factually," in part because the Swiss government was opposed to the referendum.
USCIRF Exempted from Civil Rights Laws
Ghori-Ahmad filed a complaint with the Equal Employment Opportunity Commission (EEOC). After the EEOC completed its investigation, Ghori-Ahmad requested a hearing before an administrative judge. The USCIRF disputed the claims made by Ghori-Ahmad. It also argued that, according to federal law, the case should be dismissed because the USCIRF was not bound by federal civil rights laws. As a congressional commission, it did not fall under the EEOC. The judge agreed and dismissed the case.
The reason for the dismissal was a loophole in federal civil rights laws. The Civil Rights Act of 1964 prohibits employment discrimination based on "race, color, religion, sex and national origin." Until 1995, this and other civil rights laws included one giant loophole: they did not apply to Congress or the rest of the legislative branch. This changed for most congressional commissions with the enactment of the Congressional Accountability Act of 1995 (CAA). The USCIRF, however, was created as a congressional commission in 1998, and Congress failed to put the USCIRF under the CAA. The result was that a congressional commission charged with reporting on violations of religious freedom "including policies that discriminate against particular religious groups or members of such groups" could itself discriminate against employees and others because of their religion.
Ghori-Ahmad contacted the Office of Compliance, which administers and enforces the CAA. The Office of Compliance agreed with the USCIRF and the judge—the Civil Rights Act did not apply to the USCIRF.
Requiring USCIRF to Follow Civil Rights Laws
Last year, Congress considered reauthorization of the USCIRF. The House voted in September 2011 to continue the commission with a few reforms including closing the civil rights loophole. The Senate did not immediately vote on reauthorization. By Senate rules, one lone senator can place a hold on a bill, keeping it from a vote. Senator Dick Durbin (D-IL) used a hold to keep the USCIRF from being reauthorized, putting the entire commission at risk.
In December, the reauthorization came to the floor of the Senate for a vote with three reforms offered by Durbin. One of the reforms was to not only close the civil rights loophole but to make it retroactive. The USCIRF would no longer be outside the scope of federal civil rights laws and these laws would apply to any pending cases against the commission.
The Senate and the House each approved Durbin's amendment and the rest of the reauthorization bill. Ghori-Ahmad's complaint would now fall under the CAA, just like it would have if she had been offered a position at any other commission or federal agency.
In March, Ghori-Ahmad and the USCIRF participated in mediation sessions that are required under the CAA. The two sides failed to reach an agreement. Last week, Ghori-Ahmad filed a lawsuit against the USCIRF in the District of Columbia district court, which will decide whether USCIRF illegally discriminated against Ghori-Ahmad.
One result of December's reauthorization is that none of the commissioners identified in Ghori-Ahmad's complaint are still serving on the USCIRF.
Congress approved a strict term limit on commissioners. No commissioner can serve more than four years total. Under another part of the Durbin amendment, this term limit applied to then-current commissioners. No one was grandfathered. Commissioners who had already served four or more years were given only 90 more days to serve on the commission. As a result, Shea and others are no longer commissioners on the USCIRF.
"I care deeply about the work of the Commission and am overjoyed that the seven new appointees are highly qualified and distinguished individuals who are devoted to this issue and will carry on its work, which is [now] more critically needed than ever," Shea said.
Moving Closer to Trial
In August, the Department of Justice (DOJ), which is representing the USCIRF, filed a motion to dismiss some—but importantly not all—of Ghori-Ahmad's lawsuit. The DOJ did not object to a trial to decide if Ghori-Ahmad was not hired because of her religion. It did ask the court to dismiss other parts of her complaint, including the claim that the USCIRF retaliated against Ghori-Ahmad because she filed a complaint with the EEOC. According to the DOJ, USCIRF could not be sued for employment retaliation because Ghori-Ahmad was not an "employee" but a "private contractor."
On Monday, Ghori-Ahmad responded to the DOJ's motion to dismiss. She said that while the issue of "employee" vs. "private contractor" could be decided at trial, the key issue was that the temporary position was part of an extended probationary period in which she was still an applicant for the full-time position.
Regardless of how the judge rules on the DOJ motion, the case will proceed to trial. At the very least, it will address whether Ghori-Ahmad was denied employment due to her Muslim faith. If the Ghori-Ahmad and the USCIRF do not settle beforehand, the trial will be one of the most ironic in American history, with the congressional commission charged with monitoring religious freedom around the world defending its own employment practices in court.