Fatal Convictions (2 page)

3

By now, the nurses knew the routine. Ghaniyah had been in the private ICU room for nearly twenty-four hours, and Khalid had performed the salat four times. This would be his fifth.

He glanced at the monitors, kissed Ghaniyah on the forehead, and shut the door to her room. It still seemed strange going through the salat without her. Though the couple had their differences, Khalid had never questioned his wife’s loyalty to Allah. At each salat, she would place her prayer mat behind Khalid and repeat the prayers with him. Her voice was passionate and unwavering. She never seemed to harbor the questions and doubts that sometimes tarnished her husband’s faith. But yesterday and today, Ghaniyah had remained silent during the prayer times, her eyes vacant, her lips unmoving. Khalid had tried to muster the faith for two.

Purity was half the faith, a concept that had been drilled into Khalid since childhood. He used the bathroom sink for his purification ritual, taking off his shirt and washing his hands and forearms up to each elbow. He washed his mouth and nose, snorting the water back into the sink. He washed his face from forehead to chin and ear to ear, including his entire beard. He wet his right hand and passed it over his thick black hair. Then he washed his feet, up to the ankles. He put on clean clothes, a loose-fitting long black shirt and clean slacks. He washed his hands again and left the bathroom, rolling out his floor mat at the foot of Ghaniyah’s bed.

He told her that he was getting ready to say his prayers.

She stared into space, giving him no reaction.

“Do you want to join me?”

She nodded. But he could tell from the faraway look in her eyes that he would be going through the ritual alone. The doctors said he needed to be patient. Give her time. She would remember a little more every day; her personality would return little by little.

“Will she fully recover?” he had asked.

“I wish we could be more definitive, Mr. Mobassar. But truthfully . . . it’s impossible to say.”

Khalid stood now at the edge of his mat, hands together, chest facing toward Mecca. He silently recited his intention to pray, focusing his thoughts on Allah.

He took a deep breath and began his chants.
“Allahu akbar,”
he said, cupping his hands behind his ears. Allah is the greatest. In rhythmic motion, he moved his hands to his side.
“Subhana rabbiya al azeem. . . .”
Khalid’s words were strong and confident. He resisted the urge to tone down his prayers so that he didn’t disturb others in adjoining rooms. Allah would not honor those who were ashamed.

He faithfully performed each
raka’ah
, the supplications to Allah and recitations from the Qur’an, some in a standing position, others sitting, some prostrate, his forehead and both palms touching the prayer mat. It felt lonely without the strong voice of Ghaniyah behind him.

He was in a prostrate position, his first
sujud
, when he thought he heard her repeat the words he had just spoken.
“Subhaana rabbiyal Allah”
—to God be the glory. He feared it was a psychosomatic reaction on his part, the way victims report pain in their hands even after an amputation. She had been there for so long, affirming and repeating his prayers, that his mind was playing tricks.

He rose to a kneeling position, hands on his thighs.
“Allahu akbar.”
This time he heard it more clearly—a hoarse voice from the bed. He resisted the strong urge to go to her and instead began the second
sujud
.
“Subhaana rabbiyal Allah,”
Khalid chanted. His wife had definitely joined him again, her voice feeble but determined.

Khalid tried to finish his prayers without rushing, a deliberate focus on a merciful God. He said the last
Allahu akbar
with an intensity that had been missing earlier in the day. Tonight, Allah was a miracle worker.

He stood and moved next to his wife’s bed. He took her hand, and she squeezed his, as if she knew that something significant had just happened. He bent down and kissed her on the forehead.

“Allahu akbar,”
she said.

Khalid stood and gazed at his wife of thirty-two years. Though she had tubes in her nose and her face was swollen and purple, her eyes showed signs of life and recognition.

“Welcome back,” Khalid said, though Ghaniyah didn’t respond. “Praise be to Allah.”

4

The following week, Alex Madison walked into the Virginia Beach Circuit Court building carrying his grandfather’s worn leather briefcase. For the first time in months, he felt like John Patrick Madison might actually be smiling down on him. His grandfather had been a crusty old civil rights lawyer, a veteran of the school desegregation struggles in Virginia and a legend around the courthouse. When he died, the phone had pretty much stopped ringing at Madison and Associates. To make a living, Alex had transformed the practice into a personal-injury shop. On good days, the firm’s waiting room looked like a hospital ward.

And his grandfather was probably rolling over in his grave.

But today, Alex walked a little straighter. He took his seat next to sixteen-year-old Aisha Hajjar at the counsel table. His client, a teenager of strong convictions, believed it was her duty to keep her head covered with a
hijab
, or head scarf. That conviction didn’t sit well with the owners of the Atlantic Surf Shop in Virginia Beach, a competitor to Alex’s favorite surf shop. When Aisha applied for a summer job, they told her that she didn’t fit with the outlet’s “Look Policy.”

Twenty-four hours after receiving the call, Alex had filed a discrimination suit.

They were in court today under a Virginia statute that allowed for a summary jury trial. Each side had already taken depositions and would now have an hour to present its case to a panel of seven jurors. Alex had agreed to be bound by the result because he wanted to get a quick resolution before the summer employment season ended, and he would have to wait months for a normal jury trial. It also played to his strength. Alex was, in his own humble opinion, a gifted communicator. It was the detail work that always tripped him up.

He wasn’t sure why the lawyer on the other side, a young Harvard graduate named Kendall Spears, had agreed.

After Judge Thomas, a friend of Alex’s grandfather, explained the process, he invited Alex to present his case. Alex stood facing the jury with a single piece of paper in his hand. “I hope some of you don’t apply for a job at the Atlantic Surf Shop,” he said, “because some of you don’t quite have ‘the look.’”

“Objection!” Kendall Spears said, standing to face the judge. “He’s asking the jurors to put themselves in the plaintiff’s shoes. He can’t do that.”

Technically, Kendall was right. Lawyers weren’t allowed to argue the Golden Rule. But Kendall’s objection illustrated the difference between his Harvard education and Alex’s apprenticeship with his grandfather. Raising the objection only served to highlight Alex’s point.

“I think he’s right,” Judge Thomas said. “Why don’t you avoid that line of argument.”

Alex shrugged. “Sorry, Your Honor.” He turned back to the jury and eyeballed the young man in the second row. He was wearing an earring, and tattoos covered his arms. Alex certainly had his attention.

Alex held up the paper in his right hand. “Atlantic Surf’s Look Policy says that the store wants to project an ‘All-American image’ with a level of dress and grooming that represents what people expect from the brand. Okay. Nothing wrong with that.

“But that’s just the first sentence. The rest of this page dictates every aspect of how you need to look. The first sentence: ‘Employees are expected to have a natural and classic hairstyle that enhances natural features and creates a fresh, natural appearance.’”

A few days earlier, Alex had gone to a Hair Cuttery and asked them to use a number three blade, shortening his blond hair to little more than a buzz cut. He ran a hand over his head. “This is certainly natural and fresh,” he said, “but is it ‘classic’? And that’s the problem: Who defines these things? Should a bad haircut keep you from a good job?”

He returned to the document. “Colored fingernail polish is prohibited, and toenail polish must be worn in appropriate colors, to be determined by the store management.

“No facial hair, of course. Eyebrow pencil, eyeliner, lipstick, and eye shadow are allowed only in natural shades.”

Alex again surveyed the jury. A few of the women wore dark eye shadow; one raised an eyebrow at him.

“And here’s my favorite.” Alex pointed to the fourth regulation on the page. “‘Inconspicuous tattoos are acceptable only if they represent the Atlantic Surf Shop look.’”

He smiled. “I’m not sure who gets to inspect those inconspicuous tattoos, but I’ll bet that’s a fun job.”

“Objection!”

“Sustained.”

“You know what’s not on here?” Alex asked, unfazed by the objection. “A BMI number. A requirement that you work out every day at Bally’s and have a six-pack. But it should be.”

Using a remote, Alex flicked on a PowerPoint presentation. “These are pictures of me with all the employees that were working on the day I visited the store.”

Kendall rose to object but apparently thought better of it. This was, after all, a summary jury trial. The lawyers were supposed to present the evidence they would use at trial.

“Notice how they could all be straight from an Abercrombie and Fitch catalog,” Alex said. “‘All-American image’ is apparently a synonym for
ripped
.”

Alex looked at his motley little group of jurors. Nobody would accuse these folks of being even remotely in shape, much less ripped. “Atlantic Surf pays almost double what other retail outlets pay,” Alex continued. “Think they might be paying a premium for good looks?”

“Objection! That’s not the issue here,” Kendall said.

Judge Thomas twisted up the corner of his mouth, a look of indecision. “I’ll let it go,” he said.

“Oh . . . one thing I forgot to mention,” Alex continued. “No hats. And that’s where my client, one of those rare people who could probably comply with every other aspect of this draconian policy, didn’t make the cut. She’s a member of the Islamic faith. And she believes that, for the sake of modesty, women should have their heads covered with the type of scarf she’s wearing today.”

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.”

5

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?”