*1 аuthorities, to as a of law. “confessed], Sergio unavailable matter assisted] had We AFFIRM. plead guilty” to the to attempted] and ultimately he convict crime for which was
ed, “little doubt that and there was where plea had guilty have entered a would
[he] opportunity an judge trial afforded him so,” was entitled to the
to do the defendant reduction).4 he Nor has offered 3E1.1 innocence, reason, than his own
any other plead to that guilty for his refusal to EQUAL OPPOR EMPLOYMENT v. Nu charge. Compare United States COMMISSION, TUNITY (1st 14, 22 Cir. nez-Rodriguez, Plaintiff-Appellee, 1996) (“[SJhould the court determine that a not identified his accom defendant has STORES, FITCH ABERCROMBIE & genuinely he fears plices because retalia INC., corporation, an Ohio Aber tion, but that the defendant’s conduct oth d/b/a Kids, Defendant-Appellant. crombie remorse, a genuine erwise demonstrates adjustment under section 3E1.1 downward No. 11-5110. yet appropriate....”), found might Appeals, States United Court Hernandez, States v. with United Tenth Circuit. (7th Cir.2003) (affirming apply § to 3E1.1 where the court’s refusal Oct. 2013. “wrong place at the defendant asserted wrong defense involvement in a time” to did “not
conspiracy provide] ] us with
any that he went trial reason to believe to any deny reason than to his other guilt”).
factual
CONCLUSION reasons, foregoing
For under the case, §
circumstances of this
3E1.1 was
McKinney,
people
part
apparently
In
did
took
in the bank
defendant
several
attempt
plead guilty
McKinney
to
related con
robbery,
were
the admissions
made
spiracy charge,
implicate
he refused
that he
tantamount to
admission
committed
co-conspirators
questioned by
his
when
conspiracy
as well." Id.
offense
(“The
McKinney,
presen-
FBI.
Mark A. Knueve OH, LLP, Columbus, mour and Pease (Daniel Joseph Fungsang J. C. Clark Safer, LLP, Seymour Vorys, and Pease Columbus, OH, Brightmire and Jon E. Doerner, Saunders, Daniel & Anderson briefs) LLP, Tulsa, OK, with him on the Defendant-Appellant. *5 (P. Tucker David Gen- Lopez, James M. Counsel, Wheeler, Carolyn Acting L. eral Counsel, Vail, Daniel T. Associate General Counsel, with Acting Assistant General brief), Equal of Employ- him on the U.S. Commission, Opportunity Washing- ment D.C., ton, Plaintiff-Appellee. HOLMES, KELLY, EBEL, and Before Judges. Circuit HOLMES, Judge. Circuit (“Abercrombie”) Abercrombie Fitch & court’s of appeals grant district summary judgment Equal in favor of the Employment Opportunity Commission (“EEOC”) denial sum- court’s of Abercrombie, mary of judgment favor claim that Abercrombie provide failed to ac- reasonable a prospective employee, commodation Elauf, in Title contravention of Samantha Rights Act of of the Civil VII §§ Exercising 2000e to 2000e-17. U.S.C. jurisdiction under 28 U.S.C. grant the district court’s of sum- reverse mary to the EEOC. Abercrom- judgment judgment summary is entitled to bie genuine of there is no matter law because material fact that Elauf dispute though policy of Ms. does not explicate the to its prior never Abercrombie meaning informed “cap.” the term Aplee. Supp. wore hiring decision that she her headscarf (Abercrombie at 69 App. Store Associate “hijab”1 for reasons and Handbook, 2006). Sept. dated An she an accommodation for that needed subject ee “disciplinary is action ... up practice, due to a conflict between including to and termination” for failure to clothing policy. and Abercrombie’s with comply Policy. the Look Id. Accordingly, we remand the case to the Abercrombie contends that its Look Pol- with its district court instructions to vacate icy critical vitality to the health and judgment judgment and enter favor “preppy” its and “casual” See Aplt. brand. Abercrombie, proceedings and for further Opening 375; Br. at (quoting ApltApp. opinion. consistent McJilton, (Dep.
id. at 63 of Kalen taken I 20, 2011)) (internal Jan. quotation marks omitted). so, This is Abercrombie main- A tains, because it very does little advertis- compa- is a clothing Abercrombie retail ing through media (e.g., traditional outlets ny that stores across the operates United television); instead, print publications or it names, variety States under a brand on its experience promote relies in-store Fitch, including Abercrombie & abercrom- products. Consequently, Abercrombie (“Abercrombie Kids”), bie and Hollister. great expends deal effort ensure requires employees in its target that its customers holisti- receive comply Policy.”2 stores to awith “Look brand-based, cally sensory experience. policy promote That intended See, e.g., at 70 ApltApp. (Dep. Deon brand, showcase the Abercrombie which *6 2011) (“Abercrombie taken Riley, Mar. “exemplifies collegiate a classic East Coast has made name because of the brand. style clothing.” Aplt. Opening of Br. fact you It’s a that walk into an environ- Policy applies every The Look to Aber- ment, just and it’s not the or smell the employee. crombie the circum- Under sound, way it’s the is set merchandise case, however, stances of this our central all, up. lighting. It’s the Most of it’s the policy’s application concern is the to sales- stylish clothing....”). part” The “main of floor whom re- employees, job “represent is to [Abercrom- Model’s ferred to as ApltApp. at “Model[s].” clothing[,] first and foremost.” Id. Moorefield, 16, bie’s] (Dep. of Chad taken Mar. Abercrombie, 2011). at 376. To a Model who Employees clothing must dress in Policy by wearing violates Look incon- that clothing is consistent with the kinds of clothing “inaccurately represents in its sistent Abercrombie sells stores. Nota- brand, confusion, bly, policy prohibits employees from the causes consumer fails wearing clothing black and al- to an “caps,” perform essential function Islam, leading inquiry Policy 1. A scholar of who was 2. Our is focused on the Look case, expert Esposito, in John L. set it was forth in the Store Associate Hand- Ph.D., "hijab” has defined a as the "veil or (revised 2006). poli- Sept. book This was covering by head in worn Muslim women cy applicable in when the events rele- public.” Esposito, John L. Islam: The place. Consequently, here took vant do (4th ed.2011). Straight Path 310 In their any changes not consider that Abercrombie parties briefing, the use terms "head- may Policy have made to the Look since then. "hijab” interchangeably, scarf” so and do we. at the Abercrombie Kids position the Model ultimately damages position, and Tulsa, Mall in in Hills Br. at 8. store the Woodland Opening Aplt. brand.” previously purchased had Oklahoma. She im- plays an interviewing process and worn Abercrombie clothes. furthering Abercrombie’s portant role ad- objective ensuring employees interview, Ms. Elauf dis- Prior assess Policy. Managers Look here at Aber- with a friend who worked cussed during appearance style applicants on location, Hills Farisa crombie’s Woodland in- supposed to They are the interview. hijab whether Sepahvand, aspects applicants form various Ms. Elauf has permissible. would be work Policy. Mod- job, including Look New since was thirteen and worn she copy policy receive a typically els rea- testified that she does so sign an ac- handbook Quran scripture” “sacred sons. The —the it, they have knowledgment received faith, at 5 Aplee. Supp.App. of the Islamic work. they when start Esposito, taken (Dep. of John L. Feb. manag- its store Abercrombie instructs 2011) their protect women —counsels prospective assume facts about ers modesty, “be- and some scholars and, job signifi- employees interviews Qu[]ran require does lieve cantly, applicants not to ask about women, hijab” “but be worn Muslim religion. question during If a arises many disagree there are who regarding application of interview the EEOC’s interpretation,” id. 2. As if Policy, prospective employee Look testified, Esposito, although expert, Dr. (for requests policy a deviation from hijabs Muslim reli- some women wear example, based an inflexible reasons, only those not the rea- gious are manager is practice), the store instructed hijabs; for women wear sons Muslim corporate human to contact Abercrombie’s example, do so cultural reasons some (“HR”), his or department resources personal in order re- to demonstrate HR supervisor. managers her direct aspеcts Western-style jection of certain if grant doing accommodations so would Esposito that, in un- dress.4 Dr. testified not harm the brand. why people main- derstanding reasons dress, is, “it styles really tain certain
B *7 is, is motivation.” question what their 292; (noting, practic- Aplt.App. Elauf claims to a at see id. at as Samantha be Elauf, mid-2008, worn, really why depends In “it ing Muslim.3 Ms. woman”). old, seventeen-years for a applied then fitting dispute pos- lenge American parties 3. The whether Elauf of both into societies Ms. fide, sincerely religious sesses held retaining identity, a bona dis- and their Islamic of however, dispute, belief is not in Islam. This by tinguishing between what is mandated case; our of this there- material to fore, resolution religion "foreign" baggage and the cultural (and not) it. we need not do address parents. added); (emphases Esposito, supra, at 291 cf. point, scholarly writ- 4. Relevant to in his ("Yet to face [Muslims] id. at continue ing, Esposito Dr. observes: identity mi- and issues faith The situation of American Mus- nority. many with other and ... As especially youn- lims can be difficult for the them, preceded Muslim groups ethnic ger parents, generation. Many have raised face issues of assimilation communities societies, equate who overseas Muslim diversity, pluralism.”). integration, and practices princi- cultural and norms with the ples chal- Islam. Their children face the inquiry employees, to Ms. Elaufs crombie and responding In informed Ms. headscarf, Elauf that wearing Sepahvand clothing Ms. she would have to about wear and, similar to that she raised the issue with sold Abercrombie testified that had McJilton, specifically, that she could manager heavy who not wear assistant Kalen makeup polish. or nail prior Elauf knew Ms. from her visits Noting previously store. that he had During interview, course Ms. with someone who worked at Abercrombie Elauf never informed Ms. Cooke that she yarmulke, sug- Mr. wore a white McJilton Muslim, subject was brought up never see gested problem that he did not headscarf, of her and never indicated that headscarf, “espe- wearing with Ms. Elauf she wore the headscarf for rea- cially if didn’t wear headscarf she so, and felt obliged sons that she to do and Aplee. (Dep. at Supp.App. was black.” thus would need an accommodation to ad- 2011) Sepahvand, Mar. Farisa taken dress the conflict between (internal omitted). quotation Ms. marks clothing policy. and Abercrombie’s then Ms. Sepahvand communicated to Indeed, the of her topic headscarf never that, although Elauf a headscarf would up way came one For exam- other. permitted, no- because of Abercrombie’s ple, Ms. Cooke did tell Elauf that Ms. black-clothing policy, not be she would she “wouldn’t [her be able wear head- one. Elauf able to wear a black Ms. or anything like that.” ApltApp. scarf] at agreeable seemed to that restriction. (Dep. Elauf, of Samantha taken Jan. 2011). offering After a description of the manager Ms. Elauf met with assistant requirements, dress Ms. asked Cooke Ms. Heather to interview for the Model Cooke Elauf the end of the if she interview had position. already Ms. Cooke was familiar any questions. any. Elauf ask Ms. did not Elauf, with in the having Ms. observed her chatting store Se- Ms. Ms. Cooke assessed Ms. Elaufs candida- pahvand and in the working elsewhere cy using Abercrombie’s official interview seen Woodland Hills Mall. Ms. Cooke had guide. guide requires interviewer prior Ms. Elauf headscarf applicant’s “appearance consider the & Ms. “did not interview. Cooke know” Ms. of style,” sense whether the religion, Elaufs but she “assumed that she “outgoing promotes diversity,” & Muslim,” Aplt.App. (Dep. of whether he or & has “sophistication she Cooke, 19, 2011), (Mod- Heather taken Jan. aspiration.” Aplee. SuppApp. at 61 “figured why Guide, was the reason Group el Interview dated June scarf,” Aplee. Supp. 2008). she wore her head category Each is assessed on a interview, App. at Ms. scale, Cooke three-point an applicant with a did not ask Ms. Elauf if she was a Muslim. two, in “appearance” of score less than less, a total combined score of five or is not type Ms. Elauf was familiar with the *8 for hire. initial- recommended Ms. Cooke clothing Abercrombie and that sold knew at a each ly scored Ms. Elauf two in cate- required Models to wear were similar six, for a gory, a total of which is score interview, clothing. During the Elauf Ms. that expectations” “meets and amounts wore an Abercrombie-like T-shirt and a that “recommend[ation]” Abercrombie (i.e., jeans. a She also wore headscarf hire her. See id. at hijab); According it was black. Ms. Elauf, Although Cooke Ms. Elauf Ms. never mentioned Ms. Cooke believed Policy by good job, Look she did a candidate for the she was name but describe was would for requirements problem some of the dress for Aber- unsure whether it be a disputed alle- as an Abercrombie Abercrombie the EEOC’s her to a headscarf wear Elauf failed gations argued and Ms. Model, the headscarf could be and whether it of conflict between the Look ordinarily inform a did in color. Ms. Cooke black practices. her It fur- Policy and manager a senior approval not seek Models, ther that the accommo- argued proposed hiring new but evaluating wear dation-allowing Ms. Elauf to did. this case she have an undue imposed headscarf —would supervisor was un- Ms. direct Cooke’s Furthermore, hardship company. on the question about Ms. able to answer her challenged it assertion that Ms. Elaufs headscarf, Ms. Cooke consulted Elaufs so fide, sincerely she a bona held possessed Johnson, manag- her with Randall district belief, forming for her the basis said that Ms. Elauf er. Mr. Johnson purported Policy. conflict with the Look should not be hired because she wore filed parties The cross-motions sum clothing item that was incon- headscarf —a concerning mary judgment on issues liabil Policy. sistent with the Look Notwith- ity. addressing motions and the contrary deposition standing Ms. Cooke’s claim, the religion-accommodation district being testimony, Mr. Johnson denied told applied burden-shifting court framе by that Ms. Elauf was Mus- Ms. Cooke Douglas Corp. work of McDonnell lim wore her headscarf for and she Green, 792, 1817, U.S. S.Ct. religious reasons. (1973). Under that frame L.Ed.2d Ms. that Mr. Johnson Cooke testified work, the court concluded that the EEOC told Ms. Elaufs interview change her prima through had facie case established appearance score on the section from a fide, Elauf evidence that Ms. had a bona one, thereby her bringing two to a overall sincerely held belief and related ensuring score to a down five she practice that with the Look Poli conflicts hire. would not be recommended for With cy. Specifically, the court found that Ms. away Ms. threw understanding, Cooke her Elauf wore “head scarf based on her changed sheet and original interview Quran her requires belief to do score, implementing Ms. Elaufs thus Mr. so” and “this belief conflicts with Aber- alleged Johnson’s instructions. Ms. Cooke prohibition against crombie’s headwear.” a job did extend offer to Ms. Elauf. A not Order, Aplt.App. (Op. July & filed interview, days few after the Ms. Elauf 2011). Further, it reasoned that Sepahvand learned from Ms. that she had “Abercrombie had notice she [that] wore not hired been her headscarf. belief[,] head scarf because of her it refused hire her because the C Policy.” head scarf conflicted with its Look Id. the instant action filed rejected against September Abercrombie on The district court Abercrom- VII, alleging argument violations of Title on bie’s notice element of grounds that Abercrombie “refused to facie case was satis- personally hire Elauf fied Elauf hijab” Ms. because she wears because Ms. did not her inform wore hi- “failed accommodate she exception jab reasons and would need making Look (EEOC it, Policy.” Doc. No. Dist. Ct. because she was *9 17, 2009). that, Compl., It The Sept. sought obliged filed to do so. court reasoned relief, injunctive pay, directly had not damages. back while Tenth Circuit issue, in other cir- crombie “[c]ourts addressed this notice that Elauf wore a requirement reasons, cuits have held notice head scarf for it denied enough met when an has infor- is application employment [her] for without it mation to make aware there exists [that] informing her she was not being [that] a conflict between the individual’s telling hired or why.” Id. 582 n. 12. and a requirement or belief for rejected The court district also Aber- job.” applying performing for or Id. that, crombie’s contention even if the that, at 580. It further stated “faced with EEOC had established its facie the issue of must whether case, Abercrombie had demonstrated that explicitly an accommodation or request it hardship. would suffer undue The court enough it whether is has that, despite speculative observed testimo- notice an accommodation is need- [that] ny contrary, to the pro- Abercrombie had ed[,] likely opt the Tenth Circuit would vided no “studies or ... specific examples” (footnote latter Id. at choice.” support opinion granting Ms. omitted). exception Elauf an negatively “would im- Applying its formulation of the notice brand, pact sales[,] and compliance requirement, the district court observed Policy].” [with the Look Id. at 582. In undisputed “it that Elauf is wore her vein, emphasized it that Abercrombie head scarf at the interview with assistant had made numerous exceptions to the Cooke, manager store Heather and Cooke Policy Look over past ten or so knew she wore head scarf based on her years significantly, “[e]ight or nine —most added). (emphasis belief.” Id. It exceptions.” head scarf Id. at 583. that, question may yet added while a fact parties The went to trial on damages. as to told exist whether Ms. Cooke Mr. $20,000 jury awarded the Elauf Johnson that Ms. wore her head- compensatory damages. The EEOC’s re- her religion, question scarf because of quest prospective injunctive relief was knowledge was immaterial “because the timely denied. appeal This followed. responsibility hiring Cooke—who had decisions at the Abercrombie Kids store— II is attributable to Abercrombie.” Id. at 581 summary, n. 11. The court district stated “there we conclude that the bilateral, process be denying summary could no interactive of district court erred in because, although judgment speeifi- Aber- to Abercrombie.5 More See, summary-judgment e.g., 5. While "the denial of a tion. Santaella Metro. v. Ins. Life Co., ordinarily 456, Cir.1997) motion appealable (7th ("The not an order 123 F.3d itself], it 'it [in can reviewed when is cou courts, appellate reversing reason that when pled grant summary judgment with a grant summary judgment, typically do not ” Quik Stork, opposing party.’ Payday, Inc. v. summary direct the district court to enter (10th Cir.2008) 549 F.3d 1306 n. 1 judgment appellant in favor of the is because added) (quoting Cos. Great Yaffe genuine fact issue material remains. Co., (10th Am. Ins. Cir. But, in facts and law instances which the 2007)); Standard, Inc., see v. Am. Thom appellant judg entitled establish that (6th Cir.2012). F.3d 972-73 Abercrom- law, free ment as a matter of we are to direct summary judgment bie moved for before the appel judgment court to enter district grounds district the same it court on raises (quoting lant's favor.” Swaback v. Am. Info. parties appeal engaged now on and the in an (7th Corp., 103 Techs. Cir. briefing exhaustive round before dis 1996)) (internal omitted)); quotation marks developed trict fully court. The record is Co., see also McIntosh v. Scottsdale Ins. dispositive the issues are amenable to resolu- *10 1116 that, the the mo party opposing the favorable to governing under
cally, we hold Co., Oldenkamp Ins. law, is tion.” v. United Am. Abercrombie entitled substantive (10th Cir.2010) 1243, (quot is no 1246 summary judgement because there 619 F.3d Kimberly v. dispute regarding ing McKnight Corp., fact Clark genuine of material Cir.1998)) (inter (10th 1125, Elauf never informed 149 F.3d 1128 key point: Ms. Morris, omitted); hiring quotation see to its decision nal marks prior 660; Bell, v. City of 666 F.3d at Herriman that her (10th Cir.2010). (because 1176, F.3d 1180-81 on her 590 based it) here, in religiously pertinent to wear As we construe the facts obliged felt she light for the most the need an accommodation favorable to EEOC. she would it practice, because of conflict between clothing policy. Fur-
and Abercrombie’s B thermore, ineluctably it follows 1 that, in logic reasoning of our decision partial summary judgment to granting To Title properly assess Ms. Elauf s VII EEOC, the court district erred. claim, religion-accommodation we must meaning first understand
A in Title “religion” term takes on VII it “an context. Under Title VII is unlaw summary review a district court’s Our employment practice ful for an novo; de we judgment ruling “apply[] is against any ... individual discriminate as court.” the same standard the district terms, respect compensation, to his Kansas, (10th 1277, Helm v. F.3d conditions, employment, privileges Cir.2011). “[S]ummary judgment ap is religion.” because of ... such individual’s ‘if movant there propriate shows that Carriers, Thomas v. Nat’l Ass’n Letter dispute genuine no as to material Cir.2000) (10th (second 1149, 1154 225 F.3d judg fact and movant is entitled to ” original) (quoting omission in 42 U.S.C. City ment as a matter of law.’ Morris (internal 2000e-2(a)(l)) quotation § marks (10th Springs, 666 F.3d Colo. omitted). ‘religion’ “The term includes all Cir.2012) 56(a)). In (quoting Fed.R.Civ.P. prac aspects of observance and summary assessing judgment, motion for tice, as as well belief....” U.S.C. facts, view the and all reasonable “[w]e 2000e(j). § support, light inferences those facts nonmoving party.” most favorable recognized, As EEOC “[r]eligion has Inc., Enters., v. Sykes Simmons very broadly under Title VII.” defined Cir.2011). (10th 943, 947 12-I(A) (em Compliance Manual omitted), Succinctly put, phasis http://www. we must “examine available at any genuine eeoc.gov/policy/docs/religion.html; record to determine whether see also not, fact dispute; issue of material if Bushouse v. Local Union United [i]s Auto., Aerospace, Agric. ... application Implement we determine correct & [the Workers, ..., doing law F.Supp.2d substantive in so n. 15 the] (N.D.Ind.2001) we factual (noting examine the record and reason- Title VII has belief”). ‘religious light able inferences therefrom the most “broad definition of (“Where (10th Cir.1993) applied ment under same standards summary judgment long so it reverse order in favor of district court is clear party, party opposing op- will one ... we review the denial of the cross-motion had facts.”). dispute party's summary judg- portunity other cross-motion for the material
1117
traditional,
only
12-I(A)
“Religion
§
includes not
or-
related contexts.
id. at
See
nn.
18-28 and
Christianity,
accompanying
as
text
religions
(relying
such
Ju-
ganized
heavily
Hinduism,
on case
from the
daism, Islam,
Buddhism,
law
First Amend
ment and other contexts to
new,
define “reli
that are
but also
beliefs
gion”
purposes);
for Title VII’s
see
29
uncommon,
also
a formal
part
of
church or
§
(setting
C.F.R.
1605.1
forth the EEOC’s
sect,
by a
only
small number
subscribed
“religious practices”
definition of
and not
people,
illogical
or that
or unrea-
of
seem
ing that it is in accordance with the stan
Compliance
EEOC
sonable
others.”
developed
dard
by
Supreme Court
1(A)(1). However,
§
Manual
while
12—
Seeger,
163,
United States v.
380
85
U.S.
recognizing
concept
religion,
of
broad
850,
S.Ct.
(1965),
Fevers
Thomas,
716,
1425
1H9
2003) (“[A]n
principles
sig
permitted
have
general
These
is not
nificant
for the enforcement of
implications
purely personal preference
redefine
against religious
proscription
belief.”);
Title VU’s
as a
aversion
Vetter v.
couple
points
discrimination. A
are
Indus., Inc.,
Farmland
First,
underscoring.
worth
(8th Cir.1997) (“An
need
not ac
practices
are
employee may engage
purely
commodate a
personal prefer
”
particular religion,
associated with a
but
(internal
ence ....
quotation marks omit
do so for cultural or other
that are
reasons
ted));
Yoder,
Wisconsin v.
406 U.S.
cf.
Larson,
grounded
religion.
in that
Cf.
S.Ct.
Second, dant’s beliefs not nature religious because despite being “deeply [held]” have a content to ulti and distinctive related life, death, purpose, they ]” mate ideas were “derived en “sincere[ about and beliefs,” logically, tirely even if an or from his secular and collect cases). reasons, acting “religious” claims to be ing actually
if pertain those reasons do not ideas,
such ultimate
then that person’s
conduct would fall outside the protective
presented
religion-
The EEOC has
viz.,
ambit of
would
Title
the conduct
VII —
upon
discrimination claim based
Aber-
truly
not
relate to
See
matters.
1(A)(1),
alleged
crombie’s
failure
accommodate
§
EEOC
Manual
Compliance
12—
(“Personal
conflicting religious practice
Ms. Elaufs
of
Ex. 6.
Preference That Not a
is
hijab.
Religious Belief’);7
implementing
Title
see also Reed v. Great
VII’s
(7th
Cos.,
regulations “impose[
obligation
Lakes
F.3d
Cir.
an
]
following
any
system.
7. The
offered the
rele-
EEOC has
ed to
belief
For ex-
example:
vant
they
symbol
ample,
do not
as a
function
belief,
Sylvia
any
tattoos and
recent-
and do not relate to
wears several
has
life,
ly
eyebrows pierced. A
had her
and
purpose,
nose
"ultimate concerns” such as
newly
manager implements a dress
death,
universe,
hired
humanity’s place
employees
requires
code that
have no
wrong,
part
right
they
and
and
are not
of a
says
piercings
Sylvia
visible
tattoos.
Therefore,
system.
or ethical
moral
belief
piercings
are
be-
tattoos and
personal preference
her belief is
is
they
body art
cause
reflect her belief in
religious in
not
nature.
self-expression
should
be accommodat-
1(A)(1),
§
Compliance
EEOC
Manual
Ex.
12—
However,
ed.
the evidence demonstrates
piercings
that her
relat-
tattoos
are not
A religious
accommodate the
accommodation claim is dis-
reasonably
‘to
claim,
disparate
tinct from
treatment
pro-
religious practices
question
which the
is whether em-
the employer
unless
spective employee,
ployees
equally.
are treated
An individ-
wоuld
demonstrates
ual alleging denial of
accommo-
hardship on the conduct of
result in undue
adjustment
seeking
dation is
to a
Thomas, 225 F.3d
business.’”
infringes
work
on the
neutral
rule
1605.2(b)(1),(2));
§
ac-
(quoting 29 C.F.R.
employee’s ability
practice
his reli-
2000e(j);
§
cord 42
C.F.R.
U.S.C.
gion.
requirement
The accommodation
1605.2(b)(1);
§
see Trans World Airlines
to relieve
“plainly intended
individuals
Hardison,
v.
432 U.S.
97 S.Ct.
choosing
the burden
between their
(1977) (“The intent and
1122 reasonably accommodate the that a unable that “once on notice (commenting without employee’s needed” needs undue accommodation is (foot Thomas, F.3d at 1156 hardship.” “to 225 obliged under Title VII employer is omitted). An is not note reasonably employee”); accommodate an Practices, (noting require if it supra reasonable would Best EEOC more than a de minimis cost.” “to bear among “[e]mployer [practices” [b]est 84, Airlines, be Trans World 432 U.S. 97 supervisors should “[m]anagers 2264; alternative[,] N. Miss. available see v. Health to consider S.Ct. trained Bruff (5th Servs., Inc., 495, 244 500 if accom- F.3d Cir. particular accommodations Inc., 2001); ABF 22 Freight Sys., undue Lee v. pose requested would modation (10th Cir.1994); added)); v. see also 1023 Toledo hardship” (emphasis F.3d Inc., A, (“[I]f F.2d Q employer Nobel-Sysco, 1492 supra & EEOC Cir.1989). (10th And, “if an has fide doubt about basis has bona accommodation, provided it is entitled reasonable we request, the accommodation alternative the facts need not examine whether ac inquiry to make a limited into have claim would re employee’s commodations offered and circumstances v. hardship.” is reli- in undue EEOC Fire the belief or at issue sulted Co., held, F.3d sincerely gives rise to Fibers & Textiles gious and stone (4th Thomas, accommodation.”). Cir.2008); see F.3d need for (“The n. 7 does not at 1156 have particular accom to demonstrate that , requested by modation cases, religion-accommodation hardship.”). in an would result undue Doug apply a version of McDonnell burden-shifting See approach. las ’s conclude that Abercrombie enti- We Thomas, 1155; 225 F.3d at see also Dixon summary judgment because the tled (11th Cos., Hallmark cannot the second establish ele- Cir.2010). Specifically, to survive sum prima of its facie case. As discussed ment claim, “the em mary judgment such a law, below, controlling under initially produc bears ployee the burden this element EEOC cannot establish be- to a facie case.” respect prima tion with genuine dispute is no cause there mate- Thomas, 225 F.3d at fact that Ms. Elauf never rial informed *16 to “show requires employee case facie hiring its decision that Abercrombie before (1) had he or she a bona fide hijab was practice wearing her based employment that conflicts with an belief her and that upon she (2) or or he she his requirement; prac- informed for that needed (3) he or employer belief; tice, due to a conflict it and Aber- between she was fired for failure [or hired] clothing policy. crombie’s employment comply conflicting added); ac Id.
requirement.” C Dixon, 627 F.3d at cord reaching our conclusion Aber- judgment, summary out a entitled
If the makes crombie is case, question vigorously shifts contested prima facie then we resolve “[t]he burden (1) whether, conclusively parties: rebut by specifically, case prima ... to establish a facie under prima more of the order one or elements (2) case, religion-accommodation theory, show that it offered rea Title VII’s facie (3) accommodation, ordinarily that it must establish he plaintiff show sonable initially or she informed the vigorously EEOC has contested this plaintiff particular prac- adheres to a possible outcome. As the district court it, put tice for reasons and that he or “The urges EEOC a less restrictive approach, she needs an accommodation that prac- asserting that although Aber- tice, due to a conflict crombie is practice required between the to have had notice that Elauf employer’s accommodation, and the needed an neutral work rule. We the no- tice need not have question strictly answer that in the been afSrmative. the form verbally of Elauf Consequently, requesting because Ms. Elauf did not such an ac- commodation.” ApltApp. inform prior hiring to its 580. More de- specifically, the EEOC has engaged succinctly cision that she conflicting point made the before us: “The employer’s obligation is to attempt reasonable reasons and that accom- she needed an accommo- (where modation no it, hardship undue would dation for cannot establish result) when it has notice—be it from an prima its facie case. affirmative by individual, statement rests, naturally first, Our conclusion on some other source—of an individual’s reli- express our own plain- articulation of the gious belief that conflicts with a work re- burden, prima tiffs facie which is bol- quirement.” Aplee. Br. at 41 (emphasis stered a similar linguistic formulation of added); (“[W]hen see also id. at 32-33 that burden in rulings found of several of facts indicate that notice of an individual’s Second, our sister circuits. we are forti- religious belief provided by some fied in our conclusion because concepts means other than the individual affirma- of religion and interactive accommoda- tively ‘informing’ the employer of the be- they tion—as are given substance in the lief, requirement facie notice us, Title virtually oblige VII as a context— flexibly should be interpreted to conform matter, logical ordinarily insist that situations.”). to such factual For the rea- initially pro- must below, sons discussed unpersuaded we are vide the with explicit notice of by the position. EEOC’s the conflicting religious practice and the it, need for an accommodation for in order have actionable claim for denial of Third, such an accommodation. we dis- all, First of prec we construe our support cern plain our conclusion in the terms) (by plain edent placing terms of the regulatory pro- own applicants burden on or employees to ini nouncements on the obligations notice tially employers inform of the applicants or employees in the religion- nature of their conflicting practice and of accommodation setting. Lastly, we are See, the need for an e.g., accommodation. position bolstered in our by the fact that Thomas, 225 F.3d at (noting reading our require- statute’s notice *17 (or employee prospective employee) must entirely
ment
ap-
consistent with the
that “he
establish
or she informed
his
proach toward notice that the courts have
employer
her
[religious]
this
belief’ that
taken, for purposes
assessing
an em-
with
employer’s
conflicts
the
work require
ployer’s
accommodate,
duty to
in the un-
ment);
Toledo,
accord
1124 (footnote added) employer.” inform the initially to employee cant or (“Note omitted)); 56.05, conflicting religious prac §id. at 56-21 employer the an accommodation and the need for an em- establishing prima tice in a facie case body of aligns our court with substantial required notify to an ployee employer persuasive. that we precedent accommodation.”). circuit find the need See, Tech. e.g., v. New Media Wilkerson (3d Inc., 315, 319 b Sch. 522 F.3d
Charter
Cir.2008)
showing
facie
(outlining
prima
escape
effect of
The EEOC seeks to
the
obliges
employee to demonstrate
the
in Toledo and Thomas—
our decisions
employer
the con
that “she told the
about
which,
face,
an
require
on
seem
religious
and the
flict” between her
belief
(or
to es-
employee
employee)
prospective
rule); Reed,
employer’s work
330 F.3d
his or her
tablish
“he or she informed
(“Title
the
imposes
duty
on
VII
[religious]
of this
belief’
employer
the
reciprocal duty
but
on
employer
also
require-
employer’s
conflicts with the
work
warning
fair
of the em
give
1155;
Thomas, 225 F.3d at
accord
ment.
practices that will interfere with
ployment
Toledo,
1125 Br. at 30-31. The court in applicant district initially inform instant case reached similar conclusion the employer of the conflicting religious regarding requirement. the notice See practice and the need for accommodation (“[F]aced Aplt.App. at 581 with the issue aligns our court with a body substantial the employee explicitly whether must And, circuit precedent. for the reasons request an accommodation or whether it is explicate II.C.2-4, in Part infra, enough that has notice [that] we believe that these authorities embody needed[,] an accommodation is the Tenth legal the sounder view. likely would opt Circuit for the latter (footnote omitted)). so, choice.” In doing Furthermore, even were we to EEOC, it cited the same authorities as the assume that Toledo and Thomas would and additional ones. See id. at 580-81 permit plaintiff prima establish a facie addition, (citing, in Brown Cnty., v. Polk case without demonstrating that the appli (8th Cir.1995) (en 650, banc)); 61 F.3d 654 cant was the source of the Co., 1433, Heller v. EBB Auto 8 F.3d 1439 employer’s notice of the need for a reli (9th Cir.1993). However, general as a gious accommodation, the EEOC could not matter, persuaded we are not by the prevail here. That is because such notice position. would need to be an employer’s based on begin, To we are not convinced that we particularized, knowledge actual key liberty are at disregard plain terms facts that trigger duty to accommodate. decisions, of our Toledo and Thomas which And, below, as explicated genu there is no place plain- facie burden on the ine dispute of material fact that no Aber tiff to establish that the or em- for, agent responsible crombie or involved ployee initially has informed the in, hiring process had such actual of the conflicting religious practice and the knowledge ;from any source—that Ms. Moreover, need for an accommodation. — Elaufs of wearing plain even if the language precedent of our unclear, stemmed from question left the resolution of the beliefs and construing language to require the that she needed an accommodation for it.8 VII, 8. Under Title (quoting is defined to City the decision." v.Watts Nor 2000e(b), "any agent,” man, include and, 1288, U.S.C. (10th Cir.2001)) 270 F.3d varying degrees, employer may (internal omitted)); quotation marks responsible be held for the conduct of its Co., Bottling v. BCI Coca-Cola 450 F.3d See, Bank, agents. e.g., Meritor Sav. FSB v. (10th Cir.2006) ("In employ Vinson, 57, 72, 477 U.S. 106 S.Ct. context, paw’ ment discrimination 'cat’s re (1986) (“We L.Ed.2d 49 therefore decline fers to a situation in which a biased subor parties' invitation to issue a definitive dinate, decisionmaking power, who lacks employer liability, agree rule on but we do dupe uses the formal decisionmaker as a Congress with the EEOC that wanted courts trigger a deliberate scheme to a discrimina agency principles guidance to look to tory employment action.” add area.”). disparate- In the Title VII ed)); Vilsack, Conroy v. 707 F.3d cf. context, ordinarily identity treatment (10th Cir.2013) (noting n. person acting employer's as the deci plaintiff paw "does not articulate a cat's particular employment sion-maker in the de theory liability”). The district court de significant cision although is a fact— responsibility termined that Cooke Ms. "had necessarily a determinative one. See Zamo hiring decisions at Inc., Abercrombie” Logistics, ra v. Elite sought employment. store where (10th Cir.2007) (en Ms. Elauf banc) ("In deter Aplt.App. argues at 581 n. mining 11. Abercrombie proffered whether the reason for a contrary; pretextual, decision to the we examine the it asserts that the decision- Johnson, they appear person making facts as noting maker was Mr. that "both *19 viously opposed policies prohibiting that the EEOC The authorities items.... clearly display have of upon public have court relied district [plain- employer] argues on the em- holdings then' notice [The predicated knowledge. expressly supervi- actual never [their told ployer’s particularized, tiffs] (and not) their down they do endorse did not want to take sor] need not We and, their holdings particular, ef- they opposed their artwork specific actual knowl- places. about how much public conclusions forts to remove God from employer on However, edge put super- is sufficient if [the we conclude that accommodate; yet, the need to notice of aware between of the tension visor] cases settled is no doubt that these there [plaintiffs’] her order and the significant nothing less than some ample evidence beliefs'—and there is actual knowl- partiсularized, of measure sat- that she was—her awareness would edge. isfy prong. the second Dixon, words, example, plaintiffs In in conclud- at 855-56. other Id. sincere, they are plaintiffs evidence that satisfied the “presented ing that had efforts oppose Christians who of case committed element their facie second from public places.” notice, God to remove de- related the Eleventh Circuit employer’s In rejecting F.3d actual termined that had had never plaintiffs contention knowledge beliefs them of their need for advised actual con- particular plaintiffs and of the accommodation, the stat- Eleventh Circuit flict between those and the beliefs ed: point, rules. latter er’s work As to the plaintiffs’ affirmative [plaintiffs] upon prior based employer] knew that
[The pre- opposition employer’s pok- open dedicated Christians who had were ac- ing employers as "to a reasonable and Johnson identified Johnson make Cooke noting Aplt. Opening Br. at commodation” "we believe the decision-maker.” Thomas, that, recognized finding al court that [the 7. In we the district erred in 16 n. Douglas management's personal though employ employer's] lack of we the McDonnell knowledge migraine con- religion-accommodation employee’s] [the in the framework liability; disparate-treat company from we do in the dition insulates context—as inquiry employer] of [the is was in fact on notice [the ment context—the nature of the (noting employee’s] em- [the See 225 at 1155 n. 6 condition as a result distinct. F.3d ployee’s] supervisor's his burden-shifting mechanism” of full awareness of "the Douglas responsible employed "not condition and thus must be held McDonnell employer” any attempt ac- probe subjective failure to a reasonable intent of the for commodation”). summary undisputed permit It that Ms. but rather to courts in the agents and Mr. were judgment context to "determine whether Cooke Johnson Abercrombie; pur- parties have evi that fact for our various advanced sufficient suffices If, infra, poses. there is respective to meet traditional demonstrate dence dispute prove genuine fact that no disprove the reason no of material burdens or for, agent in- responsible ableness of the accommodations offered is, in, hiring process Ms. (quoting not offered” v. Midland volved Smith —that Brake, Inc., (10th particu- possessed n. 12 Cooke and Mr. F.3d Johnson — source, larized, Cir.1999) (en banc)) (internal quotation knowledge, actual omitted)). identity Ms. Elauf’s marks Whether the significant and that fact stemmed from the decision-maker is also it, it ine- religion-accommodation is a needed an in the context she question luctably an deci- that we need not endeavor to follows that no Abercrombie Co., (whether or Mr. sion-maker Ms. Cooke swer here. Kimbro v. Atl. Cf. Richfield (9th Johnson, both) Cir.1989) requisite (analyzing possessed requir- knowledge. Washington disability State statute *20 Furthermore, display regarding religious the thе additional cies authorities that the district relied items, upon actual court in the employer knowledge the had instant case the are of same or similar about plaintiffs’ the beliefs the remov- that effect in they that insist on nothing less public places of God from were inflexible al than employer’s particularized, the actual preference. simply personal not and knowledge to the satisfy second element of (the Hettinger The district court in other prima Brown, the facie See case. 61 F.3d relies) upon put which the EEOC case (“[W]e at reject the argu- defendants’ point actual-knowledge finer on the even plaintiff] ment that because [the never ex- “an plaintiff there was Ortho- issue. plicitly asked for accommodation for his for a “applied part-time Jew” who dox activities, religious he not claim the employer] pharma- with as a position [the protections of Title VII.... Because the F.Supp.2d “Although at 1361. cist.” first reprimand directly religious related Plaintiff cannot sell condoms due to his by activities plaintiff], agree [the beliefs, religious he did not list reli- the district court that the defendants were application on his or gious restrictions potential well aware of the for conflict any request for an accommodation. make expectations between their and plain- [the activities.”); Heller, employer’s hiring religious tiffs] did he inform [the Nor at (holding plaintiff about his beliefs or restric- agent] religious established pri- the second element of his dropped appli- at the time he off his tions ma facie case for failure to accommodate Id. cation.” “religious practice attending his the cer- undisputed employer’s It was emony in which and his wife children were hiring agent was “informed” another of Judaism,” converted to where plain- employees, listed as “one who was supervisor tiffs “knew” that he was Jew- references,” Plaintiffs “that the Plain- ish, “knew” that his “wife was studying for refused due to tiff to sell condoms his conversion,” plaintiff] [the and “when re- religious the hiring agent, beliefs” and that off, quested the time he informed the [su- consequently, not to pursue “decided work”). pervisor] why he needed to miss for application employment.” Plaintiffs words, In other were we to assume even Nevertheless, employer “arguefd] Id. employer may put that an on notice the Plaintiff establish prima cannot applicants from a source than other case religious discrimination be- facie employees, pro- that source would need to cause Plaintiff did inform the De- employer vide the with sufficient informa- of his restriction or his fendant tion such that would have need for accommodation.” Id. at 1360. actual knowledge conflicting prac- The district court would have none of that particular applicants tice of the or employ- argument. Although district court ees upon is based beliefs placing] it “not cautioned they and that an accommodation need emplоyer,” of inquiry burden on the id. at Thus, it. even under this broader view of 1364, it held “that the Plaintiff sets forth a is, plaintiff the notice requirement, —that case of discrimination not be facie —should employer] had actual knowl- [the liability on an impose able to edge Plaintiffs his or her failing to accommodate pursue decided not to Plaintiffs em- practice ground on the that the surmised, application figured on that infor- ployment guessed, based should have circumstances, mation,” surrounding out from the id. 365; App. that she that she upon based his or “assumed practice was added), Muslim,” plaintiff needed was id. religion why Accordingly, “figured it. reason that was an accommodation scarf,” adopt posi- Aplee. Supp. head were we to she wore her even *21 authorities, added), the tion, by its and she as- supported App. (emphasis as at 48 need to based that, notice would be if Elauf hired employer’s sumed Ms were knowledge Model, actual upon particularized, its contin- as a she would trigger duty to key headscarf, facts at 46 ue to her see id. wear religious “Yes, a reasonable accommoda- provide I (answering question, did.” to the is, knowledge actual upon tion—that based you if worked [Ms. Elauf] “And assumed of conflicting practice particu- that the Abercrombie, wearing at she would still stems from his applicant headscarf]?”). lar [a religion that the or her interview, In not ask Ms. Cooke did it an accommodation for employee needs if a And for Ms. Elauf she was Muslim. one). (because practice is inflexible explored length, at reasons that we have showing make this The EEOC cannot II.B.l, supra, given see Part Title VII’s dispute genuine there of mate- here: is no as conception religion uniquely per a agent rial fact no Abercrombie re- matter, sonal and individual Ms. Cooke’s for, in, hiring involved sponsible that Ms. Elauf elected to wear knowledge had actual knowl- process particularized, hijab a be far from infor would sufficient edge any source—-that Ms. Elaufs —-from requisite mation her provide with the wearing hijab stemmed trigger employer’s notice that would religious beliefs and she needed Wilkerson, duty to accommodate. See Therefore, it. an accommodation for announcing (“[Sjimply cannot prevail. EEOC religion, one’s in a certain or even belief particular,
In
we
conclude
(i.e.,
wearing
symbol
religion
absolutely
support
no
record offers
David)
notify the
cross or
does not
Star
Ms.
district court’s determination that
particular
and ob
beliefs
knew
Ms.
Elauf]
“Cooke
wore
[that
in con
servances that the
holds
religious
head scarf
on her
belief.”
based
(em
nection with her
affiliation.”
added).
Aplt.App.
(emphasis
added)); Reed,
phasis
fundamental in the agents who could conceivably be deemed EEOC’s case. Ms. Cooke’s conduct fol- any for, to have had responsibility in or lowing the interview all was based on her in, hiring process volvement regarding assumption regarding admitted Ms. Elauf, Ms. were Ms. Cooke and Mr. Johns required prac- Elaufs beliefs and Therefore, on.10 if even (“I EEOC were ApltApp. tices. See at 76-77 was un- scarf_I permitted aas matter of law to establish sure about the head told [Mr. that I that second element of Johnson] believed its facie case [Ms. Elauf] Muslim, recognized was and that was a showing that the employer possessed that, suggests begin 9. even if participating Ms. process the interactive understanding Cooke's of Ms. upon guess assumption Elauf's reli- based or in- —and gious variably beliefs and her need for an accommoda- explore purported discuss or reli- solely predicated gious tion was assumption, on her applicant beliefs and needs an or correct, assumption actually was so Aber- actually there need was no —when put (i.e., adequate crombie was notice. See to employer's assump- do so because the ("It Aplee. Br. at 45 guess wrong). uncontested that Cooke approach tion or This correctly interpreted wearing Elauf's a head- express would run afoul of the EEOC’s own indicating scarf as that policy guidance, she is discourages employ- Muslim which religious purpose. wore the headscarf for a initiating ers from discussions about the reli- such, (or gious As ... the court would still applicants employees) be correct that it was operating uncontested that Abercrombie was process in the accommodation upon on sufficient notice of stereotypes, speculation, Elauf's be- based and con- lief.”). II.B.2, jecture. There is no supra. foundation in the law for See Part requisite purposes the view that the notice for religion-accommodation of a Title VII that, claim responding It is true to Ms. Elauf's conceivably anything could ever rest on headscarf, less inquiry wearing about Ms. Se- employer’s particularized, than an actual (her pahvand friend and Abercrombie em- knowledge; employer that an was able to ployee) that testified she had raised the issue guess assumption a correct or McJilton, malte would manager with assistant Kalen who possessed employer not mean that the such prior knew Ms. Elauf from her visits to knowledge. Simply put, actual a correct as- Noting previously store. had he worked sumption equal knowledge. does not actual at Abercrombie with someone who wore a And yarmulke, this basic truth takes on considerable suggested white Mr. McJilton significance religion-accommodation any in the problem did he not see with Ms. Elauf headscarf, employer context because once the "especially is found to if she didn’t notice, employer have received sufficient Aplee. wear a headscarf that was black.” actively engage (internal must Supp.App. quotation in the interactive accom- at 181 marks omitted). However, process. modation But an would there is no evidence that for, guess assumption not know whether any responsibility its or Mr. had McJilton fact, in, was correct until after hiring process regarding so there would involvement be instances in which the would Ms. Elauf. knowledge actual knowl- employer’s particularized, from a particularized, actual suffice. See edge Aplee. Br. at 34 would source other than (“[T]his say employers are is not key trigger duty ee of the facts em- required inquire applicants accommoda- provide reasonable ployees any to whether are reli- there tion, not do so here be- the EEOC could need to gious beliefs that be accommodat- neither nor Mr. cause Ms. Cooke Johnson ed, absent some reasonable indication (i.e., agents employer) the relevant that an knowledge. Accordingly, such possessed added)). However, (emphases be needed.” view of under the the notice even broader support prop- it cites no authorities to this principally the EEOC requirement osition, See any. and we are aware of here, espouses prevail.11 it cannot (“Had Aplt. Br. at intended Reply courts recognize (or in its briefing, We do that ‘reasonable indication’ some other notice) something than sort of constructive sufficient to EEOC intimates that less sрeak up no 11. We note that the EEOC also takes a differ- need to secure an accommoda- that, ent tack to defeat outcome. Recall religious practice tion her claimed McJilton, following her with Mr. discussion wearing a headscarf. Sepahvand Elauf Ms. communicated Ms. Moreover, doubt, there be an em lest permitted, *23 that a be- headscarf would but obligated ployer legally is not under Title VII no-black-clothing pol- cause of Abercrombie’s prompt applicants employees or to deliver icy, would able to she not be wear black a religious notice of the accommoda need relaying upon Based of one. tion, informa- tion, by initially recounting laundry list of argues the EEOC that "there is no evi- employees practices all of the that cannot do any suggesting Elauf had dence that reason to workplace. ap in the The burden rests with already that had believe her headscarf plicants employees to that or ensure Abercrombie, approved by been or that Elauf workplace will be a work environ suitable any any questions had reason her to ask about them, light required ment for of their reli Aplee. at at headscarf the interview.” Br. Chalmers, gious practices. at See however, argument, 45. The whol- is (“Initially, plaintiff] asserts that [the [the ly unpersuasive. possibly Ms. Elauf could not explicitly employer] never her of a informed judgment have formed reasonable in these against company policy writing religious let upon circumstances based second-hand infor- employees ters to fellow at their homes friend, by Sepah- mation delivered her Ms. request so she had no reason to an accommo vand—who herself a was not member of Aber- However, companies ex dation. cannot be management, crombie nor involved in Ms. pected employees notify explicitly all hiring process Elauf’s had Abercrombie —that might types annoy that of conduct co-work agreed practice her accommodate of wear- ers, working damage relationships, and there and, ing consequence, as a that she (citation by provide grounds discharge.” practice free to about remain silent (internal omitted)). omitted) quotation marks especially in the interview. This is be- true Thus, suggestion contrary the EEOC's cause, interview, prior to Ms. Elauf was misguided. Response is See EEOC to Aber employee signifi- well aware that attire was a Letter, 11-5110, 28(j) at 1 crombie's Rule No. is, cant matter to a matter Abercrombie—that (10th Cir., 11, 2012) ("[I]t May filed uncon consequence person considerable —and any tested Elauf was not informed reasonably who Ms. Elauf could have con- time unwritten Abercrombie it has an responsibility hiring had cluded some Cooke, prohibition on Models headscarves. process, expressly topic Ms. raised the Therefore, there was no reason for Elauf to employee attire in interview without requiring believe therе was conflict ac indicating that would accommo- (citation omitted)); commodation.” see also practice wearing hijab. date Ms. Elauf's contention, then, (testifying did Contrary Aplt.App. at 55 that Ms. Cooke we the EEOC’s Elauf) (Ms. not tell her that she “wouldn't be conclude there was no evidence to rea- sonably support anything like able to wear [her headscarf] the notion Abercrom- that”). bie’s conduct led Elauf to believe she had Ms. case, satisfy prima they would those religious beliefs that are facie ” so.”) (internal have said and sincerely held.... quotation omitted)). noted, marks As those beliefs sum, that, in we hold order to estab- broadly, are defined “typically but con- prima lish the second element of their facie life, ultimate cerní] ideas about purpose, religion-accommoda- case under Title VII’s and death.” Compliance EEOC Manual theory, ordinarily tion plaintiffs must es- (internal 12-I(A)(1) § quotation marks they initially tablish that informed em- omitted). Title VII does not extend its ployer they in a engage particular protections practices that are engaged they reasons and that in as a matter of personal preference or practice, need an accommodation for the see, reasons, Reed, for cultural e.g., conflict, due to a the practice between (“[A]n permit- is not noted, the employer’s work rules. As we ted redefine a purely personal prefer- recognize that some courts have taken a belief.”), ence or aversion as a However, path question. different on this and no matter strongly how an applicant approach we are confident that our is the believes in certain political, sounder one. economic, ideas, or social if those ideas do not otherwise relate to the stuff religion (e.g., life, ultimate notions about purpose, Given Title conception religion VII’s death), practices then upon based them and the religion- interactive nature of the do not fall within protective Title VII’s process, we are hard- ambit, see, e.g., Compliance Manual pressed to see logically how could 12-KAX1). reach another conclusion regarding the no- tice element of the facie case. This But how is an to know key ques- because the answers to the *24 that applicants employees or engaged are tions that employer determine whether an practice reasons, in a religious unless an obligation has under Title pro- VII to (“De they inform employer? id.Cf. religious vide a reasonable accommodation termining practice whether a is religious ordinarily only are within the ken of the not on activity, turns the nature of the but applicant or employee; because an em- on the employee’s motivation. The same ployer’s obligation to in engage the inter- practice might engaged by be in per one religion-accommodation active prоcess is son for religious reasons and another only triggered employer when the has an- reasons.”). person purely secular To questions; because, swers to those in sure, instances, be in applicants certain or implementing Title VII’s anti-discrimina- employees may engage practices that mandate, tion expressly the EEOC has traditionally are associated a particu with disapproved of employers inquiring in the However, lar religion. Title VII does not first instance or speculating about the an- require employers to become knowledge questions. swers to such able about the customs and observances of example, See, Wilkerson, For recall that Title only religions. VII e.g., 522 F.3d at (“[W]e obliges employers provide impute reasonable do not employer practices accommodation for appli- duty that to possess knowledge particu employees cants or engage sects.”); Reed, in because of larized beliefs of fide, sincerely bona held (noting beliefs. 330 F.3d at that “employers See, (“Title Q A, e.g., supra EEOC & not charged knowledge VII are with detailed requires employers only to accommodate the beliefs and observances associated ka, sects”); pinpoint Compliance particular not his
particular
12-IV(A)(1) (noting
§
an em-
at
that
and observances....”
Id.
935-36
Manual
beliefs
added).
that the employer
(emphasis
“cannot
ployee
assume
already know understand” “the reli-
will
or
Similarly, in
the dismissal of
upholding
practice
nature of
belief or
gious
religion-accommodation
plaintiffs
issue”).
claim
she
to inform
because
failed
her
Furthermore,
an employer
even if
was
her need
for an accommoda-
aware
the beliefs and
generally
observ-
tion due to a conflict between her Chris-
traditionally
that are
associated with
ances
employer’s
tian beliefs and the
“libation”
knew
particular
group,
also
alcohol-drinking ceremony,
or
the Third
applicant
employee displayed
or
that
rejected
plain-
Circuit in
Wilkerson
symbols
group
associated with
—or
tiffs
suggestion
employer’s
employee specif-
that the
or
even
that she
knowledge
was a Christian was
ically claimed to be a member of that
enough
trigger
its accommodation obli-
group ordinarily,
would still
—
Third
gation.
Specifically, the
Circuit
conflicting
know whether the
practice
not
stated,
employer]
“that
knew she
[the
question actually
stemmed from reli-
sufficiently
not
satisfy
Christian does
particular appli-
beliefs
gious
unless
plaintiffs] duty to
‘fair warn-
provide
[the
employer,
cant or
informed the
ing’
employer]
possessed
[the
she
VII,
under
as we
Title
have dis-
specifically prevented
belief
cussed, religion
uniquely personal
is a
her
participating
the libations cer-
See, e.g.,
individual matter.
EEOC Com-
(em-
Wilkerson,
emony.”
at 319
1(A)(1)(“An
Manual
pliance
12—
added).
Indeed,
phasis
the Third Circuit
or
can be ‘religious’
ee’s belief
went further and concludеd that even if
Title VII
if the employee
under
even
“suspected”
liba-
group
with a religious
affiliated
that does
ceremony
tions
would
offen-
specifically
espouse or
recognize
individual’s
plaintiff,
sive
that would not relieve
practice,
if few—or
belief
no—other
plaintiff
the obligation
to “inform
added));
(emphasis
adhere
it.”
people
ceremony
defendants
libation
(“[A]
id.
person’s
see also
would
Id.
offend
beliefs.”
need not be
in either
confined
source
added).
319-20
the same
parochial concepts
content to traditional or
*25
vein, in
the
the
upholding
plain-
denial of
A
religion.
religious
belief is
for Title
claim,
tiffs
religion-accommodation
the
if
purposes
religious
per-
it is
VII
the
”
rejected
plaintiffs
Fourth Circuit
the
ar-
things....
own
(empha-
son’s
scheme of
gument
employer’s knowledge
that the
added)
(footnotes omitted)
(internal
sis
plaintiffs strongly
religious
held
be-
omitted)).
marks
quotation
holding
enough
“put
liefs
it
notice”
was
places
“duty
that Title VII
on the em-
those
plaintiffs
beliefs would—in the
ployee
give
warning
fair
“write,
send, per-
her to
oblige
and
practices
ment
that will interfere
his
view—
sonal,
Reed,
accusatory
letters to co-workers at
at
religion,”
the Sev-
Chalmers,
their homes.”
person’s things.” own scheme of EEOC Moreover, contrary to the sug EEOC’s 1(A)(1)(internal Compliance § Manual 12— gestion at oral argument, see Arg. Oral omitted). quotation Ordinarily, marks 26:40-27:10, the fact that an applicant’s only way would know such (like Elaufs) headscarf Ms. was visible information is if the applicant employee would not materially distinguish her cir employer. informed the cumstances from those of the person whose
Knowing why religious this much demonstrates beliefs did not allow for reading the most natural work on the Title VII’s Sabbath. Even though religion-accommodation person’s provision is one beliefs regarding the ordinarily Sabbath places the burden on would be invisible to the naked eye, applicant employee to inform so would the em- significance ployer conflicting of the that the religious practice attached to wearing the accommodation, (and noted, and the need for an headscarf. As Muslim women women) why contrary reading certainly of the statute non-Muslim wear head- patently would be unfair scarfs for employers. reasons other than religion, and provides hypothetical they Reed whether power- doing are so fоr fully (invisible) point: depends underscores this reasons on their “moti vation.” Compliance Manual 12-
Suppose employee is an Orthodox 1(A)(1); see Aplt.App. at 292 (indicating Jew and deeply believes that it is sinful expert opined, regarding to work past Friday. sundown on He why people reasons maintain certain does not employer, tell his the owner of dress, is, really is, “it question what is a hardware store that is open from 9 motivation”). Therefore, employers p.m. a.m. to 6 on Fridays, who leaves the confronted with the Sabbath-adherent and employee in charge sole of the store one the headscarf-wearer similarly would be Friday mid-winter, afternoon in at 4 is, situated —that they would not reason p.m. leaves the store. The ably put on notice of the need for a employer could him fire without being they accommodation unless were thought guilty failing to accommodate informed of it applicant. his needs. contrary F.3d at 936. A reading Lastly, even if an employer particu- has be, think, larized,
statute would misguided and knowledge actual quite unfair because “at that time” is, when nature of practice knowledge —that the employer fired the employee “there of a particular applicant nothing Wilkerson, to accommodate.” stems from his or her reli- Reed, 319. As in gious case is “[t]his beliefs—that still would not be suffi- similar” to the hypothetical: Ms. Elauf cient information trigger the employer’s *26 undisputedly did not inform duty to offer a reasonable accommodation. that her conflicting practice a That is because the applicant employee or hijab stemmed from her religious may beliefs actually not an need accommodation. accommodation; and that she needed words, In other an applicant or consequently, as with hypothetical the em- may not consider religious prac- his or her ployer, Abercrombie inflexible; is, could elect not to hire tice to be that he or she Ms. Elauf “without being thought guilty obliged by of not feel religion to adhere to failing to accommodate religious situation, practice. [her] the If that the is then conflict, employer’s duty the to offer ployee, nor a conse- before actually is no
there triggered, a reasonable accommodation is provide to employer quent need the that or must initi the that Given reasonable accommodation. ate the communication: it is conceivable Title pur- VII religious belief is “[a] regime a regulatory that could fashion one person’s if it in the own poses religious is in employer obliged in which was Compliance EEOC things,” scheme of concerning quire in the first instance added) (in- 12-I(A)(1) (emphasis Manual religious applicants beliefs and needs of omitted), whether a quotation marks ternal Yet, interac employees. under Title VII’s religiously required particular practice is scheme, it is clear tive accommodation only ultimately question particu- is that, obliged оnly employer not is not answer —even if the lar individual can the em inquiries, to make such customarily required in practice is same ployer affirmatively discouraged from is to fol- religion person claims doing “an applicant’s so because Turner, *2 2009 WL at low. Cf generally affiliation or beliefs ... are not (noting that record did indicate job-related problematic viewed as non plaintiff employer ever told his Pre-Employ under federal law.” EEOC required his meet- “that Prise, see, supra; e.g., ment Inquiries, ing pastor with his at that time or that the F.Supp.2d (noting questioning at 597 meeting anything person- other than a applicants concerning religious be their added)). preference” (emphasis al could, circumstances, liefs “under some Thomas, suggested As we in Title permit that an an inference be drawn ... process requires “interactive VII’s employer engaged improper religion- by employer participation both discrimination”); based Best Prac (em- at employee.” tices, (“In interviews, job supra conducting added). Yet, can an phasis how employers nondiscriminatory can ensure meaningfully er in the accom- participate ... inquiring treatment about matters it lacks process, modation when concrete directly position ques related to information from to discern a need which tion.”). Furthermore, have dis as we Wilkerson, so? See do cussed, religion-accommodation in the con (“Because did in- plaintiff] [the not text, specifically the EEOC has cautioned employer] form [her [libation] employers assumptions to “avoid or stereo conflict, ceremony presented [religious] types what about constitutes duty it did not have a to accommodate type belief or what of accom Although her. plaintiff] [her told [the appropriate.” modation is EEOC Best fact, after employer] time Practices, supra; (noting see id. (em- nothing there was to accommodate.” “[mjanagers employees should be added)); Larson, 56.05, phasis supra, § engage stereotyping trained (“Indeed, at 56-21 it would seem unrea- grooming based on dress and require sonable accom- Thus, if practices”). under Title VII an religious practices modate an em- affirmatively discouraged is ployee when is unaware of asking whether applicants employees added)). to do (emphases the need so.” seemingly conflicting practice logic beliefs, and, so, It is true that does not perforce based if just foregoing actually dictate that an accom they because whether will need questions ordinarily practice, critical must be an- it modation for *27 (i.e., by particular applicant truly conflicting), swered the or em- and the inflexible discouraged by ineluctably also is the EEOC to follow employer regulation under the matters, speculating employer duty about such then has no provide from to process interactive accommodation or- reasonable the acсommodation and (as law) cannot a matter of dinarily only triggered appli- can be be held when liable do failing to so. employees provide requi- or first the cants employer. information to the site agency’s compliance The manual follows and, notably, suit sum, underscores that the no- light conception In of Title VII’s provided by tice the applicant or religion employee and the nature of the interactive reference[s],” “vague cannot consist of religion-accommodation process, we have Johnson, F.2d at but instead must difficulty logically seeing how we could specific: a conclusion one that reach other than the explicate regarding here notice ele- An or applicant employee the who seeks re- ligious of the facie
ment case. accommodation must make the
employer aware both of the need for accommodation and that it is being re- quested to a due conflict between reli- gion work. employee is obli- also find further for our support We gated explain the nature requirement view the notice —which practice issue, the or belief and can- the places applicant onus on the or em- employer assume the al- will ployee initially provide notice explicit or ready know it. understand employer conflicting reli- 12-IV(A)(1). § Manual Compliance gious and the need an accom- sure, To be there is not par modation—in references found litany ticular applicant talismanic regulations own policy docu- or must recite to effectively put regarding ments the source of the em- employer on notice. In regard, notice. ployer’s These authorities —re- states, ‘magic the EEOC “No words’ are peatedly, expressly, and unequivocally— required employer an place on notice assign responsibility ap- notice an or applicant’s employee’s conflict be or plicant employee. Beginning with its tween needs and a work require states, regulation, substantive the EEOC request accommodation, ment. an To em- prospective or “After plain use language individual ployee employer ... of his or notifies mention any particular need not terms accommodation, need for a religious her ‘religious such VII’ or as ‘Title accommo obligation ... has an ” dation.’ But the Id. EEOC does insist reasonably accommodate the individual’s applicant employee “provide or practices.” C.F.R. information enough to make 1605.2(c)(1) added). other aware that there exists a conflict between words, by terms, plain regulation religious practice the individual’s or belief contemplates duty employer’s requirement applying and a for or per provide reasonable accommo- forming job.” Id. comes after it dation receives notice employee. If prospective employee policy Amd other documents of the provided, notice is it sеem similar import, placing no such would EEOC are of Indeed, effectively regarding the EEOC underscores nature of his hypothetical that an conflicting practice and need for an accom- cannot ee remain silent before the *28 (“These at 39 Aplee. to facile. See Br. the too applicant the or burden on con- the of the do employer regulations to documents and not provide policy notice and the need practice flicting religious require form over and elevate substance See, Best e.g., EEOC an accommodation. approach to a nonsensical this Court take “[e]mployees Practices, supra (noting effect, In requirement.”). notice the to the manag- or supervisors their should advise plain language contends that the EEOC conflict between the nature the ers of complete materials not tell the these do rules” the work religious needs and not take into ac- story they because do enough informa- they provide “should the circumstances of instant count understand employer to to enable tion where, view, the em- the EEOC’s case— needed, why it is what accommodation had notice a source other than ployer or by a religious is necessitated communication from the explicit appli- Q A, belief’); supra (responding & EEOC provide cant of need to employer to does an question, “[h]ow (“[T]he id. at 38-39 accommodation. See need- learn accommodation do policy documents not ad- Commission’s stating, applicant “[a]n ed?” situation there is dress the where evidence seeks ee who employer of the appli- that the was aware of the aware both employer must make applicant cant’s belief without that it is be- accommodation and need for such, ‘informing’ it.... As none herself so to due a conflict between ing requested policy documents indicates that an of these added)). (emphasis and work” religion obligation is to employer excused from sum, clear, unequivocal re- guidance for an provide reasonable accommodation regulation and in the EEOC’s own flected applicant’s belief conflicts our view policy supports documents requirement simply awith work because is upon applicant the onus other than the herself someone initially provide explicit notice informed the of the belief.” employer prac- conflicting religious employer § EEOC Manual 12- (quoting Compliance and the need an accommodation. tice (“[A]s IV(A))); id afore- b documents, policy regula- mentioned situation reading tions do address the where that this The EEOC intimates employer aware of the regulation policy of its documents otherwise form, prior sign a reli- time hope prevail and still or at modation termination, gion-accommodation oppor- case: Jim’s it did not have tunity to him. Employer to accommodate EXAMPLE 29 Failurе to Advise offer Request Religious Practice employer VII. Is Due to has not violated Title That or Belief 12-IV(A)(1) Compliance Manual added). view, In our facts of drug agreed employer’s test Jim to take his hypothetical closely akin to the are facts terminated he refused to but was during present point here: at her inter- no sign accompanying After consent form. (Abercrombie’s agent) view with Ms. Cooke termination, charge alleging Jim his filed directly expressly did Ms. Elauf inform her' — to accommodate failed indirectly she wore her for reli- —that religious objection swearing an oath. his so, and, obliged gious reasons and felt to do charge, the Until it received notice of the therefore, would an accommodation. need did not know that Jim’s refusal hypothetical employer, Like the sign form was his based on did not have a to accommodate Ms. chance Because the was not no- beliefs. allegedly religious practice. Elauf’s Jim refused tified of the conflict at the time
1137
(D.C.Cir.2002);
belief,
according-
see
Christensen v. Harris
individual’s
576,
preclude
plaintiff
satisfy-
588,
1655,
ly
Cnty.,
do not
529 U.S.
120 S.Ct.
(2000) (“Auer
such cir-
requirement
notice
under
ing the
146
621
L.Ed.2d
is
deference
added)).
The
only
cumstances.”
warranted
when the
of
language
scope
reading
asserts that its
of
regulation
ambiguous.
is
regulation
The
1605.2(c),
is
regulation,
of its
29 C.F.R.
case, however,
in
ambigu
this
is not
Auer v.
entitled
Auer deference. See
ous ....
defer to the agency’s position
To
905,
Robbins,
452, 461,
519 U.S.
117 S.Ct.
permit
would be
the agency,
under the
(1997).
view”
INS v.
(Drake,
68)
notice”
291 F.3d at
“fair
1207,
U.S.
480
446 n.
107 S.Ct.
94
warning” (Christopher,
port argument litigation.”). most benefits then-current whatever Thomas, supra in and 225 F.3d 1155 & nn. including this subsection 5 & far — explicate that we in Parts II.C.l-3.a —and (recognizing the similarities between rea- II.C.4, in Part conclude that the requirements below sonable in of the notice re contexts). broader view EEOC’s the ADA and Title VII quirement “quite unpersuasive.” Chris analogous ADA’s reasonable-accommoda- 2169; see 132 S.Ct. at Univ. Tex. topher, ways tion scheme in at fortifies least two — Nassar, -, Med. Ctr. v. U.S. Sw. our belief that interpretation our of the 2517, 2533, 186 L.Ed.2d 133 S.Ct. 503 notice requirement the Title reli- VII (2013) (noting “explana that the EEOC’s gion-accommodation setting is correct. lack force that persuasive tions
necessary precondition to deference under First, ADA, under the an em Skidmore”); Vance, S.Ct. at 2443 n. 4 ployer ordinarily has obligation no en (“For below, explained the reasons we do gage process the interactive provide persuas find the Guidance a reasonable accommodation unless the ive.”).14 “employee provid[es] notice to the employ er of employee’s disability and sum, notwithstanding the EEOC’s ob- Smith, resulting limitations.” 180 F.3d jections, we support find provide To with no regulations documents for policy own tice, “must make an ade requirement view of the our notice —which quate request” accommodation. places onus on the or em- Inc., explicit England, EEOC v. C.R. ployee initially provide notice to 644 F.3d (10th Cir.2011). conflicting religious request This and the “sufficiently need for accommoda- must be direct specific,” tion. (quoting id. Dep’t Calero-Cerezo v. U.S. Justice, (1st (in Cir.2004)) omitted), ternal quotation marks *33 parties
Finally, as both have ex [employee] “make clear that the wants as requirement pressly recognized, the of em disability,” sistance his or her id. for to ployers provide reasonable accommoda (quoting Colwell Rite Aid Corp., v. 602 (3d Cir.2010)) (internal for disabled under employees 495, tions quo 506 is analogous require omitted). ADA to Title VII’s tation marks that employers provide ment reasonable accommodations; short, ADA, thus, In under the an em
religious jurispru ployer duty a provide provide under the ADA can does not have to guid dence employer’s as to when an reasonable accommodation unless one is duty ance to provide religious specifically requested by employee. accommoda an reasonable triggered is Cnty. tion under Title VU. See See Koessel v. Sublette Sheriffs obliged mentioning It bears insofar as the to accord some measure of deference view, require- EEOC's broader view the notice to the this would of EEOC's not material- concepts ly ment does not involve akin to con- alter the outcome that we reach here. notice, (as supra) is limited That is noted no structive but rather because there is regulation genuine position permits dispute that the no of material fact for, responsible plaintiffs agent to in- establish their facie case or in, showing hiring regarding by process notice volved had actual possessed knowledge knowledge er actual of the conflict- source—that Ms. —from religious practice ing need for ac- Elauf's an stemmed commodation other than the from her and that she need- source beliefs from employee, ed for applicant or then even if we were an accommodation it. ” (10th Cir.2013) third, (second, providing it.’ and fourth 717 F.3d Dep’t, (“It Ferry in employer’s responsibility original) (quoting alterations is not the Bank, F.Supp. needs and Roosevelt anticipate employee’s (E.D.Mo.1995))). if the affirmatively offer accommodation to such re- employer open otherwise is Similarly, require- our view of notice reading of the notice re- quests.”). Our the na- compatible ment is likewise with entirely is quirement under Title VII necessary trigger ture the data only employer this: an is consistent with duty employer’s provide reasonable obliged provide reasonable Specifically, not accommodation. applicants or employ- accommodation only know employer prac- must have they explicitly informed ees after tice of the stems from the employer conflicting religious of their employee, or it must also know need for an accommodation praсtice and actually or she needs an accommo- he it. practice. suggested dation for the As II.C.2, Title supra, our discussion Part Second, specif requirement conception personal and indi- VII’s ADA logi ic notice under the religion nature vidualized and of cally nature compatible process interactive accommodation —under necessary trigger employer’s data affirmatively which the dis- obligations. reasonable-accommodation couraged making inquiries must know of both the “[T]he employees in the first applicants disability the employee’s desire for instance, engaging guess-work disability.” accommodations C.R. assumptions about their beliefs— England, 644 F.3d add virtually applicants dictates that or em- ed) Taylor v. (quoting Phoenixville Sch. ployees re- initially must communicate the (3d Cir.1999)) (in Dist., 184 F.3d ligious conflicting practice nature of the omitted). quotation ternal marks Mere and their need for an accommodation to disability is awareness of the insufficient employer, trigger order to the em- remains unaware ployer’s duty. desires an accommoda sum, disability. or her See the ADA’s tion his Wood reasonable-accommo (10th Runyon, jurisprudence supports man v. dation our inter Cir.1997) (“The ‘employee’s pretation initial of Title The ADA request places VII. *34 triggers ... em on the to the em for burden make ployer disability to in the his or ployer’s obligation participate aware both of her ” (omission in employee’s for an accommo process.’ original) interactive need Principal disability, by adequately v. Fin. for that (quoting Taylor Grp., dation (5th Cir.1996))). Inc., communicating em F.3d this information to the Therefore, ployer Eng in in the first employer order for to instance. See C.R. facts, land, knowledge interpretation of both these F.3d at Our gain of ordi 1049. narily in requirement will need to tell the of Title VII’s notice employer. religion-accommodation Mole Buckhorn context essen See Rubber (8th Cir.1999) Prods., tially Applicants employees the same. (“[An of their employee] ‘expect initially employers cannot the em must inform a work ployer religious practices to mind and know that conflict with [her] [she] read secretly requirement and need for a reason particular accommoda wanted able them. Thom- tion and sue the for not accommodation for See [then] as, 1155; to Compliance employer’s include an 225 F.3d failure accom 12-IV(A)(1). § modate a job applicant’s Manual religious prac
tices, if reasonably can do so Ill without incurring hardship undue to the conduct of 2000e(j); its business. Id. reasons, foregoing For the hold that see Thomas v. Nat’l Ass’n Letter Carri district court should have entered sum- of ers, (10th Cir.2000). 1154-55 in mary judgment favor of Abercrombie Title imposes VII on the employer the satisfy because EEOC did not duty reasonably accommodate reli case, of its facie prima second element as gious practices job of a applicant through material genuine dispute there is no of fact “an process requires par interactive that Ms. Elauf never informed Abercrom- ticipation” by both the prior hiring bie its that her decision Thomas, applicant. F.3d at practice wearing hijab of her stemmed from her beliefs and that she EEOC, on behalf of Samantha (inflexi- needed an accommodation for this Elauf, established triable claim that ble) practice. Accordingly, we REVERSE Abercrombie discriminated Elauf against summary court’s of district denial on the her religion basis of Aber- when judgment in favor of Abercrombie and crombie refused hire her her likewise, necessarily, the dis- REVERSE hijab, wearing a judgment trict grant summary court’s covering. Specifically, head the EEOC set REMAND case EEOC. We to the jury forth evidence from which a could find district court instructions to VA- Elauf, that Abercrombie refused to hire judgment judgment CATE its and enter without informing wearing ever her that Abercrombie, pro- favor of further and for hijab conflicted with Abercrombie’s Look ceedings opinion. consistent with this Policy, in to avoid having order discuss the possibility reasonably accommodat- EBEL, Judge, concurring Circuit true, ing practice. Elauf s If part dissenting in part. pro- would be discrimination I majority ruling concur in the opinion’s Thus, scribed Title VII. I would re- that it was error the district court to jury mand this claim for a trial.
grant summary judgment Plaintiff-Ap- majority’s require- I. The inflexible pellee Equal Employment Opportunity (“EEOC”) ment that the EEOC first es- must Commission in this case. How- tablish, part facie ever, its part majority’s I dissent from the claim, Elauf Aber- informed opinion, extent that it enters sum- Policy crombie that Look con- mary judgment Defendant-Appellant (“Aber- religious practice flicted with Stores, & Fitch Inc. crombie”), makes no sense un- because I conclude this rec- *35 der the or the law circumstances ord that jury a should decide whether presented by this case is hable for discrim- religious Abercrombie ination. majority employ- The concludes that an religious obligation engage
Title
discrimina-
er’s
in an interactive
prohibits
VII
dialogue
applicant
tion in
the
employment, including
job
regarding
with a
job
of
applicant
er’s refusal to hire a
need for a reasonable accommodation
2000e-2(a)(l).
only
religious
triggered
of her
religion.
practice
U.S.C.
her
job
Title
when the
herself informs the
applicant
VII defines
discrimination
religious practice
flict
her
of
practice con-
between
that her
employer
Look
hijab
a
and Abercrombie’s
wearing
the job
a requirement
flicts with
However,
Policy.
critically, Abercrombie
majority
applying.
she is
which
conflict,
might
did
there
be a
be-
know
applying the
after
this conclusion
reaches
headscarf,
a
cause
knew that Elauf wore
it
Douglas burden-shift-
modified McDonnell
and that she
she was Muslim
assumed
to failure-to-ac-
ing
applicable
framework
reasons,
for religious
wore the headscarf
holding,
the first
claims and
commodate
ultimately
Policy,
its Look
as
knew
failed
analysis,
step of
Johnson,
per-
Randall
determined
claim.1
prima
a
facie
to establish
nоt to
son who made
decision
hire
previous cases where the exis-
In several
Elauf,
models from
prohibited
sales
was
dis-
prima
a
claim
tence of
facie
these
donning headwear. Based on
as-
the elements of a
this court stated
puted,
sumptions,
informing
and without ever
facie failure-to-accommodate claim
prima
ultimately
Elauf that Johnson
determined
“(1)
plaintiff
...
that the
had a bona
to be
allowed,
hijab
would not
Aber-
that conflicts with an
fide
belief
refused to hire her because she
crombie
(2)
or she
employment requirement;
he
hijab.
In this way,
wore a
Abercrombie
belief;
his or
of this
informed
her
dialogue
was able to avoid
interactive
(3)
hired]
or she
for failure
[not
he
was
with Elauf about whether Abercrombie
conflicting employment
comply
reasonably
Elaufs
could
accommodate
re-
Thomas,
1145 claim).2 prima distinct that did not raise or resolve forward facie discrimination cases us of is the “The prima the issue whether it case method before established facie Douglas McDonnell was ‘never applicant’s burden first instance intended ” rigid, mechanized, to be request a ritualistic.’ Serv. U.S. Postal Bd. v. policy. undisclosed Governors Ai employer’s kens, 711, 715, 1478, 460 U.S. 103 S.Ct. 75 I are not here to conclude we bound (1983) 403 L.Ed.2d (quoting Furnco prior of the apply this court’s rendition Waters, 567, 577, v. Constr. Co. 438 U.S. 98 facie prima elements of a failure-to-accom 2943, (1978)). 57 S.Ct. L.Ed.2d 957 claim, several First modate reasons. importance Douglas The of McDonnell foremost, specific of a elements lies, not specification the dis- flexible, prima claim must be in order facie proof required, crete elements of there pre to address specific circumstances recognition general but in its prin- of the Supreme case. given sented ciple plaintiff Title VII must Court this when it forth stressed first set carry initial of offering burden evi- Douglas analytical the McDonnell frame adequate dence create inference Douglas, work. 411 McDonnell U.S. employment that an decision was based 13, 802 n. 93 1817 (noting “[t]he S.Ct. discriminatory illegal criterion un- necessarily vary facts will in Title VII der the Act. cases, and specification McDonnell [in States, Int’l Bhd. Teamsters v. United Douglas proof required facie prima ] 324, 358, 1843, 431 U.S. 97 S.Ct. 52 plaintiff] necessarily appli is not [the (1977) (rejecting, 396 in pattern- L.Ed.2d every respect cable in to differing factual case, or-practice argument situations”). “the has, court on numerous This Douglas pattern only [w]as McDonnell occasions, recognized modify the need to establishing prima means of facie case of prima the elements of a facie discrimina discrimination”). individual tion claim given to fit the facts of a case. Martinez, 1064,
See Stover v. 382 F.3d Second, the plaintiffs present burden of (10th Cir.2004) 1077 (noting McDonnell ing prima facie discrimination claim un framework, Douglas reflect “modified to der VII is not to be Title meant onerous. hand,” particular factual situation Burdine, Dep’t of Cmty. v. See Tex. Affairs applied VII Title discrimina 248, 253, 1089, 450 U.S. 101 S.Ct. 67 claims); tion v. Nat’l Shapolia (1981) (“The Los Alamos L.Ed.2d 207 burden of estab Lab., 1033, (10th 992 Cir. F.2d 1036-38 disparate lishing a facie case” 1993) (declining apply prima facie ele onerous.); is not see Shapo treatment also ments of a lia, failure-to-accommodate claim (noting F.2d at 992 1038 burden of alleging employ cause of action establishing prima facie discrimi onerous). er plaintiff employee Here, fired the because the claim is not nation share supervisors’ only did not his initial burden majority made this beliefs; instead, applying, onerous, modi but preclusive also made it of a straight- fied version of the elements of a claim for relief. Inc., (10th Cir.1997); also, Gambro, Stores, e.g.,
2. See
428
Safeway
v.
Garrison
Greene v.
933,
554,
(10th
(10th Cir.2005);
Cir.1996);
Inc.,
F.3d
937
F.3d
559-60
98
Plofke v.
1092,
441,
White,
(10th
Aurora,
Cir.
F.3d
451 n.
City
405 F.3d
1099-1100
Randle v.
2005);
1288,
(10th Cir.1995);
White,
Corp.,
323 F.3d
v.
Dover
Mattioda
Lucas v.
Cir.1988);
(10th Cir.2003);
(10th
1291-93
F.2d
1400-01
Rakity
v. Dillon
Craw
(10th Cir.2002);
Cos.,
Univ.,
713 F.2d
Okla. State
v. Ne.
ford
(10th
1983).
Inc.,
Hilti,
Cir.
Morgan
*37
below,
As
the EEOC has met
Third,
exрlained
of the McDonnell
purpose
the
framework,
burden-shifting
of
Douglas
burden
less-than-onerous
here.
a
is
part,
facie claim is
prima
which the
how the EEOC has
addressing
Before
a
in the context of
failure-to-
different
prima
a
facie failure-to-accom-
established
it is for
claim than
a Title
accommodate
case, however,
in
I
modate claim
this
general
alleging
VII claim
discrimination
stop
agree
to
that I
with the
would
note
Thomas,
ly.
Elauf
second
informed Abercrombie
that Elauf
that her reli-
was not aware that
gious practice of wearing
hijab
Abercrombie’s Look
conflicted
Policy conflicted with
with
practice
Policy,
Abercrombie’s Look
the rele-
of wearing
hijab,
it is
provisions
undisputed
vant
of which Elauf was un-
managers
Abercrombie’s
never
aware.
informed
Elauf
the Look
prohibited
Policy
II. The
prima
EEOC established a
fa-
299;
headscarves.5 (Aplt.App. at
Aple.
cie claim that Abercrombie failed to
49.)
Supp.App.
Further,
at
there
evi
accommodate
Elaufs
that,
dence
applied
before she
job
for a
practice
wearing
hijab
Abercrombie, Elauf,
friend,
through a
inquired of one of Abercrombie’s store
In order to
summary judgment,
survive
managers whether there was a problem
the EEOC had to establish a prima facie
hijab
with her wearing a
while
working
claim by asserting
that,
evidence
if be-
an Abercrombie store and was
told
it
lieved, would support Abercrombie’s liabili-
would be no
so
problem long
hijab
as the
ty
failing
to accommodate Elaufs reli-
393.)
was not black.6 (Aplt.App.
gious practice
wearing
hijab.
See
at 50-52,
Thomas,
knowledge
might
that Elauf
process through
closed the interactive
Policy,
that conflicted with its Look
explicit actions.” Koessel
policies or
Cooke, the
undisputed that Heather
it is
Cnty.
Dep't,
Sublette
manager
store
who
Abercrombie assistant
Sheriff’s
Cir.2013)
added)
(10th
Elauf, “assumed that [Elauf]
interviewed
omitted).
(internal
*39
And
quotation marks
Muslim,” (id.
307),
at
assumed that
was
ADA,
Circuit, again
the
the Ninth
under
reasons,”
hijab
“religious
a
Elauf wore
re
an
to the
recognized
exception
has
(id.),
that Elauf would wear a
and assumed
an
quirement
employee request
that
the
in an Abercrombie
hijab
working
while
under
disability,
for his
(Id.
306-07; Aple.
at
Supp.App.
store.
the
knows
employer
where
circumstances
48.)
disability,
has a
knows
employee
showing
of the second and
employee
having
that
trouble
the
was
elements —that Elauf
unaware
third
knows,
disability,
work due to his
religious practice
wearing
a
that her
know,
disability
has
to
that
the
reason
Policy,
Look
hijab conflicted with the
but
an
prevents
employee
requesting
the
from
might
there
that Abercrombie was aware
Lucky
v.
accommodation. See Brown
a
circum-
be such
conflict—establishes
(9th
Stores, Inc.,
246 F.3d
Cir.
justify applying
here a com-
stances
2001).
are, then,
to the
exceptions
There
the
rule
exception
mon sense
to
usual
general
obligation
that an employer’s
rule
that,
trigger
employer’s
in order to
to
a reasonable accommodation is
consider
duty to
in the interactive dia-
participate
employ
unless and until an
triggered
reasonable
logue regarding
job
employer
accommoda-
ee or
informs the
applicant
tion,
job
must
inform of the
for an accommodation.
applicant
the
first
need
emрloyer
holds
be-
she
directly analogous
Even more
to the sit-
job’s
require-
liefs that conflict with
here,
uation
other
have held that
circuits
Recognizing such a common sense
ments.
job
employee
a
can establish
exception under
these circumstances
prima
a
facie
failure-to-accommo-
generally recogniz-
consistent
cases
date
if she can show that the em-
claim
ing
exceptions.
example,
similar
For
a
ployer knew of
conflict between
employer’s
the context of an
reasonable
plaintiffs religious
job
a
re-
beliefs and
accommodation of disabilities under
quirement, regardless of how the
(“ADA”),
Act
knowledge
Americans with Disabilities
conflict.7
acquired
er
of that
suit,
employer
as
require,
precondition
These cases conclude that “[a]n
requested
‘only enough
an accom- need
information about
have
have
tive,
erty
manager)
management office
to assert
an assistant store
had failed
rely
claim be
requirements
job
facie failure-to-accommodate
upon
for the
employer
differently
they
cause
did not
inform
information unless told
in her in-
Further,
specific
belief that God should not
arguably sug-
terview.
this evidence
public places,
was
where there
removed
gests
affirmatively
that Abercrombie
misled
ample
al
supervisor
that their
evidence
believing
prob-
Elauf into
that there
nowas
ready
between
aware that there was a tension
working
her
lem with
while
stores,
plaintiffs' religious
employ
and the
in one of
which
Abercrombie’s
policy against displaying
art
er's
why
during
explain
raise the
she did riot
issue
employer's
management
property
work
job
interview.
offices);
Cnty.,
v. Polk
Brown
Cos.,
1995)
(8th
(rejecting employer's
7. See Dixon Hallmark
Cir.
652-53
(11th Cir.2010) (rejecting
argument
explicitly re
argument
never
855-56
quested
plaintiff employees
operated
of his
prop
who
an accommodation
employee’s
needs to
permit
policies
job
between its
applicant’s
employer
religious practices,
to understand the existence
employer
has
conflict
reli-
employee’s
duty
inquire
of a
between
potential
into this
conflict.
gious practices
employer’s job
duty
not, however,
and the
re- This
does
obligate the
” Brown,
(8th
quirements.’
61 F.3d at
inquire,
open-endedly, about
Heller,
Cir.)
(9th
(quoting
Thus,
here,
where, as
the
has
employer
majority disagrees
The
with the cases
knowledge
potential
of a credible
conflict
from
other
(thereby creating
these
circuits
employer
already
dealership
activities because
fired one of
salesmen
its
for miss
potential
ing
ceremony
aware
“the
for conflict''
to attend
between
work
a
for his wife’s
Judaism,
employee’s religious
rejecting argument
the
em
conversion to
activities
the
ployer’s
prima
work rules
had
that the salesman failed to state a
facie
previously
religious
reprimanded
been
for
failure-to-accommodate claim because he
his
did
work); Hellinger
explain
ceremony sufficiently
not
Corp.,
activities at
v.
to his
Eckerd
1359,
(S.D.Fla.1999)
employer; concluding
F.Supp.2d
ap
"[a]
67
1361-63
sensible
proach
require only enough
(holding
phar
would
applied
orthodox
who
informa
Jew
employee’s
tion
an
position
about
needs to
macist
and whose
beliefs
condoms,
permit
employer
precluded
selling
to understand the
his
stated at least
exis
prima
employee's
a
tence of
conflict between
a
facie failure-to-accommodate claim
employer’s job
needs
though
and the
re
even
this
discovered
quirements”).
applicant's religious
conflict between the
be
job
requirements,
liefs
not
from
job
applicant,
applicant's
duty
but from
of the
inquiry
one
8. This
is not unlike the duties of
references;
contexts,
noting
hyper-
recognized by
would
“[i]t
be
the law in other
when
technical,
case,
party
put
based on
facts of this
to
are sufficient
on
facts
to
a
notice he
require
inquiry
notice of the Plaintiff's
be
make
held
needs to
or be
to know the
only
inquiry
liefs to come
no
from
Plaintiff. The
facts which such
would have uncov
19,
Andrews,
requirement
part
tice
is meant in
to allow the
TRW
ered. See
Inc. v.
534 U.S.
441,
company
(2001) (in
opportunity
attempt
to
to reason
S.Ct.
EBB Auto F.3d when statute of limitations securi (9th 1993) (in run). addressing Cir. began car claim that ties fraud action circuits) liability); process could result permit which teractive among a conflict Ctrs., Inc., Drug& Albert v. Smith’s Food prima a facie failure- plaintiff to establish (10th Cir.2004) (not establishing that claim to-aceommodate “[njeither case, in ADA ing, party means, knew, of a by any destroy by causing liability create or the plaintiffs conflict between process”).9 of the interactive a breakdown rules. employer’s work practices and the case, particular the record in this On case holdings those I follow the would find liable for vio jury could but, cases relying on those without even against reli lating proscription Title VII’s here, put has forth evi- the EEOC still employment discrimination on gious establishing fourth element dence therefore, EEOC, has estab basis. claim, that Abercrombie facie prima facie failure-to-accommo lished Muslim, that she assumed that Elauf was claim. date reasons, and that hijab wore a conclusion, very me I let clear. while she would insist has a suggesting am not store, and in an Abercrombie working interview, duty, job general during then, assumptions those based on comprehensive “laun- give initiating any dialogue with first without dry employer’s of all list” work verify assumptions, Abercrom- Elauf to job in order determine if policies those Elauf wore bie to hire because she refused *41 possibly with requirements might conflict 306-07; Aple. Supp. hijab. (Aplt.App. a applicant’s religious unstated beliefs or 51.) App. at agree I that burden ordi- practices. facts, by jury, if found a of Those smack to narily job applicant remains with the that discrimination exactly of conflict be- inform the jury fur- prohibits. Title And a could VII job’s requirements and her reli- tween the find, facts, ther from that such Abercrom- practices, because it will gious beliefs bie, a superior knowledge on based usually and not the em- applicant, be conflict Elaufs possible between a ployer, who knows such conflict. Policy, practice and Abercrombie’s Look However, suggesting, I am also not as the affirmatively was to avoid its obli- able be, job majority appears appli- to that a dialogue in an interactive gation engage general cant initiate a discussion of must a with Elauf about reasonable accommoda- job during her beliefs inter- religious practice by tion not of Elaufs just in her view case then mentioning possible conflict and practices might conflict with some unstat- it. See Bartee her hiring not policy or work rule of the employer. ed Inc., Am., N. Michelin F.3d has that it The EEOC shown here Cir.2004) (10th case, Abercrombie, (noting, in ADA had employer, superi- which knowledge in- participate possible in an a conflict between employer’s refusal noted, acting addressing process good in the interactive in 9. Other circuits have communicate, process party interactive in the context of reason- A fails faith. ADA, way response, able accommodation under the be initiation or also essence, refusing partici- can liable for acting in bad faith. In courts pate good process: faith in attempt to isolate the cause of the should assign responsibility. then breakdown and signs should look for of failure [CJourts Dist., Taylor Sch. v. Phoenixville F.3d participate good by one of faith or failure (3d added) Cir.1999) (emphasis (quoting help party parties to the other deter- Sch., Wayne Cmty. Bultemeyer v. specific are Fort what accommodations mine Cir.1996)). (7th necessary. delays partyA that obstructs Policy apparent reverses that its Look and Elaufs reli- determination and concludes hijab. gious wearing Under enter, summary judgment in- should facts, viewing those established after stead, agree I Abercrombie. in light most favorable to the evidence summary judg- not entitled to EEOC,10 duty had a to initi- conflicting ment because there is evidence Elauf dialogue by informing ate a with However, on both sides. for the same Policy prohibited Look that Abercrombie’s reason, I entry dissent from the of sum- wearing its sales models headwear mary judgment on behalf of Abercrombie. whether could inquiring and then she com- would, instead, I jury remand trial ply policy, or whether Abercrom- with disputes because there are factual as to bie could accommodate her belief some presented whether the circumstances here way. way, jury reasonable Said another triggered duty Abercrombie’s to initiate an could find Abercrombie liable under Title interactive dialogue with Elauf in order assuming VII for that Elauf was a Muslim determine whether she had a hijab who wore reasons and practice that conflicted with Abercrombie’s that she would insist Policy. light Look of these factual dis- working while in one of Abercrombie’s putes, jury must decide stores, then, initiating without a dia- failure-to-accommodate claim asserted on logue verify assump- Elauf to those Therefore, Elaufs behalf. I would remand tions, upon refused to hire Elauf based that claim for trial.12 company’s assumptions.11 III. Because Abercrombie’s evidence
contradicted the EEOC’s fa- evidence,
cie that created a triable
issue of fact as to whether Aber-
crombie failed to accommodate religious practice
Elaufs of wear-
ing hijab; therefore, jury trial required summary
The district court entered
judgment majority for the EEOC. The presented reasonably
10.The facts here include the fact 11. All above could be in- case, hijab that Elauf wore a ferred from the record in this black interview read 368), light (Aplt.App. exhibiting very practice at most favorable to the EEOC on be- Policy half Elauf. Abercrombie’s Look was ultimate- Further, ly determined to forbid. Abercrom- Muslim, bie was granted assumed Elauf wore the 12. The district court sum- EEOC reasons, basis, hijab judgment and would mary insist on an hold- alternative wearing hijab working on ing while in one of of law as matter that Abercrombie had 306-07; Aple. Abercrombie’s stores. at failed that it could not establish accommo- {Id. 48.) Supp.App. religious practice Abercrombie then acted date Elaufs on assumptions, verifying suffering hardship those without first without undue Elauf, them with when it decided not to of its Abercrombie chal- hire conduct business. 48, 51.) Supp.App. appeal. (Aple. lenges her. So Be- determination conflicting not a case where can I claim cause conclude there is evidence issue, well, objectionable have been blindsided some would as to I not affirm job applicant grant summary district court’s decision religiously judgment er did not realize based. for the on that basis.