Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. , 731 F.3d 1106 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
October 1, 2013
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff-Appellee,
v.
No. 11-5110
ABERCROMBIE & FITCH STORES,
INC., an Ohio corporation, d/b/a
Abercrombie Kids,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 4:09-CV-00602-GKF-FHM)
Mark A. Knueve of Vorys, Sater, Seymour and Pease LLP, Columbus, Ohio
(Daniel J. Clark and Joseph C. Fungsang of Vorys, Sater, Seymour and Pease
LLP, Columbus, Ohio, and Jon E. Brightmire of Doerner, Saunders, Daniel &
Anderson LLP, Tulsa, Oklahoma, with him on the briefs) for Defendant-
Appellant.
James M. Tucker (P. David Lopez, General Counsel, Carolyn L. Wheeler, Acting
Associate General Counsel, Daniel T. Vail, Acting Assistant General Counsel,
with him on the brief), of U.S. Equal Employment Opportunity Commission,
Washington, D.C., for Plaintiff-Appellee.
Before KELLY, EBEL, and HOLMES, Circuit Judges.
HOLMES, Circuit Judge.
Abercrombie & Fitch (“Abercrombie”) appeals from the district court’s
grant of summary judgment in favor of the Equal Employment Opportunity
Commission (“EEOC”) and the court’s denial of summary judgment in favor of
Abercrombie, on the EEOC’s claim that Abercrombie failed to provide a
reasonable religious accommodation for a prospective employee, Samantha Elauf,
in contravention of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
to 2000e-17. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the
district court’s grant of summary judgment to the EEOC. Abercrombie is entitled
to summary judgment as a matter of law because there is no genuine dispute of
material fact that Ms. Elauf never informed Abercrombie prior to its hiring
decision that she wore her headscarf or “hijab” 1 for religious reasons and that she
needed an accommodation for that practice, due to a conflict between the practice
and Abercrombie’s clothing policy. Accordingly, we remand the case to the
district court with instructions to vacate its judgment and enter judgment in favor
of Abercrombie, and for further proceedings consistent with this opinion.
1
A leading scholar of Islam, who was the EEOC’s expert in this case,
John L. Esposito, Ph.D., has defined a “hijab” as the “veil or head covering worn
by Muslim women in public.” John L. Esposito, Islam: The Straight Path 310
(4th ed. 2011). In their briefing, the parties use the terms “headscarf” and “hijab”
interchangeably, and so do we.
2
I
A
Abercrombie is a retail clothing company that operates stores across the
United States under a variety of brand names, including Abercrombie & Fitch,
abercrombie (“Abercrombie Kids”), and Hollister. Abercrombie requires
employees in its stores to comply with a “Look Policy.” 2 That policy is intended
to promote and showcase the Abercrombie brand, which “exemplifies a classic
East Coast collegiate style of clothing.” Aplt. Opening Br. at 5. The Look Policy
applies to every Abercrombie employee. Under the circumstances of this case,
however, our central concern is the policy’s application to sales-floor employees,
whom Abercrombie referred to as “Model[s].” Aplt. App. at 372 (Dep. of Chad
Moorefield, taken Mar. 16, 2011). Employees must dress in clothing that is
consistent with the kinds of clothing that Abercrombie sells in its stores.
Notably, the policy prohibits employees from wearing black clothing and “caps,”
although the policy does not explicate the meaning of the term “cap.” Aplee.
Supp. App. at 69 (Abercrombie Store Associate Handbook, dated Sept. 2006). An
employee is subject to “disciplinary action . . . up to and including termination”
for failure to comply with the Look Policy. Id.2
Our inquiry is focused on the Look Policy as it was set forth in the
Store Associate Handbook (revised Sept. 2006). This was the policy applicable in
2008 when the events relevant here took place. Consequently, we do not consider
any changes that Abercrombie may have made to the Look Policy since then.
3
Abercrombie contends that its Look Policy is critical to the health and
vitality of its “preppy” and “casual” brand. See Aplt. Opening Br. at 5 (quoting
Aplt. App. at 375; id. at 63 (Dep. of Kalen McJilton, taken Jan. 20, 2011))
(internal quotation marks omitted). This is so, Abercrombie maintains, because it
does very little advertising through traditional media outlets (e.g., print
publications or television); instead, it relies on its in-store experience to promote
its products. Consequently, Abercrombie expends a great deal of effort to ensure
that its target customers receive a holistically brand-based, sensory experience.
See, e.g., Aplt. App. at 70 (Dep. of Deon Riley, taken Mar. 17, 2011)
(“Abercrombie has made a name because of the brand. It’s a fact that you walk
into an environment, and it’s not just the smell or the sound, it’s the way the
merchandise is set up. It’s the lighting. Most of all, it’s the stylish clothing
. . . .”). The “main part” of a Model’s job is to “represent [Abercrombie’s]
clothing[,] first and foremost.” Id. at 376. To Abercrombie, a Model who
violates the Look Policy by wearing inconsistent clothing “inaccurately represents
the brand, causes consumer confusion, fails to perform an essential function of
the position, and ultimately damages the brand.” Aplt. Opening Br. at 8.
The interviewing process plays an important role in furthering
Abercrombie’s objective of ensuring that employees adhere to its Look Policy.
Managers assess applicants on appearance and style during the interview. They
are supposed to inform applicants of various aspects of the job, including the
4
Look Policy. New Models typically receive a copy of the policy in an employee
handbook and sign an acknowledgment that they have received it, when they start
work.
Abercrombie instructs its store managers not to assume facts about
prospective employees in job interviews and, significantly, not to ask applicants
about their religion. If a question arises during the interview regarding
application of the Look Policy, or if a prospective employee requests a deviation
from the policy (for example, based on an inflexible religious practice), the store
manager is instructed to contact Abercrombie’s corporate human resources
department (“HR”), or his or her direct supervisor. HR managers may grant
accommodations if doing so would not harm the brand.
B
Samantha Elauf claims to be a practicing Muslim. 3 In mid-2008, Ms. Elauf,
then seventeen-years old, applied for a Model position at the Abercrombie Kids
store in the Woodland Hills Mall in Tulsa, Oklahoma. She had previously
purchased and worn Abercrombie clothes.
Prior to her interview, Ms. Elauf discussed with a friend who worked at
Abercrombie’s Woodland Hills location, Farisa Sepahvand, whether wearing a
3
The parties dispute whether Ms. Elauf possesses a bona fide,
sincerely held religious belief in Islam. This dispute, however, is not material to
our resolution of this case; therefore, we need not (and do not) address it.
5
hijab to work would be permissible. Ms. Elauf has worn a hijab since she was
thirteen and testified that she does so for religious reasons. The Quran—the
“sacred scripture” of the Islamic faith, Aplee. Supp. App. at 5 (Dep. of John L.
Esposito, taken Feb. 22, 2011)—counsels women to protect their modesty, and
some religious scholars “believe that the Qu[]ran does require an hijab” to be
worn by Muslim women, “but there are many who disagree with that
interpretation,” id. at 2. As the EEOC’s expert, Dr. Esposito, testified, although
some Muslim women wear hijabs for religious reasons, those are not the only
reasons that Muslim women wear hijabs; for example, some do so for cultural
reasons or in order to demonstrate a personal rejection of certain aspects of
Western-style dress. 4 Dr. Esposito testified that, in understanding the reasons
why people maintain certain styles of dress, “it really is, the question is, what is
4
Relevant to this point, in his scholarly writing, Dr. Esposito
observes:
The religious situation of American Muslims can be especially
difficult for the younger generation. Many have parents, raised
in overseas Muslim societies, who equate cultural practices and
norms with the principles of Islam. Their children face the
challenge of both fitting into American societies and retaining
their Islamic identity, of distinguishing between what is
mandated by religion and the “foreign” cultural baggage of their
parents.
Esposito, supra, at 291 (emphases added); cf. id. at 74 (“Yet [Muslims] continue to
face issues of identity and faith as a religious minority. . . . As with many other
religious and ethnic groups that preceded them, Muslim communities face issues of
assimilation or integration, diversity, and pluralism.”).
6
their motivation.” Aplt. App. at 292; see id. at 472 (noting, as to why a hijab is
worn, “it really depends on the woman”).
In responding to Ms. Elauf’s inquiry about wearing a headscarf, Ms.
Sepahvand testified that she had raised the issue with assistant manager Kalen
McJilton, who knew Ms. Elauf from her prior visits to the store. Noting that he
had previously worked at Abercrombie with someone who wore a white yarmulke,
Mr. McJilton suggested that he did not see any problem with Ms. Elauf wearing a
headscarf, “especially if she didn’t wear a headscarf that was black.” Aplee.
Supp. App. at 181 (Dep. of Farisa Sepahvand, taken Mar. 31, 2011) (internal
quotation marks omitted). Ms. Sepahvand then communicated to Ms. Elauf that,
although a headscarf would be permitted, because of Abercrombie’s no-black-
clothing policy, she would not be able to wear a black one. Ms. Elauf seemed
agreeable to that restriction.
Ms. Elauf met with assistant manager Heather Cooke to interview for the
Model position. Ms. Cooke was already familiar with Ms. Elauf, having observed
her in the Abercrombie store chatting with Ms. Sepahvand and working elsewhere
in the Woodland Hills Mall. Ms. Cooke had seen Ms. Elauf wearing a headscarf
prior to the interview. Ms. Cooke “did not know” Ms. Elauf’s religion, but she
“assumed that she was Muslim,” Aplt. App. at 365 (Dep. of Heather Cooke, taken
Jan. 19, 2011), and “figured that was the religious reason why she wore her head
scarf,” Aplee. Supp. App. at 48. In the interview, Ms. Cooke did not ask Ms.
7
Elauf if she was a Muslim.
Ms. Elauf was familiar with the type of clothing Abercrombie sold and
knew that Models were required to wear similar clothing. During the interview,
Ms. Elauf wore an Abercrombie-like T-shirt and jeans. She also wore a headscarf
(i.e., hijab); it was black. According to Ms. Elauf, Ms. Cooke never mentioned
the Look Policy by name but she did describe some of the dress requirements for
Abercrombie employees, and informed Ms. Elauf that she would have to wear
clothing similar to that sold by Abercrombie and, specifically, that she could not
wear heavy makeup or nail polish.
During the course of the interview, Ms. Elauf never informed Ms. Cooke
that she was Muslim, never brought up the subject of her headscarf, and never
indicated that she wore the headscarf for religious reasons and that she felt
obliged to do so, and thus would need an accommodation to address the conflict
between her religious practice and Abercrombie’s clothing policy. Indeed, the
topic of her headscarf never came up one way or the other. For example, Ms.
Cooke did not tell Ms. Elauf that she “wouldn’t be able to wear [her headscarf] or
anything like that.” Aplt. App. at 55 (Dep. of Samantha Elauf, taken Jan. 4,
2011). After offering a description of the dress requirements, Ms. Cooke asked
Ms. Elauf at the end of the interview if she had any questions. Ms. Elauf did not
ask any.
Ms. Cooke assessed Ms. Elauf’s candidacy using Abercrombie’s official
8
interview guide. The guide requires the interviewer to consider the applicant’s
“appearance & sense of style,” whether the applicant is “outgoing & promotes
diversity,” and whether he or she has “sophistication & aspiration.” Aplee. Supp.
App. at 61 (Model Group Interview Guide, dated June 26, 2008). Each category
is assessed on a three-point scale, and an applicant with a score in “appearance”
of less than two, or a total combined score of five or less, is not recommended for
hire. Ms. Cooke initially scored Ms. Elauf at a two in each category, for a total of
six, which is a score that “meets expectations” and amounts to a
“recommend[ation]” that Abercrombie hire her. See id. at 64.
Although Ms. Cooke believed Ms. Elauf was a good candidate for the job,
she was unsure whether it would be a problem for her to wear a headscarf as an
Abercrombie Model, and whether the headscarf could be black in color. Ms.
Cooke ordinarily did not seek approval from a senior manager in evaluating or
hiring new Models, but in this case she did.
Ms. Cooke’s direct supervisor was unable to answer her question about Ms.
Elauf’s headscarf, so Ms. Cooke consulted with Randall Johnson, her district
manager. Mr. Johnson said that Ms. Elauf should not be hired because she wore a
headscarf—a clothing item that was inconsistent with the Look Policy.
Notwithstanding Ms. Cooke’s contrary deposition testimony, Mr. Johnson denied
being told by Ms. Cooke that Ms. Elauf was a Muslim and that she wore her
headscarf for religious reasons.
9
Ms. Cooke testified that Mr. Johnson told her to change Ms. Elauf’s
interview score on the appearance section from a two to a one, thereby bringing
her overall score down to a five and ensuring that she would not be recommended
for hire. With this understanding, Ms. Cooke threw away the original interview
sheet and changed Ms. Elauf’s score, thus implementing Mr. Johnson’s alleged
instructions. Ms. Cooke did not extend a job offer to Ms. Elauf. A few days after
the interview, Ms. Elauf learned from Ms. Sepahvand that she had not been hired
because of her headscarf.
C
The EEOC filed the instant action against Abercrombie on September 17,
2009, alleging violations of Title VII, on the grounds that Abercrombie “refused
to hire Ms. Elauf because she wears a hijab” and “failed to accommodate her
religious beliefs by making an exception to the Look Policy.” Dist. Ct. Doc. No.
2, at 2 (EEOC Compl., filed Sept. 17, 2009). It sought injunctive relief, back pay,
and damages.
Abercrombie disputed the EEOC’s allegations and argued that Ms. Elauf
failed to inform it of a conflict between the Look Policy and her religious
practices. It further argued that the proposed accommodation—allowing Ms.
Elauf to wear the headscarf—would have imposed an undue hardship on the
company. Furthermore, it challenged Ms. Elauf’s assertion that she possessed a
bona fide, sincerely held religious belief, forming the basis for her purported
10
conflict with the Look Policy.
The parties filed cross-motions for summary judgment on issues concerning
liability. In addressing the motions and the religion-accommodation claim, the
district court applied the burden-shifting framework of McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). Under that framework, the court concluded that
the EEOC had established a prima facie case through evidence that Ms. Elauf had
a bona fide, sincerely held religious belief and a related practice that conflicts
with the Look Policy. Specifically, the court found that Ms. Elauf wore her “head
scarf based on her belief that the Quran requires her to do so” and “this belief
conflicts with Abercrombie’s prohibition against headwear.” Aplt. App. at 575
(Op. & Order, filed July 13, 2011). Further, it reasoned that “Abercrombie had
notice [that] she wore a head scarf because of her religious belief[,] and that it
refused to hire her because the head scarf conflicted with its Look Policy.” Id.The district court rejected Abercrombie’s argument that the notice element
of the EEOC’s prima facie case was not satisfied because Ms. Elauf did not
personally inform Abercrombie that she wore her hijab for religious reasons and
would need an accommodation for it, because she was obliged to do so. The
court reasoned that, while the Tenth Circuit had not directly addressed this issue,
“[c]ourts in other circuits have held that the notice requirement is met when an
employer has enough information to make it aware [that] there exists a conflict
between the individual’s religious practice or belief and a requirement for
11
applying for or performing the job.” Id. at 580. It further stated that, “faced with
the issue of whether the employee must explicitly request an accommodation or
whether it is enough that the employer has notice [that] an accommodation is
needed[,] the Tenth Circuit would likely opt for the latter choice.” Id. at 581
(footnote omitted).
Applying its formulation of the notice requirement, the district court
observed that “it is undisputed that Elauf wore her head scarf at the interview
with assistant store manager Heather Cooke, and Cooke knew she wore the head
scarf based on her religious belief.” Id. (emphasis added). It added that, while a
fact question may yet exist as to whether Ms. Cooke told Mr. Johnson that Ms.
Elauf wore her headscarf because of her religion, that question was immaterial
“because the knowledge of Cooke—who had responsibility for hiring decisions at
the Abercrombie Kids store—is attributable to Abercrombie.” Id. at 581 n.11.
The district court stated that “there could be no bilateral, interactive process of
accommodation because, although Abercrombie was on notice that Elauf wore a
head scarf for religious reasons, it denied [her] application for employment
without informing her [that] she was not being hired or telling her why.” Id. at
582 n.12.
The district court also rejected Abercrombie’s contention that, even if the
EEOC had established its prima facie case, Abercrombie had demonstrated that it
would suffer undue hardship. The court observed that, despite speculative
12
testimony to the contrary, Abercrombie had provided no “studies or . . . specific
examples” to support its opinion that granting Ms. Elauf an exception “would
negatively impact the brand, sales[,] and compliance [with the Look Policy].” Id.
at 582. In that vein, it emphasized that Abercrombie had made numerous
exceptions to the Look Policy over the past ten or so years—most significantly,
“[e]ight or nine head scarf exceptions.” Id. at 583.
The parties went to trial on damages. The jury awarded the EEOC $20,000
in compensatory damages. The EEOC’s request for prospective injunctive relief
was denied. This timely appeal followed.
II
In summary, we conclude that the district court erred in denying summary
judgment to Abercrombie. 5 More specifically, we hold that, under the governing
5
While “the denial of a summary-judgment motion is ordinarily not an
appealable order [in itself], it can be reviewed when ‘it is coupled with a grant of
summary judgment to the opposing party.’” Quik Payday, Inc. v. Stork, 549 F.3d
1302, 1306 n.1 (10th Cir. 2008) (emphasis added) (quoting Yaffe Cos. v. Great
Am. Ins. Co., 499 F.3d 1182, 1184 (10th Cir. 2007)); see Thom v. Am. Standard,
Inc., 666 F.3d 968, 972–73 (6th Cir. 2012). Abercrombie moved for summary
judgment before the district court on the same grounds as it raises now on appeal
and the parties engaged in an exhaustive round of briefing before the district
court. The record is fully developed and the issues are amenable to dispositive
resolution. See, e.g., Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 465 (7th
Cir. 1997) (“The reason that appellate courts, when reversing a grant of summary
judgment, typically do not direct the district court to enter summary judgment in
favor of the appellant is because a genuine issue of material fact remains. But, in
instances in which the facts and law establish that the appellant is entitled to
judgment as a matter of law, we are free to direct the district court to enter
(continued...)
13
substantive law, Abercrombie is entitled to summary judgement because there is
no genuine dispute of material fact regarding this key point: Ms. Elauf never
informed Abercrombie prior to its hiring decision that her practice of wearing a
hijab was based on her religious beliefs and (because she felt religiously obliged
to wear it) that she would need an accommodation for the practice, because of a
conflict between it and Abercrombie’s clothing policy. Furthermore, it follows
ineluctably from the logic and reasoning of our decision that, in granting partial
summary judgment to the EEOC, the district court erred.
A
Our review of a district court’s summary judgment ruling is de novo; we
“apply[] the same standard as the district court.” Helm v. Kansas, 656 F.3d 1277,
1284 (10th Cir. 2011). “[S]ummary judgment is appropriate ‘if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.’” Morris v. City of Colo. Springs, 666 F.3d 654,
660 (10th Cir. 2012) (quoting Fed. R. Civ. P. 56(a)). In assessing a motion for
summary judgment, “[w]e view the facts, and all reasonable inferences those facts
5
(...continued)
judgment in appellant’s favor.” (quoting Swaback v. Am. Info. Techs. Corp., 103
F.3d 535, 544 (7th Cir. 1996)) (internal quotation marks omitted)); see also
McIntosh v. Scottsdale Ins. Co., 992 F.2d 251, 253 (10th Cir. 1993) (“Where we
reverse a summary judgment order in favor of one party, . . . we will review the
denial of the other party’s cross-motion for summary judgment under the same
standards applied by the district court so long as it is clear that the party opposing
the cross-motion had an opportunity to dispute the material facts.”).
14
support, in the light most favorable to the nonmoving party.” Simmons v. Sykes
Enters., Inc., 647 F.3d 943, 947 (10th Cir. 2011).
Succinctly put, we must “examine the record to determine whether any
genuine issue of material fact [i]s in dispute; if not, we determine . . . [the correct
application of the] substantive law . . . , and in so doing we examine the factual
record and reasonable inferences therefrom in the light most favorable to the
party opposing the motion.” Oldenkamp v. United Am. Ins. Co., 619 F.3d 1243,
1246 (10th Cir. 2010) (quoting McKnight v. Kimberly Clark Corp., 149 F.3d
1125, 1128 (10th Cir. 1998)) (internal quotation marks omitted); see Morris, 666
F.3d at 660; City of Herriman v. Bell, 590 F.3d 1176, 1180–81 (10th Cir. 2010).
As pertinent here, we construe the facts in the light most favorable to the EEOC.
B
1
To properly assess Ms. Elauf’s Title VII religion-accommodation claim, we
must first understand the meaning that the term “religion” takes on in the Title
VII context. Under Title VII it is “an unlawful employment practice for an
employer . . . to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s . . . religion.” Thomas v. Nat’l Ass’n of Letter Carriers, 225 F.3d
1149, 1154 (10th Cir. 2000) (second omission in original) (quoting 42 U.S.C.
§ 2000e-2(a)(1)) (internal quotation marks omitted). “The term ‘religion’
15
includes all aspects of religious observance and practice, as well as belief . . . .”
42 U.S.C. § 2000e(j).
As the EEOC has recognized, “[r]eligion is very broadly defined under
Title VII.” EEOC Compliance Manual § 12-I(A) (emphasis omitted), available at
http://www.eeoc.gov/policy/docs/religion.html; see also Bushouse v. Local Union
2209, United Auto., Aerospace, & Agric. Implement Workers, 164 F. Supp. 2d
1066, 1076 n.15 (N.D. Ind. 2001) (noting that Title VII has a “broad definition of
‘religious belief’”). “Religion includes not only traditional, organized religions
such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious
beliefs that are new, uncommon, not part of a formal church or sect, only
subscribed to by a small number of people, or that seem illogical or unreasonable
to others.” EEOC Compliance Manual § 12-I(A)(1). However, while recognizing
a broad concept of religion, the EEOC acknowledges that the substantive content
of religious beliefs is distinctive:
Religious beliefs include theistic beliefs as well as non-theistic
moral or ethical beliefs as to what is right and wrong which are
sincerely held with the strength of traditional religious views.
Although courts generally resolve doubts about particular beliefs
in favor of finding that they are religious, beliefs are not
protected merely because they are strongly held. Rather, religion
typically concerns ultimate ideas about life, purpose, and death.
Id. (footnotes omitted) (emphasis added) (quoting 29 C.F.R. § 1605.1 (internal
quotation marks omitted); United States v. Meyers, 906 F. Supp. 1494, 1502 (D.
16
Wyo. 1995) (internal quotation marks omitted), aff’d, 95 F.3d 1475 (10th Cir.
1996)); see also 3 Lex K. Larson, Employment Discrimination § 54.05[4], at 54-
13 (2d ed. 2013) (“[A] definition of religion often invoked by the courts is a
belief based on a theory of ‘man’s nature or his place in the Universe’ or a belief
that ‘relates to a Supreme Being.’”). Consequently, “[s]ocial, political, or
economic philosophies, as well as mere personal preferences, are not ‘religious’
beliefs protected by Title VII.” EEOC Compliance Manual § 12-I(A)(1).
In the EEOC’s view, religion is a uniquely personal and individual matter.
This view was shaped in no small part by how courts have defined religion for
purposes of the First Amendment and other related contexts. See id. at § 12-I(A)
nn.18–28 and accompanying text (relying heavily on case law from the First
Amendment and other contexts to define “religion” for Title VII’s purposes); see
also 29 C.F.R. § 1605.1 (setting forth the EEOC’s definition of “religious
practices” and noting that it is in accordance with the standard developed by the
Supreme Court in United States v. Seeger, 380 U.S. 163 (1965), and Welsh v.
United States, 398 U.S. 333 (1970)); cf. EEOC v. Union Independiente de la
Autoridad de Acueductos y Alcantarillados de P.R., 279 F.3d 49, 56 (1st Cir.
2002) (relying on First Amendment jurisprudence to define “religion” for
purposes of Title VII); Redmond v. GAF Corp., 574 F.2d 897, 901 n.12 (7th Cir.
1978) (relying on Seeger and Welsh to interpret “religious” for purposes of Title
VII).
17
In these First Amendment-related contexts, courts consistently focus on the
individual’s belief system rather than the beliefs of a religious group with which
the individual may (or may not) be associated. See Frazee v. Ill. Dep’t of Emp’t
Sec., 489 U.S. 829, 834 (1989) (“[W]e reject the notion that to claim the
protection of the Free Exercise Clause, one must be responding to the commands
of a particular religious organization.”); [Eddie] Thomas v. Review Bd. of the Ind.
Emp’t Sec. Div., 450 U.S. 707, 715–16 (1981) (“[T]he guarantee of free exercise
is not limited to beliefs which are shared by all of the members of a religious sect.
Particularly in this sensitive area, it is not within the judicial function and judicial
competence to inquire whether the petitioner or his fellow worker more correctly
perceived the commands of their common faith. Courts are not arbiters of
scriptural interpretation.”); Seeger, 380 U.S. at 173, 185 (interpreting the phrase
“religious training and belief” in a conscientious-objection statute to require
courts “to decide whether the beliefs professed by a registrant . . . are, in his own
scheme of things, religious” (emphasis added)); LaFevers v. Saffle, 936 F.2d
1117, 1119 (10th Cir. 1991) (holding that a Seventh Day Adventist prisoner’s
religious belief that he must adhere to a vegetarian diet, if sincerely held, was
entitled to protection under the First Amendment even though the district court
found that not all Seventh Day Adventists are vegetarian and that the “faith does
not require” such a diet); see also Erwin Chemerinsky, Constitutional Law:
Principles and Policies 1235 (4th ed. 2011) (“[R]eligion is inherently personal
18
. . . and an individual might have a sincere religious belief that departs from the
dogma of his or her religion. In fact, for this reason, the [Supreme] Court has
said [in the First Amendment context] that the dominant views in a faith are not
determinative in assessing whether a particular belief is religious.”).
Apparently guided by such authorities, the EEOC’s Compliance Manual
notes:
[A] person’s religious beliefs need not be confined in either
source or content to traditional or parochial concepts of religion.
A belief is religious for Title VII purposes if it is religious in the
person’s own scheme of things, i.e., it is a sincere and meaningful
belief that occupies in the life of its possessor a place parallel to
that filled by . . . God. An employee’s belief or practice can be
religious under Title VII even if the employee is affiliated with
a religious group that does not espouse or recognize that
individual’s belief or practice, or if few – or no – other people
adhere to it.
EEOC Compliance Manual § 12-I(A)(1) (omission in original) (emphases added)
(footnotes omitted) (quoting [Eddie] Thomas, 450 U.S. at 716 (internal quotation
marks omitted); Redmond, 574 F.2d at 901 n.12 (internal quotation marks
omitted); Seeger, 380 U.S. at 176 (internal quotation marks omitted)); see also
EEOC, Questions and Answers: Religious Discrimination in the Workplace
[hereinafter EEOC Q & A], available at
http://www.eeoc.gov/policy/docs/qanda_religion.html (“An employer also should
not assume that an employee is insincere simply because some of his or her
practices deviate from the commonly followed tenets of his or her religion.”).
19
Therefore, determining “[w]hether a practice is religious depends on the
employee’s motivation. The same practice might be engaged in by one person for
religious reasons and by another person for purely secular reasons.” 6 EEOC
Compliance Manual § 12-I(A)(1) (emphasis added). Indeed, the EEOC
recognizes that the motivation of employees may change over time; they may
engage in a practice for religious reasons during one phase of their lives and for
secular reasons during another. See EEOC Q & A, supra (“[A]n individual’s
beliefs – or degree of adherence – may change over time, and therefore an
employee’s newly adopted or inconsistently observed religious practice may
nevertheless be sincerely held.”).
These general principles have significant implications for the enforcement
of Title VII’s proscription against religious discrimination. A couple of points
are worth underscoring. First, an applicant or employee may engage in practices
that are associated with a particular religion, but do so for cultural or other
reasons that are not grounded in that religion. Cf. Larson, supra, § 54.04, at 54-7
(noting that “one person’s political view may well be another’s religious
6
The EEOC Compliance Manual, citing our decision in LaFevers,
provides the following example: “[O]ne employee might observe certain dietary
restrictions for religious reasons while another employee adheres to the very same
dietary restrictions but for secular (e.g., health or environmental) reasons.”
EEOC Compliance Manual § 12-I(A)(1); cf. LaFevers, 936 F.2d at 1119(recognizing that a Seventh Day Adventist can have a sincere religious belief that
he must adhere to a vegetarian diet even though other Seventh Day Adventists do
not feel similarly obligated).
20
conviction”). If so, an employer’s discrimination against that individual for
engaging in that practice—though possibly reprehensible and worthy of
condemnation—would not contravene Title VII’s religion-discrimination
provisions. That is true of course because, despite the practice’s customary
association with religion, the applicant’s or employee’s motivation for engaging
in the practice would not be religious.
Second, because religious beliefs have a distinctive content related to
ultimate ideas about life, purpose, and death, logically, even if an applicant or
employee claims to be acting for “religious” reasons, if those reasons actually do
not pertain to such ultimate ideas, then that person’s conduct would fall outside
the protective ambit of Title VII—viz., the conduct would not truly relate to
religious matters. See EEOC Compliance Manual § 12-I(A)(1), Ex. 6. (“Personal
Preference That is Not a Religious Belief”); 7 see also Reed v. Great Lakes Cos.,
7
The EEOC has offered the following relevant example:
Sylvia wears several tattoos and has recently had her nose and
eyebrows pierced. A newly hired manager implements a dress
code that requires that employees have no visible piercings or
tattoos. Sylvia says that her tattoos and piercings are religious
because they reflect her belief in body art as self-expression and
should be accommodated. However, the evidence demonstrates
that her tattoos and piercings are not related to any religious
belief system. For example, they do not function as a symbol of
any religious belief, and do not relate to any “ultimate concerns”
such as life, purpose, death, humanity’s place in the universe, or
right and wrong, and they are not part of a moral or ethical belief
(continued...)
21
330 F.3d 931, 935 (7th Cir. 2003) (“[A]n employee is not permitted to redefine a
purely personal preference or aversion as a religious belief.”); Vetter v. Farmland
Indus., Inc., 120 F.3d 749, 751 (8th Cir. 1997) (“An employer need not
accommodate a purely personal preference . . . .” (internal quotation marks
omitted)); cf. Wisconsin v. Yoder, 406 U.S. 205, 216 (1972) (discussing in the free
exercise context the necessity of distinguishing between choices that are
“philosophical and personal rather than [ones that are] religious”); United States
v. Meyers, 95 F.3d 1475, 1483–84 (10th Cir. 1996) (determining, for purposes of
the Religious Freedom Restoration Act, whether a belief qualifies as a “religious
belief” by assessing, inter alia, whether the belief “address[es] fundamental
questions about life, purpose, and death”); id. at 1484 (agreeing with the district
court’s conclusion that the defendant’s beliefs were not religious in nature despite
their being “deeply [held]” and “sincere[]” because they were “derived entirely
from his secular beliefs,” and collecting cases).
2
The EEOC has presented a religion-discrimination claim based upon
Abercrombie’s alleged failure to accommodate Ms. Elauf’s conflicting religious
7
(...continued)
system. Therefore, her belief is a personal preference that is not
religious in nature.
EEOC Compliance Manual § 12-I(A)(1), Ex. 6.
22
practice of wearing a hijab. Title VII’s implementing regulations “impose[] an
obligation on the employer ‘to reasonably accommodate the religious practices of
an employee or prospective employee, unless the employer demonstrates that
accommodation would result in undue hardship on the conduct of its business.’”
Thomas, 225 F.3d at 1155 (quoting 29 C.F.R. § 1605.2(b)(1), (2)); accord 42
U.S.C. § 2000e(j); 29 C.F.R. § 1605.2(b)(1); see Trans World Airlines v.
Hardison, 432 U.S. 63, 74 (1977) (“The intent and effect of [Title VII’s]
definition [of ‘religion’] was to make it an unlawful employment practice . . . for
an employer not to make reasonable accommodations, short of undue hardship,
for the religious practices of his employees and prospective employees.”); see
also Sanchez-Rodriguez v. AT&T Mobility P.R., Inc., 673 F.3d 1, 8 (1st Cir.
2012); Walden v. Ctrs. for Disease Control and Prevention, 669 F.3d 1277,
1292–93 (11th Cir. 2012) (Seymour, J., sitting by designation).
Religion-accommodation claims are a subset of the types of religion-
discrimination claims that an applicant or employee may present under Title VII.
See Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004) (“A
claim for religious discrimination under Title VII can be asserted under several
different theories, including disparate treatment and failure to accommodate.”);
Chalmers v. Tulon Co., 101 F.3d 1012, 1018 (4th Cir. 1996) (“[A]n employee is
not limited to the disparate treatment theory to establish a discrimination claim.
An employee can also bring suit based on the theory that the employer
23
discriminated against her by failing to accommodate her religious conduct.”
(emphasis omitted)); see also EEOC Q & A, supra (describing the kinds of
religious discrimination that “Title VII prohibits”). The EEOC has described the
specific nature of the claim as follows:
A religious accommodation claim is distinct from a disparate
treatment claim, in which the question is whether employees are
treated equally. An individual alleging denial of religious
accommodation is seeking an adjustment to a neutral work rule
that infringes on the employee’s ability to practice his religion.
The accommodation requirement is “plainly intended to relieve
individuals of the burden of choosing between their jobs and
their religious convictions . . . .”
EEOC Compliance Manual § 12-IV (quoting Protos v. Volkswagen of Am., Inc.,
797 F.2d 129, 136 (3d Cir. 1986)).
The reasonable-accommodation principle is implicated only when there is a
conflict between an employee’s religious practice and the employer’s neutral
policy; only then does a need to accommodate arise. See id. § 12-IV(A)(1)
(noting the need for the employer to be on notice “both of the need for
accommodation and that [the accommodation] is being requested due to a conflict
between religion and work” (emphasis added)). For there actually to be a
conflict, logic dictates that an applicant or employee must consider the religious
practice to be an inflexible one—that is, a practice that is required by his or her
religious belief system.
24
It is only in such a situation that applicants or employees would be placed
in the position that Title VII was designed to protect them from—the spot where
they must choose between their religious convictions and their job. See Tiano v.
Dillard Dep’t Stores, Inc., 139 F.3d 679, 682–83 (9th Cir. 1998) (granting
summary judgment to the employer on the employee’s Title VII religion-
accommodation claim because there was no “conflict between [the employee’s]
religious belief and employment duties” since her religious belief, as she
described it, only required her to go on a pilgrimage “at some time” rather than at
the specific time she preferred to go); cf. Reed, 330 F.3d at 935 (holding that the
employee failed to make a prima facie showing on his Title VII religion-
accommodation claim because, inter alia, he “refuse[d] to indicate at what points
[his] faith intersect[ed] the requirements of his job”). In other words, even if
applicants or employees engage in a practice for religious reasons, so long as they
do not feel obliged to adhere to the practice (that is, do not consider the practice
to be inflexible), then there is no actual conflict, nor a consequent need for the
employer to provide a reasonable accommodation. Cf. Turner v. Boy Scouts of
Am., Inc., No. CIV-09-180-C, 2009 WL 2567962, at *2 (W.D. Okla. Aug. 17,
2009) (“[A]lthough Plaintiff informed [his employer] he was meeting with his
pastor, there is no evidence in the record suggesting that Plaintiff informed [his
employer] that his religious beliefs required a meeting with his pastor at that time
or that the meeting was anything other than a personal preference.” (emphasis
25
added)).
Notably, however, the EEOC discourages employers from making inquiries
in the first instance regarding the religious beliefs or practices of applicants (and
presumably employees) because “an applicant’s religious affiliation or beliefs . . .
are generally viewed as non job-related and problematic under federal law.”
EEOC, Pre-Employment Inquiries and Religious Affiliation or Beliefs [hereinafter
EEOC Pre-Employment Inquiries], available at
http://www.eeoc.gov/laws/practices/inquiries_religious.cfm; see also Prise v.
Alderwoods Grp., Inc., 657 F. Supp. 2d 564, 597 (W.D. Pa. 2009) (noting that
questioning applicants concerning their religious beliefs could, “under some
circumstances, permit an inference to be drawn that an employer engaged in
improper religion-based discrimination”); EEOC, Best Practices for Eradicating
Religious Discrimination in the Workplace [hereinafter EEOC Best Practices],
available at http://www.eeoc.gov/policy/docs/best_practices_religion.html (“In
conducting job interviews, employers can ensure nondiscriminatory treatment by
. . . inquiring about matters directly related to the position in question.”).
Furthermore, in the religion-accommodation context, the EEOC has specifically
cautioned employers to “avoid assumptions or stereotypes about what constitutes
a religious belief or practice or what type of accommodation is appropriate.”
EEOC Best Practices, supra; see id. (noting that “[m]anagers and employees
should be trained not to engage in stereotyping based on religious dress and
26
grooming practices”).
Thus, it is only after an employer is put on notice of the need for a
religious accommodation that the EEOC’s policy materials encourage it to
actively engage in a dialogue with applicants or employees concerning their
conflicting religious practice and possible accommodations that the employer
might provide for it. Cf. Larson, supra, § 56.05, at 56-21 (“Indeed, it would seem
unreasonable to require an employer to accommodate the religious practices of an
employee when the employer is unaware of the need to do so.” (emphases
added)). In this regard, the EEOC has counseled: “Once the employer becomes
aware of the employee’s religious conflict, the employer should obtain promptly
whatever additional information is needed to determine whether an
accommodation is available that would eliminate the religious conflict without
posing an undue hardship on the operation of the employer’s business.” EEOC
Compliance Manual § 12-IV(A)(2); see Thomas, 225 F.3d at 1155 (noting that
religious accommodation “involves an interactive process that requires
participation by both the employer and the employee”); EEOC Q & A, supra
(commenting that “once on notice that a religious accommodation is needed” an
employer is obliged under Title VII “to reasonably accommodate an employee”);
EEOC Best Practices, supra (noting among “[e]mployer [b]est [p]ractices” that
“[m]anagers and supervisors should be trained to consider alternative[,] available
accommodations if the particular accommodation requested would pose an undue
27
hardship” (emphasis added)); see also EEOC Q & A, supra (“[I]f the employer
has a bona fide doubt about the basis for the accommodation request, it is entitled
to make a limited inquiry into the facts and circumstances of the employee’s
claim that the belief or practice at issue is religious and sincerely held, and gives
rise to the need for the accommodation.”).
3
In religion-accommodation cases, we apply a version of McDonnell
Douglas’s burden-shifting approach. See Thomas, 225 F.3d at 1155; see also
Dixon v. Hallmark Cos., 627 F.3d 849, 855 (11th Cir. 2010). Specifically, to
survive summary judgment on such a claim, “the employee initially bears the
burden of production with respect to a prima facie case.” Thomas, 225 F.3d at
1155. The prima facie case requires the employee to “show that (1) he or she had
a bona fide religious belief that conflicts with an employment requirement; (2) he
or she informed his or her employer of this belief; and (3) he or she was fired [or
not hired] for failure to comply with the conflicting employment requirement.”
Id. (emphasis added); accord Dixon, 627 F.3d at 855.
If the employee makes out a prima facie case, “[t]he burden then shifts to
the employer to (1) conclusively rebut one or more elements of the . . . prima
facie case, (2) show that it offered a reasonable accommodation, or (3) show that
it was unable reasonably to accommodate the employee’s religious needs without
28
undue hardship.” Thomas, 225 F.3d at 1156 (footnote omitted). An
accommodation is not reasonable if it would require the employer “to bear more
than a de minimis cost.” Trans World Airlines, 432 U.S. at 84; see Bruff v. N.
Miss. Health Servs., Inc., 244 F.3d 495, 500 (5th Cir. 2001); Lee v. ABF Freight
Sys., Inc., 22 F.3d 1019, 1023 (10th Cir. 1994); Toledo v. Nobel-Sysco, Inc., 892
F.2d 1481, 1492 (10th Cir. 1989). And, “if an employer has provided a
reasonable accommodation, we need not examine whether alternative
accommodations not offered would have resulted in undue hardship.” EEOC v.
Firestone Fibers & Textiles Co., 515 F.3d 307, 312 (4th Cir. 2008); see Thomas,
225 F.3d at 1156 n.7 (“The employer does not have to demonstrate that the
particular accommodation requested by the employee would result in an undue
hardship.”).
We conclude that Abercrombie is entitled to summary judgment because
the EEOC cannot establish the second element of its prima facie case. As
discussed below, under the controlling law, the EEOC cannot establish this
element because there is no genuine dispute of material fact that Ms. Elauf never
informed Abercrombie before its hiring decision that her practice of wearing a
hijab was based upon her religious beliefs and that she needed an accommodation
for that practice, due to a conflict between it and Abercrombie’s clothing policy.
29
C
In reaching our conclusion that Abercrombie is entitled to summary
judgment, we resolve a question vigorously contested by the parties: specifically,
whether, in order to establish a prima facie case under Title VII’s religion-
accommodation theory, a plaintiff ordinarily must establish that he or she initially
informed the employer that the plaintiff adheres to a particular practice for
religious reasons and that he or she needs an accommodation for that practice, due
to a conflict between the practice and the employer’s neutral work rule. We
answer that question in the affirmative. Consequently, because Ms. Elauf did not
inform Abercrombie prior to its hiring decision that she engaged in the conflicting
practice of wearing a hijab for religious reasons and that she needed an
accommodation for it, the EEOC cannot establish its prima facie case.
Our conclusion naturally rests, first, on our own express articulation of the
plaintiff’s prima facie burden, which is bolstered by a similar linguistic
formulation of that burden found in rulings of several of our sister circuits.
Second, we are fortified in our conclusion because the concepts of religion and
interactive accommodation—as they are given substance in the Title VII
context—virtually oblige us, as a logical matter, to insist that ordinarily the
applicant or employee must initially provide the employer with explicit notice of
the conflicting religious practice and the need for an accommodation for it, in
30
order to have an actionable claim for denial of such an accommodation. Third,
we discern support for our conclusion in the plain terms of the EEOC’s own
regulatory pronouncements on the notice obligations of applicants or employees
in the religion-accommodation setting. Lastly, we are bolstered in our position by
the fact that our reading of the statute’s notice requirement is entirely consistent
with the approach toward notice that the courts have taken, for purposes of
assessing an employer’s duty to accommodate, in the undisputedly analogous
context of disability discrimination under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12101–12213.
The EEOC has vigorously contested this possible outcome. As the district
court put it, “The EEOC urges a less restrictive approach, asserting that although
Abercrombie is required to have had notice that Elauf needed an accommodation,
the notice need not have been strictly in the form of Elauf verbally requesting
such an accommodation.” Aplt. App. at 580. More specifically, the EEOC has
succinctly made the point before us: “The employer’s obligation is to attempt
reasonable accommodation (where no undue hardship would result) when it has
notice—be it from an affirmative statement by the individual, or some other
source—of an individual’s religious belief that conflicts with a work
requirement.” Aplee. Br. at 41 (emphasis added); see also id. at 32–33 (“[W]hen
the facts indicate that notice of an individual’s religious belief was provided by
some means other than the individual affirmatively ‘informing’ the employer of
31
the belief, the prima facie notice requirement should be flexibly interpreted to
conform to such factual situations.”). For the reasons discussed below, we are
unpersuaded by the EEOC’s position.
1
a
First of all, we construe our precedent (by its plain terms) as placing the
burden on applicants or employees to initially inform employers of the religious
nature of their conflicting practice and of the need for an accommodation. See,
e.g., Thomas, 225 F.3d at 1155 (noting that the employee (or prospective
employee) must establish that “he or she informed his or her employer of this
[religious] belief” that conflicts with the employer’s work requirement); accord
Toledo, 892 F.2d at 1486.
Insofar as the plain language of our precedent leaves room for doubt on the
question, construing it to require the applicant or employee to initially inform the
employer of the conflicting religious practice and the need for an accommodation
aligns our court with a substantial body of circuit precedent that we find
persuasive. See, e.g., Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d
315, 319 (3d Cir. 2008) (outlining a prima facie showing that obliges the
employee to demonstrate that “she told the employer about the conflict” between
her religious belief and the employer’s work rule); Reed, 330 F.3d at 935 (“Title
32
VII imposes a duty on the employer but also a reciprocal duty on the employee to
give fair warning of the employment practices that will interfere with his religion
and that he therefore wants waived or adjusted.”); Chalmers, 101 F.3d at 1019(“As [the plaintiff] recognizes, a prima facie case under the accommodation
theory requires evidence that she informed her employer that her religious needs
conflicted with an employment requirement and asked the employer to
accommodate her religious needs.”); Johnson v. Angelica Uniform Grp., Inc., 762
F.2d 671, 673 (8th Cir. 1985) (noting that under the second element of the
religion-accommodation prima facie case, the plaintiff must establish that “he has
informed his employer about the conflict” between his religious belief and the
employer’s work requirement); cf. Xodus v. Wackenhut Corp., 619 F.3d 683, 685
(7th Cir. 2010) (noting that the plaintiff “had to prove” during a bench trial “that
he brought his religious practice to the company’s attention”). And our view of
the notice requirement also has been endorsed by respected secondary authority.
See Larson, supra, § 55.01, at 55-3 (“One must begin with the well-known
McDonnell Douglas description of the plaintiff’s prima facie case, though, with
religious discrimination, an important addition to the prima facie case is the
requirement that the plaintiff communicate his or her bona fide religious belief to
the employer.” (emphasis added) (footnote omitted)); id. § 56.05, at 56-21 (“Note
that in establishing a prima facie case an employee is required to notify an
employer of the need for accommodation.”).
33
b
The EEOC seeks to escape the effect of our decisions in Toledo and
Thomas—which, on their face, seem to require an employee (or prospective
employee) to establish that “he or she informed his or her employer of this
[religious] belief” that conflicts with the employer’s work requirement. Thomas,
225 F.3d at 1155; accord Toledo, 892 F.2d at 1486. The EEOC maintains that
these cases “did not address whether the only permissible source of the
employer’s awareness of the subject religious belief was the employee or
applicant herself.” Aplee. Br. at 36–37; see id. at 36 (“In Thomas this Court was
not faced with the question of whether to establish a prima facie case, the plaintiff
had to produce evidence that the employer’s awareness of her religious belief
came from her and not some other source.”). The district court agreed that our
precedent, and notably Thomas, did not resolve this notice question. See Aplt.
App. at 580 (citing Thomas and noting that “the Tenth Circuit has not addressed
the question of whether notice must be explicitly requested by the employee”).
Even under the linguistic formulation of the second element of the prima facie
case found in Toledo and Thomas, reasons the EEOC, “the critical fact is the
existence of the notice itself, not how the employer came to have such notice.”
Aplee. Br. at 31.
As support for its broader view of the notice requirement, the EEOC relies
34
on the Eleventh Circuit’s decision in Dixon, 627 F.3d 849, and the district court’s
decision in Hellinger v. Eckerd Corp., 67 F. Supp. 2d 1359 (S.D. Fla. 1999). See
Aplee. Br. at 30–31. The district court in the instant case reached a similar
conclusion regarding the notice requirement. See Aplt. App. at 581 (“[F]aced
with the issue of whether the employee must explicitly request an accommodation
or whether it is enough that the employer has notice [that] an accommodation is
needed[,] the Tenth Circuit would likely opt for the latter choice.” (footnote
omitted)). In doing so, it cited the same authorities as the EEOC, and additional
ones. See id. at 580–81 (citing, in addition, Brown v. Polk Cnty., 61 F.3d 650,
654 (8th Cir. 1995) (en banc)); Heller v. Ebb Auto Co., 8 F.3d 1433, 1439 (9th
Cir. 1993)). However, as a general matter, we are not persuaded by the EEOC’s
position.
To begin, we are not convinced that we are at liberty to disregard the plain
terms of our Toledo and Thomas decisions, which place the prima facie burden on
the plaintiff to establish that the applicant or employee has initially informed the
employer of the conflicting religious practice and the need for an accommodation.
Moreover, even if the plain language of our precedent left the resolution of the
question unclear, construing that language to require the applicant or employee to
initially inform the employer of the conflicting religious practice and the need for
accommodation aligns our court with a substantial body of circuit precedent.
And, for the reasons that we explicate in Part II.C.2–4, infra, we believe that
35
these authorities embody the sounder legal view.
Furthermore, even were we to assume that Toledo and Thomas would
permit a plaintiff to establish a prima facie case without demonstrating that the
applicant or employee was the source of the employer’s notice of the need for a
religious accommodation, the EEOC could not prevail here. That is because such
notice would need to be based on an employer’s particularized, actual knowledge
of the key facts that trigger its duty to accommodate. And, as explicated below,
there is no genuine dispute of material fact that no Abercrombie agent responsible
for, or involved in, the hiring process had such actual knowledge—from any
source—that Ms. Elauf’s practice of wearing a hijab stemmed from her religious
beliefs and that she needed an accommodation for it. 8
8
Under Title VII, an employer is defined to include “any agent,” 42
U.S.C. § 2000e(b), and, in varying degrees, an employer may be held responsible
for the conduct of its agents. See, e.g., Meritor Sav. Bank, FSB v. Vinson, 477
U.S. 57, 72 (1986) (“We therefore decline the parties’ invitation to issue a
definitive rule on employer liability, but we do agree with the EEOC that
Congress wanted courts to look to agency principles for guidance in this area.”).
In the Title VII disparate-treatment context, ordinarily the identity of the person
acting as the employer’s decision-maker in the particular employment decision is
a significant fact—although not necessarily a determinative one. See Zamora v.
Elite Logistics, Inc., 478 F.3d 1160, 1166 (10th Cir. 2007) (en banc) (“In
determining whether the proffered reason for a decision was pretextual, we
examine the facts as they appear to the person making the decision.” (quoting
Watts v. City of Norman, 270 F.3d 1288, 1295 (10th Cir. 2001)) (internal
quotation marks omitted)); EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476,
484 (10th Cir. 2006) (“In the employment discrimination context, ‘cat’s paw’
refers to a situation in which a biased subordinate, who lacks decisionmaking
power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger
(continued...)
36
The authorities that the EEOC and the district court have relied upon
clearly have predicated their notice holdings on the employer’s particularized,
8
(...continued)
a discriminatory employment action.” (emphasis added)); cf. Conroy v. Vilsack,
707 F.3d 1163, 1173 n.3 (10th Cir. 2013) (noting that the plaintiff “does not
articulate a cat’s paw theory of liability”). The district court determined that Ms.
Cooke “had responsibility for hiring decisions at the Abercrombie” store where
Ms. Elauf sought employment. Aplt. App. at 581 n.11. Abercrombie argues to
the contrary; it asserts that the decision-maker was Mr. Johnson, noting that “both
Cooke and Johnson identified Johnson as the decision-maker.” Aplt. Opening Br.
at 16 n.7. In Thomas, we recognized that, although we employ the McDonnell
Douglas framework in the religion-accommodation context—as we do in the
disparate-treatment context—the nature of the inquiry is distinct. See 225 F.3d at1155 n.6 (noting that “the burden-shifting mechanism” of McDonnell Douglas is
employed “not to probe the subjective intent of the employer” but rather to permit
courts in the summary judgment context to “determine whether the various parties
have advanced sufficient evidence to meet their respective traditional burdens to
prove or disprove the reasonableness of the accommodations offered or not
offered” (quoting Smith v. Midland Brake, Inc., 180 F.3d 1154, 1178 n.12 (10th
Cir. 1999) (en banc)) (internal quotation marks omitted)). Whether the identity of
the decision-maker is also a significant fact in the religion-accommodation
context is a question that we need not endeavor to answer here. Cf. Kimbro v. Atl.
Richfield Co., 889 F.2d 869, 874 (9th Cir. 1989) (analyzing a Washington State
disability statute requiring employers “to make a reasonable accommodation” and
noting “we believe that the district court erred in finding that [the employer’s]
management’s lack of personal knowledge of [the employee’s] migraine condition
insulates the company from liability; [the employer] was in fact on notice of [the
employee’s] condition as a result of [the employee’s] supervisor’s full awareness
of his condition and thus must be held responsible for any failure to attempt a
reasonable accommodation”). It is undisputed that Ms. Cooke and Mr. Johnson
were agents of Abercrombie; that fact suffices for our purposes. If, as we
demonstrate infra, there is no genuine dispute of material fact that no
Abercrombie agent responsible for, or involved in, the hiring process—that is,
Ms. Cooke and Mr. Johnson—possessed particularized, actual knowledge, from
any source, that Ms. Elauf’s practice of wearing a hijab stemmed from her
religious beliefs and that she needed an accommodation for it, it ineluctably
follows that no Abercrombie decision-maker (whether Ms. Cooke or Mr. Johnson,
or both) possessed this requisite knowledge.
37
actual knowledge. We need not (and do not) endorse their specific holdings and,
in particular, their conclusions about how much actual knowledge is sufficient to
put an employer on notice of the need to accommodate; yet, there is no doubt that
these cases settled for nothing less than some significant measure of
particularized, actual knowledge.
In Dixon, for example, the plaintiffs “presented evidence that they are
sincere, committed Christians who oppose efforts to remove God from public
places.” 627 F.3d at 855. In rejecting the employer’s contention that the
plaintiffs had never advised them of their need for a religious accommodation, the
Eleventh Circuit stated:
[The employer] knew that the [plaintiffs] were dedicated
Christians who had previously opposed policies prohibiting the
public display of religious items. . . . [The employer] argues that
the [plaintiffs] never expressly told [their supervisor] that they
did not want to take down their artwork because they opposed
efforts to remove God from public places. However, we
conclude that if [the supervisor] was aware of the tension
between her order and the [plaintiffs’] religious beliefs—and
there is ample evidence that she was—her awareness would
satisfy the second prong.
Id. at 855–56. In other words, in concluding that the plaintiffs had satisfied the
second element of their prima facie case related to notice, the Eleventh Circuit
determined that the employer had actual knowledge of the religious beliefs of the
particular plaintiffs and of the actual conflict between those beliefs and the
employer’s work rules. As to the latter point, based upon the plaintiffs’ prior
38
affirmative and open opposition to the employer’s policies regarding the display
of religious items, the employer had actual knowledge that the plaintiffs’ beliefs
about the removal of God from public places were inflexible and not simply a
personal preference.
The district court in Hellinger (the other case upon which the EEOC relies)
put an even finer point on the actual-knowledge issue. The plaintiff there was “an
Orthodox Jew” who “applied for a part-time position with [the employer] as a
pharmacist.” 67 F. Supp. 2d at 1361. “Although Plaintiff cannot sell condoms
due to his religious beliefs, he did not list any religious restrictions on his
application or make any request for an accommodation. Nor did he inform [the
employer’s hiring agent] about his religious beliefs or restrictions at the time he
dropped off his application.” Id.It was undisputed that the employer’s hiring agent was “informed” by
another of its employees, who was listed as “one of the Plaintiff’s references,”
“that the Plaintiff refused to sell condoms due to his religious beliefs” and that
the hiring agent, consequently, “decided not to pursue the Plaintiff’s application
for employment.” Id. Nevertheless, the employer “argue[d] that the Plaintiff
cannot establish a prima facie case of religious discrimination because the
Plaintiff did not inform the Defendant of his religious restriction or his need for
accommodation.” Id. at 1360. The district court would have none of that
39
argument. Although the district court cautioned that it was “not plac[ing] the
burden of inquiry on the employer,” id. at 1364, it held “that the Plaintiff sets
forth a prima facie case of religious discrimination because [the employer] had
actual knowledge of the Plaintiff’s religious beliefs and decided not to pursue the
Plaintiff’s employment application based on that information,” id. at 1360.
Furthermore, the additional authorities that the district court relied upon in
the instant case are of the same or similar effect in that they insist on nothing less
than the employer’s particularized, actual knowledge to satisfy the second
element of the prima facie case. See Brown, 61 F.3d at 654 (“[W]e reject the
defendants’ argument that because [the plaintiff] never explicitly asked for
accommodation for his religious activities, he may not claim the protections of
Title VII. . . . Because the first reprimand related directly to religious activities
by [the plaintiff], we agree with the district court that the defendants were well
aware of the potential for conflict between their expectations and [the plaintiff’s]
religious activities.”); Heller, 8 F.3d at 1436, 1439 (holding that the plaintiff
established the second element of his prima facie case for failure to accommodate
his “religious practice of attending the ceremony in which his wife and children
were converted to Judaism,” where the plaintiff’s supervisor “knew” that he was
Jewish, “knew” that his “wife was studying for conversion,” and “when [the
plaintiff] requested the time off, he informed the [supervisor] why he needed to
miss work”).
40
In other words, even were we to assume that an employer may be put on
notice from a source other than applicants or employees, that source would need
to provide the employer with sufficient information such that the employer would
have actual knowledge that the conflicting practice of the particular applicants or
employees is based upon their religious beliefs and that they need an
accommodation for it. Thus, even under this broader view of the notice
requirement, a plaintiff—that is, an applicant or employee—should not be able to
impose liability on an employer for failing to accommodate his or her religious
practice on the ground that the employer should have guessed, surmised, or
figured out from the surrounding circumstances, that the practice was based upon
his or her religion and that the plaintiff needed an accommodation for it.
Accordingly, even were we to adopt the EEOC’s position, as supported by its
authorities, the employer’s notice would need to be based upon its particularized,
actual knowledge of the key facts that trigger its duty to provide a reasonable
religious accommodation—that is, based upon actual knowledge that the
conflicting practice of the particular applicant or employee stems from his or her
religion and that the applicant or employee needs an accommodation for it
(because the practice is an inflexible one).
The EEOC cannot make this showing here: there is no genuine dispute of
material fact that no Abercrombie agent responsible for, or involved in, the hiring
process had particularized, actual knowledge—from any source—that Ms. Elauf’s
41
practice of wearing a hijab stemmed from her religious beliefs and that she
needed an accommodation for it. Therefore, the EEOC cannot prevail.
In particular, we conclude that the record offers absolutely no support for
the district court’s determination that Ms. “Cooke knew [that Ms. Elauf] wore the
head scarf based on her religious belief.” Aplt. App. at 581 (emphasis added).
The EEOC also is clearly mistaken on this point. See Aplee. Br. at 46 (“It is
uncontested that Cooke was aware of Elauf’s religious belief and its conflict with
the Look Policy . . . .”). At best, when viewed in the light most favorable to the
EEOC, the record indicates that Ms. Cooke assumed that Ms. Elauf wore her hijab
for religious reasons and felt religiously obliged to so—thus creating a conflict
with Abercrombie’s clothing policy.
More specifically, Ms. Cooke testified as follows: that she had seen Ms.
Elauf wearing a headscarf prior to the interview, but “did not know” Ms. Elauf’s
religion, Aplt. App. at 365; that she “assumed that she was Muslim,” id.(emphasis added), and “figured that was the religious reason why she wore her
head scarf,” Aplee. Supp. App. at 48 (emphasis added), and she assumed that, if
Ms Elauf were hired by Abercrombie as a Model, she would continue to wear her
headscarf, see id. at 46 (answering “Yes, I did.” to the question, “And you
assumed if [Ms. Elauf] worked at Abercrombie, she would still be wearing [a
headscarf]?”).
42
In the interview, Ms. Cooke did not ask Ms. Elauf if she was a Muslim.
And for reasons that we have explored at length, see Part II.B.1, supra, given
Title VII’s conception of religion as a uniquely personal and individual matter,
Ms. Cooke’s knowledge that Ms. Elauf elected to wear a hijab would be far from
sufficient information to provide her with the requisite notice that would trigger
an employer’s duty to accommodate. See Wilkerson, 522 F.3d at 319 (“[S]imply
announcing one’s belief in a certain religion, or even wearing a symbol of that
religion (i.e., a cross or Star of David) does not notify the employer of the
particular beliefs and observances that the employee holds in connection with her
religious affiliation.” (emphasis added)); Reed, 330 F.3d at 935–36 (“A person’s
religion is not like his sex or race—something obvious at a glance. Even if he
wears a religious symbol, such as a cross or a yarmulka, this may not pinpoint his
particular beliefs and observances . . . .” (emphasis added)); see also Aplt. App.
at 292 (indicating that the EEOC’s expert offered, as an explanation for why
people maintain certain styles of dress, “it really is, the question is, what is their
motivation”). In sum, Ms. Cooke’s testimony does not even come close to
establishing that Ms. Cooke possessed particularized, actual knowledge that Ms.
Elauf (and not some hypothetical Muslim female) wore a hijab because of her
Islamic faith and felt religiously obliged to do so, and thus would require a
religious accommodation in order to address the conflict with Abercrombie’s
43
clothing policy. 9
Moreover, even construing the facts (as we must) in the light most
favorable to the EEOC, the fact that Ms. Cooke called Mr. Johnson to discuss the
possibility of an accommodation does nothing to rectify this fundamental
evidentiary deficiency in the EEOC’s case. Ms. Cooke’s conduct following the
interview was all based on her admitted assumption regarding Ms. Elauf’s
religious beliefs and required practices. See Aplt. App. at 76–77 (“I was unsure
9
The EEOC suggests that, even if Ms. Cooke’s understanding of Ms.
Elauf’s religious beliefs and her need for an accommodation was solely
predicated on her assumption, her assumption was actually correct, so
Abercrombie was put on adequate notice. See Aplee. Br. at 45 (“It is uncontested
that Cooke correctly interpreted Elauf’s wearing a headscarf as indicating that she
is Muslim and wore the headscarf for a religious purpose. As such, . . . the court
would still be correct that it was uncontested that Abercrombie was on sufficient
notice of Elauf’s religious belief.”). There is no foundation in the law for the
view that the requisite notice for purposes of a Title VII religion-accommodation
claim could ever conceivably rest on anything less than an employer’s
particularized, actual knowledge; that an employer was able to make a correct
guess or assumption would not mean that the employer possessed such actual
knowledge. Simply put, a correct assumption does not equal actual knowledge.
And this basic truth takes on considerable significance in the religion-
accommodation context because once the employer is found to have received
sufficient notice, the employer must actively engage in the interactive
accommodation process. But an employer would not know whether its guess or
assumption was correct until after the fact, so there would be instances in which
the employer would begin participating in the interactive process based upon a
guess or assumption—and invariably discuss or explore the purported religious
beliefs and needs of an applicant or employee—when there actually was no need
to do so (i.e., because the employer’s assumption or guess was wrong). This
approach would run afoul of the EEOC’s own express policy guidance, which
discourages employers from initiating discussions about the religious beliefs of
applicants (or employees) and from operating in the accommodation process
based upon stereotypes, speculation, and conjecture. See Part II.B.2, supra.
44
about the head scarf . . . . I told [Mr. Johnson] that I believed that [Ms. Elauf]
was Muslim, and that was a recognized religion. And that she was wearing it for
religious reasons.” (emphasis added)). She did not possess the requisite actual
knowledge concerning these matters. And any awareness that Mr. Johnson had of
Ms. Elauf’s religious beliefs and required practices would have been derived
solely from Ms. Cooke’s assumption; so, Mr. Johnson, too, possessed no
particularized, actual knowledge.
Yet, the only two Abercrombie agents who could conceivably be deemed to
have had any responsibility for, or involvement in, the hiring process regarding
Ms. Elauf, were Ms. Cooke and Mr. Johnson. 10 Therefore, even if the EEOC were
permitted as a matter of law to establish the second element of its prima facie
case by showing that the employer possessed particularized, actual knowledge
from a source other than the applicant or employee of the key facts that trigger its
duty to provide a reasonable religious accommodation, the EEOC could not do so
here because neither Ms. Cooke nor Mr. Johnson (i.e., the relevant agents of the
10
It is true that, in responding to Ms. Elauf’s inquiry about wearing a
headscarf, Ms. Sepahvand (her friend and an Abercrombie employee) testified
that she had raised the issue with assistant manager Kalen McJilton, who knew
Ms. Elauf from her prior visits to the store. Noting that he had previously worked
at Abercrombie with someone who wore a white yarmulke, Mr. McJilton
suggested that he did not see any problem with Ms. Elauf wearing a headscarf,
“especially if she didn’t wear a headscarf that was black.” Aplee. Supp. App. at
181 (internal quotation marks omitted). However, there is no evidence that Mr.
McJilton had any responsibility for, or involvement in, the hiring process
regarding Ms. Elauf.
45
employer) possessed such knowledge. Accordingly, even under the broader view
of the notice requirement that the EEOC principally espouses here, it cannot
prevail. 11
11
We note that the EEOC also takes a different tack to defeat this
outcome. Recall that, following her discussion with Mr. McJilton, Ms.
Sepahvand communicated to Ms. Elauf that a headscarf would be permitted, but
because of Abercrombie’s no-black-clothing policy, she would not be able to
wear a black one. Based upon this relaying of information, the EEOC argues that
“there is no evidence suggesting that Elauf had any reason to believe that her
headscarf had not already been approved by Abercrombie, or that Elauf had any
reason to ask any questions about her headscarf at the interview.” Aplee. Br. at
45. The EEOC’s argument, however, is wholly unpersuasive. Ms. Elauf could
not possibly have formed a reasonable judgment in these circumstances based
upon second-hand information delivered by her friend, Ms. Sepahvand—who was
not herself a member of Abercrombie management, nor involved in Ms. Elauf’s
hiring process—that Abercrombie had agreed to accommodate her practice of
wearing a hijab and, as a consequence, that she was free to remain silent about
that practice in the interview. This is especially true because, prior to the
interview, Ms. Elauf was well aware that employee attire was a significant matter
to Abercrombie—that is, a matter of considerable consequence—and the person
who Ms. Elauf reasonably could have concluded had some responsibility in her
hiring process, Ms. Cooke, expressly raised the topic of employee attire in the
interview without indicating that Abercrombie would accommodate Ms. Elauf’s
practice of wearing a hijab. Contrary to the EEOC’s contention, then, we
conclude that there was no evidence to reasonably support the notion that
Abercrombie’s conduct led Ms. Elauf to believe she had no need to speak up to
secure an accommodation for her claimed religious practice of wearing a
headscarf.
Moreover, lest there be any doubt, an employer is not legally obligated
under Title VII to prompt applicants or employees to deliver notice of the need
for a religious accommodation, by initially recounting a laundry list of all of the
practices that employees cannot do in the workplace. The burden rests with
applicants or employees to ensure that the workplace will be a suitable work
environment for them, in light of their required religious practices. See
Chalmers, 101 F.3d at 1019 (“Initially, [the plaintiff] asserts that [the employer]
(continued...)
46
We do recognize that in its briefing, the EEOC intimates that something
less than an employer’s particularized, actual knowledge would suffice. See
Aplee. Br. at 34 (“[T]his is not to say that employers are required to inquire of
applicants or employees as to whether there are any religious beliefs that need to
be accommodated, absent some reasonable indication to the employer that an
accommodation may be needed.” (emphases added)). However, it cites no
authorities to support this proposition, and we are not aware of any. See Aplt.
Reply Br. at 2 (“Had courts intended that ‘reasonable indication’ (or some other
sort of constructive notice) be sufficient to satisfy the prima facie case, they
would have said so.”).
In sum, we hold that, in order to establish the second element of their prima
facie case under Title VII’s religion-accommodation theory, ordinarily plaintiffs
must establish that they initially informed the employer that they engage in a
11
(...continued)
never explicitly informed her of a company policy against writing religious letters
to fellow employees at their homes and so she had no reason to request an
accommodation. However, companies cannot be expected to notify employees
explicitly of all types of conduct that might annoy co-workers, damage working
relationships, and thereby provide grounds for discharge.” (citation omitted)
(internal quotation marks omitted)). Thus, the EEOC’s suggestion to the contrary
is misguided. See EEOC Response to Abercrombie’s Rule 28(j) Letter, No. 11-
5110, at 1 (10th Cir., filed May 11, 2012) (“[I]t is uncontested that Elauf was not
informed at any time by Abercrombie that it has an unwritten prohibition on
Models wearing headscarves. Therefore, there was no reason for Elauf to believe
there was any conflict requiring accommodation.” (citation omitted)); see also
Aplt. App. at 55 (testifying that Ms. Cooke did not tell her (Ms. Elauf) that she
“wouldn’t be able to wear [her headscarf] or anything like that”).
47
particular practice for religious reasons and that they need an accommodation for
the practice, due to a conflict between the practice and the employer’s work rules.
As noted, we recognize that some courts have taken a different path on this
question. However, we are confident that our approach is the sounder one.
2
Given Title VII’s conception of religion and the interactive nature of the
religion-accommodation process, we are hard-pressed to see how we could
logically reach another conclusion regarding the notice element of the prima facie
case. This is because the answers to the key questions that determine whether an
employer has an obligation under Title VII to provide a reasonable religious
accommodation ordinarily are only within the ken of the applicant or employee;
because an employer’s obligation to engage in the interactive religion-
accommodation process is only triggered when the employer has answers to those
questions; and because, in implementing Title VII’s anti-discrimination mandate,
the EEOC has expressly disapproved of employers inquiring in the first instance
or speculating about the answers to such questions.
For example, recall that Title VII only obliges employers to provide a
reasonable accommodation for practices that applicants or employees engage in
because of bona fide, sincerely held religious beliefs. See, e.g., EEOC Q & A,
supra (“Title VII requires employers to accommodate only those religious beliefs
48
that are religious and sincerely held . . . .” (internal quotation marks omitted)).
As noted, those beliefs are defined broadly, but “typically concern[] ultimate
ideas about life, purpose, and death.” EEOC Compliance Manual § 12-I(A)(1)
(internal quotation marks omitted). Title VII does not extend its protections to
practices that are engaged in as a matter of personal preference or for cultural
reasons, see, e.g., Reed, 330 F.3d at 935 (“[A]n employee is not permitted to
redefine a purely personal preference or aversion as a religious belief.”), and no
matter how strongly an applicant or employee believes in certain political,
economic, or social ideas, if those ideas do not otherwise relate to the stuff of
religion (e.g., ultimate notions about life, purpose, or death), then practices based
upon them do not fall within Title VII’s protective ambit, see, e.g., EEOC
Compliance Manual § 12-I(A)(1).
But how is an employer to know that applicants or employees are engaged
in a practice for religious reasons, unless they inform the employer? Cf. id.
(“Determining whether a practice is religious turns not on the nature of the
activity, but on the employee’s motivation. The same practice might be engaged
in by one person for religious reasons and by another person for purely secular
reasons.”). To be sure, in certain instances, applicants or employees may engage
in practices that are traditionally associated with a particular religion. However,
Title VII does not require employers to become knowledgeable about the customs
and observances of religions. See, e.g., Wilkerson, 522 F.3d at 319 (“[W]e do not
49
impute to the employer the duty to possess knowledge of particularized beliefs of
religious sects.”); Reed, 330 F.3d at 936 (noting that “employers are not charged
with detailed knowledge of the beliefs and observances associated with particular
sects”); EEOC Compliance Manual § 12-IV(A)(1) (noting that an employee
“cannot assume that the employer will already know or understand” “the religious
nature of the belief or practice at issue”).
Furthermore, even if an employer was generally aware of the beliefs and
observances that are traditionally associated with a particular religious group, and
also knew that the applicant or employee displayed symbols associated with that
group—or even that the applicant or employee specifically claimed to be a
member of that group—ordinarily, the employer would still not know whether the
conflicting practice in question actually stemmed from religious beliefs unless the
particular applicant or employee informed the employer, because under Title VII,
as we have discussed, religion is a uniquely personal and individual matter. See,
e.g., EEOC Compliance Manual § 12-I(A)(1) (“An employee’s belief or practice
can be ‘religious’ under Title VII even if the employee is affiliated with a
religious group that does not espouse or recognize that individual’s belief or
practice, or if few – or no – other people adhere to it.” (emphasis added)); see
also id. (“[A] person’s religious beliefs need not be confined in either source or
content to traditional or parochial concepts of religion. A belief is religious for
Title VII purposes if it is religious in the person’s own scheme of things . . . .”
50
(emphasis added) (footnotes omitted) (internal quotation marks omitted)). In
holding that Title VII places a “duty on the employee to give fair warning of the
employment practices that will interfere with his religion,” Reed, 330 F.3d at 935,
the Seventh Circuit succinctly and cogently touched on a like point. Specifically,
the court in Reed stated: “A person’s religion is not like his sex or
race—something obvious at a glance. Even if he wears a religious symbol, such
as a cross or a yarmulka, this may not pinpoint his particular beliefs and
observances . . . .” Id. at 935–36 (emphasis added).
Similarly, in upholding the dismissal of the plaintiff’s religion-
accommodation claim because she failed to inform her employer of her need for
an accommodation due to a conflict between her Christian beliefs and the
employer’s “libation” or alcohol-drinking ceremony, the Third Circuit in
Wilkerson rejected the plaintiff’s suggestion that the employer’s knowledge that
she was a Christian was enough to trigger its accommodation obligation.
Specifically, the Third Circuit stated, “that [the employer] knew she was a
Christian does not sufficiently satisfy [the plaintiff’s] duty to provide ‘fair
warning’ to [the employer] that she possessed a religious belief that specifically
prevented her from participating in the libations ceremony.” Wilkerson, 522 F.3d
at 319 (emphasis added). Indeed, the Third Circuit went further and concluded
that even if the employer “suspected” that the libations ceremony would be
specifically offensive to the plaintiff, that would not relieve the plaintiff of the
51
obligation to “inform the defendants that the libation ceremony would offend her
religious beliefs.” Id. at 319–20 (emphasis added). In the same vein, in
upholding the denial of the plaintiff’s religion-accommodation claim, the Fourth
Circuit rejected the plaintiff’s argument that the employer’s knowledge of the
plaintiff’s strongly held religious beliefs was enough to “put it on notice” that
those beliefs would—in the plaintiff’s view—oblige her to “write, and send,
personal, accusatory letters to co-workers at their homes.” Chalmers, 101 F.3d at1020 n.3. Therefore, even if an employer were on notice that an applicant or
employee subscribed to a particular religious belief system, because religion
under Title VII is a uniquely personal matter, that information would not be
enough to tell the employer what practices are religious in “the person’s own
scheme of things.” EEOC Compliance Manual § 12-I(A)(1) (internal quotation
marks omitted). Ordinarily, the only way the employer would know such
information is if the applicant or employee informed the employer.
Knowing this much demonstrates why the most natural reading of Title
VII’s religion-accommodation provision is one that ordinarily places the burden
on the applicant or employee to inform the employer of the conflicting religious
practice and the need for an accommodation, and why a contrary reading of the
statute would be patently unfair to employers. Reed provides a hypothetical that
powerfully underscores this point:
52
Suppose the employee is an Orthodox Jew and believes that it is
deeply sinful to work past sundown on Friday. He does not tell
his employer, the owner of a hardware store that is open from 9
a.m. to 6 p.m. on Fridays, who leaves the employee in sole
charge of the store one Friday afternoon in mid-winter, and at 4
p.m. the employee leaves the store. The employer could fire him
without being thought guilty of failing to accommodate his
religious needs.
330 F.3d at 936. A contrary reading of the statute would be, we think, misguided
and quite unfair because “at that time” when the employer fired the employee
“there was nothing to accommodate.” Wilkerson, 522 F.3d at 319. As in Reed,
“[t]his case is similar” to the hypothetical: Ms. Elauf undisputedly did not inform
Abercrombie that her conflicting practice of wearing a hijab stemmed from her
religious beliefs and that she needed an accommodation; consequently, as with the
hypothetical employer, Abercrombie could elect not to hire Ms. Elauf “without
being thought guilty of failing to accommodate [her] religious needs.” 330 F.3d
at 936. Nothing was present to accommodate.
Moreover, contrary to the EEOC’s suggestion at oral argument, see Oral
Arg. at 26:40–27:10, the fact that an applicant’s headscarf (like Ms. Elauf’s) was
visible would not materially distinguish her circumstances from those of the
person whose religious beliefs did not allow for work on the Sabbath. Even
though that person’s religious beliefs regarding the Sabbath would be invisible to
the naked eye, so would the religious significance that the applicant attached to
wearing the headscarf. As noted, Muslim women (and certainly non-Muslim
53
women) wear headscarfs for reasons other than religion, and whether they are
doing so for religious reasons depends on their (invisible) “motivation.” EEOC
Compliance Manual § 12-I(A)(1); see Aplt. App. at 292 (indicating that the
EEOC’s expert opined, regarding the reasons why people maintain certain dress,
“it really is, the question is, what is their motivation”). Therefore, employers
confronted with the Sabbath-adherent and the headscarf-wearer would be
similarly situated—that is, they would not reasonably be put on notice of the need
for a religious accommodation unless they were informed of it by the applicant.
Lastly, even if an employer has particularized, actual knowledge of the
religious nature of the practice—that is, knowledge that the practice of a
particular applicant or employee stems from his or her religious beliefs—that still
would not be sufficient information to trigger the employer’s duty to offer a
reasonable accommodation. That is because the applicant or employee may not
actually need an accommodation. In other words, an applicant or employee may
not consider his or her religious practice to be inflexible; that is, he or she may
not feel obliged by religion to adhere to the practice. If that is the situation, then
there actually is no conflict, nor a consequent need for the employer to provide a
reasonable accommodation. Given that “[a] belief is religious for Title VII
purposes if it is religious in the person’s own scheme of things,” EEOC
Compliance Manual § 12-I(A)(1) (emphasis added) (internal quotation marks
omitted), whether a particular practice is religiously required is ultimately a
54
question that only a particular individual can answer—even if the same practice is
customarily required in the religion that the person claims to follow. Cf. Turner,
2009 WL 2567962, at *2 (noting that the record did not indicate that the plaintiff
ever told his employer “that his religious beliefs required a meeting with his
pastor at that time or that the meeting was anything other than a personal
preference” (emphasis added)).
As we suggested in Thomas, Title VII’s “interactive process . . . requires
participation by both the employer and the employee.” 225 F.3d at 1155(emphasis added). Yet, how can an employer meaningfully participate in the
accommodation process, when it lacks concrete information from which to discern
a need to do so? See Wilkerson, 522 F.3d at 319 (“Because [the plaintiff] did not
inform [her employer] that the [libation] ceremony presented a [religious]
conflict, it did not have a duty to accommodate her. Although [the plaintiff] told
[her employer] after the fact, at that time there was nothing to accommodate.”
(emphasis added)); Larson, supra, § 56.05, at 56-21 (“Indeed, it would seem
unreasonable to require an employer to accommodate the religious practices of an
employee when the employer is unaware of the need to do so.” (emphases
added)).
It is true that logic does not perforce dictate that just because the foregoing
critical questions ordinarily must be answered by the particular applicant or
55
employee, before the employer’s duty to offer a reasonable accommodation is
triggered, that the applicant or employee must initiate the communication: it is
conceivable that one could fashion a regulatory regime in which the employer was
obliged to inquire in the first instance concerning the religious beliefs and needs
of applicants or employees. Yet, under Title VII’s interactive accommodation
scheme, it is clear that, not only is the employer not obliged to make such
religious inquiries, the employer is affirmatively discouraged from doing so
because “an applicant’s religious affiliation or beliefs . . . are generally viewed as
non job-related and problematic under federal law.” EEOC Pre-Employment
Inquiries, supra; see, e.g., Prise, 657 F. Supp. 2d at 597 (noting that questioning
applicants concerning their religious beliefs could, “under some circumstances,
permit an inference to be drawn that an employer engaged in improper religion-
based discrimination”); EEOC Best Practices, supra (“In conducting job
interviews, employers can ensure nondiscriminatory treatment by . . . inquiring
about matters directly related to the position in question.”). Furthermore, as we
have discussed, in the religion-accommodation context, the EEOC has specifically
cautioned employers to “avoid assumptions or stereotypes about what constitutes
a religious belief or practice or what type of accommodation is appropriate.”
EEOC Best Practices, supra; see id. (noting that “[m]anagers and employees
should be trained not to engage in stereotyping based on religious dress and
grooming practices”). Thus, if under Title VII an employer is affirmatively
56
discouraged from asking applicants or employees whether their seemingly
conflicting practice is based on religious beliefs, and, if so, whether they actually
will need an accommodation for the practice, because it is inflexible (i.e., truly
conflicting), and the employer also is discouraged by the EEOC from speculating
about such matters, then the interactive accommodation process ordinarily only
can be triggered when applicants or employees first provide the requisite
information to the employer.
In sum, in light of Title VII’s conception of religion and the interactive
nature of the religion-accommodation process, we have difficulty seeing how we
could logically reach a conclusion other than the one that we explicate here
regarding the notice element of the prima facie case.
3
a
We also find further support for our view of the notice requirement—which
places the onus on the applicant or employee to initially provide explicit notice to
the employer of the conflicting religious practice and the need for an
accommodation—in references found in the EEOC’s own regulations and policy
documents regarding the source of the employer’s notice. These
authorities—repeatedly, expressly, and unequivocally—assign the notice
responsibility to the applicant or employee. Beginning with its substantive
57
regulation, the EEOC states, “After an employee or prospective employee notifies
the employer . . . of his or her need for a religious accommodation, the employer
. . . has an obligation to reasonably accommodate the individual’s religious
practices.” 29 C.F.R. § 1605.2(c)(1) (emphasis added). In other words, by its
plain terms, the regulation contemplates that the employer’s duty to provide a
reasonable religious accommodation comes after it receives notice from the
prospective employee or employee. If no such notice is provided, it would seem
to ineluctably follow under the regulation that the employer has no duty to
provide a reasonable religious accommodation and cannot (as a matter of law) be
held liable for failing to do so.
The agency’s compliance manual follows suit and, notably, underscores
that the notice provided by the applicant or employee cannot consist of “vague
reference[s],” Johnson, 762 F.2d at 673, but instead must be specific:
An applicant or employee who seeks religious accommodation
must make the employer aware both of the need for
accommodation and that it is being requested due to a conflict
between religion and work. The employee is obligated to explain
the religious nature of the belief or practice at issue, and cannot
assume that the employer will already know or understand it.
EEOC Compliance Manual § 12-IV(A)(1).
To be sure, there is not any particular talismanic litany that the applicant or
employee must recite to effectively put the employer on notice. In this regard,
58
the EEOC states, “No ‘magic words’ are required to place an employer on notice
of an applicant’s or employee’s conflict between religious needs and a work
requirement. To request an accommodation, an individual may use plain language
and need not mention any particular terms such as ‘Title VII’ or ‘religious
accommodation.’” Id. But the EEOC does insist that the applicant or employee
“provide enough information to make the employer aware that there exists a
conflict between the individual’s religious practice or belief and a requirement for
applying for or performing the job.” 12 Id.
12
Indeed, the EEOC effectively underscores by a hypothetical that an
applicant or employee cannot remain silent before the employer regarding the
religious nature of his or her conflicting practice and need for an accommodation
and still hope to prevail in a religion-accommodation case:
EXAMPLE 29
Failure to Advise Employer That Request Is Due to
Religious Practice or Belief
Jim agreed to take his employer’s drug test but was terminated
because he refused to sign the accompanying consent form.
After his termination, Jim filed a charge alleging that the
employer failed to accommodate his religious objection to
swearing an oath. Until it received notice of the charge, the
employer did not know that Jim’s refusal to sign the form was
based on his religious beliefs. Because the employer was not
notified of the conflict at the time Jim refused to sign the form,
or at any time prior to Jim’s termination, it did not have an
opportunity to offer to accommodate him. The employer has not
violated Title VII.
EEOC Compliance Manual § 12-IV(A)(1) (emphasis added). In our view, the
facts of this hypothetical are closely akin to the facts present here: at no point
(continued...)
59
And other policy documents of the EEOC are of similar import, placing the
burden on the applicant or the employee to provide notice to the employer of the
conflicting religious practice and the need for an accommodation. See, e.g.,
EEOC Best Practices, supra (noting that “[e]mployees should advise their
supervisors or managers of the nature of the conflict between their religious needs
and the work rules” and they “should provide enough information to enable the
employer to understand what accommodation is needed, and why it is necessitated
by a religious practice or belief”); EEOC Q & A, supra (responding to the
question, “[h]ow does an employer learn that accommodation may be needed?” by
stating, “[a]n applicant or employee who seeks religious accommodation must
make the employer aware both of the need for accommodation and that it is being
requested due to a conflict between religion and work” (emphasis added)). In
sum, the clear, unequivocal guidance reflected in the EEOC’s own regulation and
policy documents supports our view that the onus is upon the applicant or
employee to initially provide explicit notice to the employer of the conflicting
religious practice and the need for an accommodation.
12
(...continued)
during her interview with Ms. Cooke (Abercrombie’s agent) did Ms. Elauf
expressly inform her—directly or indirectly—that she wore her hijab for religious
reasons and felt obliged to do so, and, therefore, would need an accommodation.
Like the hypothetical employer, Abercrombie did not have a chance to
accommodate Ms. Elauf’s allegedly religious practice.
60
b
The EEOC intimates that this reading of its regulation and policy
documents is too facile. See Aplee. Br. at 39 (“These policy documents and
regulations do not elevate form over substance and require this Court to take a
nonsensical approach to the notice requirement.”). In effect, the EEOC contends
that the plain language of these materials do not tell the complete story because
they do not take into account the circumstances of the instant case—where, in the
EEOC’s view, the employer had notice from a source other than an explicit
communication from the applicant of the need to provide a religious
accommodation. See id. at 38–39 (“[T]he Commission’s policy documents do not
address the situation where there is evidence that the employer was aware of the
applicant’s religious belief without the applicant herself so ‘informing’ it. . . . As
such, none of these policy documents indicates that an employer is excused from
its obligation to provide reasonable accommodation for an applicant’s religious
belief that conflicts with a work requirement simply because someone other than
the applicant herself informed the employer of the belief.” (quoting EEOC
Compliance Manual § 12-IV(A))); id. at 39 (“[A]s with the aforementioned policy
documents, the regulations do not address the situation where the employer is
otherwise aware of the individual’s religious belief, and accordingly do not
preclude a plaintiff from satisfying the notice requirement under such
circumstances.” (emphasis added)). The EEOC asserts that its reading of the
61
scope of its regulation, 29 C.F.R. § 1605.2(c), is entitled to Auer deference. See
Auer v. Robbins, 519 U.S. 452, 461 (1997).
However, we believe that the EEOC’s views are unpersuasive and cannot
control the outcome here. Notably, we conclude that “there are strong reasons for
withholding the deference that Auer generally requires.” Christopher v.
SmithKline Beecham Corp., --- U.S. ----, 132 S. Ct. 2156, 2167 (2012). “Auer
ordinarily calls for deference to an agency’s interpretation of its own ambiguous
regulation, even when that interpretation is advanced in a legal brief . . . .” Id. at
2166; see Chase Bank USA, N.A. v. McCoy, --- U.S. ----, 131 S. Ct. 871, 880
(2011) (“[W]e defer to an agency’s interpretation of its own regulation, advanced
in a legal brief . . . .”); see also Decker v. Nw. Envtl. Def. Ctr., --- U.S. ----, 133
S. Ct. 1326, 1337 (2013) (“When an agency interprets its own regulation, the
Court, as a general rule, defers to it . . . .”).
However, “this general rule does not apply in all cases.” Christopher, 132
S. Ct. at 2166; see, e.g., Harry T. Edwards et al., Federal Standards of Review,
ch. XIV (Westlaw Database updated Apr. 2013) [hereinafter Federal Standards]
(“[T]he deference afforded an agency’s interpretation of its own regulations is
significant, but it is not without limits.”). As a threshold matter, in order for Auer
deference to be warranted, “the language of the regulation in question must be
ambiguous, lest a substantively new rule be promulgated under the guise of
62
interpretation.” Drake v. FAA, 291 F.3d 59, 68 (D.C. Cir. 2002); see Christensen
v. Harris Cnty., 529 U.S. 576, 588 (2000) (“Auer deference is warranted only
when the language of the regulation is ambiguous. The regulation in this case,
however, is not ambiguous . . . . To defer to the agency’s position would be to
permit the agency, under the guise of interpreting a regulation, to create de facto a
new regulation.”).
Even if that threshold is crossed, there are other circumstances under which
the application of Auer deference would be unjustified:
Deference is undoubtedly inappropriate, for example, when the
agency’s interpretation is plainly erroneous or inconsistent with
the regulation. And deference is likewise unwarranted when
there is reason to suspect that the agency’s interpretation does
not reflect the agency’s fair and considered judgment on the
matter in question. This might occur when the agency’s
interpretation conflicts with a prior interpretation, or when it
appears that the interpretation is nothing more than a convenient
litigating position . . . .
Christopher, 132 S. Ct. at 2166 (citations omitted) (quoting Auer, 519 U.S. at461–62 (internal quotation marks omitted); Bowen v. Georgetown Univ. Hosp.,
488 U.S. 204, 213 (1988) (internal quotation marks omitted)).
In considering the appropriateness of deferring to an agency’s
interpretation, the Christopher Court also highlighted the importance of
safeguarding “the principle that agencies should provide regulated parties ‘fair
warning of the conduct [a regulation] prohibits or requires.’” 132 S. Ct. at 2167
63
(alteration in original) (quoting Gates & Fox Co. v. Occupational Safety & Health
Review Comm’n, 790 F.2d 154, 156 (D.C. Cir. 1986) (Scalia, J.)); see Drake, 291
F.3d at 68 (listing as one of the “preconditions for applying this socalled Auer
deference” that “the agency’s reading of its regulation must be fairly supported by
the text of the regulation itself, so as to ensure that adequate notice of that
interpretation is contained within the rule itself” (emphasis added)); see Federal
Standards, supra, ch. XIV (noting that “in Christopher . . . , the Court ruled that
no Auer deference would be afforded to an agency interpretation of a disputed
regulation if the statute, published regulations, and the agency’s prior
enforcement regime gave no notice to regulated parties of the interpretation
proposed by the agency during the course of litigation”). As the Christopher
Court elaborated:
It is one thing to expect regulated parties to conform their
conduct to an agency’s interpretations once the agency announces
them; it is quite another to require regulated parties to divine the
agency’s interpretations in advance or else be held liable when
the agency announces its interpretations for the first time in an
enforcement proceeding and demands deference.
132 S. Ct. at 2168.
We decline to accord Auer deference to the EEOC’s interpretation of its
own regulation, 29 C.F.R. § 1605.2(c)(1). First, it is far from clear that the
regulation is actually ambiguous concerning the central question before us:
whether applicants or employees initially must provide express notice to the
64
employer of their conflicting religious practice and their need for an
accommodation, in order to trigger the employer’s legal duty to provide a
reasonable religious accommodation. The regulation’s language seems to
“plainly” answer yes to that question. Christensen, 529 U.S. at 588; see id.(“Nothing in the regulation even arguably requires that an employer’s compelled
use policy must be included in an agreement. The text of the regulation itself
indicates that its command is permissive, not mandatory.”); cf. Chase Bank, 131
S. Ct. at 879–80 (noting that “the key question” was “whether the [interest-rate]
increase actually changed a ‘term’ of the Agreement that was ‘required to be
disclosed’” within the meaning of the regulation and concluding that the
regulation was “ambiguous as to the question presented, and [the Court] must
therefore look to [the agency’s] own interpretation of the regulation for guidance
in deciding this case”). And “if the text of a regulation is unambiguous,” as
appears to be the situation here, “a conflicting agency interpretation . . . will
necessarily be ‘plainly erroneous or inconsistent with the regulation’ in question.”
Chase Bank, 131 S. Ct. at 882 (quoting Auer, 519 U.S. at 461). Thus, at the
threshold, it is doubtful that Auer deference to the EEOC’s interpretation is
appropriate.
Second, even if the regulation were actually “ambiguous in its reach,”
Drake, 291 F.3d at 68, there would be “reason to suspect that the [EEOC’s]
interpretation does not reflect [its] fair and considered judgment on the matter in
65
question,” Auer, 519 U.S. at 462. As demonstrated above, through its
Compliance Manual and other policy documents, the EEOC has repeatedly,
explicitly, and unequivocally indicated that the notice necessary to trigger an
employer’s duty to provide a reasonable religious accommodation is notice that is
initially provided in express terms by applicants and employees. See, e.g., EEOC
Compliance Manual § 12-IV(A)(1) (“The employee is obligated to explain the
religious nature of the belief or practice at issue . . . .” (emphasis added)); EEOC
Best Practices, supra (noting that “[e]mployees should advise their supervisors or
managers of the nature of the conflict between their religious needs and the work
rules” and “should provide enough information to enable the employer to
understand what accommodation is needed, and why it is necessitated by a
religious practice or belief”). In other words, on prior occasions, the EEOC has
repeatedly taken a position on the notice question that is inconsistent, and
conflicts with, the interpretation of that question that it now seeks to engraft onto
its regulation.
In such a circumstance, Auer deference is “unwarranted.” Christopher, 132
S. Ct. at 2166; see id. (noting that the situation “might occur” where Auer
deference is unjustified because “the agency’s interpretation conflicts with a prior
interpretation”); see Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994)
(noting that “an agency’s interpretation of a statute or regulation that conflicts
with a prior interpretation is ‘entitled to considerably less deference’ than a
66
consistently held agency view” (quoting INS v. Cardoza-Fonseca, 480 U.S. 421,
446 n.30 (1987))); cf. Bowen, 488 U.S. at 212–13 (noting that “[f]ar from being a
reasoned and consistent view of the scope of [the statutory] clause,” the agency’s
“current interpretation . . . is contrary to the narrow view of that provision
advocated in past cases”); Drake, 291 F.3d at 69 (“Where the agency’s litigation
position is consistent with its past statements and actions, there is good reason for
the court to defer, for then the position seems ‘simply to articulate an explanation
of longstanding agency practice.’” (quoting Akzo Nobel Salt, Inc. v. Fed. Mine
Safety & Health Review Comm’n, 212 F.3d 1301, 1304 (D.C. Cir. 2000))).
Furthermore, the EEOC does not identify any prior instance where it has
taken the stance regarding notice that it does here, and its position does not
appear to be anything other than a creature of this proceeding—where it is “a
party to this case.” Chase Bank, 131 S. Ct. at 881. At least coupled with its prior
inconsistent conduct, this circumstance gives us some reason to suspect that the
EEOC’s view regarding notice is “nothing more than an agency’s convenient
litigating position”; as such, giving it Auer deference “would be entirely
inappropriate.” Bowen, 488 U.S. at 213; accord Christopher, 132 S. Ct. at 2166.
Moreover, we have difficulty concluding that the EEOC has provided
“adequate notice” (Drake, 291 F.3d at 68) or “fair warning” (Christopher, 132 S.
Ct. at 2167 (quoting Gates & Fox Co., 790 F.2d at 156) (internal quotation marks
67
omitted)) to employers that their obligation to provide a reasonable religious
accommodation may be triggered by something other than an explicit
communication from applicants or employees regarding their conflicting religious
practice and need for an accommodation. 13 Nothing in the text of the EEOC’s
regulation, 29 C.F.R. § 1605.2(c)(1), would “provide clear notice of this.”
Christopher, 132 S. Ct. at 2167. In describing the circumstances under which the
employer’s obligation to offer a reasonable religious accommodation is triggered,
the regulation speaks solely of “an employee or prospective employee notif[ying]
the employer [of the need for such an accommodation].” 29 C.F.R.
§ 1605.2(c)(1). And, as commonly understood, the term “notify” means to “make
a usu[ally] formal communication generally about something requiring or worthy
of attention.” Webster’s Third New Int’l Dictionary 1160 (2002); see id. at 1545(defining the word “notify” to mean, among other things, to “make known”).
13
This would be especially true to the extent that the EEOC’s
interpretation of its regulation would permit plaintiffs to establish their prima
facie case regarding notice by showing the employer possessed something less
than actual knowledge of the conflicting religious practice and need for an
accommodation—viz., would allow plaintiffs to demonstrate notice by showing
some form of employer constructive knowledge, or a “reasonable indication to
the employer that an accommodation may be needed.” Aplee. Br. at 34 (emphases
added). This is because (as noted supra) the EEOC has not identified any judicial
decisions supportive of such a position, nor have we uncovered any. Cf. Aplt.
Reply Br. at 3 n.1 (“[T]he EEOC’s regulations nowhere state that a ‘reasonable
indication’ is sufficient to make a prima facie case. Employers should be able to
rely upon the EEOC’s clear pronouncements without having to fear that the EEOC
will suddenly ‘change its mind’ to support whatever argument most benefits its
then-current litigation.”).
68
In other words, under a natural reading of the regulation, the employer’s
obligation to provide a reasonable religious accommodation would be triggered
only when applicants or employees explicitly inform the employer of their
conflicting religious practice and need for an accommodation. Indeed, this
natural reading of the regulation is bolstered by the construction canon expressio
unius est exlcusio alterius—the so-called “negative-implication canon,” Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 107
(2012); see Black’s Law Dictionary 661 (9th ed. 2009) (noting that it is “[a]
canon of construction holding that to express or include one thing implies the
exclusion of the other”). Specifically, by expressly providing only one means by
which an employer’s obligation to provide a reasonable religious accommodation
may be triggered—explicit notice from an applicant or employee—the regulation
may be read to exclude other means by which the “thing to be done,” Christensen,
529 U.S. at 1660 (quoting Raleigh & Gaston R.R. v. Reid, 13 Wall. 269, 270
(1872)) (internal quotation marks omitted), may be accomplished. Accordingly,
because the EEOC’s broader view of the notice requirement is divorced from the
regulation’s text and is not congruent with the natural reading of that text,
subjecting Abercrombie to it “would result in precisely the kind of ‘unfair
surprise’ against which [the Supreme Court’s] cases have long warned.”
Christopher, 132 S. Ct. at 2167 (quoting Long Island Care at Home, Ltd. v. Coke,
551 U.S. 158, 170–71 (2007)) (internal quotation marks omitted). This is yet
69
another reason why according the EEOC’s broader view Auer deference would be
inappropriate.
Therefore, to the extent that we provide deference at all to the EEOC’s
broader view, the boundaries of that deference would be defined, not by Auer, but
rather by the Supreme Court’s decision in Skidmore v. Swift & Co., 323 U.S. 134(1944). See, e.g., Christopher, 132 S. Ct. at 2168–69 (turning to the Skidmore
standard after concluding that “whatever the general merits of Auer deference, it
is unwarranted here”). Under that decision, to give deference “would be proper
only if the [EEOC’s view] has the power to persuade, which ‘depend[s] upon the
thoroughness evident in its consideration, the validity of its reasoning, [and] its
consistency with earlier and later pronouncements.’” Vance v. Ball State Univ.,
--- U.S. ----, 133 S. Ct. 2434, 2443 n.4 (2013) (second and third alterations in
original) (emphasis added) (quoting Skidmore, 323 U.S. at 140); see Christopher,
132 S. Ct. at 2168–69 (giving the agency’s “interpretation a measure of deference
proportional to” its satisfaction of Skidmore’s criteria). For the reasons that we
have noted thus far—including in this subsection and supra in Parts
II.C.1–3.a—and that we explicate below in Part II.C.4, we conclude that the
EEOC’s broader view of the notice requirement is “quite unpersuasive.”
Christopher, 132 S. Ct. at 2169; see Univ. of Tex. Sw. Med. Ctr. v. Nassar, ---
U.S. ----, 133 S. Ct. 2517, 2533 (2013) (noting that the EEOC’s “explanations
lack the persuasive force that is a necessary precondition to deference under
70
Skidmore”); Vance, 133 S. Ct. at 2443 n.4 (“For the reasons explained below, we
do not find the EEOC Guidance persuasive.”). 14
In sum, notwithstanding the EEOC’s objections, we find support in the
EEOC’s own regulations and policy documents for our view of the notice
requirement—which places the onus on the applicant or employee to initially
provide explicit notice to the employer of the conflicting religious practice and
the need for an accommodation.
4
Finally, as both parties have expressly recognized, the requirement of
employers to provide reasonable accommodations for disabled employees under
the ADA is analogous to Title VII’s requirement that employers provide
reasonable religious accommodations; thus, jurisprudence under the ADA can
provide guidance as to when an employer’s duty to provide a reasonable religious
14
It bears mentioning that insofar as the EEOC’s broader view of the
notice requirement does not involve concepts akin to constructive notice, but
rather is limited to the position that the EEOC’s regulation permits plaintiffs to
establish their prima facie case regarding notice by showing that the employer
possessed actual knowledge of the conflicting religious practice and need for an
accommodation from a source other than the applicant or employee, then even if
we were obliged to accord some measure of deference to the EEOC’s view, this
would not materially alter the outcome that we reach here. That is because (as
noted supra) there is no genuine dispute of material fact that no Abercrombie
agent responsible for, or involved in, the hiring process had actual
knowledge—from any source—that Ms. Elauf’s practice of wearing a hijab
stemmed from her religious beliefs and that she needed an accommodation for it.
71
accommodation is triggered under Title VII. See Thomas, 225 F.3d at 1155 &
nn.5 & 6 (recognizing the similarities between reasonable accommodation
requirements in the ADA and Title VII contexts). The ADA’s analogous
reasonable-accommodation scheme fortifies in at least two ways our belief that
our interpretation of the notice requirement in the Title VII religion-
accommodation setting is correct.
First, under the ADA, an employer ordinarily has no obligation to engage in
the interactive process or provide a reasonable accommodation unless the
“employee provid[es] notice to the employer of the employee’s disability and any
resulting limitations.” Smith, 180 F.3d at 1171. To provide the employer with
notice, the employee “must make an adequate request” for an accommodation.
EEOC v. C.R. England, Inc., 644 F.3d 1028, 1049 (10th Cir. 2011). This request
must be “sufficiently direct and specific,” id. (quoting Calero-Cerezo v. U.S.
Dep’t of Justice, 355 F.3d 6, 23 (1st Cir. 2004)) (internal quotation marks
omitted), and “make clear that the [employee] wants assistance for his or her
disability,” id. (quoting Colwell v. Rite Aid Corp., 602 F.3d 495, 506 (3d Cir.
2010)) (internal quotation marks omitted).
In short, under the ADA, an employer does not have a duty to provide a
reasonable accommodation unless one is specifically requested by an employee.
See Koessel v. Sublette Cnty. Sheriff’s Dep’t, 717 F.3d 736, 745 (10th Cir. 2013)
72
(“It is not the employer’s responsibility to anticipate the employee’s needs and
affirmatively offer accommodation if the employer is otherwise open to such
requests.”). Our reading of the notice requirement under Title VII is entirely
consistent with this: an employer is only obliged to provide a reasonable religious
accommodation to applicants or employees after they have explicitly informed the
employer of their conflicting religious practice and need for an accommodation
for it.
Second, the requirement of specific employee notice under the ADA is
logically compatible with the nature of the data necessary to trigger the
employer’s reasonable-accommodation obligations. “[T]he employer must know
of both the disability and the employee’s desire for accommodations for that
disability.” C.R. England, 644 F.3d at 1049 (emphasis added) (quoting Taylor v.
Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999)) (internal quotation
marks omitted). Mere awareness of the disability is insufficient because the
employer remains unaware that the employee desires an accommodation for his or
her disability. See Woodman v. Runyon, 132 F.3d 1330, 1345 (10th Cir. 1997)
(“The ‘employee’s initial request for an accommodation . . . triggers the
employer’s obligation to participate in the interactive process.’” (omission in
original) (quoting Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155, 165 (5th Cir.
1996))). Therefore, in order for the employer to gain knowledge of both of these
facts, ordinarily the employee will need to tell the employer. See Mole v.
73
Buckhorn Rubber Prods., 165 F.3d 1212, 1218 (8th Cir. 1999) (“[An employee]
cannot ‘expect the employer to read [her] mind and know [she] secretly wanted a
particular accommodation and [then] sue the employer for not providing it.’”
(second, third, and fourth alterations in original) (quoting Ferry v. Roosevelt
Bank, 883 F. Supp. 435, 441 (E.D. Mo. 1995))).
Similarly, our view of the notice requirement is likewise compatible with
the nature of the data necessary to trigger an employer’s duty to provide a
reasonable religious accommodation. Specifically, not only must an employer
know that the practice stems from the religious beliefs of the applicant or
employee, it must also know that he or she actually needs an accommodation for
the practice. As suggested by our discussion in Part II.C.2, supra, Title VII’s
conception of the personal and individualized nature of religion and of the
interactive accommodation process—under which the employer is affirmatively
discouraged from making religious inquiries of applicants or employees in the
first instance, or engaging in guess-work or assumptions about their religious
beliefs—virtually dictates that applicants or employees must initially
communicate the religious nature of the conflicting practice and their need for an
accommodation to the employer, in order to trigger the employer’s
accommodation duty.
In sum, the ADA’s reasonable-accommodation jurisprudence supports our
74
interpretation of Title VII. The ADA places the burden on the employee to make
the employer aware both of his or her disability and the employee’s need for an
accommodation for that disability, by adequately communicating this information
to the employer in the first instance. See C.R. England, 644 F.3d at 1049. Our
interpretation of Title VII’s notice requirement in the religion-accommodation
context is essentially the same. Applicants or employees must initially inform
employers of their religious practices that conflict with a work requirement and
their need for a reasonable accommodation for them. See Thomas, 225 F.3d at
1155; EEOC Compliance Manual § 12-IV(A)(1).
III
For the foregoing reasons, we hold that district court should have entered
summary judgment in favor of Abercrombie because the EEOC did not satisfy the
second element of its prima facie case, as there is no genuine dispute of material
fact that Ms. Elauf never informed Abercrombie prior to its hiring decision that
her practice of wearing her hijab stemmed from her religious beliefs and that she
needed an accommodation for this (inflexible) practice. Accordingly, we
REVERSE the district court’s denial of summary judgment in favor of
Abercrombie and likewise, necessarily, REVERSE the district court’s grant of
summary judgment to the EEOC. We REMAND the case to the district court
with instructions to VACATE its judgment and enter judgment in favor of
75
Abercrombie, and for further proceedings consistent with this opinion.
76
Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc.,
No. 11-5110
EBEL, J., concurring in part and dissenting in part
I concur in the majority opinion’s ruling that it was error for the district court to
grant summary judgment for Plaintiff-Appellee Equal Employment Opportunity
Commission (“EEOC”) in this case. However, I dissent in part from the majority’s
opinion, to the extent that it enters summary judgment for Defendant-Appellant
Abercrombie & Fitch Stores, Inc. (“Abercrombie”), because I conclude on this record
that a jury should decide whether Abercrombie is liable for religious discrimination.
Title VII prohibits religious discrimination in employment, including an
employer’s refusal to hire a job applicant because of her religion. 42 U.S.C. § 2000e-
2(a)(1). Title VII defines religious discrimination to include an employer’s failure to
accommodate a job applicant’s religious practices, if the employer can reasonably do so
without incurring undue hardship to the conduct of its business. Id. § 2000e(j); see
Thomas v. Nat’l Ass’n of Letter Carriers, 225 F.3d 1149, 1154-55 (10th Cir. 2000). Title
VII imposes on the employer the duty to reasonably accommodate the religious practices
of a job applicant through “an interactive process that requires participation” by both the
employer and the applicant. Thomas, 225 F.3d at 1155.
The EEOC, on behalf of Samantha Elauf, established a triable claim that
Abercrombie discriminated against Elauf on the basis of her religion when Abercrombie
refused to hire her because of her religious practice of wearing a hijab, or head covering.
Specifically, the EEOC set forth evidence from which a jury could find that Abercrombie
refused to hire Elauf, without ever informing her that wearing a hijab conflicted with
Abercrombie’s Look Policy, in order to avoid having to discuss the possibility of
reasonably accommodating Elauf’s religious practice. If true, that would be religious
discrimination proscribed by Title VII. Thus, I would remand this claim for a jury trial.
I. The majority’s inflexible requirement that the EEOC must first establish, as part
of its prima facie claim, that Elauf informed Abercrombie that its Look Policy
conflicted with her religious practice of wearing a hijab makes no sense under the
law or the circumstances presented by this case
The majority concludes that an employer’s obligation to engage in an interactive
dialogue with a job applicant regarding the need for a reasonable accommodation of her
religious practice is triggered only when the job applicant herself informs the employer
that her religious practice conflicts with a requirement of the job for which she is
applying. The majority reaches this conclusion after applying the modified McDonnell
Douglas burden-shifting framework applicable to failure-to-accommodate claims and
holding, at the first step of that analysis, that the EEOC failed to establish a prima facie
claim.1
1
Generally courts addressing a discrimination claim under Title VII apply the burden-
shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-05
(1973). Under that analysis, the plaintiff employee or job applicant must first set forth a
prima facie claim of discrimination. Id. at 802. If the plaintiff is able to do so, the
employer must then articulate a legitimate, nondiscriminatory reason for taking the
challenged employment action. Id. Thereafter, the burden shifts back to the plaintiff to
show that the employer’s proffered reason was really a pretext for discrimination. Id. at
804. In addressing a claim of religious discrimination based upon a failure-to-
accommodate theory, however, we apply a modified, two-step McDonnell Douglas
analysis, asking first whether the plaintiff employee or job applicant established a prima
facie failure-to-accommodate claim. See Thomas, 225 F.3d at 1155. If so, then the
burden shifts to the employer to do one of three things: (1) rebut one or more of the
elements of the plaintiff’s prima facie case; (2) show it offered the plaintiff a reasonable
2
In several previous cases where the existence of a prima facie claim was not
disputed, this court stated the elements of a prima facie failure-to-accommodate claim to
be that the plaintiff “(1) . . . had a bona fide religious belief that conflicts with an
employment requirement; (2) he or she informed his or her employer of this belief; and
(3) he or she was [not hired] for failure to comply with the conflicting employment
requirement.” Thomas, 225 F.3d at 1155 (addressing termination claim); see also Toledo
v. Nobel-Sysco, Inc., 892 F.2d 1481, 1486 (10th Cir. 1989). Applying these elements to
this case, the majority rejects the EEOC’s failure-to-accommodate claim as a matter of
law because Elauf never informed Abercrombie that her religious practice of wearing a
hijab conflicted with Abercrombie’s Look Policy.
Of course, the reason Elauf never informed Abercrombie of this conflict is that,
accepting her evidence as true as we must, Elauf did not know that there was a conflict
between her religious practice of wearing a hijab and Abercrombie’s Look Policy.
However, critically, Abercrombie did know there might be a conflict, because it knew
that Elauf wore a headscarf, assumed she was Muslim and that she wore the headscarf for
religious reasons, and knew its Look Policy, as ultimately determined by Randall
Johnson, the person who made the decision not to hire Elauf, prohibited its sales models
from donning headwear. Based on these assumptions, and without ever informing Elauf
that Johnson ultimately determined that the hijab would not be allowed, Abercrombie
refused to hire her because she wore a hijab. In this way, Abercrombie was able to avoid
accommodation; or (3) show it was unable to reasonably accommodate the plaintiff’s
religious practice without undue hardship. Id. at 1156.
3
any interactive dialogue with Elauf about whether Abercrombie could reasonably
accommodate Elauf’s religious practice.
Under these circumstances, it makes no sense to apply, reflexively and inflexibly,
the second element of the ordinary prima facie failure-to-accommodate claim to require
Elauf to show first that she informed Abercrombie that her religious practice conflicted
with Abercrombie’s Look Policy, when that policy’s proscription against wearing a
headscarf at work had never been disclosed to her. Nor are we bound, as the majority
suggests, to apply the elements of a prima facie failure-to-accommodate claim as set forth
in prior, factually distinct cases that did not raise or resolve the issue before us of whether
it is the applicant’s burden in the first instance to request a religious accommodation to an
undisclosed employer’s policy.
I conclude we are not bound here to apply this court’s prior rendition of the
elements of a prima facie failure-to-accommodate claim, for several reasons. First and
foremost, the specific elements of a prima facie claim must be flexible, in order to
address the specific circumstances presented by a given case. The Supreme Court
stressed this when it first set forth the McDonnell Douglas analytical framework.
McDonnell Douglas, 411 U.S. at 802 n.13 (noting that “[t]he facts necessarily will vary
in Title VII cases, and the specification [in McDonnell Douglas] of the prima facie proof
required from [the plaintiff] is not necessarily applicable in every respect to differing
factual situations”). This court has, on numerous occasions, recognized the need to
modify the elements of a prima facie discrimination claim to fit the facts of a given case.
See Stover v. Martinez, 382 F.3d 1064, 1077 (10th Cir. 2004) (noting McDonnell
4
Douglas framework, as “modified to reflect the particular factual situation at hand,”
applied to Title VII religious discrimination claims); Shapolia v. Los Alamos Nat’l Lab.,
992 F.2d 1033, 1036-38 (10th Cir. 1993) (declining to apply prima facie elements of a
failure-to-accommodate claim to a cause of action alleging that the employer fired the
plaintiff employee because the employee did not share his supervisors’ religious beliefs;
applying, instead, a modified version of the elements of a straightforward prima facie
discrimination claim).2 “The prima facie case method established in McDonnell Douglas
was ‘never intended to be rigid, mechanized, or ritualistic.’” U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 715 (1983) (quoting Furnco Constr. Co. v. Waters,
438 U.S. 567, 577 (1978)).
The importance of McDonnell Douglas lies, not in its specification of the
discrete elements of proof there required, but in its recognition of the
general principle that any Title VII plaintiff must carry the initial burden of
offering evidence adequate to create an inference that an employment
decision was based on a discriminatory criterion illegal under the Act.
Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 (1977) (rejecting, in pattern-
or-practice case, argument that “the McDonnell Douglas pattern [w]as the only means of
establishing a prima facie case of individual discrimination”).
Second, the plaintiff’s burden of presenting a prima facie discrimination claim
under Title VII is not meant to be onerous. See Tex. Dep’t of Cmty. Affairs v. Burdine,
2
See also, e.g., Garrison v. Gambro, Inc., 428 F.3d 933, 937 (10th Cir. 2005); Plotke v.
White, 405 F.3d 1092, 1099-1100 (10th Cir. 2005); Mattioda v. White, 323 F.3d 1288,
1291-93 (10th Cir. 2003); Rakity v. Dillon Cos., 302 F.3d 1152, 1164 (10th Cir. 2002);
Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997); Greene v. Safeway Stores,
Inc., 98 F.3d 554, 559-60 (10th Cir. 1996); Randle v. City of Aurora, 69 F.3d 441, 451
n.13 (10th Cir. 1995); Lucas v. Dover Corp., 857 F.2d 1397, 1400-01 (10th Cir. 1988);
Crawford v. Ne. Okla. State Univ., 713 F.2d 586, 588 (10th Cir. 1983).
5
450 U.S. 248, 253 (1981) (“The burden of establishing a prima facie case of disparate
treatment is not onerous.); see also Shapolia, 992 F.2d at 1038 (noting burden of
establishing prima facie religious discrimination claim is not onerous). Here, the
majority not only made this initial burden onerous, but also made it preclusive of a claim
for relief.
Third, the purpose of the McDonnell Douglas burden-shifting framework, of
which the prima facie claim is a part, is different in the context of a failure-to-
accommodate claim than it is for a Title VII claim alleging discrimination generally. See
Thomas, 225 F.3d at 1155 n.6. In a straight discrimination claim, the prima facie claim
serves the purpose of probing whether the employer intended to discriminate. See id.;
Smith v. Midland Brake, Inc., 180 F.3d 1154, 1178 n.12 (10th Cir. 1999) (reh’g en banc).
The purpose of applying a modified version of the McDonnell Douglas burden-shifting
analysis in the context of an accommodation case, on the other hand, is “simply to
provide a useful structure by which the district court, when considering a motion for
summary judgment, can determine whether the various parties have advanced sufficient
evidence to meet their respective traditional burdens to prove or disprove the
reasonableness of the accommodations offered or not offered.” Thomas, 225 F.3d at1155 n.6 (quoting Smith, 180 F.3d at 1178 n.12). So, if the plaintiff asserts evidence
which, if believed, would establish the employer’s liability for failing to accommodate a
job applicant’s religious practices, then the plaintiff has established a prima facie failure-
to-accommodate claim. As explained below, the EEOC has met that less-than-onerous
burden here.
6
Before addressing how the EEOC has established a prima facie failure-to-
accommodate claim in this case, however, I would stop to note that I agree with the
majority that, in the ordinary case, it is the job applicant who must inform the employer
that she has a religious belief that conflicts with the requirements of the job for which she
is applying. This makes sense, of course, because generally it will be the job applicant
who will have superior knowledge of that conflict. It is the job applicant who knows of
her religious beliefs and practices. When she becomes aware that a requirement of the
job for which she is applying conflicts with her beliefs, the onus is on the job applicant to
inform the employer of this conflict and the need for any accommodation. Under such
circumstances, the employer has no obligation to participate in the interactive process of
exploring the possibility of a reasonable accommodation until the employer knows of the
conflict.3 See E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1049 (10th Cir. 2011)
(Americans with Disabilities Act case).4 Therefore, I do not doubt that our generalized
3
It may also be the case in some situations that neither the employer nor the job
applicant will know that there is a conflict between the job’s requirements and the
applicant’s religious practices, because the employer will be aware of its work rules and
the applicant will know her religious beliefs, but neither side will inform the other of
these matters during the course of a job interview. Under such circumstances, no
dialogue will occur between the job applicant and the employer as to this unidentified
conflict, through no fault of either party. In that scenario, the employer would not be
liable for failure to accommodate. However, here the facts are sufficient to permit
(though not compel) a jury to find that Abercrombie did know, or thought it knew, of
Elauf’s religious beliefs and subverted the interactive process by declining to pursue her
employment application without discussing the possibility of an accommodation with
her. Thus, it is error, in my opinion, to grant summary judgment to Abercrombie on this
record.
4
Because both the Americans with Disabilities Act and Title VII’s proscription against
religious discrimination impose an affirmative obligation on employers to make
7
rendition of the elements of a prima facie failure-to-accommodate claim, which require
the plaintiff to show that she informed the employer of a conflict between her religious
practices and the job requirements, will still apply to most failure-to-accommodate
claims. But that does not mean that we must force all failure-to-accommodate claims
into this prima facie mold when it makes no sense to do so under the particular facts of a
given case. And that is the situation here, where, based on the EEOC’s evidence, it was
Abercrombie with superior knowledge of the conflict between its Look Policy and
Elauf’s apparent religious practice, a conflict of which Elauf was unaware.
For the reasons that follow, then, I disagree with the majority’s approach in this
case of requiring the EEOC, in order to state a prima facie claim, to show that Elauf
informed Abercrombie that her religious practice of wearing a hijab conflicted with
Abercrombie’s Look Policy, the relevant provisions of which Elauf was unaware.
II. The EEOC established a prima facie claim that Abercrombie failed to
accommodate Elauf’s religious practice of wearing a hijab
In order to survive summary judgment, the EEOC had to establish a prima facie
claim by asserting evidence that, if believed, would support Abercrombie’s liability for
failing to accommodate Elauf’s religious practice of wearing a hijab. See Thomas, 225
F.3d at 1155 n.6. I conclude the EEOC met that less-than-onerous burden by showing
four things: (1) Elauf had a bona fide religious belief that conflicts with Abercrombie’s
Look Policy; (2) she was not aware of Abercrombie’s conflicting policy; (3) but
reasonable accommodation, the Tenth Circuit applies case law addressing both statutes
when considering issues surrounding reasonable accommodation. See Thomas, 225 F.3d
at 1155 & n.5; see also Maj. Op. at 30-31, 71-75.
8
Abercrombie had knowledge that Elauf might hold religious beliefs that conflicted with
its Look Policy; and (4) without informing Elauf of the provisions of its Look Policy that
might conflict with her religious beliefs, Abercrombie instead refused to hire Elauf
because of that possible conflict.
As to the first element, the district court held that the EEOC established, as a
matter of law, that Elauf held a bona fide religious belief that she must wear a hijab in
public. Although Abercrombie challenged that determination on appeal, I would affirm
the district court’s decision in that regard.
As to the second element, that Elauf was not aware that Abercrombie’s Look
Policy conflicted with her religious practice of wearing a hijab, it is undisputed that
Abercrombie’s managers never informed Elauf that the Look Policy prohibited
headscarves.5 (Aplt. App. at 299; Aple. Supp. App. at 49.) Further, there was evidence
that, before she applied for a job with Abercrombie, Elauf, through a friend, inquired of
one of Abercrombie’s store managers whether there was a problem with her wearing a
hijab while working in an Abercrombie store and was told that it would be no problem so
long as the hijab was not black.6 (Aplt. App. at 50-52, 393.)
5
Three of the four Abercrombie managers involved here interpreted the Look Policy to
permit headscarves, so long as they were not black in color. (Aplt. App. at 393; Aple.
Supp. App. at 49, 51; Maj. op. at 9.) There is evidence that this would have been an
acceptable accommodation of Elauf’s religious beliefs. (Aplt. App. at 52.)
6
The majority contends that this evidence does not establish that Elauf expressly
informed Abercrombie of her religious practice of wearing a hijab and expressly sought
an accommodation for that practice. I agree. But this evidence is relevant to show
Elauf’s state of mind, that when she interviewed for a position with Abercrombie, she did
not think that the Look Policy prevented her from wearing a hijab at work. Moreover, it
9
As to the third element of the EEOC’s prima facie claim, that Abercrombie had
knowledge that Elauf might hold religious beliefs that conflicted with its Look Policy, it
is undisputed that Heather Cooke, the Abercrombie assistant store manager who
interviewed Elauf, “assumed that [Elauf] was Muslim,” (id. at 307), assumed that Elauf
wore a hijab for “religious reasons,” (id.), and assumed that Elauf would wear a hijab
while working in an Abercrombie store. (Id. at 306-07; Aple. Supp. App. at 48.)
The EEOC’s showing of the second and third elements—that Elauf was unaware
that her religious practice of wearing a hijab conflicted with the Look Policy, but that
Abercrombie was aware there might be such a conflict—establishes circumstances that
justify applying here a common sense exception to the usual rule that, in order to trigger
an employer’s duty to participate in the interactive dialogue regarding reasonable
accommodation, the job applicant must first inform the employer that she holds religious
beliefs that conflict with the job’s requirements. Recognizing such a common sense
exception under these circumstances is consistent with cases generally recognizing
similar exceptions. For example, in the context of an employer’s reasonable
accommodation of disabilities under the Americans with Disabilities Act (“ADA”), we
require, as a precondition to suit, that the employee have requested an accommodation
“unless the employer has foreclosed the interactive process through its policies or explicit
seems reasonable for a job applicant to check with an employer (here, the employer’s
representative, an assistant store manager) as to the requirements for the job and to rely
upon that information unless told differently in her interview. Further, this evidence
arguably suggests that Abercrombie affirmatively misled Elauf into believing that there
was no problem with her wearing a hijab while working in one of Abercrombie’s stores,
which may explain why she did not raise the issue during her job interview.
10
actions.” Koessel v. Sublette Cnty. Sheriff’s Dep’t, 717 F.3d 736, 744 (10th Cir. 2013)
(emphasis added) (internal quotation marks omitted). And the Ninth Circuit, again under
the ADA, has recognized an exception to the requirement that the employee request an
accommodation for his disability, under circumstances where the employer knows that
the employee has a disability, knows that the employee is having trouble at work due to
his disability, and knows, or has reason to know, that the disability prevents the employee
from requesting an accommodation. See Brown v. Lucky Stores, Inc., 246 F.3d 1182,
1188 (9th Cir. 2001). There are, then, exceptions to the general rule that an employer’s
obligation to consider a reasonable accommodation is not triggered unless and until an
employee or job applicant informs the employer of the need for an accommodation.
Even more directly analogous to the situation here, other circuits have held that a
job applicant or employee can establish a prima facie religious failure-to-accommodate
claim if she can show that the employer knew of a conflict between the plaintiff’s
religious beliefs and a job requirement, regardless of how the employer acquired
knowledge of that conflict.7 These cases conclude that “[a]n employer need have ‘only
7
See Dixon v. Hallmark Cos., 627 F.3d 849, 855-56 (11th Cir. 2010) (rejecting argument
that plaintiff employees who operated a property management office had failed to assert a
prima facie failure-to-accommodate claim because they did not inform the employer of
their specific belief that God should not be removed from public places, where there was
ample evidence that their supervisor was already aware that there was a tension between
the plaintiffs’ religious beliefs and the employer’s policy against displaying religious
artwork in the employer’s property management offices); Brown v. Polk Cnty, 61 F.3d
650, 652-53 (8th Cir. 1995) (rejecting employer’s argument that employee never
explicitly requested an accommodation of his religious activities because employer was
already aware of “the potential for conflict” between the employee’s religious activities
and the employer’s work rules because the employee had previously been reprimanded
for his religious activities at work); Hellinger v. Eckerd Corp., 67 F. Supp. 2d 1359,
11
enough information about an employee’s religious needs to permit the employer to
understand the existence of a conflict between the employee’s religious practices and the
employer’s job requirements.’” Brown, 61 F.3d at 654 (8th Cir.) (quoting Heller, 8 F.3d
at 1439 (9th Cir.)). I would rely on this principle here. To my mind, once the employer
knows of, or should know of, a conflict, or the likelihood of a conflict, the employer is
then obligated to interact with the job applicant about the likely conflict in order to
determine if there is a reasonable accommodation for the job applicant’s religious
practices. At that point, the need for accommodation has been put on the table for
discussion and the employer, with superior knowledge of its ability to accommodate, can
no longer ignore the need to initiate dialogue with the employee regarding reasonable
accommodations.
1361-63 (S.D. Fla. 1999) (holding orthodox Jew who applied for pharmacist position and
whose religious beliefs precluded his selling condoms, stated at least a prima facie
failure-to-accommodate claim even though the employer discovered this conflict between
the applicant’s religious beliefs and the job requirements, not from the applicant, but
from one of the applicant’s job references; noting that “[i]t would be hyper-technical,
based on the facts of this case, to require notice of the Plaintiff’s religious beliefs to come
only from the Plaintiff. The notice requirement is meant in part to allow the company an
opportunity to attempt to reasonably accommodate the Plaintiff’s beliefs. The [employer]
was not deprived of the opportunity to attempt to accommodate the Plaintiff’s beliefs
merely because the notice did not come from the Plaintiff.”) ; see also Heller v. EBB
Auto Co., 8 F.3d 1433, 1436-37, 1439 (9th Cir. 1993) (in addressing claim that car
dealership fired one of its salesmen for missing work to attend a ceremony for his wife’s
conversion to Judaism, rejecting argument that the salesman failed to state a prima facie
failure-to-accommodate claim because he did not explain the ceremony sufficiently to his
employer; concluding that “[a] sensible approach would require only enough information
about an employee’s religious needs to permit the employer to understand the existence
of a conflict between the employee’s religious needs and the employer’s job
requirements”).
12
Thus, where, as here, the employer has knowledge of a credible potential conflict
between its policies and the job applicant’s religious practices, the employer has a duty to
inquire into this potential conflict. This duty does not, however, obligate the employer to
inquire, open-endedly, about the applicant’s religious beliefs and practices. Under the
circumstances presented here, Abercrombie only had a duty to disclose to Elauf that its
Look Policy prohibited Elauf from wearing any headwear while working in one of
Abercrombie’s stores, when it had notice of facts that suggested to it the possibility of
such a conflict. This inquiry would have been sufficient to initiate any needed dialogue
between the job applicant, Elauf, and the employer, Abercrombie, as to whether Elauf
had religious beliefs that conflicted with Abercrombie’s dress code, beliefs which
perhaps would be addressed by an accommodation.8
The majority disagrees with the cases from these other circuits (thereby creating a
conflict among the circuits) which permit a plaintiff to establish a prima facie failure-to-
accommodate claim by establishing that the employer knew, by any means, of a conflict
between the plaintiff’s religious practices and the employer’s work rules. I would follow
the holdings in those case but, even without relying on those cases here, the EEOC has
still put forth evidence establishing the fourth element of her prima facie claim, that
Abercrombie assumed that Elauf was Muslim, that she wore a hijab for religious reasons,
8
This duty is not unlike the duties of inquiry recognized by the law in other contexts,
when facts are sufficient to put a party on notice he needs to make inquiry or be held to
know the facts which such inquiry would have uncovered. See TRW Inc. v. Andrews,
534 U.S. 19, 30 (2001) (in parenthetical to citation for Stone v. Williams, 970 F.2d 1043,
1049 (2d Cir. 1992); addressing when statute of limitations begins to run)); see also
Sterlin v. Biomune Sys., 154 F.3d 1191, 1201-02 (10th Cir. 1998) (addressing when
statute of limitations for private securities fraud action began to run).
13
and that she would insist on wearing a hijab while working in an Abercrombie store, and
then, based on those assumptions and without first initiating any dialogue with Elauf to
verify its assumptions, Abercrombie refused to hire Elauf because she wore a hijab.
(Aplt. App. at 306-07; Aple. Supp. App. at 48, 51.)
Those facts, if found by a jury, smack of exactly the religious discrimination that
Title VII prohibits. And a jury could further find, from such facts, that Abercrombie,
based on its superior knowledge of a possible conflict between Elauf’s religious practice
and Abercrombie’s Look Policy, was able affirmatively to avoid its obligation to engage
in an interactive dialogue with Elauf about a reasonable accommodation of Elauf’s
religious practice by not mentioning the possible conflict and then not hiring her because
of it. See Bartee v. Michelin N. Am., Inc., 374 F.3d 906, 916 (10th Cir. 2004) (noting, in
ADA case, that employer’s refusal to participate in an interactive process could result in
liability); Albert v. Smith’s Food & Drug Ctrs., Inc., 356 F.3d 1242, 1253 (10th Cir.
2004) (noting, in an ADA case, that “[n]either party may create or destroy liability by
causing a breakdown of the interactive process”).9 On the record in this particular case, a
9
Other circuits have noted, in addressing this interactive process in the context of
reasonable accommodation under the ADA, that an employer can be liable for refusing to
participate in good faith in that process:
[C]ourts should look for signs of failure to participate in good faith or
failure by one of the parties to help the other party determine what specific
accommodations are necessary. A party that obstructs or delays the
interactive process is not acting in good faith. A party that fails to
communicate, by way of initiation or response, may also be acting in bad
faith. In essence, courts should attempt to isolate the cause of the
breakdown and then assign responsibility.
14
jury could find Abercrombie liable for violating Title VII’s proscription against religious
discrimination in employment on this basis. The EEOC, therefore, has established a
prima facie failure-to-accommodate claim.
In conclusion, let me be very clear. I am not suggesting that the employer has a
general duty, during a job interview, to give the applicant a comprehensive “laundry list”
of all of the employer’s work policies in order to determine if those job requirements
might possibly conflict with an applicant’s unstated religious beliefs or practices. I agree
that the burden ordinarily remains with the job applicant to inform the employer of any
conflict between the job’s requirements and her religious beliefs and practices, because it
will usually be the applicant, and not the employer, who knows of such a conflict.
However, I am also not suggesting, as the majority appears to be, that a job applicant
must initiate a general discussion of her religious beliefs during the job interview just in
case her religious beliefs and practices might conflict with some unstated policy or work
rule of the employer. The EEOC has shown here that it was the employer, Abercrombie,
which had superior knowledge of a possible conflict between its Look Policy and Elauf’s
apparent religious practice of wearing a hijab. Under those facts, established after
viewing the evidence in light most favorable to the EEOC,10 Abercrombie had a duty to
Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 312 (3d Cir. 1999) (emphasis added)
(quoting Bultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281, 1285 (7th Cir. 1996)).
10
The facts presented here include the fact that Elauf wore a black hijab to her interview
(Aplt. App. at 368), exhibiting the very practice that Abercrombie’s Look Policy was
ultimately determined to forbid. Further, Abercrombie assumed that Elauf was Muslim,
wore the hijab for religious reasons, and would insist on wearing a hijab while working in
one of Abercrombie’s stores. (Id. at 306-07; Aple. Supp. App. at 48.) Abercrombie then
15
initiate a dialogue with Elauf by informing her that Abercrombie’s Look Policy
prohibited its sales models from wearing headwear and then inquiring whether she could
comply with that policy, or whether Abercrombie could accommodate her belief in some
reasonable way. Said another way, a jury could find Abercrombie liable under Title VII
for assuming that Elauf was a Muslim who wore a hijab for religious reasons and that she
would insist on wearing a hijab while working in one of Abercrombie’s stores, and then,
without initiating a dialogue with Elauf to verify those assumptions, refused to hire Elauf
based upon the company’s assumptions.11
III. Because Abercrombie’s evidence contradicted the EEOC’s prima facie
evidence, that created a triable issue of fact as to whether Abercrombie failed to
accommodate Elauf’s religious practice of wearing a hijab; therefore, a jury trial is
required
The district court entered summary judgment for the EEOC. The majority
reverses that determination and concludes that summary judgment should enter, instead,
for Abercrombie. I agree that the EEOC is not entitled to summary judgment because
there is conflicting evidence on both sides. However, for the same reason, I dissent from
the entry of summary judgment on behalf of Abercrombie. I would, instead, remand for a
jury trial because there are factual disputes as to whether the circumstances presented
here triggered Abercrombie’s duty to initiate an interactive dialogue with Elauf in order
acted on those assumptions, without first verifying them with Elauf, when it decided not
to hire her. (Aple. Supp. App. at 48, 51.) So this is not a case where the employer can
claim to have been blindsided by some objectionable practice of the job applicant that the
employer did not realize was religiously based.
11
All of the above could reasonably be inferred from the record in this case, read in the
light most favorable to the EEOC on behalf of Elauf.
16
to determine whether she had a religious practice that conflicted with Abercrombie’s
Look Policy. In light of these factual disputes, a jury must decide the EEOC’s failure-to-
accommodate claim asserted on Elauf’s behalf. Therefore, I would remand that claim for
trial.12
12
The district court granted the EEOC summary judgment on an alternative basis,
holding as a matter of law that Abercrombie had failed to establish that it could not
accommodate Elauf’s religious practice of wearing a hijab without suffering undue
hardship to the conduct of its business. Abercrombie challenges that determination on
appeal. Because I conclude there is conflicting evidence as to that issue, as well, I would
not affirm the district court’s decision to grant summary judgment for the EEOC on that
basis.
17