GREGORY K. FRIZZELL, District Judge.
This matter is before the court on the Motion for Summary Judgment of defendant Abercrombie & Fitch Stores, Inc. ("Abercrombie") [Dkt. #50] and the Amended Motion for Partial Summary Judgment of plaintiff, the Equal Employment Opportunity Commission ("EEOC") [Dkt. # 68].
The EEOC brought this action pursuant to Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-5(f)(1) & (3)) and Title I of the Civil Rights Act of 1991 (42 U.S.C. § 1981a), alleging religious discrimination against Samantha Elauf ("Elauf"), a Muslim teenager who applied for a job at an Abercrombie store in Woodland Hills Mall in 2008. [Dkt. # 2]. Abercrombie did not hire Elauf because, as a Muslim, she wears a head scarf and the Abercrombie "Look Policy" prohibits sales models from wearing head wear.
The EEOC seeks summary judgment on the issue of liability or, in the alternative, on one or more elements of its prima facie case and/or on Abercrombie's affirmative defense of undue hardship. Abercrombie contends the EEOC's motion should be denied and its cross motion should be granted because the EEOC has not established a prima facie case, and because an accommodation for Elauf would cause Abercrombie undue hardship.
Abercrombie operates retail stores across the country under a variety of brand names, including Abercrombie & Fitch, abercrombie ("Abercrombie Kids") and Hollister. [Dkt. # 86, Defendant's Statement of Facts ¶ 1; Dkt. # 77, Plaintiff's Response to Defendant's Statement of Facts ¶ 1]. The target customer of Abercrombie & Fitch is age 18 to 22 and the target customer of Abercrombie Kids is age 8 to 16. [Dkt. #50, Supplemented Written Testimony of Dr. Erich A. Joachimsthaler, ¶ 26]. Abercrombie's Vice President of Human Resources, Deon Riley, testified that its largest advertising is its "in store experience with our models (sales associates), the look and feel of the store, what the customer has come to expect." [Dkt. # 86, Ex. 3, Deon Riley Dep., 19:1-5].
In 2008, Abercrombie operated an Abercrombie Kids store in the Woodland Hills Mall in Tulsa, Oklahoma. [Dkt. #68, Plaintiff's Statement of Facts ¶ 7]. At all times from 2005 to the present, Abercrombie has required employees in its Abercrombie Kids, Abercrombie & Fitch, and Hollister stores to comply with a "Look Policy." [#68, Ex. 3, Chad Moorefield Dep., 69:7-17, 102:23-103:16, 149:20-167:5 and Moorefield Dep. Exs. 7, 8, 9; Ex. 7, Riley Dep. 18:5-17]. Kathleen Lundquist, an expert for Abercrombie, has stated that the Look Policy is inherent to a model's role and is a major component of the in-store experience. [# 50, Ex. G, Lundquist Declaration, ¶ 8]. The Look Policy requires employees to dress in clothing and merchandise consistent with that sold in the store; requires that male employees be clean shaven; prohibits female employees from wearing necklaces and bracelets; requires employees to wear specific types of shoes; and prohibits "caps" but does not mention any other head wear. [Dkt. # 68, Ex. 4, Heather Cooke Dep., Ex. 8 thereto, pp. 29-30]. The policy applies to all store employees, but applicants are not required to be in compliance at the time of the interview. [Dkt. # 50, Ex. C, Riley Dep., 63:18-24].
Samantha Elauf has been a Muslim since birth. [Dkt. # 68, Ex. 2, Elauf Dep., 28:18-20]. Her parents are both practicing Muslims. [Id., 29:6-8]. Her mother wears a head scarf on a daily basis [Id., 30:23-31:10], and Elauf began to wear a head scarf
Elauf acknowledged the Quran does not explicitly require women to wear head scarves. [Id., 124:16-25; Ex. 50, Ex. A, Elauf Dep., 125:1-4]. She admitted that someone could be an observant Muslim without wearing a head scarf, and testified that several members of her family, and her friend Farisa Sepahvand, do not wear head scarves, but she does not think they are looked down upon or are not "good Muslims." [Id., 30:8-11; 35:10-21; 45:1-20; 121:2-17].
Elauf fasts during Ramadan and has done so since she was in fifth grade. [Id., 40:21-41:13]. She does not pray five times a day
Elauf "occasionally" attends services at her mosque,
On June 25, 2008 Elauf, then 17, applied for a job as a model at the Abercrombie Kids store in Woodland Hills Mall. [Dkt. # 68, Ex. 2, Samantha Elauf Dep., 52:4-53:7]. Assistant store manager Heather Cooke interviewed her on June 26, 2008. [Id., Ex. 4, Heather Cooke Dep., Ex. 5 thereto].
Elauf was unaware, before she applied, that Abercrombie had a Look Policy. [Id., 59:6-11]. Elauf testified that Sepahvand told her she had discussed with Cooke whether it was okay if Elauf wore a black head scarf, and Cooke said she would probably have to wear a different color. [Id., 57: 7-58:2]. Sepahvand told Elauf she would not be able to wear a head scarf that was black because Abercrombie required models to wear clothing similar to what it sold, and Abercrombie did not sell black clothing. [Id., 56:17-57:12; Ex. 17, Farisa Sepahvand Dep., 32:24-33:24]. Elauf testified she knew Abercrombie does not sell head scarves, although it sold scarves she could wear as head scarves. [# 86, Defendant's Statement of Fact ¶ 5 and Ex. 1, Elauf Dep., 117:4-15].
Elauf testified that during the interview, Cooke never mentioned the Look Policy, but told her she would "wear clothing that either looked like Abercrombie and then the fact that I wasn't supposed to wear heavy makeup or like polish, nail polish." [Dkt. # 86, Ex. 1, Elauf Dep., 65:2-8]. It is undisputed that Cooke did not tell her Abercrombie would not permit models to wear head scarves or to wear black clothing. [Id., 65:15-21; # 68, Ex. 4, Cooke Dep. 98:14-99:1].
Cooke was responsible for recruiting, interviewing, and hiring new store employees. She supervised models in the store, had the authority to discipline them, and decided which model applicants would receive job offers. She did not usually seek approval from the District Manager before extending a job offer, and the District Manager was usually not involved in deciding whether to hire a specific applicant. [Dkt. #68, Ex. 4, Cooke Dep., 23:3-16, 27:8-30:18, Ex. 5, Johnson Dep. 34:9-25, 38:17-25; Ex. 3 Moorefield Dep. 141:22-142:6; Ex. 6 Def. Responses to Pl. First Interrogatories, No. 9.].
During the interview with Cooke, Elauf wore an Abercrombie & Fitch like T-shirt and jeans, and a head scarf. [Dkt. # 68, Ex. 4, Cooke Dep., 95:12-96:3; 109:1-8]. Cooke had previously seen Elauf wearing a head scarf in the Woodland Hills Mall. [Id., 96:5-10]. Cooke testified that the head scarf signified to her that Elauf was Muslim and, "I figured that was the religious reason why she wore her head scarf, she was Muslim," [Id., 96:11-15] and "I just assumed that she was Muslim because of the head scarf was for religious reasons." [Id., 153:19-22]. Cooke believed Elauf was a good candidate for the job, but she was unsure, at the time, whether it would be a problem for Elauf to wear the headscarf to work as a model for Abercrombie. [Id., 99:6-16; 109:9-11]. She testified:
[Id., 99:17-100:9].
The store manager was unable to answer Cooke's question about head scarves, so she consulted with her District Manager, Randall Johnson. [Id., 106:24-107:8]. She testified Johnson told her not to hire Elauf because she wore the head scarf, that employees were not allowed to wear hats at work, and that if Elauf wore the head scarf, then other associates would think they could wear hats at work. [Id., 107:8-12]. Cooke further testified:
[Id., 107:14-108:5].
In his deposition, Johnson denied Cooke told him Elauf wore the head scarf for religious reasons and also denied making the remark about people painting themselves green. [Dkt. #68, Ex. 5, Randall Johnson Dep., 86:4-21].
Johnson testified that Abercrombie's Human Resources Department is responsible for compliance with the Look Policy, and if he had a question whether a head scarf was the same as a cap, he would have called his HR manager. [Id., 48:24-49:10]. However, he believed the head scarf would not have complied with the Look Policy. [Id., 48:20-23]. He testified that during the time he was district manager, the Abercrombie Kids store had never had any exception to the Look policy. [Id., 69:15-21]. He was not aware Abercrombie allowed any exceptions nationwide from 2001 to 2009. [Id., 70:25-71:12]. He was unaware that in other stores, Abercrombie had allowed store models to wear a yarmulke. [Id., 71:9-12]. In his opinion, there was no difference between a yarmulke, a head scarf, "[o]r a ball cap or a helmet for all that matters. It's still a cap," and if an applicant asked to wear a ball cap for religious reasons, he "[s]till would have denied them, yes, sir." [Id., 71:13-72:3].
Johnson testified that the process for considering a request for an exception would be that he would contact his HR director, "and they would make that exception or determination if we could hire them or go forward with that applicant." [Id., 72:4-14]. He stated that he had "never had to make an exception, no, or make-or
Johnson knew that some Muslim women wear head scarves because he had seen them on television. [Id., 47:23-25]. Viewing photographs of Elauf, he stated that she would have been a good candidate to hire as a model except for the head scarf. [Id., 70:15-18].
Johnson could not recall if he asked Cooke whether Elauf could remove her head scarf. [Id., 50:13-18]. He did not recall any discussion about how Elauf could comply with the Look Policy if hired. [Id., 51:20-23].
During her interview of Elauf, Cooke had filled out a Model Group Interview Guide rating sheet, rating Elauf on three "competencies" required for the job of model: "outgoing and promotes diversity," "sophistication and aspiration," and "appearance and sense of style." [Dkt. # 68, Ex. 4, Cooke Dep., 104:10-105:7]. A candidate who scores below a total combined score of 6 is classified as "below expectations" and not recommended for hiring. [# 68, Ex. 4, Cooke Ep., Ex. 5 thereto at A & F001997].
Originally, Cooke gave Elauf a "2" (on a scale of 1-3, with 3 being the highest) in all three competencies. [Id., 104:15-105:23]. She also originally marked the "hiring recommendation" as "recommend." [Id., 106:17-23]. She testified that when Johnson told her not to hire Elauf, "he told me to give her a 1 on appearance, so then her score would be a 5 instead of a 6, and I would not hire her." [Id., 122:13-25]. After Cooke consulted Johnson, she threw away Elauf's original rating sheet and filled out a new one, changing Elauf's score on "Appearance and Sense of Style" from 2 to 1. [Id., 123:1-19]. After she changed the rating, Cooke did not extend a job offer to Elauf. [# 68, Plaintiff's Statement of Facts ¶ 22].
Elauf testified that, at the end of her interview, Cooke told her she would call her the next day or the day after and let her know when orientation was. [Dkt. # 68, Ex. 2, Elauf Dep., 66:1-5]. Elauf never got a call, and her friend Farisa told her three days after the interview that the district manager had told Cooke not to hire her because of the head scarf. [Id., Ex. 2, Elauf Dep., 66:13-67:13].
Requests for exceptions to the Look Policy must be approved by Abercrombie's Human Resources Department in corporate headquarters. [# 68, Ex. 7, Riley Dep., 109:5-110:19]. Riley testified that exceptions to the Look Policy are recorded in the Human Resources contact records database, but Abercrombie has not tracked the exceptions or measured whether they have had any negative impact on how customers view the Abercrombie style. [Id., 129:4-24].
In 2006, Abercrombie's Human Resources Department approved a head scarf exception to the Look Policy. [Dkt. # 68, Ex. 7, unnumbered exhibit thereto, Contact Records, A & F004313]. Additionally, since 2006, the department has approved the following exemptions to the Look Policy: allowing males to work with facial hair for religious and medical reasons; allowing females to wear bracelets for religious reasons; allowing female employees to wear long skirts inconsistent with skirts sold in the stores for religious reasons; and allowing males to wear yarmulkes for religious reasons. [#68, Plaintiff's Statement of Facts ¶ 35, Ex. 3, Moorefield Dep. 262:22-264:4; Ex. 13, HR Contact Records; Ex. 14, Defendant's Supp. Resp. To Pl.'s First Request for Admissions, Nos. 15 and 16; Ex. 7, Riley Dep., 92:17-93:11; 101:20-23; 139:12-140:13; 158:6-138:3, Riley Dep. Exs. 25-26].
Abercrombie executives uniformly testified that allowing exceptions to the Look Policy has a negative impact on the brand and on sales. Riley testified she believes the Look Policy leads to a better in-store experience and more repeat customers and the in-store experience "is a core driver of our business." [#50, Ex. C., Riley Dep., 31:13-32:]. However, she also admitted that the report of Dr. Erich A. Joachimsthaler, Abercrombie's expert in this case, is the only study or analysis Abercrombie has conducted in the last two years on the effect of a Look Policy exemption, and Riley's department has not been asked to assess whether or how deviations impact customer views or to review sales for that purpose. [Dkt. #68, Ex. 7, Riley Dep., 13:9-16:4; Ex. 8, Def. Supp. Answers to Pl. First Interrogatories, No. 5].
A store's compliance with the Look Policy is tracked by the Director of Stores and the Regional Managers through ratings on store audits and in Secret Shopper reports. [# 68, Plaintiff's Statement of Facts ¶ 28, Ex. 3, Chad Moorefield Dep., 170:2-173:15]. Chad Moorefield, Director of Stores for Abercrombie, testified that he never did any empirical analysis to determine if a drop in store audit scores is correlated to a drop in sales for any store [Id., 195:1-199:20], although he has "seen stores or managers that do a poor job of enforcing our Look Policy and ha[s] seen low sales scores because of it." [Id., 218:1-9].
Human Resources Director Amy Yoakum testified she believes that granting an exception for Elauf would have created an undue burden because it could negatively affect the "store experience" for Abercrombie's customers and the uniform enforcement of the Look Policy. [Dkt. # 68, Ex. 11, Yoakum Dep. 62:16-63:23; 68:16-69:2]. In her deposition on March 18, 2011, she was not aware that Abercrombie had, since the Elauf incident, granted eight or nine exceptions for head scarves, but stated that knowledge would not change her opinion. [Id., 65:2-10]. Yoakum was not aware of any study to measure the impact of Look Policy deviations. [Id., 68:8-15].
Abercrombie's expert, Lundquist, testified that she created the job description for the model position that was in effect in 2008. [# 50, Ex. G., Kathleen K. Lundquist Decl., ¶ 7]. She stated that an essential function of the job as an Abercrombie model is to "act as a model for the brand," and in so doing "represent the [Abercrombie] brands in their appearance and sense of style." [Id., ¶ 8]. She opined that "it is both critical to the job and an essential function of the job of Model at Abercrombie to maintain an appearance and sense of style consistent with the brand" and "critical... to comply with standards of conduct including the Look Policy." [Id., ¶ 23]. Lundquist has not performed any study or read any report regarding the
Abercrombie relies on the Joachimsthaler report in support of its position that an exception would create an undue burden. [Id., Ex. 8, Def. Supp. Answers to Pl. First Interrogatories, No. 5]. Abercrombie has not assigned a specific financial value to the alleged undue burden. [Id.].
Joachimsthaler testified regarding marketing strategy and brands. [Dkt. #50, Ex. F., Joachimsthaler Written Testimony; Dkt. #68, Ex. 9, Erich Joachimsthaler Dep.]. The declaration and deposition of Joachimsthaler establish:
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once a motion for summary judgment is properly made and supported, the opposing party has the burden to show that a genuine dispute exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
The non-moving party must set forth facts sufficient to establish the existence of
Title VII makes it "an unlawful employment practice for an employer ... to discharge any individual, or otherwise discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's ... religion." 42 U.S.C. § 2000e-2(a)(1). "Religion" is defined to include only those "aspects of religious observance and practice" that an employer is able to "reasonably accommodate... without undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j). Title VII imposes 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." 29 C.F.R. § 1605.2(b)(1), (2).
On summary judgment, the principles outlined above are applied using the burden-shifting approach set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the plaintiff initially bears the burden of production with respect to a prima facie case by showing that (1) she had a bona fide religious belief that conflicts with an employment requirement; (2) she informed the employer of this belief; and (3) she was not hired for failing to comply with the employment requirement. Thomas v. National Ass'n of Letter Carriers, 225 F.3d 1149, 1155 (10th Cir.2000). The burden then shifts to the defendant, who must: "(1) conclusively rebut one or more elements of the plaintiff's prima facie case, (2) show that it offered a reasonable accommodation, or (3) show that it was unable to accommodate the employee's religious needs reasonably without undue hardship." Id. at 1156 (emphasis added).
The EEOC introduced evidence that Elauf wears a head scarf based on her belief that the Quran requires her to do so, and that this belief conflicts with Abercrombie's prohibition against headwear;
Abercrombie challenges two elements of the prima facie case, asserting Elauf's wearing of the head scarf is not based on a bona fide religious belief and the notice requirement was not satisfied.
A "bona fide religious belief" is one that (1) is religious within the plaintiff's own scheme of things, and (2) is sincerely held. United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). As long as a party's beliefs are religiously based, it is not for the courts to inquire whether those beliefs "derived from revelation, study, upbringing, gradual evolution, or some source that appears entirely incomprehensible." Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 144 n. 9, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987). Thus, the individual's assertion "that [her] belief is an essential part of a religious faith must be given great weight." Seeger, 380 U.S. at 184, 85 S.Ct. 850. Courts may not engage in an extensive inquiry into the religious beliefs of the plaintiff in order to determine whether religion mandates the employee's adherence. See Heller v. EBB Auto Co., 8 F.3d 1433, 1439 (9th Cir.1993), citing Fowler v. State of R.I., 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828 (1953). The Supreme Court has stated, "[I]t is no business of courts to say ... what is a religious practice or activity." Fowler v. Rhode Island, 345 U.S. 67, 70, 73 S.Ct. 526, 97 L.Ed. 828 (1953).
Citing testimony of an expert witness for the EEOC, John Esposito, Abercrombie suggests Elauf wears a head scarf for cultural reasons rather than because of a religious belief.
Abercrombie also asserts that since the Quran does not explicitly state that women must wear head scarves, Elauf's belief is not a religious belief. However, the broad definition of "religion" does not require that a belief have a textual basis. In Redmond v. GAF Corporation, 574 F.2d 897, 900 (7th Cir.1978), the court held that the protection of Title VII is not limited to situations involving "a practice specifically mandated or prohibited by a tenet of the plaintiff's religion." The court explained:
Id.
Here, Elauf acknowledged that the Quran does not directly command women to wear head scarves, that some of her friends and family members do not do so, and that she does not consider them to be bad Muslims. However, based upon the Quran's teaching that women must display modesty, Elauf believes she should wear a head scarf, and she has done so since puberty at age 13. Heeding the cautionary language of Fowler, the court finds that Elauf wears a head scarf based on her religious belief.
Abercrombie also challenges the sincerity of Elauf's religious belief because she did not know the street address of her mosque, does not regularly attend Friday services, and does not pray five times a day or every day.
As the Second Circuit Court of Appeals has observed, "[I]t is entirely appropriate, indeed necessary, for a court to engage in analysis of the sincerity—as opposed, of course, to the verity—of someone's religious beliefs in ... the Title VII context." Philbrook v. Ansonia Board of Education, 757 F.2d 476, 481 (2nd Cir. 1985). "[T]he sincerity of [a claimant's] religious beliefs is relevant to whether or not the observance or practice for which an accommodation was requested will be considered `religious' in nature." EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1575 (7th Cir.1997) (emphasis added).
The court in Philbrook stated, "[A] sincerity analysis is necessary in order to differentiat[e] between those beliefs that are held as a matter of conscience and those that are animated by motives of deception and fraud." Id. at 482. The court further instructed:
Id.
Citing EEOC v. Union Independiente de la Autoridad de Acueductos y Alcantarillados de Puerto Rico, 279 F.3d 49 (1st Cir.2002),
The record is devoid of any evidence Elauf's belief is animated by motives of deception and fraud. To the contrary, the type of inquiry suggested in Philbrook shows that Elauf has, since age 13, worn the head scarf consistently and continuously when in public or in the presence of men who are strangers—this despite the fact that she resides in Tulsa, Oklahoma, and is a fashion conscious young woman. There is no evidence Elauf has sought or received financial gain by wearing the head scarf. Finally, the Muslim practice of wearing a head scarf is neither new nor uncommon.
There being no genuine dispute that Elauf wears a head scarf because of a bona fide religious belief, the court finds Abercrombie has not rebutted this element of plaintiff's prima facie case.
Citing Thomas, Abercrombie argues that since Elauf did not tell the interviewer she had a religious belief that conflicted with the Look Policy and that she needed an accommodation, the notice element of the prima facie case has not been satisfied.
Courts in other circuits have held that the notice requirement is met when an employer has enough information to make it aware there exists a conflict between the individual's religious practice or belief and a requirement for applying for or performing the job. See Dixon v. Hallmark Cos., 627 F.3d 849, 856 (11th Cir.2010); Brown v. Polk County, Iowa, 61 F.3d 650, 654 (8th Cir.1995) ("It would be hyper-technical... to require notice of the Plaintiff's religious beliefs to come only from the Plaintiff); Heller, 8 F.3d at 1439 (9th Cir.1993); Hellinger v. Eckerd Corp., 67 F.Supp.2d 1359, 1361 (S.D.Fla.1999).
While the Tenth Circuit has not addressed the question of whether notice must be explicitly requested by the employee, the court in Thomas discussed at some length the reason notice was essential to the interactive process of accommodation:
Id. at 1155.
In Smith v. Midland Brake, Inc., the Tenth Circuit stated:
180 F.3d at 1171-72. In a footnote, the court, citing Beck v. University of Wisconsin, 75 F.3d 1130, 1134 (7th Cir.1996), stated:
Id., n. 9 (emphasis added).
These cases teach that the purpose of the notice requirement is to facilitate the interactive process and prevent ambush of an unwitting employer. Thus, faced with the issue of whether the employee must explicitly request an accommodation or whether it is enough that the employer has notice an accommodation is needed—the Tenth Circuit would likely opt for the latter choice.
In this case, 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. Because Cooke was uncertain whether Elauf would need an accommodation, she consulted the District Manager.
Abercrombie asserts that even if it has not rebutted the prima facie case, allowing Elauf to wear a head scarf would result in "undue hardship."
Several Abercrombie executives have testified they believe granting Elauf an exception to the Look Policy would negatively impact the brand, sales and compliance. However, none have conducted any studies or cite specific examples to support this opinion. Instead, Abercrombie relies on Joachimsthaler's expert opinion.
Joachimsthaler, in turn, testified extensively about the importance of the in-store experience to Abercrombie's marketing strategy, and opined that the granting of even one exception to the Look Policy would negatively impact the brand. He has made no effort, however, to collect or analyze data to corroborate his opinion. If Abercrombie had never granted exceptions, or perhaps even if it had never granted exceptions for head scarfs, this omission might be understandable. Eight or nine head scarf exceptions, though, have been made, and the expert has completely failed to consider the impact, if any, of those exceptions.
The Tenth Circuit has stated:
Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1492 (10th Cir.1989). In light of the fact that Abercrombie has granted numerous exceptions to the Look Policy since 2001, and in particular has recently granted eight or nine head scarf exceptions, Joachimsthaler's opinion is too speculative to establish actual hardship, as required by Toledo.
Abercrombie has failed to meet its burden of establishing that granting Elauf an exception to the Look Policy would have caused undue hardship.
There being no genuine dispute as to any material fact, Abercrombie's Motion for Summary Judgment [Dkt. # 50] is denied and the EEOC's Amended Motion for Partial Summary Judgment [Dkt. # 68] as to liability is granted.
225 F.3d at 1155.
