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
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."
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
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 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.
Samantha Elauf claims to be a practicing Muslim.
Prior to her interview, Ms. Elauf discussed with a friend who worked at Abercrombie's Woodland Hills location, Farisa Sepahvand, whether wearing a 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.
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. 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 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
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.
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.
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 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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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
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 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.
In summary, we conclude that the district court erred in denying summary judgment to Abercrombie.
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 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.
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' 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'").
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.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, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), and Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (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).
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, 109 S.Ct. 1514, 103 L.Ed.2d 914 (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, 101 S.Ct. 1425, 67 L.Ed.2d 624 (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, 85 S.Ct. 850 (interpreting the phrase
Apparently guided by such authorities, the EEOC's Compliance Manual notes:
EEOC Compliance Manual § 12-I(A)(1) (omission in original) (emphases added) (footnotes omitted) (quoting [Eddie] Thomas, 450 U.S. at 716, 101 S.Ct. 1425 (internal quotation marks omitted); Redmond, 574 F.2d at 901 n. 12 (internal quotation marks omitted); Seeger, 380 U.S. at 176, 85 S.Ct. 850 (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."). 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."
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");
The EEOC has presented a religion-discrimination claim based upon Abercrombie's alleged failure to accommodate Ms. Elauf's conflicting religious practice of wearing a hijab. Title VII's implementing regulations "impose[] an obligation on the
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 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:
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.
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
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 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
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 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, 97 S.Ct. 2264; 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.
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
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 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 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.
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
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 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.
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 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.
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:
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 affirmative and open opposition to the employer's policies
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 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").
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,
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 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]?").
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
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 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.
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
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 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.
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 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 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
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...." (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 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 at 1020 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
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:
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 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
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 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 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
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.
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 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:
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, 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."
And other policy documents of the EEOC are of similar import, placing the
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
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, 183 L.Ed.2d 153 (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, 178 L.Ed.2d 716 (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, 185 L.Ed.2d 447 (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 interpretation." Drake v. FAA, 291 F.3d 59, 68 (D.C.Cir.2002); see Christensen v. Harris Cnty., 529 U.S. 576, 588, 120 S.Ct. 1655, 146 L.Ed.2d 621 (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:
Christopher, 132 S.Ct. at 2166 (citations omitted) (quoting Auer, 519 U.S. at 461-62, 117 S.Ct. 905 (internal quotation marks omitted); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213, 109 S.Ct. 468, 102 L.Ed.2d 493 (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 (alteration in original) (quoting Gates & Fox Co. v. Occupational Safety & Health Review Comm'n, 790 F.2d 154, 156
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 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, 120 S.Ct. 1655; 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, 117 S.Ct. 905). 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 question," Auer, 519 U.S. at 462, 117 S.Ct. 905. 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
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, 114 S.Ct. 2381, 129 L.Ed.2d 405 (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 consistently held agency view" (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n. 30, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987))); cf. Bowen, 488 U.S. at 212-13, 109 S.Ct. 468 (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, 109 S.Ct. 468; 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 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.
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, 120 S.Ct. at 1660 (quoting Raleigh & Gaston R.R. v. Reid, 80 U.S. 269, 13 Wall. 269, 270, 20 L.Ed. 570 (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, 127 S.Ct. 2339, 168 L.Ed.2d 54 (2007)) (internal quotation marks omitted). This is yet 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, 65 S.Ct. 161, 89 L.Ed. 124 (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, 186 L.Ed.2d 565 (2013) (second and third alterations in original) (emphasis added) (quoting Skidmore, 323 U.S. at 140, 65 S.Ct. 161); 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
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.
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 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
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. 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 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,
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
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.
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
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 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
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, 93 S.Ct. 1817 (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 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).
Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 52 L.Ed.2d 396 (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, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (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.
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.
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.
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 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.
As to the third element of the EEOC's prima facie claim, that Abercrombie had
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 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.
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.
The majority disagrees with the cases from these other circuits (thereby creating
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").
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
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 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.
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.").
EEOC Compliance Manual § 12-I(A)(1), Ex. 6.
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] 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").
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 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.
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)).
