No

Table of Contents

Table of Authorities................................................................................. ii

Rule 35(b) Statement............................................................................... 1

Statement of Facts.................................................................................. 2

Panel Majority Decision and Dissent....................................................... 4

Argument................................................................................................ 7

1. The panel majority’s heightened notice standard conflicts

with rulings of other courts of appeals..................................... 8

2. The majority’s rigid definition of the notice element of a

prima facie case conflicts with decisions of the

Supreme Court and this Court............................................... 12

3. The majority’s decision conflicts with this Court’s

recognition that an employer violates Title VII when it

takes an adverse action against an individual based on his

religious practices................................................................... 14

Conclusion............................................................................................. 15

Attachment: Panel Majority Decision and Dissent

Certificate of Digital Submission

Certificate of Service

Table of Authorities

Cases Page(s)

Adeyeye v. Heartland Sweeteners, LLC,

721 F.3d 444 (7th Cir. 2013)......................................................... 12

Brown v. Polk County, Iowa,

61 F.3d 650 (8th Cir. 1995)......................................................... 1, 9

Dixon v. Hallmark Cos.,

627 F.3d 849 (11th Cir. 2010)..................................................... 1, 9

EEOC v. Abercrombie & Fitch Stores, Inc.,

No. 11-5110, Slip op. (10th Cir. 2013)................................... passim

EEOC v. Flasher Co.,

986 F.2d 1312 (10th Cir. 1992)..................................................... 13

Fed. Dep. Ins. Co. v. Antonio,

843 F.2d 1311 (10th Cir. 1988)..................................................... 12

Furnco Constr. Co. v. Waters,

438 U.S. 567 (1978)...................................................................... 12

Heller v. EBB Auto Co.,

8 F.3d 1433 (9th Cir. 1993)............................................................. 9

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973).................................................................. 2, 13

Shapolia v. Los Alamos Nat’l Lab.,

992 F.2d 1033 (10th Cir. 1993)............................................ 2, 12, 13

Toledo v. Nobel-Sysco, Inc.,

892 F.2d 1481 (10th Cir. 1989).............................................. 2, 8, 14

Thomas v. Nat’l Ass’n of Letter Carriers,

225 F.3d 1149 (10th Cir. 2000)................................................ 10, 12

Statutes

42 U.S.C. § 12102(1)(C).......................................................................... 15

42 U.S.C. § 12102(3)(A).......................................................................... 15

42 U.S.C. § 12112(a)............................................................................... 15

42 U.S.C. § 2000e-3(a) ....................................................................... 7, 14

42 U.S.C. § 2000e(j)............................................................................ 8, 14

Rules

Fed. R. App. P. 35(b)(1)(A)....................................................................... 2

Fed. R. App. P. 35(b)(1)(B)....................................................................... 1

Rule 35(b) Statement

The panel majority concluded in this case that when a hiring official correctly understands there to be a conflict between an applicant’s religious practices and a work requirement, and the employer accordingly declines to hire the applicant because of its understanding, no Title VII liability can attach to the employer’s action. The majority held that it is not enough that an employer is aware of a potential conflict; the applicant must present the employer with explicit details sufficient to give it “particularized, actual knowledge” before an employer need consider accommodating the applicant’s religious practices, even if it is the employer that possesses more knowledge about how its rules may conflict with the religious practices.

The Equal Employment Opportunity Commission seeks rehearing en banc for three reasons. First, the majority’s decision—that an employer’s awareness of a potential conflict is insufficient to support a prima facie case of failure to make a reasonable accommodation—raises a question of exceptional importance because it creates a conflict with the decisions of other courts of appeals. See Fed. R. App. P. 35(b)(1)(B); Dixon v. Hallmark Cos., 627 F.3d 849, 856 (11th Cir. 2010); Brown v. Polk County, Iowa, 61 F.3d 650, 654 (8th Cir. 1995) (en banc). Indeed, the majority explicitly recognized that it was taking a “different path” than other courts of appeals, slip op. at 48, and the dissent recognized that the panel decision “creat[es] a conflict among the circuits,” Dissent at 13. Second, the majority’s rigid definition of the notice element of a prima facie case conflicts with decisions of the Supreme Court and this Court, each of which requires courts to interpret the prima facie case requirements flexibly. See Fed. R. App. P. 35(b)(1)(A); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n.13 (1973); Shapolia v. Los Alamos Nat’l Lab., 992 F.2d 1033, 1036-38 (10th Cir. 1993). Third, the majority’s decision conflicts with this Court’s recognition that when an employer takes an adverse action against an individual “based solely on his religious practices without an attempt to accommodate him, assuming it could have done so without undue hardship, it committed an illegal act.” Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1488 (10th Cir. 1989).

Statement of Facts

Samantha Elauf was born in Tulsa, Oklahoma, and is a lifelong practicing Muslim. Appellee’s Supplemental Appendix (“Supp.App.”) 10. At age thirteen, Elauf began wearing a hijab, or headscarf, that covers her hair, “to represent who [she] was as far as [her] faith,” and she continues to wear one “as a reminder of her faith.” Supp.App.11, 13; Supp.App.183-84 (images of Elauf wearing her headscarf). Elauf wears a headscarf any time she is in public. Supp.App.11-12.

On May 25, 2008, Elauf, then age 17, applied for an open sales associate—titled “Model”—position at the Abercrombie Kids store in the Tulsa Woodland Hills Mall. Supp.App.16-17, 44, 57-58. Abercrombie maintains a “Look Policy” governing the appearance of its employees. The policy’s only reference to headwear is its prohibition on wearing “caps,” but Abercrombie states that it interprets the “caps” prohibition to encompass headwear of any kind. App.380; Supp.App.68-69. Nevertheless, Abercrombie has approved numerous religious-practice-based exceptions to the Look Policy in its stores, including permitting “Models” to wear headscarves for religious reasons. Supp.App.76, 81, 89-168.

Heather Cooke, the Assistant Manager in charge of interviewing, hiring, and firing at the Woodland Hills store, interviewed Elauf. Supp.App.17-18, 41-42, 71-72. Cooke was familiar with Elauf, and on previous occasions had observed Elauf wearing her headscarf. Supp.App.46, 48, 180. Cooke “figured [it was a] religious reason why [Elauf] wore the headscarf, she was Muslim.” Supp.App.48, 56. Elauf wore a headscarf to the interview, and Cooke made no mention of it to Elauf. Supp.App.49. During the interview, Cooke read to Elauf from Abercrombie’s interview guide, which did not refer to the Look Policy by name or mention any specific items not to be worn by employees, including headwear. Supp.App.45, 56, 59-65. Cooke never asked Elauf if she could conform to the Look Policy’s headwear prohibition. Supp.App.49.

Cooke scored Elauf highly enough to hire her on the spot, but was concerned about ambiguity in Abercrombie’s policy regarding headwear. In order to confirm that Elauf’s headscarf was acceptable, Cooke first asked her Store Manager, who had no idea. Supp.App.49, 51. Cooke then contacted District Manager Randall Johnson. Id. Johnson told Cooke that Elauf was not compliant with the Look Policy and could not be hired “because she had a head scarf.” Supp.App.51,73-75. Cooke replied that she believed Elauf was Muslim, “which was a recognized religion . . . and that [Elauf] was wearing [a headscarf] for religious reasons.” Supp.App.51, 52. Johnson again told Cooke not to hire Elauf and directed her to lower Elauf’s interview score, rendering Elauf ineligible for hire. Id. Cooke complied and did not hire Elauf. Id.

In the district court, the Commission alleged that Abercrombie violated Title VII by failing to make a reasonable accommodation for Elauf’s religious practice of wearing a headscarf in public and refusing to hire her because of her religious practice. The district court granted partial summary judgment to the Commission on liability. Abercrombie appealed.

Panel Majority Decision and Dissent

The majority concluded that Abercrombie was entitled to summary judgment because “Ms. Elauf never informed Abercrombie prior to its hiring decision that she wore her headscarf or ‘hijab’ for religious reasons and that she needed an accommodation for that practice.” Slip op. at 2. The majority deemed evidence that the employer was aware of a potential conflict between the applicant’s religious practice and a workplace rule insufficient to satisfy the notice prong of the prima facie case, stating that it is “an employer’s particularized, actual knowledge of the key facts that trigger[s] [the employer’s] duty to accommodate.” Id. at 36 (emphasis in original).

The majority stated that “the record provides 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,’” for “[a]t 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 do so.” Id. at 42 (emphasis and alterations in original). The majority concluded that “a correct assumption does not equal actual knowledge,” and Cooke “did not possess the requisite actual knowledge concerning these matters.” Id. at 44 n.9, 45.

Judge Ebel dissented, rejecting the majority’s notice standard as an “inflexible requirement that . . . makes no sense under the law or the circumstances presented by this case.” Dissent at 2. Judge Ebel noted that, accepting Elauf’s testimony “as true as we must,” Elauf did not know that there was a conflict between her religious practice . . . and the Look Policy.” Id. at 3. “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 . . . prohibited its sales models from donning headwear.” Id. at 4. “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.” Id.

Judge Ebel added that “this evidence arguably suggests that Abercrombie affirmatively misled Elauf into believing that there was no problem with her wearing a hijab while working in one of Abercrombie’s stores, which may explain why she did not raise the issue during her job interview.” Id. at 9-10 n.6. “[A] jury could further find . . . that Abercrombie

. . . was able affirmatively to avoid its obligation to engage in an interactive dialogue with Elauf about a reasonable accommodation . . . by not mentioning the possible conflict and then not hiring her because of it.” Id. at 14 (citations omitted). “Those facts, if found by a jury, smack of exactly the religious discrimination that Title VII prohibits.” Id. at 14.

“Under these circumstances,” Judge Ebel stated, “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.” Id. at 4. Judge Ebel rejected the majority’s “suggest[ion]” that it was “bound . . . to apply the elements of a prima facie failure-to-accommodate claim as set forth in prior, factually distinct cases that did not raise or resolve the issue before us of whether it is the applicant’s burden in the first instance to request religious accommodation to an undisclosed employer’s policy.” Id.

Judge Ebel recognized that Supreme Court and Tenth Circuit precedent require the elements of a prima facie case to be “flexible, in order to address the specific circumstances presented by a given case.” Id. at 4-5 (citations omitted). Judge Ebel concluded that the evidence “establishes circumstances that justify applying here a common sense exception to the usual rule.” Id. at 10. Judge Ebel pointed to decisions from other circuits holding 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.” Id. at 11 (citing cases in footnote).

Argument

Title VII prohibits employers from “refus[ing] to hire . . . any individual . . . because of such individual’s . . . religion,” 42 U.S.C. § 2000e-2(a), and requires employers to “‘make reasonable accommodations, short of undue hardship, for the religious practice of employees and prospective employees.’” Toledo, 892 F.2d at 1486-87 (citation omitted); see also 42 U.S.C. § 2000e(j). Abercrombie declined to consider any accommodation for Elauf’s religious practice and instead decided not to hire her because she wore a headscarf. The panel majority, ruling as a matter of law that Abercrombie’s actions did not violate Title VII, created a new, heightened standard for assessing notice to the employer. The panel’s inflexible standard conflicts with rulings of this Court and other courts of appeals, and so warrants en banc review.

1. The panel majority’s heightened notice standard conflicts with

rulings of other courts of appeals.

The panel majority set out a new rule: it created a heightened “particularized, actual knowledge” notice standard under which the employer is deemed to have sufficient notice of the potential conflict between an individual’s religious beliefs or practices and a work rule only if the individual “explicitly” and comprehensively raises the issue with the employer. Slip op. at 36-41. The majority’s new standard is without precedent in the case law.

Other circuits have declined to adopt such a heightened notice standard under similar circumstances. In Dixon, for example, the Eleventh Circuit rejected the employer’s argument that the plaintiffs could not establish the notice prong of the prima facie case because they “never expressly told” their supervisor that the employer’s rule about workplace artwork conflicted with their religious beliefs about God in public places. Dixon, 627 F.3d at 856. The court reasoned that if the supervisor “was aware of the tension between her order and the Dixons’ religious beliefs . . . her awareness would satisfy the second prong.” Id. The en banc Eighth Circuit likewise has rejected the argument that because the plaintiff “never explicitly asked for accommodation for his religious activities, he may not claim the protections of Title VII.” Brown, 61 F.3d at 654. The court held that an employer “need have ‘only enough information about an employee’s religious needs to permit the employer to understand the existence of a conflict between the employee’s religious practices and the employer’s job requirements.’” Id. (quoting Heller v. EBB Auto Co., 8 F.3d 1433, 1439 (9th Cir. 1993)). As these courts have recognized, where there is evidence that the employer was aware of the individual’s religious belief and the potential conflict with the employer’s rule, such awareness should constitute sufficient notice to trigger consideration of a reasonable accommodation.

This case amply demonstrates the problem with the new rule the majority created, and why the rule of the other courts of appeals is more consistent with Title VII. There is evidence that Abercrombie was fully aware of the potential conflict between its interpretation of the Look Policy and Elauf’s religious practice of wearing a headscarf in public. First, Elauf arrived for her job interview wearing the headscarf. Second, Cooke admitted she believed—correctly—that Elauf is Muslim and wears a headscarf for religious purposes. Because Cooke believed that this religious practice might conflict with the Look Policy, Cooke raised the issue with Johnson, but never discussed the issue with Elauf. Despite Abercrombie’s awareness, the majority deemed it unnecessary for Abercrombie to address the headscarf issue with Elauf because “Title VII’s interactive accommodation scheme” discourages employers from inquiring or speculating about religion. Slip op. at 56-57.

The majority is incorrect that Abercrombie would have had to inquire or speculate about Elauf’s religion. Abercrombie could have simply asked Elauf whether she could abide by a no headwear rule—a noninvasive inquiry that would not inappropriately delve into her religious beliefs—and thereby engaged in the interactive process. Instead, Abercrombie remained silent, not even conveying information about the headwear prohibition, and avoided the interactive process that this Court recognizes plays a critical role in Title VII’s protections against religious discrimination. See Thomas v. Nat’l Ass’n of Letter Carriers, 225 F.3d 1149, 1155 (10th Cir. 2000) (noting that Title VII’s reasonable accommodation requirement, like that in the Americans with Disabilities Act, “involves an interactive process that requires participation by both the employer and the employee”).

The majority’s new, strict notice standard, far from promoting Title VII’s goal of removing consideration of individuals’ religion from the employment decisionmaking process, would do substantial violence to that goal. If an applicant must make the employer aware of her religious beliefs or practices through “explicit” conversation to be entitled to reasonable accommodation, it would create a “Catch 22” for applicants, requiring them to disclose their religious beliefs and practices comprehensively and anticipatorily, at the interview stage, in order to be protected from discrimination.

This disclosure rule is especially inappropriate because of how it was applied here—where the employer did not raise the conflicting work rule with the applicant. As Judge Ebel rightly noted, it may be the employer that has the superior knowledge regarding any possible conflicts the applicant’s religious beliefs or practices may pose with the job’s particular requirements. Dissent at 12. Under the majority’s approach, however, the employer has no corresponding obligation to initiate any discussion with the applicant regarding the perceived conflict and whether it can be resolved through reasonable accommodation. See Slip op. at 46 n.11. Thus an applicant must make an explicit disclosure of her religious beliefs or practices in order to be entitled to reasonable accommodation, lest those religious beliefs or practices conflict with work rules about which the applicant is unaware.

The Commission is concerned that the new, heightened notice standard will discourage employers from engaging in an interactive process where the employer is aware of a potential conflict between religious practices and work requirements. If an employer may avoid the obligation to consider reasonable accommodations by simply failing to disclose the conflicting work rule, as it did here, then the heightened notice standard will have subverted the vital interactive process. See Thomas, 225 F.3d at 1155. Moreover, the majority’s approach is in tension with the general principle set out by this Court that “‘one may not willfully and intentionally remain ignorant of a fact, important and material to his conduct[,] and thereby escape punishment.’” Fed. Dep. Ins. Co. v. Antonio, 843 F.2d 1311, 1314 (10th Cir. 1988) (citation omitted); see also Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 450 (7th Cir. 2013) (stating, in context of notice requirement for Title VII religious accommodation claim, “an ‘employer cannot shield itself from liability . . . by intentionally remaining in the dark’”) (citation omitted).

2. The majority’s rigid definition of the notice element of a prima facie

case conflicts with decisions of the Supreme Court and this Court.

The majority’s formulation of the notice standard is at odds with controlling precedent regarding how to apply the elements of a prima facie case of discrimination under Title VII. When reviewing a religious accommodation claim at the summary judgment stage, this Court employs a version of the McDonnell Douglas burden shifting method of proof. Thomas, 225 F.3d at 1155. This analytical framework is “not meant to be ‘rigid, mechanized, or ritualistic.’” Shapolia, 992 F.2d at 1037 (citing Furnco Constr. Co. v. Waters, 438 U.S. 567, 577 (1978)). “‘[T]he facts necessarily will vary in Title VII cases,’” and therefore the general specification “of the prima facie proof required . . . is not necessarily applicable in every respect to differing factual situations.’” Shapolia, 992 F.2d at 1037 (quoting McDonnell Douglas, 411 U.S. at 802 n.13). “Accordingly, the proof required to establish a prima facie case . . . has been adapted to specific fact scenarios.” Id. (citing EEOC v. Flasher Co., 986 F.2d 1312 (10th Cir. 1992)). Indeed, the burden-shifting framework this Court applies in religious accommodation cases is itself a modified version of the standard McDonnell Douglas framework, with the elements of the prima facie case adapted to conform to the factual context presented by religious accommodation claims. See id. at 1036-38.

This Supreme Court and Tenth Circuit precedent should have led the majority to interpret the notice element of the prima facie case flexibly here, where the employer was aware of the potential religious-based conflict with a work rule. As Judge Ebel stressed in explaining why the majority erred in applying the notice element inflexibly, Abercrombie never disclosed the Look Policy’s proscription to Elauf. Dissent at 4. Moreover, both the Tulsa store’s hiring official and the Store Manager were unsure as to whether Elauf’s headscarf would violate the Look Policy, and the hiring official had to ask the District Manager. Yet the majority adopted a rigid formulation of the notice requirement that required Elauf to explain at the interview her religious practice and request an accommodation with Abercrombie’s unstated and unclear work rule. As Judge Ebel concluded, the “circumstances . . . justify applying here a common sense exception to the usual rule” regarding the notice element. Dissent at 10.

3. The majority’s decision conflicts with this Court’s recognition that

an employer violates Title VII when it takes an adverse action

against an individual based on his religious practices.

The majority concluded that employers who are aware of a potential conflict between an applicant’s religious practices and a work requirement may refuse to hire the applicant because of her religious practices, without inquiring into whether the potential conflict could be resolved through reasonable accommodation, and without informing the applicant of the work rule. The majority’s opinion conflicts with the plain language of Title VII, prohibiting hiring discrimination “because of” an individual’s religion, which in turn is defined to include all aspects of religious practices, unless the employer can show a reasonable accommodation would create an undue hardship. 42 U.S.C. §§2000e-2(a), 2000e(j). To that end, this Court has held that an employer’s “acting to the detriment of an applicant or employee because of his religion before attempting accommodation is illegal.” Toledo, 892 F.2d at 1486-87 (emphasis in original). The majority’s ruling cannot be reconciled with Title VII or with this Court’s Toledo decision. This Court therefore should grant en banc review.

Conclusion

The Commission requests that this Court rehear this appeal en banc.

Respectfully submitted,

P. DAVID LOPEZ U.S. EQUAL EMPLOYMENT

General Counsel OPPORTUNITY COMMISSION

131 M St. NE, Rm. 5NW10P

LORRAINE C. DAVIS Washington, D.C. 20507

Acting Associate General Counsel (202) 663-4870

James.Tucker@EEOC.gov

JENNIFER S. GOLDSTEIN

Acting Assistant General Counsel

s/ James M. Tucker

JAMES M. TUCKER

Attorney

[1] Pursuant to Section III.11 of the 10th Circuit Court of Appeals ECF User Manual, this attachment is presented as a separate document in the electronically filed version of this petition.