United States: Court Allows EEOC's Discrimination Suit Over Religious Garb To Proceed To Jury

Last Updated: October 15 2015
Article by Gerald L. Maatman Jr. and Christina M. Janice

In an order recently issued in EEOC v Jetstream Ground Services, Inc., Case No. 13-CV-02340 (D. Colo. Sept. 29, 2015), Judge Christine Arguello of the U.S. District Court for the District of Colorado ruled that the EEOC had satisfied all of its pre-suit conciliation requirements and demonstrated sufficient evidence to proceed to trial on behalf of a class of Muslim women who allege that Jetstream Ground Services, Inc. ("Jetstream"), failed to accommodate their wearing hajibs and long skirts on the job, failed to hire them, laid off or reduced their hours, and discriminated against them on the basis of their religion.

This case is an important primer for employers facing EEOC litigation, as well as companies with strict uniform and dress code policies.

Case Background

In October 2008, Florida-based Jetstream was awarded a cabin cleaning contract with United Airlines at Denver International Airport. Jetstream offered job interviews to employees of its predecessor contractor. Id. at 3-4. Jetstream used several criteria in its hiring process, one of which was the applicant's willingness to wear a gender neutral uniform of pants, shirt, and hat. Id. at 8. Five Muslim women of Ethiopian or Somali nationality, Safia Adbulle Ali, Sahra Bashi Abdirahman, Hana Bokku, Sadiyo Hassan Jama and Saida Warsame ("Intervenors"), applied for the position of Aircraft Cleaner, but were not offered employment. The Intervenors filed charges of discrimination locally with the Colorado Civil Rights Division, alleging that Jetstream discriminated against them on the basis of their sex (female) and religion (Muslim), and denied them the religious accommodations of wearing a hijab to cover their hair, ears, and neck, and of wearing long skirts to cover the form of their bodies. Id. at 3. After the charges were filed, Jetstream amended its uniform policy "based on legal issues regarding the burka headgear" to allow secured headscarves within specifications for dimension and color. Id. at 7.

The Colorado Civil Rights Division transferred the charges to the EEOC, which broadened its investigation through a series of requests for information. On August 29, 2012, the EEOC issued its Letter of Determination as to each Intervenor's charge, stating that it had found reasonable cause to believe Jetstream had violated Title VII by: (1) refusing to provide Intervenors and a "class" of other female Muslim employees or applicants a reasonable accommodation based on their religion; (2) refusing to hire the charging parties "and others like" them for the position of Aircraft Cleaner based on sex, religion; and (3) by retaliating against them for engaging in protected activity. Id. at 9.

A number of conciliation proposals were exchanged between the EEOC and Jetstream, and the parties met once. Id. at 11. During the conciliation process, the EEOC identified two other women it characterized as "aggrieved," and submitted a conciliation proposal including: (1) a lump sum demand for $775,000 in damages; (2) the creation of a settlement fund of $436,500 to be paid to other aggrieved individuals identified by the EEOC in the course of its investigation; and (3) Jetstream's development of a plan for accommodating deviations from its uniform policy. Subsequently, the EEOC reduced its demand twice. Id. Jetstream, however, offered $75,000 for back pay and compensatory damages, and conciliation was terminated. Id. at 12.

The EEOC brought its lawsuit against Jetstream on August 20, 2013. In the lawsuit, the EEOC also asserted individual claims on behalf of the two "aggrieved" individuals, Amina Oba and Milko Haji, who had been employed by Jetstream and who had not filed charges. On October 13, 2014 Jetstream made offers of full-time employment to the Intervenors, stating that the Intervenors "may wear a headscarf at work that meets their religious requirements but does not present safety risks," but also requiring that they "wear pants at work, as they claim they are willing to do." Id. at 12.

Jetstream filed a motion for summary judgment arguing that: (1) the EEOC failed to satisfy its pre-suit conciliation obligations; (2) Oba's and Haji's claims were for various reasons deficient; and (3) the damages alleged were limited by Jetstream's offers of employment to the Intervenors. The EEOC filed a cross-motion for summary judgment regarding Jetstream's defenses of exhaustion of administrative remedies and prerequisites, statute of limitations, waiver, estoppel and laches, and undue burden. Id. at 2. The Court granted and denied each motion, in part.

The Court's Decision

Jetstream brought a motion for summary judgment. The EEOC also filed a cross-motion for summary judgment.

Jetstream's Motion for Summary Judgment

Jetstream sought summary judgment against the EEOC on the basis of its failure to meet its pre-suit conciliation obligation. The Court rejected Jetstream's arguments: (1) that the EEOC did not conduct a "sincere and reasonable conciliation" by negotiation a fund for aggrieved individuals the EEOC had not yet identified; and (2) that the EEOC acted in bad faith by making an "unsubstantiated" lump sum demand rather than individual demands for each Intervenor. Id. at 20-21. Relying on the recent decision of the U.S. Supreme Court in Mach Mining LLC v. EEOC, 135 S.Ct. 1645, 1655-56 (2015), the Court reasoned that the scope of its judicial review of the EEOC's conciliation efforts was "narrow." Id. at 20. The Court further determined that the EEOC need only show that it endeavored to conciliate; that the EEOC is not required to engage in any specific steps or measures in its conciliation process; and that it is up to the EEOC to decide when conciliation has failed. Id. at 20-23.

The Court then turned to Jetstream's motion for summary judgment on the EEOC's claims for Amina Oba, a Jetstream employee who never requested accommodation, was observed by co-workers to change from headscarf and long skirt to the company's uniform while at work, and who subsequently was laid off. Relying on EEOC v Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2031 (2015), the Court determined that an employee need only show that his or her need for accommodation was a motivating factor in the employer's decision. Id. at 23. Denying summary judgment on the EEOC's claims for disparate treatment and discrimination, the Court ruled there was a triable issue of fact as to whether Jetstream knew "or, at the very least, suspected" that Oba desired an accommodation. Id. at 26, 28-29.

Turning to the EEOC's claim for retaliation, which requires an employee to engage in "protected activity" under Title VII to be actionable, the Court considered "as a matter of first impression" whether Oba engaged in protected activity merely by wearing religious clothing on the employer's premises but during her breaks. Id. at 32. On this issue, the Court granted Jetstream summary judgment on the grounds that Oba did not actually convey to Jetstream any concern about unlawful practices. Id. at 34.

Regarding the EEOC's individual claims for Milko Haji, who allegedly had her hours reduced on account of her religion and desire to wear a hajib and pants, the Court observed that the EEOC had failed to accurately establish Haji's actual start date at Jetstream, limiting the EEOC's provable loss to eight hours of pay. Finding this potential amount of loss to be "de minimis," the Court granted Jetstream summary judgment on the EEOC's claims for discrimination, failure to accommodate, and retaliation. Id. at 39-40.

Finally, the Court rejected Jetstream's contentions that the EEOC's claims for Oba should be dismissed because Oba had not filed a charge and not exhausted her administrative remedies, on the grounds that the EEOC has enforcement power to bring suit in its own name on behalf of others. Id. at 42-43 (citing Gen. Tel. Co. of the Nw., Inc. v. EEOC, 445 U.S. 319, 331 (1980)). In rejecting Jetstream's motion for summary judgment as to damages, the Court observed that only "unconditional" offers of employment can end on-going liability for back pay. Id. at 46 (citing Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1493 (10th Cir. 1989)). Accordingly, the Court found there was a triable issue as to whether a reasonable person would have rejected the terms of Jetstream's offers of employment. Id. at 47-48.

EEOC's Motion for Summary Judgment

The Court then addressed the Commission's cross-motion for summary judgment. Finding that Jetstream, through expert evidence, raised a triable issue of fact as to whether wearing a long skirt climbing steps constituted a "task interference" that could increase the risk of injury, the Court denied the EEOC's motion for summary judgment regarding Jetstream's defense of undue hardship in accommodating long skirts in the workplace. However, based on Jetstream's own actions in amending its policy to allow hijabs to specifications and making offers of employment that conceded wearing hijabs on duty, the Court granted summary judgment to the EEOC regarding the defense of undue hardship in allowing hijabs in the workplace. Id. at 56-58.

The Court further granted summary judgment to the EEOC on Jetstream's defenses of failure to exhaust administrative remedies, statute of limitations, waiver, and estoppel.

Implications for Employers

As the workforce diversifies and employers with uniform or dress code policies increasingly face requests for accommodation, it is important to exercise diligence in considering the reasonableness of the accommodation sought, the reasons accommodation may constitute an undue hardship affording employers relief, and the careful crafting of policies and practices that are compliant with federal discrimination laws.

Readers can also find this post on our EEOC Countdown blog here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Gerald L. Maatman Jr.
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.