United States: With Adverse Employment Action Absent, Court Denies EEOC's Motion For Reconsideration In Religious Accommodation Case

Last Updated: March 22 2016
Article by Gerald L. Maatman Jr. and Alex W. Karasik

In an important EEOC case involving the intersection of company dress code policies and the rights of employees seeking religious accommodations, following a grant of both parties' summary judgment motions in part, which we previously blogged about here, the EEOC moved for reconsideration of the dismissal of one individual's claims against the defendant, JetStream Ground Services, Inc. ("JetStream").  Relevant to the EEOC's motion for reconsideration, the Court previously held that the EEOC failed to accurately establish the employee's actual start date at JetStream, limiting the provable loss to a "de minimis" amount of eight hours of pay.  In an order recently issued in EEOC v Jetstream Ground Services, Inc., Case No. 13-CV-02340 (D. Colo. Mar. 8, 2015), Judge Christine M. Arguello of the U.S. District Court for the District of Colorado denied the EEOC's motion for reconsideration, holding that a worker must be subjected to an adverse action to assert a religious bias claim under Title VII, and that the arguments advocated by the EEOC in its motion did not satisfy the requisite standard of proving clear error or manifest injustice warranting relief.

This case should be on the radar of employers who intend to utilize strict uniform or dress code policies, especially given the backdrop of a diverse workforce that often seeks religious accommodations and the increasingly aggressive stance of the EEOC in religious discrimination litigation.

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 ("Intervenors") who had unsuccessfully applied for the position of Aircraft Cleaner filed charges of discrimination locally with the Colorado Civil Rights Division.  They alleged 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, who 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 and religion; and (3) by retaliating against them for engaging in protected activity.  Id. at 9.  After an unsuccessful conciliation process, 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) the claims of Oba and Haji were deficient for various reasons; 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.

On September 29, 2015, the Court granted and denied each motion, in part.  In relevant part, the Court dismissed Haji's individual claims pursuant to Rule 56(a).  Id. at 63.  Regarding the EEOC's allegation that Haji had her hours reduced on account of her religion and desire to wear a hajib and pants, the Court held that the EEOC 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 as applied to Haji.  Id. at 39-40.  Thereafter, the EEOC moved for reconsideration of that portion of the Court's decision.  On March 8, 2016, the Court denied the EEOC's motion for reconsideration.

The Court's Decision

The EEOC argued that the Court erred when it determined that Haji's claim for religious discrimination failed as a matter of law, contending that Haji was not required to show that she was subjected to an adverse employment action by JetStream.  Id. at 3.  The Court rejected this assertion, noting that "[t]his argument easily could have been made in the EEOC's summary judgment briefing...[but] was not."  Id. at 3-4.  While the EEOC conceded that it did not previously provide the Court with the arguments it made in its motion for reconsideration, the EEOC nonetheless urged the court to exercise its discretion in granting reconsideration because its newly asserted arguments were purely "legal."  Id. at 4.  Citing contrary Tenth Circuit precedent, the Court rejected this argument, noting that reconsideration motions are not a license to advance arguments that could have been advanced in prior briefing.  Id. at 5 (citation omitted).

In addition, the EEOC asserted that an employer has an affirmative duty to accommodate an employee's religious practice, such that an employer's mere failure to make a religious accommodation – without more – constitutes a distinct, "freestanding" cause of action under Title VII, as supported by Title VII's definition of religion, which is defined as including "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business."  Id. at 4-5.  The Court rejected this argument, noting that "[a]lthough this language could support an employer's purported affirmative duty to accommodate 'all aspects of [an employee's] religious observance and practice,' so long as those aspects do not pose an undue hardship, it does not necessarily follow that the statute's definition of 'religion' creates an independent, separate cause of action for an employer's failure to accommodate."  Id. at 6.

The EEOC also contended that the U.S. Supreme Court's recent decision in EEOC v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028 (2015), supported its argument that an employer's refusal to accommodate a religious practice is a stand-alone violation of the Act.  Citing a footnote in the concurrence of Abercrombie, the EEOC argued that, if the Supreme Court said it is true that "[i]f [an employer] is willing to 'accommodate' . . . [then] [an] adverse action 'because of' the religious practice is not shown," it must also be true that "where the employer is not willing to accommodate, an adverse action is shown."  Id. at 7.  The Court rejected this assertion, which it dubbed as being premised on a "logical fallacy," finding that it "plainly offer[ed] no support for the EEOC's arguments in the instant case."  Id. at 8.

Additionally, the EEOC urged the Court to look to analogous failure-to-accommodate claims under the ADA.  Rejecting this assertion, the Court instructed that the failure to accommodate is a "freestanding," distinct cause of action under the ADA.  Id. at 9.  The Court then distinguished the statutes, noting that Title VII contains no such stand-alone, failure-to-accommodate claim, and therefore, it "cannot simply equate the two statutes because both involve accommodations."  Id. at 10-12.

Finally, the EEOC argued that the Court should not have applied the McDonnell-Douglas burden-shifting framework at all in this case because there was "direct" evidence of discrimination, and therefore, the burden-shifting framework (including the usual prima facie case) was inapplicable.  Following Tenth Circuit precedent, which defines "direct" evidence as "proof of an existing policy which itself constitutes discrimination or oral or written statements on the part of a defendant showing a discriminatory motivation," the Court noted that "an employer's policy only constitutes 'direct' evidence of discrimination if it is discriminatory on its face."  Id. at 13-14 (citations omitted).  Applied here, the Court held that JetStream's uniform policy here was "not discriminatory on its face...[since] the policy stated only that employees must wear pants, and in no way explicitly references or disallows religious dress."  Id. at 14.  Thus, the Court found that the Court properly applied the burden-shifting framework provided for in McDonnell-Douglas to Haji's claim since the EEOC offered no evidence of an existing policy which itself constituted discrimination.  Id. at 15.  Accordingly, since the EEOC's arguments did not meet the requisite standard of demonstrating clear error or manifest injustice warranting relief, the Court denied the EEOC's motion for reconsideration.

Implication For Employers

This decision confirms that religious bias claimants who allege their employer failed to accommodate their practice must also demonstrate they were subject to an adverse employment action.  Beyond illustrating the importance of employer awareness in regards to workplace uniform and dress code policies and the need to be cognizant of how requests for religious clothing accommodations are addressed, this holding demonstrates that employers must be cautious in regards to not taking any potential adverse employment actions.

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.

Authors
Gerald L. Maatman Jr.
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions