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.
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.