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Tenth Circuit Muslim Ruling

Tenth Circuit Muslim Ruling

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FILED
United States Court Appeals
Tenth Circuit
October 2013
PUBLISH
Elisabeth Shumaker
Clerk Court
UNITED STATES COURT APPEALS
TENTH CIRCUIT
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff-Appellee,
No. 11-5110
ABERCROMBIE FITCH STORES,
INC., Ohio corporation, d/b/a
Abercrombie Kids,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District Oklahoma
(D.C. No. 4:09-CV-00602-GKF-FHM)
Mark Knueve Vorys, Sater, Seymour and Pease LLP, Columbus, Ohio
(Daniel Clark and Joseph Fungsang Vorys, Sater, Seymour and Pease
LLP, Columbus, Ohio, and Jon Brightmire Doerner, Saunders, Daniel
Anderson LLP, Tulsa, Oklahoma, with him the briefs) for DefendantAppellant.
James Tucker (P. David Lopez, General Counsel, Carolyn Wheeler, Acting
Associate General Counsel, Daniel Vail, Acting Assistant General Counsel,
with him the brief), U.S. Equal Employment Opportunity Commission,
Washington, D.C., for Plaintiff-Appellee.
Before KELLY, EBEL, and HOLMES, Circuit Judges.
HOLMES, Circuit Judge.
Abercrombie Fitch Abercrombie appeals from the district court
grant summary judgment favor the Equal Employment Opportunity
Commission EEOC and the court denial summary judgment favor
Abercrombie, the EEOC claim that Abercrombie failed provide
reasonable religious accommodation for prospective employee, Samantha Elauf, contravention Title VII the Civil Rights Act 1964, U.S.C. 2000e 2000e-17. Exercising jurisdiction under U.S.C. 1291, reverse the
district court grant summary judgment the EEOC. Abercrombie entitled summary judgment matter law because there genuine dispute
material fact that Ms. Elauf never informed Abercrombie prior its hiring
decision that she wore her headscarf hijab for religious reasons and that she
needed accommodation for that practice, due conflict between the practice
and Abercrombie clothing policy. Accordingly, remand the case the
district court with instructions vacate its judgment and enter judgment favor Abercrombie, and for further proceedings consistent with this opinion. leading scholar Islam, who was the EEOC expert this case,
John Esposito, Ph.D., has defined hijab the veil head covering worn Muslim women public. John Esposito, Islam: The Straight Path 310
(4th ed. 2011). their briefing, the parties use the terms headscarf and hijab 
interchangeably, and we.
Abercrombie retail clothing company that operates stores across the
United States under variety brand names, including Abercrombie Fitch,
abercrombie Abercrombie Kids and Hollister. Abercrombie requires
employees its stores comply with Look Policy. That policy intended promote and showcase the Abercrombie brand, which exemplifies classic
East Coast collegiate style clothing. Aplt. Opening Br. The Look Policy
applies every Abercrombie employee. Under the circumstances this case,
however, our central concern the policy application sales-floor employees,
whom Abercrombie referred Model[s]. Aplt. App. 372 (Dep. Chad
Moorefield, taken Mar. 16, 2011). Employees must dress clothing that
consistent with the kinds clothing that Abercrombie sells its stores.
Notably, the policy prohibits employees from wearing black clothing and caps, 
although the policy does not explicate the meaning the term cap. Aplee.
Supp. App. (Abercrombie Store Associate Handbook, dated Sept. 2006).
employee subject disciplinary action and including termination 
for failure comply with the Look Policy. Id.
Our inquiry focused the Look Policy was set forth the
Store Associate Handbook (revised Sept. 2006). This was the policy applicable
2008 when the events relevant here took place. Consequently, not consider
any changes that Abercrombie may have made the Look Policy since then.
Abercrombie contends that its Look Policy critical the health and
vitality its preppy and casual brand. See Aplt. Opening Br. (quoting
Aplt. App. 375; id. (Dep. Kalen McJilton, taken Jan. 20, 2011))
(internal quotation marks omitted). This so, Abercrombie maintains, because
does very little advertising through traditional media outlets (e.g., print
publications television); instead, relies its in-store experience promote
its products. Consequently, Abercrombie expends great deal effort ensure
that its target customers receive holistically brand-based, sensory experience.
See, e.g., Aplt. App. (Dep. Deon Riley, taken Mar. 17, 2011) Abercrombie has made name because the brand. fact that you walk
into environment, and not just the smell the sound, the way the
merchandise set up. the lighting. Most all, the stylish clothing The main part Model job represent [Abercrombie
clothing[,] first and foremost. Id. 376. Abercrombie, Model who
violates the Look Policy wearing inconsistent clothing inaccurately represents
the brand, causes consumer confusion, fails perform essential function
the position, and ultimately damages the brand. Aplt. Opening Br.
The interviewing process plays important role furthering
Abercrombie objective ensuring that employees adhere its Look Policy.
Managers assess applicants appearance and style during the interview. They
are supposed inform applicants various aspects the job, including the
Look Policy. New Models typically receive copy the policy employee
handbook and sign acknowledgment that they have received it, when they start
work.
Abercrombie instructs its store managers not assume facts about
prospective employees job interviews and, significantly, not ask applicants
about their religion. question arises during the interview regarding
application the Look Policy, prospective employee requests deviation
from the policy (for example, based inflexible religious practice), the store
manager instructed contact Abercrombie corporate human resources
department his her direct supervisor. managers may grant
accommodations doing would not harm the brand.
Samantha Elauf claims practicing Muslim. mid-2008, Ms. Elauf,
then seventeen-years old, applied for Model position the Abercrombie Kids
store the Woodland Hills Mall Tulsa, Oklahoma. She had previously
purchased and worn Abercrombie clothes.
Prior her interview, Ms. Elauf discussed with friend who worked
Abercrombie Woodland Hills location, Farisa Sepahvand, whether wearing
The parties dispute whether Ms. Elauf possesses bona fide,
sincerely held religious belief Islam. This dispute, however, not material
our resolution this case; therefore, need not (and not) address it.
hijab work would permissible. Ms. Elauf has worn hijab since she was
thirteen and testified that she does for religious reasons. The Quran the
 sacred scripture the Islamic faith, Aplee. Supp. App. (Dep. John
Esposito, taken Feb. 22, 2011) counsels women protect their modesty, and
some religious scholars believe that the Qu[]ran does require hijab
worn Muslim women, but there are many who disagree with that
interpretation, id. the EEOC 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 for cultural
reasons order demonstrate personal rejection certain aspects
Western-style dress. Dr. Esposito testified that, understanding the reasons
why people maintain certain styles dress, really is, the question is, what
Relevant this point, his scholarly writing, Dr. Esposito
observes:
The religious situation American Muslims can especially
difficult for the younger generation. Many have parents, raised overseas Muslim societies, who equate cultural practices and
norms with the principles Islam. Their children face the
challenge both fitting into American societies and retaining
their Islamic identity, distinguishing between what
mandated religion and the foreign cultural baggage their
parents.
Esposito, supra, 291 (emphases added); cf. id. Yet [Muslims] continue
face issues identity and faith religious minority. with many other
religious and ethnic groups that preceded them, Muslim communities face issues
assimilation integration, diversity, and pluralism.
their motivation. Aplt. App. 292; see id. 472 (noting, why hijab
worn, really depends the woman responding Ms. Elauf inquiry about wearing headscarf, Ms.
Sepahvand testified that she had raised the issue with assistant manager Kalen
McJilton, who knew Ms. Elauf from her prior visits the store. Noting that
had previously worked Abercrombie with someone who wore white yarmulke,
Mr. McJilton suggested that did not see any problem with Ms. Elauf wearing
headscarf, especially she didn wear headscarf that was black. Aplee.
Supp. App. 181 (Dep. Farisa Sepahvand, taken Mar. 31, 2011) (internal
quotation marks omitted). Ms. Sepahvand then communicated Ms. Elauf that,
although headscarf would permitted, because Abercrombie no-blackclothing policy, she would not able wear black one. Ms. Elauf seemed
agreeable that restriction.
Ms. Elauf met with assistant manager Heather Cooke interview for the
Model position. Ms. Cooke was already familiar with Ms. Elauf, having observed
her the Abercrombie store chatting with Ms. Sepahvand and working elsewhere the Woodland Hills Mall. Ms. Cooke had seen Ms. Elauf wearing headscarf
prior the interview. Ms. Cooke did not know Ms. Elauf religion, but she
 assumed that she was Muslim, Aplt. App. 365 (Dep. Heather Cooke, taken
Jan. 19, 2011), and figured that was the religious reason why she wore her head
scarf, Aplee. Supp. App. 48. the interview, Ms. Cooke did not ask Ms.
Elauf she was Muslim.
Ms. Elauf was familiar with the type clothing Abercrombie sold and
knew that Models were required wear similar clothing. During the interview,
Ms. Elauf wore Abercrombie-like T-shirt and jeans. She also wore headscarf
(i.e., hijab); was black. According Ms. Elauf, Ms. Cooke never mentioned
the Look Policy name but she did describe some the dress requirements for
Abercrombie employees, and informed Ms. Elauf that she would have wear
clothing similar that sold Abercrombie and, specifically, that she could not
wear heavy makeup nail polish.
During the course the interview, Ms. Elauf never informed Ms. Cooke
that she was Muslim, never brought the subject her headscarf, and never
indicated that she wore the headscarf for religious reasons and that she felt
obliged so, and thus would need accommodation address the conflict
between her religious practice and Abercrombie clothing policy. Indeed, the
topic her headscarf never came one way the other. For example, Ms.
Cooke did not tell Ms. Elauf that she wouldn able wear [her headscarf]
anything like that. Aplt. App. (Dep. Samantha Elauf, taken Jan.
2011). After offering description the dress requirements, Ms. Cooke asked
Ms. Elauf the end the interview she had any questions. Ms. Elauf did not
ask any.
Ms. Cooke assessed Ms. Elauf candidacy using Abercrombie official
interview guide. The guide requires the interviewer consider the applicant
 appearance sense style, whether the applicant outgoing promotes
diversity, and whether she has sophistication aspiration. Aplee. Supp.
App. (Model Group Interview Guide, dated June 26, 2008). Each category assessed three-point scale, and applicant with score appearance less than two, total combined score five less, not recommended for
hire. Ms. Cooke initially scored Ms. Elauf two each category, for total
six, which score that meets expectations and amounts
 recommend[ation] that Abercrombie hire her. See id. 64.
Although Ms. Cooke believed Ms. Elauf was good candidate for the job,
she was unsure whether would problem for her wear headscarf
Abercrombie Model, and whether the headscarf could black color. Ms.
Cooke ordinarily did not seek approval from senior manager evaluating
hiring new Models, but this case she did.
Ms. Cooke direct supervisor was unable answer her question about Ms.
Elauf headscarf, Ms. Cooke consulted with Randall Johnson, her district
manager. Mr. Johnson said that Ms. Elauf should not hired because she wore
headscarf clothing item that was inconsistent with the Look Policy.
Notwithstanding Ms. Cooke contrary deposition testimony, Mr. Johnson denied
being told Ms. Cooke that Ms. Elauf was Muslim and that she wore her
headscarf for religious reasons.
Ms. Cooke testified that Mr. Johnson told her change Ms. Elauf
interview score the appearance section from two one, thereby bringing
her overall score down five and ensuring that she would not recommended
for hire. With this understanding, Ms. Cooke threw away the original interview
sheet and changed Ms. Elauf score, thus implementing Mr. Johnson alleged
instructions. Ms. Cooke did not extend job offer Ms. Elauf. few days after
the interview, Ms. Elauf learned from Ms. Sepahvand that she had not been hired
because her headscarf.
The EEOC filed the instant action against Abercrombie September 17,
2009, alleging violations Title VII, the grounds that Abercrombie refused hire Ms. Elauf because she wears hijab and failed accommodate her
religious beliefs making exception the Look Policy. Dist. Ct. Doc. No. (EEOC Compl., filed Sept. 17, 2009). sought injunctive relief, back pay,
and damages.
Abercrombie disputed the EEOC allegations and argued that Ms. Elauf
failed inform conflict between the Look Policy and her religious
practices. further argued that the proposed accommodation allowing Ms.
Elauf wear the headscarf would have imposed undue hardship the
company. Furthermore, challenged Ms. Elauf assertion that she possessed
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 issues concerning
liability. addressing the motions and the religion-accommodation claim, the
district court applied the burden-shifting framework McDonnell Douglas Corp. Green, 411 U.S. 792 (1973). Under that framework, the court concluded that
the EEOC had established prima facie case through evidence that Ms. Elauf had bona fide, sincerely held religious belief and related practice that conflicts
with the Look Policy. Specifically, the court found that Ms. Elauf wore her head
scarf based her belief that the Quran requires her and this belief
conflicts with Abercrombie prohibition against headwear. Aplt. App. 575
(Op. Order, filed July 13, 2011). Further, reasoned that Abercrombie had
notice [that] she wore head scarf because her religious belief[,] and that
refused hire her because the head scarf conflicted with its Look Policy. Id.
The district court rejected Abercrombie argument that the notice element the EEOC 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 accommodation for it, because she was obliged so. The
court reasoned that, while the Tenth Circuit had not directly addressed this issue,
 [c]ourts other circuits have held that the notice requirement met when
employer has enough information make aware [that] there exists conflict
between the individual religious practice belief and requirement for
applying for performing the job. Id. 580. further stated that, faced with
the issue whether the employee must explicitly request accommodation
whether enough that the employer has notice [that] accommodation
needed[,] the Tenth Circuit would likely opt for the latter choice. Id. 581
(footnote omitted).
Applying its formulation the notice requirement, the district court
observed that undisputed that Elauf wore her head scarf the interview
with assistant store manager Heather Cooke, and Cooke knew she wore the head
scarf based her religious belief. Id. (emphasis added). added that, while
fact question may yet exist whether Ms. Cooke told Mr. Johnson that Ms.
Elauf wore her headscarf because her religion, that question was immaterial
 because the knowledge Cooke who had responsibility for hiring decisions
the Abercrombie Kids store attributable Abercrombie. Id. 581 n.11.
The district court stated that there could bilateral, interactive process
accommodation because, although Abercrombie was notice that Elauf wore
head scarf for religious reasons, denied [her] application for employment
without informing her [that] she was not being hired telling her why. Id.
582 n.12.
The district court also rejected Abercrombie contention that, even the
EEOC had established its prima facie case, Abercrombie had demonstrated that
would suffer undue hardship. The court observed that, despite speculative
testimony the contrary, Abercrombie had provided studies specific
examples support its opinion that granting Ms. Elauf exception would
negatively impact the brand, sales[,] and compliance [with the Look Policy]. Id. 582. that vein, emphasized that Abercrombie had made numerous
exceptions the Look Policy over the past ten years most significantly,
 [e]ight nine head scarf exceptions. Id. 583.
The parties went trial damages. The jury awarded the EEOC $20,000 compensatory damages. The EEOC request for prospective injunctive relief
was denied. This timely appeal followed. summary, conclude that the district court erred denying summary
judgment Abercrombie. More specifically, hold that, under the governing
While the denial summary-judgment motion ordinarily not
appealable order [in itself], can reviewed when coupled with grant
summary judgment the opposing party. Quik Payday, Inc. Stork, 549 F.3d
1302, 1306 n.1 (10th Cir. 2008) (emphasis added) (quoting Yaffe Cos. Great
Am. Ins. Co., 499 F.3d 1182, 1184 (10th Cir. 2007)); see Thom Am. Standard,
Inc., 666 F.3d 968, 972 (6th Cir. 2012). Abercrombie moved for summary
judgment before the district court the same grounds raises now appeal
and the parties engaged exhaustive round briefing before the district
court. The record fully developed and the issues are amenable dispositive
resolution. See, e.g., Santaella Metro. Life Ins. Co., 123 F.3d 456, 465 (7th
Cir. 1997) The reason that appellate courts, when reversing grant summary
judgment, typically not direct the district court enter summary judgment
favor the appellant because genuine issue material fact remains. But,
instances which the facts and law establish that the appellant entitled
judgment matter law, are free direct the district court enter
(continued...)
substantive law, Abercrombie entitled summary judgement because there genuine dispute material fact regarding this key point: Ms. Elauf never
informed Abercrombie prior its hiring decision that her practice wearing
hijab was based her religious beliefs and (because she felt religiously obliged wear it) that she would need accommodation for the practice, because
conflict between and Abercrombie clothing policy. Furthermore, follows
ineluctably from the logic and reasoning our decision that, granting partial
summary judgment the EEOC, the district court erred.
Our review district court summary judgment ruling novo;
 apply[] the same standard the district court. Helm Kansas, 656 F.3d 1277,
1284 (10th Cir. 2011). [S]ummary judgment appropriate the movant shows
that there genuine dispute any material fact and the movant entitled judgment matter law. Morris City Colo. Springs, 666 F.3d 654,
660 (10th Cir. 2012) (quoting Fed. Civ. 56(a)). assessing motion for
summary judgment, [w]e view the facts, and all reasonable inferences those facts
(...continued)
judgment appellant favor. (quoting Swaback Am. Info. Techs. Corp., 103
F.3d 535, 544 (7th Cir. 1996)) (internal quotation marks omitted)); see also
McIntosh Scottsdale Ins. Co., 992 F.2d 251, 253 (10th Cir. 1993) Where
reverse summary judgment order favor one party, will review the
denial the other party cross-motion for summary judgment under the same
standards applied the district court long clear that the party opposing
the cross-motion had opportunity dispute the material facts.
support, the light most favorable the nonmoving party. Simmons Sykes
Enters., Inc., 647 F.3d 943, 947 (10th Cir. 2011).
Succinctly put, must examine the record determine whether any
genuine issue material fact [i]s dispute; not, determine [the correct
application the] substantive law and doing examine the factual
record and reasonable inferences therefrom the light most favorable the
party opposing the motion. Oldenkamp United Am. Ins. Co., 619 F.3d 1243,
1246 (10th Cir. 2010) (quoting McKnight Kimberly Clark Corp., 149 F.3d
1125, 1128 (10th Cir. 1998)) (internal quotation marks omitted); see Morris, 666
F.3d 660; City Herriman Bell, 590 F.3d 1176, 1180 (10th Cir. 2010). pertinent here, construe the facts the light most favorable the EEOC. properly assess Ms. Elauf Title VII religion-accommodation claim,
must first understand the meaning that the term religion takes the Title
VII context. Under Title VII unlawful employment practice for
employer discriminate against any individual with respect his
compensation, terms, conditions, privileges employment, because such
individual religion. Thomas Nat Ass Letter Carriers, 225 F.3d
1149, 1154 (10th Cir. 2000) (second omission original) (quoting U.S.C.
 2000e-2(a)(1)) (internal quotation marks omitted). The term religion
includes all aspects religious observance and practice, well belief U.S.C. 2000e(j). the EEOC has recognized, [r]eligion very broadly defined under
Title VII. EEOC Compliance Manual 12-I(A) (emphasis omitted), available
http://www.eeoc.gov/policy/docs/religion.html; see also Bushouse Local Union
2209, United Auto., Aerospace, Agric. Implement Workers, 164 Supp.
1066, 1076 n.15 (N.D. Ind. 2001) (noting that Title VII has broad definition
 religious belief Religion includes not only traditional, organized religions
such Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious
beliefs that are new, uncommon, not part formal church sect, only
subscribed small number people, that seem illogical unreasonable others. EEOC Compliance Manual 12-I(A)(1). However, while recognizing broad concept religion, the EEOC acknowledges that the substantive content religious beliefs distinctive:
Religious beliefs include theistic beliefs well non-theistic
moral ethical beliefs what right and wrong which are
sincerely held with the strength traditional religious views.
Although courts generally resolve doubts about particular beliefs favor finding that they are religious, beliefs are not
protected merely because they are strongly held. Rather, religion
typically concerns ultimate ideas about life, purpose, and death.
Id. (footnotes omitted) (emphasis added) (quoting C.F.R. 1605.1 (internal
quotation marks omitted); United States Meyers, 906 Supp. 1494, 1502 (D.
Wyo. 1995) (internal quotation marks omitted), aff F.3d 1475 (10th Cir.
1996)); see also Lex Larson, Employment Discrimination 54.05[4], 5413 (2d ed. 2013) [A] definition religion often invoked the courts
belief based theory man nature his place the Universe belief
that relates Supreme Being. Consequently, [s]ocial, political,
economic philosophies, well mere personal preferences, are not religious 
beliefs protected Title VII. EEOC Compliance Manual 12-I(A)(1). the EEOC view, religion uniquely personal and individual matter.
This view was shaped small part how courts have defined religion for
purposes the First Amendment and other related contexts. See id. 12-I(A)
nn.18 and accompanying text (relying heavily case law from the First
Amendment and other contexts define religion for Title VII purposes); see
also C.F.R. 1605.1 (setting forth the EEOC definition religious
practices and noting that accordance with the standard developed the
Supreme Court United States Seeger, 380 U.S. 163 (1965), and Welsh
United States, 398 U.S. 333 (1970)); cf. EEOC Union Independiente
Autoridad Acueductos Alcantarillados P.R., 279 F.3d 49, (1st Cir.
2002) (relying First Amendment jurisprudence define religion for
purposes Title VII); Redmond GAF Corp., 574 F.2d 897, 901 n.12 (7th Cir.
1978) (relying Seeger and Welsh interpret religious for purposes Title
VII). these First Amendment-related contexts, courts consistently focus the
individual belief system rather than the beliefs religious group with which
the individual may (or may not) associated. See Frazee Ill. Dep Emp
Sec., 489 U.S. 829, 834 (1989) [W]e reject the notion that claim the
protection the Free Exercise Clause, one must responding the commands particular religious organization. [Eddie] Thomas Review Bd. the Ind.
Emp Sec. Div., 450 U.S. 707, 715 (1981) [T]he guarantee free exercise not limited beliefs which are shared all the members religious sect.
Particularly this sensitive area, not within the judicial function and judicial
competence inquire whether the petitioner his fellow worker more correctly
perceived the commands their common faith. Courts are not arbiters
scriptural interpretation. Seeger, 380 U.S. 173, 185 (interpreting the phrase
 religious training and belief conscientious-objection statute require
courts decide whether the beliefs professed registrant are, his own
scheme things, religious (emphasis added)); LaFevers Saffle, 936 F.2d
1117, 1119 (10th Cir. 1991) (holding that Seventh Day Adventist prisoner
religious belief that must adhere vegetarian diet, sincerely held, was
entitled protection under the First Amendment even though the district court
found that not all Seventh Day Adventists are vegetarian and that the faith does
not require such diet); see also Erwin Chemerinsky, Constitutional Law:
Principles and Policies 1235 (4th ed. 2011) [R]eligion inherently personal and individual might have sincere religious belief that departs from the
dogma his her religion. fact, for this reason, the [Supreme] Court has
said [in the First Amendment context] that the dominant views faith are not
determinative assessing whether particular belief religious.
Apparently guided such authorities, the EEOC Compliance Manual
notes:
[A] person religious beliefs need not confined either
source content traditional parochial concepts religion. belief religious for Title VII purposes religious the
person own scheme things, i.e., sincere and meaningful
belief that occupies the life its possessor place parallel
that filled God. employee belief practice can
religious under Title VII even the employee affiliated with religious group that does not espouse recognize that
individual belief practice, few other people
adhere it.
EEOC Compliance Manual 12-I(A)(1) (omission original) (emphases added)
(footnotes omitted) (quoting [Eddie] Thomas, 450 U.S. 716 (internal quotation
marks omitted); Redmond, 574 F.2d 901 n.12 (internal quotation marks
omitted); Seeger, 380 U.S. 176 (internal quotation marks omitted)); see also
EEOC, Questions and Answers: Religious Discrimination the Workplace
[hereinafter EEOC A], available
http://www.eeoc.gov/policy/docs/qanda_religion.html employer also should
not assume that employee insincere simply because some his her
practices deviate from the commonly followed tenets his her religion.
Therefore, determining [w]hether practice religious depends the
employee motivation. The same practice might engaged one person for
religious reasons and another person for purely secular reasons. EEOC
Compliance Manual 12-I(A)(1) (emphasis added). Indeed, the EEOC
recognizes that the motivation employees may change over time; they may
engage practice for religious reasons during one phase their lives and for
secular reasons during another. See EEOC supra [A]n individual
beliefs degree adherence may change over time, and therefore
employee newly adopted inconsistently observed religious practice may
nevertheless sincerely held.
These general principles have significant implications for the enforcement Title VII proscription against religious discrimination. couple points
are worth underscoring. First, applicant employee may engage practices
that are associated with particular religion, but for cultural other
reasons that are not grounded that religion. Cf. Larson, supra, 54.04, 54-7
(noting that one person political view may well another religious
The EEOC Compliance Manual, citing our decision LaFevers,
provides the following example: [O]ne employee might observe certain dietary
restrictions for religious reasons while another employee adheres the very same
dietary restrictions but for secular (e.g., health environmental) reasons. 
EEOC Compliance Manual 12-I(A)(1); cf. LaFevers, 936 F.2d 1119
(recognizing that Seventh Day Adventist can have sincere religious belief that must adhere vegetarian diet even though other Seventh Day Adventists
not feel similarly obligated).
conviction so, employer discrimination against that individual for
engaging that practice though possibly reprehensible and worthy
condemnation would not contravene Title VII religion-discrimination
provisions. That true course because, despite the practice customary
association with religion, the applicant employee motivation for engaging the practice would not religious.
Second, because religious beliefs have distinctive content related
ultimate ideas about life, purpose, and death, logically, even applicant
employee claims acting for religious reasons, those reasons actually
not pertain such ultimate ideas, then that person conduct would fall outside
the protective ambit Title VII viz., the conduct would not truly relate
religious matters. See EEOC Compliance Manual 12-I(A)(1), Ex. Personal
Preference That Not Religious Belief see also Reed Great Lakes Cos.,
The EEOC has offered the following relevant example:
Sylvia wears several tattoos and has recently had her nose and
eyebrows pierced. newly hired manager implements dress
code that requires that employees have visible piercings
tattoos. Sylvia says that her tattoos and piercings are religious
because they reflect her belief body art self-expression and
should accommodated. However, the evidence demonstrates
that her tattoos and piercings are not related any religious
belief system. For example, they not function symbol
any religious belief, and not relate any ultimate concerns 
such life, purpose, death, humanity place the universe,
right and wrong, and they are not part moral ethical belief
(continued...)
330 F.3d 931, 935 (7th Cir. 2003) [A]n employee not permitted redefine
purely personal preference aversion religious belief. Vetter Farmland
Indus., Inc., 120 F.3d 749, 751 (8th Cir. 1997) employer need not
accommodate purely personal preference (internal quotation marks
omitted)); cf. Wisconsin Yoder, 406 U.S. 205, 216 (1972) (discussing the free
exercise context the necessity distinguishing between choices that are
 philosophical and personal rather than [ones that are] religious United States Meyers, F.3d 1475, 1483 (10th Cir. 1996) (determining, for purposes
the Religious Freedom Restoration Act, whether belief qualifies religious
belief assessing, inter alia, whether the belief address[es] fundamental
questions about life, purpose, and death id. 1484 (agreeing with the district
court conclusion that the defendant beliefs were not religious nature despite
their being deeply [held] and sincere[] because they were derived entirely
from his secular beliefs, and collecting cases).
The EEOC has presented religion-discrimination claim based upon
Abercrombie alleged failure accommodate Ms. Elauf conflicting religious
(...continued)
system. Therefore, her belief personal preference that not
religious nature.
EEOC Compliance Manual 12-I(A)(1), Ex.
practice wearing hijab. Title VII implementing regulations impose[]
obligation the employer reasonably accommodate the religious practices employee prospective employee, unless the employer demonstrates that
accommodation would result undue hardship the conduct its business. 
Thomas, 225 F.3d 1155 (quoting C.F.R. 1605.2(b)(1), (2)); accord
U.S.C. 2000e(j); C.F.R. 1605.2(b)(1); see Trans World Airlines
Hardison, 432 U.S. 63, (1977) The intent and effect [Title VII
definition [of religion was make unlawful employment practice for employer not make reasonable accommodations, short undue hardship,
for the religious practices his employees and prospective employees. see
also Sanchez-Rodriguez ATT Mobility P.R., Inc., 673 F.3d (1st Cir.
2012); Walden Ctrs. for Disease Control and Prevention, 669 F.3d 1277,
1292 (11th Cir. 2012) (Seymour, J., sitting designation).
Religion-accommodation claims are subset the types religiondiscrimination claims that applicant employee may present under Title VII.
See Peterson Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004)
claim for religious discrimination under Title VII can asserted under several
different theories, including disparate treatment and failure accommodate.
Chalmers Tulon Co., 101 F.3d 1012, 1018 (4th Cir. 1996) [A]n employee
not limited the disparate treatment theory establish discrimination claim. employee can also bring suit based the theory that the employer
discriminated against her failing accommodate her religious conduct. 
(emphasis omitted)); see also EEOC supra (describing the kinds
religious discrimination that Title VII prohibits The EEOC has described the
specific nature the claim follows: religious accommodation claim distinct from disparate
treatment claim, which the question whether employees are
treated equally. individual alleging denial religious
accommodation seeking adjustment neutral work rule
that infringes the employee ability practice his religion.
The accommodation requirement plainly intended relieve
individuals the burden choosing between their jobs and
their religious convictions 
EEOC Compliance Manual 12-IV (quoting Protos Volkswagen Am., Inc.,
797 F.2d 129, 136 (3d Cir. 1986)).
The reasonable-accommodation principle implicated only when there
conflict between employee religious practice and the employer neutral
policy; only then does need accommodate arise. See id. 12-IV(A)(1)
(noting the need for the employer notice both the need for
accommodation and that [the accommodation] being requested due conflict
between religion and work (emphasis added)). For there actually
conflict, logic dictates that applicant employee must consider the religious
practice inflexible one that is, practice that required his her
religious belief system. only such situation that applicants employees would placed the position that Title VII was designed protect them from the spot where
they must choose between their religious convictions and their job. See Tiano
Dillard Dep Stores, Inc., 139 F.3d 679, 682 (9th Cir. 1998) (granting
summary judgment the employer the employee Title VII religionaccommodation claim because there was conflict between [the employee
religious belief and employment duties since her religious belief, she
described it, only required her pilgrimage some time rather than
the specific time she preferred go); cf. Reed, 330 F.3d 935 (holding that the
employee failed make prima facie showing his Title VII religionaccommodation claim because, inter alia, refuse[d] indicate what points
[his] faith intersect[ed] the requirements his job other words, even
applicants employees engage practice for religious reasons, long they not feel obliged adhere the practice (that is, not consider the practice inflexible), then there actual conflict, nor consequent need for the
employer provide reasonable accommodation. Cf. Turner Boy Scouts
Am., Inc., No. CIV-09-180-C, 2009 2567962, (W.D. Okla. Aug. 17,
2009) [A]lthough Plaintiff informed [his employer] was meeting with his
pastor, there evidence the record suggesting that Plaintiff informed [his
employer] that his religious beliefs required meeting with his pastor that time that the meeting was anything other than personal preference. (emphasis
added)).
Notably, however, the EEOC discourages employers from making inquiries the first instance regarding the religious beliefs practices applicants (and
presumably employees) because applicant religious affiliation beliefs
are generally viewed non job-related and problematic under federal law. 
EEOC, Pre-Employment Inquiries and Religious Affiliation Beliefs [hereinafter
EEOC Pre-Employment Inquiries], available
http://www.eeoc.gov/laws/practices/inquiries_religious.cfm; see also Prise
Alderwoods Grp., Inc., 657 Supp. 564, 597 (W.D. Pa. 2009) (noting that
questioning applicants concerning their religious beliefs could, under some
circumstances, permit inference drawn that employer engaged
improper religion-based discrimination EEOC, Best Practices for Eradicating
Religious Discrimination the Workplace [hereinafter EEOC Best Practices],
available http://www.eeoc.gov/policy/docs/best_practices_religion.html
conducting job interviews, employers can ensure nondiscriminatory treatment inquiring about matters directly related the position question.
Furthermore, the religion-accommodation context, the EEOC has specifically
cautioned employers avoid assumptions stereotypes about what constitutes religious belief practice what type accommodation appropriate. 
EEOC Best Practices, supra; see id. (noting that [m]anagers and employees
should trained not engage stereotyping based religious dress and
grooming practices
Thus, only after employer put notice the need for
religious accommodation that the EEOC policy materials encourage
actively engage dialogue with applicants employees concerning their
conflicting religious practice and possible accommodations that the employer
might provide for it. Cf. Larson, supra, 56.05, 56-21 Indeed, would seem
unreasonable require employer accommodate the religious practices
employee when the employer unaware the need so. (emphases
added)). this regard, the EEOC has counseled: Once the employer becomes
aware the employee religious conflict, the employer should obtain promptly
whatever additional information needed determine whether
accommodation available that would eliminate the religious conflict without
posing undue hardship the operation the employer business. EEOC
Compliance Manual 12-IV(A)(2); see Thomas, 225 F.3d 1155 (noting that
religious accommodation involves interactive process that requires
participation both the employer and the employee EEOC supra
(commenting that once notice that religious accommodation needed
employer obliged under Title VII reasonably accommodate employee
EEOC Best Practices, supra (noting among [e]mployer [b]est [p]ractices that
 [m]anagers and supervisors should trained consider alternative[,] available
accommodations the particular accommodation requested would pose undue
hardship (emphasis added)); see also EEOC supra [I]f the employer
has bona fide doubt about the basis for the accommodation request, entitled make limited inquiry into the facts and circumstances the employee
claim that the belief practice issue religious and sincerely held, and gives
rise the need for the accommodation. religion-accommodation cases, apply version McDonnell
Douglas burden-shifting approach. See Thomas, 225 F.3d 1155; see also
Dixon Hallmark Cos., 627 F.3d 849, 855 (11th Cir. 2010). Specifically,
survive summary judgment such claim, the employee initially bears the
burden production with respect prima facie case. Thomas, 225 F.3d
1155. The prima facie case requires the employee show that (1) she had bona fide religious belief that conflicts with employment requirement; (2) she informed his her employer this belief; and (3) she was fired [or
not hired] for failure comply with the conflicting employment requirement. 
Id. (emphasis added); accord Dixon, 627 F.3d 855. the employee makes out prima facie case, [t]he burden then shifts
the employer (1) conclusively rebut one more elements the prima
facie case, (2) show that offered reasonable accommodation, (3) show that was unable reasonably accommodate the employee religious needs without
undue hardship. Thomas, 225 F.3d 1156 (footnote omitted).
accommodation not reasonable would require the employer bear more
than minimis cost. Trans World Airlines, 432 U.S. 84; see Bruff
Miss. Health Servs., Inc., 244 F.3d 495, 500 (5th Cir. 2001); Lee ABF Freight
Sys., Inc., F.3d 1019, 1023 (10th Cir. 1994); Toledo Nobel-Sysco, Inc., 892
F.2d 1481, 1492 (10th Cir. 1989). And, employer has provided
reasonable accommodation, need not examine whether alternative
accommodations not offered would have resulted undue hardship. EEOC
Firestone Fibers Textiles Co., 515 F.3d 307, 312 (4th Cir. 2008); see Thomas,
225 F.3d 1156 n.7 The employer does not have demonstrate that the
particular accommodation requested the employee would result undue
hardship. conclude that Abercrombie entitled summary judgment because
the EEOC cannot establish the second element its prima facie case.
discussed below, under the controlling law, the EEOC cannot establish this
element because there genuine dispute material fact that Ms. Elauf never
informed Abercrombie before its hiring decision that her practice wearing
hijab was based upon her religious beliefs and that she needed accommodation
for that practice, due conflict between and Abercrombie clothing policy. reaching our conclusion that Abercrombie entitled summary
judgment, resolve question vigorously contested the parties: specifically,
whether, order establish prima facie case under Title VII religionaccommodation theory, plaintiff ordinarily must establish that she initially
informed the employer that the plaintiff adheres particular practice for
religious reasons and that she needs accommodation for that practice, due conflict between the practice and the employer neutral work rule.
answer that question the affirmative. Consequently, because Ms. Elauf did not
inform Abercrombie prior its hiring decision that she engaged the conflicting
practice wearing hijab for religious reasons and that she needed
accommodation for it, the EEOC cannot establish its prima facie case.
Our conclusion naturally rests, first, our own express articulation the
plaintiff prima facie burden, which bolstered similar linguistic
formulation that burden found rulings several our sister circuits.
Second, are fortified our conclusion because the concepts religion and
interactive accommodation they are given substance the Title VII
context virtually oblige us, logical matter, insist that ordinarily the
applicant employee must initially provide the employer with explicit notice
the conflicting religious practice and the need for accommodation for it,
order have actionable claim for denial such accommodation. Third, discern support for our conclusion the plain terms the EEOC own
regulatory pronouncements the notice obligations applicants employees the religion-accommodation setting. Lastly, are bolstered our position
the fact that our reading the statute notice requirement entirely consistent
with the approach toward notice that the courts have taken, for purposes
assessing employer duty accommodate, the undisputedly analogous
context disability discrimination under the Americans with Disabilities Act ADA U.S.C. 12101 12213.
The EEOC has vigorously contested this possible outcome. the district
court put it, The EEOC urges less restrictive approach, asserting that although
Abercrombie required have had notice that Elauf needed accommodation,
the notice need not have been strictly the form Elauf verbally requesting
such accommodation. Aplt. App. 580. More specifically, the EEOC has
succinctly made the point before us: The employer obligation attempt
reasonable accommodation (where undue hardship would result) when has
notice from affirmative statement the individual, some other
source individual religious belief that conflicts with work
requirement. Aplee. Br. (emphasis added); see also id. [W]hen
the facts indicate that notice individual religious belief was provided
some means other than the individual affirmatively informing the employer
the belief, the prima facie notice requirement should flexibly interpreted
conform such factual situations. For the reasons discussed below, are
unpersuaded the EEOC position.
First all, construe our precedent (by its plain terms) placing the
burden applicants employees initially inform employers the religious
nature their conflicting practice and the need for accommodation. See,
e.g., Thomas, 225 F.3d 1155 (noting that the employee (or prospective
employee) must establish that she informed his her employer this
[religious] belief that conflicts with the employer work requirement); accord
Toledo, 892 F.2d 1486.
Insofar the plain language our precedent leaves room for doubt the
question, construing require the applicant employee initially inform the
employer the conflicting religious practice and the need for accommodation
aligns our court with substantial body circuit precedent that find
persuasive. See, e.g., Wilkerson New Media Tech. Charter Sch. Inc., 522 F.3d
315, 319 (3d Cir. 2008) (outlining prima facie showing that obliges the
employee demonstrate that she told the employer about the conflict between
her religious belief and the employer work rule); Reed, 330 F.3d 935 Title
VII imposes duty the employer but also reciprocal duty the employee
give fair warning the employment practices that will interfere with his religion
and that therefore wants waived adjusted. Chalmers, 101 F.3d 1019 [the plaintiff] recognizes, prima facie case under the accommodation
theory requires evidence that she informed her employer that her religious needs
conflicted with employment requirement and asked the employer
accommodate her religious needs. Johnson Angelica Uniform Grp., Inc., 762
F.2d 671, 673 (8th Cir. 1985) (noting that under the second element the
religion-accommodation prima facie case, the plaintiff must establish that has
informed his employer about the conflict between his religious belief and the
employer work requirement); cf. Xodus Wackenhut Corp., 619 F.3d 683, 685
(7th Cir. 2010) (noting that the plaintiff had prove during bench trial that brought his religious practice the company attention And our view
the notice requirement also has been endorsed respected secondary authority.
See Larson, supra, 55.01, 55-3 One must begin with the well-known
McDonnell Douglas description the plaintiff prima facie case, though, with
religious discrimination, important addition the prima facie case the
requirement that the plaintiff communicate his her bona fide religious belief
the employer. (emphasis added) (footnote omitted)); id. 56.05, 56-21 Note
that establishing prima facie case employee required notify
employer the need for accommodation.
The EEOC seeks escape the effect our decisions Toledo and
Thomas which, their face, seem require employee (or prospective
employee) establish that she informed his her employer this
[religious] belief that conflicts with the employer work requirement. Thomas,
225 F.3d 1155; accord Toledo, 892 F.2d 1486. The EEOC maintains that
these cases did not address whether the only permissible source the
employer awareness the subject religious belief was the employee
applicant herself. Aplee. Br. 37; see id. Thomas this Court was
not faced with the question whether establish prima facie case, the plaintiff
had produce evidence that the employer awareness 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. 580 (citing Thomas and noting that the Tenth Circuit has not addressed
the question whether notice must explicitly requested the employee
Even under the linguistic formulation the second element the prima facie
case found Toledo and Thomas, reasons the EEOC, the critical fact the
existence the notice itself, not how the employer came have such notice. 
Aplee. Br. 31. support for its broader view the notice requirement, the EEOC relies the Eleventh Circuit decision Dixon, 627 F.3d 849, and the district court
decision Hellinger Eckerd Corp., Supp. 1359 (S.D. Fla. 1999). See
Aplee. Br. 31. The district court the instant case reached similar
conclusion regarding the notice requirement. See Aplt. App. 581 [F]aced
with the issue whether the employee must explicitly request accommodation whether enough that the employer has notice [that] accommodation
needed[,] the Tenth Circuit would likely opt for the latter choice. (footnote
omitted)). doing so, cited the same authorities the EEOC, and additional
ones. See id. 580 (citing, addition, Brown Polk Cnty., F.3d 650,
654 (8th Cir. 1995) (en banc)); Heller Ebb Auto Co., F.3d 1433, 1439 (9th
Cir. 1993)). However, general matter, are not persuaded the EEOC
position. begin, are not convinced that are liberty disregard the plain
terms our Toledo and Thomas decisions, which place the prima facie burden
the plaintiff establish that the applicant employee has initially informed the
employer the conflicting religious practice and the need for accommodation.
Moreover, even the plain language our precedent left the resolution the
question unclear, construing that language require the applicant employee
initially inform the employer the conflicting religious practice and the need for
accommodation aligns our court with substantial body circuit precedent.
And, for the reasons that explicate Part II.C.2 infra, believe that
these authorities embody the sounder legal view.
Furthermore, even were assume that Toledo and Thomas would
permit plaintiff establish prima facie case without demonstrating that the
applicant employee was the source the employer notice the need for
religious accommodation, the EEOC could not prevail here. That because such
notice would need based employer particularized, actual knowledge the key facts that trigger its duty accommodate. And, explicated below,
there genuine dispute material fact that Abercrombie agent responsible
for, involved in, the hiring process had such actual knowledge from any
source that Ms. Elauf practice wearing hijab stemmed from her religious
beliefs and that she needed accommodation for it.
Under Title VII, employer defined include any agent,
U.S.C. 2000e(b), and, varying degrees, employer may held responsible
for the conduct its agents. See, e.g., Meritor Sav. Bank, FSB Vinson, 477
U.S. 57, (1986) therefore decline the parties invitation issue
definitive rule employer liability, but agree with the EEOC that
Congress wanted courts look agency principles for guidance this area. the Title VII disparate-treatment context, ordinarily the identity the person
acting the employer decision-maker the particular employment decision significant fact although not necessarily determinative one. See Zamora
Elite Logistics, Inc., 478 F.3d 1160, 1166 (10th Cir. 2007) (en banc)
determining whether the proffered reason for decision was pretextual,
examine the facts they appear the person making the decision. (quoting
Watts City Norman, 270 F.3d 1288, 1295 (10th Cir. 2001)) (internal
quotation marks omitted)); EEOC BCI Coca-Cola Bottling Co., 450 F.3d 476,
484 (10th Cir. 2006) the employment discrimination context, cat paw 
refers situation which biased subordinate, who lacks decisionmaking
power, uses the formal decisionmaker dupe deliberate scheme trigger
(continued...)
The authorities that the EEOC and the district court have relied upon
clearly have predicated their notice holdings the employer particularized,
(...continued) discriminatory employment action. (emphasis added)); cf. Conroy Vilsack,
707 F.3d 1163, 1173 n.3 (10th Cir. 2013) (noting that the plaintiff does not
articulate cat paw theory liability The district court determined that Ms.
Cooke had responsibility for hiring decisions the Abercrombie store where
Ms. Elauf sought employment. Aplt. App. 581 n.11. Abercrombie argues
the contrary; asserts that the decision-maker was Mr. Johnson, noting that both
Cooke and Johnson identified Johnson the decision-maker. Aplt. Opening Br. n.7. Thomas, recognized that, although employ the McDonnell
Douglas framework the religion-accommodation context the
disparate-treatment context the nature the inquiry distinct. See 225 F.3d
1155 n.6 (noting that the burden-shifting mechanism McDonnell Douglas
employed not probe the subjective intent the employer but rather permit
courts the summary judgment context determine whether the various parties
have advanced sufficient evidence meet their respective traditional burdens
prove disprove the reasonableness the accommodations offered not
offered (quoting Smith Midland Brake, Inc., 180 F.3d 1154, 1178 n.12 (10th
Cir. 1999) (en banc)) (internal quotation marks omitted)). Whether the identity
the decision-maker also significant fact the religion-accommodation
context question that need not endeavor answer here. Cf. Kimbro Atl.
Richfield Co., 889 F.2d 869, 874 (9th Cir. 1989) (analyzing Washington State
disability statute requiring employers make reasonable accommodation and
noting believe that the district court erred finding that [the employer
management lack personal knowledge [the employee migraine condition
insulates the company from liability; [the employer] was fact notice [the
employee condition result [the employee supervisor full awareness his condition and thus must held responsible for any failure attempt
reasonable accommodation undisputed that Ms. Cooke and Mr. Johnson
were agents Abercrombie; that fact suffices for our purposes. If,
demonstrate infra, there genuine dispute material fact that
Abercrombie agent responsible for, involved in, the hiring process that is,
Ms. Cooke and Mr. Johnson possessed particularized, actual knowledge, from
any source, that Ms. Elauf practice wearing hijab stemmed from her
religious beliefs and that she needed accommodation for it, ineluctably
follows that Abercrombie decision-maker (whether Ms. Cooke Mr. Johnson, both) possessed this requisite knowledge.
actual knowledge. need not (and not) endorse their specific holdings and, particular, their conclusions about how much actual knowledge sufficient
put employer notice the need accommodate; yet, there doubt that
these cases settled for nothing less than some significant measure
particularized, actual knowledge. Dixon, for example, the plaintiffs presented evidence that they are
sincere, committed Christians who oppose efforts remove God from public
places. 627 F.3d 855. rejecting the employer contention that the
plaintiffs had never advised them their need for religious accommodation, the
Eleventh Circuit stated:
[The employer] knew that the [plaintiffs] were dedicated
Christians who had previously opposed policies prohibiting the
public display religious items. [The employer] argues that
the [plaintiffs] never expressly told [their supervisor] that they
did not want take down their artwork because they opposed
efforts remove God from public places. However,
conclude that [the supervisor] was aware the tension
between her order and the [plaintiffs religious beliefs and
there ample evidence that she was her awareness would
satisfy the second prong.
Id. 855 56. other words, concluding that the plaintiffs had satisfied the
second element their prima facie case related notice, the Eleventh Circuit
determined that the employer had actual knowledge the religious beliefs the
particular plaintiffs and the actual conflict between those beliefs and the
employer work rules. the latter point, based upon the plaintiffs prior
affirmative and open opposition the employer policies regarding the display religious items, the employer had actual knowledge that the plaintiffs beliefs
about the removal God from public places were inflexible and not simply
personal preference.
The district court Hellinger (the other case upon which the EEOC relies)
put even finer point the actual-knowledge issue. The plaintiff there was
Orthodox Jew who applied for part-time position with [the employer]
pharmacist. Supp. 1361. Although Plaintiff cannot sell condoms
due his religious beliefs, did not list any religious restrictions his
application make any request for accommodation. Nor did inform [the
employer hiring agent] about his religious beliefs restrictions the time
dropped off his application. Id. was undisputed that the employer hiring agent was informed
another its employees, who was listed one the Plaintiff references, 
 that the Plaintiff refused sell condoms due his religious beliefs and that
the hiring agent, consequently, decided not pursue the Plaintiff application
for employment. Id. Nevertheless, the employer argue[d] that the Plaintiff
cannot establish prima facie case religious discrimination because the
Plaintiff did not inform the Defendant his religious restriction his need for
accommodation. Id. 1360. The district court would have none that
argument. Although the district court cautioned that was not plac[ing] the
burden inquiry the employer, id. 1364, held that the Plaintiff sets
forth prima facie case religious discrimination because [the employer] had
actual knowledge the Plaintiff religious beliefs and decided not pursue the
Plaintiff employment application based that information, id. 1360.
Furthermore, the additional authorities that the district court relied upon
the instant case are the same similar effect that they insist nothing less
than the employer particularized, actual knowledge satisfy the second
element the prima facie case. See Brown, F.3d 654 [W]e reject the
defendants argument that because [the plaintiff] never explicitly asked for
accommodation for his religious activities, may not claim the protections
Title VII. Because the first reprimand related directly religious activities [the plaintiff], agree with the district court that the defendants were well
aware the potential for conflict between their expectations and [the plaintiff
religious activities. Heller, F.3d 1436, 1439 (holding that the plaintiff
established the second element his prima facie case for failure accommodate
his religious practice attending the ceremony which his wife and children
were converted Judaism, where the plaintiff supervisor knew that was
Jewish, knew that his wife was studying for conversion, and when [the
plaintiff] requested the time off, informed the [supervisor] why needed
miss work other words, even were assume that employer may put
notice from source other than applicants employees, that source would need provide the employer with sufficient information such that the employer would
have actual knowledge that the conflicting practice the particular applicants
employees based upon their religious beliefs and that they need
accommodation for it. Thus, even under this broader view the notice
requirement, plaintiff that is, applicant employee should not able
impose liability employer for failing accommodate his her religious
practice the ground that the employer should have guessed, surmised,
figured out from the surrounding circumstances, that the practice was based upon
his her religion and that the plaintiff needed accommodation for it.
Accordingly, even were adopt the EEOC position, supported its
authorities, the employer notice would need based upon its particularized,
actual knowledge the key facts that trigger its duty provide reasonable
religious accommodation that is, based upon actual knowledge that the
conflicting practice the particular applicant employee stems from his her
religion and that the applicant employee needs accommodation for
(because the practice inflexible one).
The EEOC cannot make this showing here: there genuine dispute
material fact that Abercrombie agent responsible for, involved in, the hiring
process had particularized, actual knowledge from any source that Ms. Elauf
practice wearing hijab stemmed from her religious beliefs and that she
needed accommodation for it. Therefore, the EEOC cannot prevail. particular, conclude that the record offers absolutely support for
the district court determination that Ms. Cooke knew [that Ms. Elauf] wore the
head scarf based her religious belief. Aplt. App. 581 (emphasis added).
The EEOC also clearly mistaken this point. See Aplee. Br.
uncontested that Cooke was aware Elauf religious belief and its conflict with
the Look Policy best, when viewed the light most favorable the
EEOC, the record indicates that Ms. Cooke assumed that Ms. Elauf wore her hijab
for religious reasons and felt religiously obliged thus creating conflict
with Abercrombie clothing policy.
More specifically, Ms. Cooke testified follows: that she had seen Ms.
Elauf wearing headscarf prior the interview, but did not know Ms. Elauf
religion, Aplt. App. 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. (emphasis added), and she assumed that, Elauf were hired Abercrombie Model, she would continue wear her
headscarf, see id. (answering Yes, did. the question, And you
assumed [Ms. Elauf] worked Abercrombie, she would still wearing
headscarf]? the interview, Ms. Cooke did not ask Ms. Elauf she was Muslim.
And for reasons that have explored length, see Part II.B.1, supra, given
Title VII conception religion uniquely personal and individual matter,
Ms. Cooke knowledge that Ms. Elauf elected wear hijab would far from
sufficient information provide her with the requisite notice that would trigger employer duty accommodate. See Wilkerson, 522 F.3d 319 [S]imply
announcing one belief certain religion, even wearing symbol that
religion (i.e., cross Star David) does not notify the employer the
particular beliefs and observances that the employee holds connection with her
religious affiliation. (emphasis added)); Reed, 330 F.3d 935 person
religion not like his sex race something obvious glance. Even
wears religious symbol, such cross yarmulka, this may not pinpoint his
particular beliefs and observances (emphasis added)); see also Aplt. App. 292 (indicating that the EEOC expert offered, explanation for why
people maintain certain styles dress, really is, the question is, what their
motivation sum, Ms. Cooke testimony does not even come close
establishing that Ms. Cooke possessed particularized, actual knowledge that Ms.
Elauf (and not some hypothetical Muslim female) wore hijab because her
Islamic faith and felt religiously obliged so, and thus would require
religious accommodation order address the conflict with Abercrombie
clothing policy.
Moreover, even construing the facts (as must) the light most
favorable the EEOC, the fact that Ms. Cooke called Mr. Johnson discuss the
possibility accommodation does nothing rectify this fundamental
evidentiary deficiency the EEOC case. Ms. Cooke conduct following the
interview was all based her admitted assumption regarding Ms. Elauf
religious beliefs and required practices. See Aplt. App. was unsure
The EEOC suggests that, even Ms. Cooke understanding Ms.
Elauf religious beliefs and her need for accommodation was solely
predicated her assumption, her assumption was actually correct,
Abercrombie was put adequate notice. See Aplee. Br. uncontested
that Cooke correctly interpreted Elauf wearing headscarf indicating that she Muslim and wore the headscarf for religious purpose. such, the court
would still correct that was uncontested that Abercrombie was sufficient
notice Elauf religious belief. There foundation the law for the
view that the requisite notice for purposes Title VII religion-accommodation
claim could ever conceivably rest anything less than employer
particularized, actual knowledge; that employer was able make correct
guess assumption would not mean that the employer possessed such actual
knowledge. Simply put, correct assumption does not equal actual knowledge.
And this basic truth takes considerable significance the religionaccommodation context because once the employer found have received
sufficient notice, the employer must actively engage the interactive
accommodation process. But employer would not know whether its guess
assumption was correct until after the fact, there would instances which
the employer would begin participating the interactive process based upon
guess assumption and invariably discuss explore the purported religious
beliefs and needs applicant employee when there actually was need (i.e., because the employer assumption guess was wrong). This
approach would run afoul the EEOC own express policy guidance, which
discourages employers from initiating discussions about the religious beliefs
applicants (or employees) and from operating the accommodation process
based upon stereotypes, speculation, and conjecture. See Part II.B.2, supra.
about the head scarf told [Mr. Johnson] that believed that [Ms. Elauf]
was Muslim, and that was recognized religion. And that she was wearing for
religious reasons. (emphasis added)). She did not possess the requisite actual
knowledge concerning these matters. And any awareness that Mr. Johnson had
Ms. Elauf religious beliefs and required practices would have been derived
solely from Ms. Cooke assumption; so, Mr. Johnson, too, possessed
particularized, actual knowledge.
Yet, the only two Abercrombie agents who could conceivably deemed
have had any responsibility for, involvement in, the hiring process regarding
Ms. Elauf, were Ms. Cooke and Mr. Johnson. Therefore, even the EEOC were
permitted matter law establish the second element its prima facie
case showing that the employer possessed particularized, actual knowledge
from source other than the applicant employee the key facts that trigger its
duty provide reasonable religious accommodation, the EEOC could not
here because neither Ms. Cooke nor Mr. Johnson (i.e., the relevant agents the true that, responding Ms. Elauf inquiry about wearing
headscarf, Ms. Sepahvand (her friend and Abercrombie employee) testified
that she had raised the issue with assistant manager Kalen McJilton, who knew
Ms. Elauf from her prior visits the store. Noting that had previously worked Abercrombie with someone who wore white yarmulke, Mr. McJilton
suggested that did not see any problem with Ms. Elauf wearing headscarf,
 especially she didn wear headscarf that was black. Aplee. Supp. App.
181 (internal quotation marks omitted). However, there evidence that Mr.
McJilton had any responsibility for, involvement in, the hiring process
regarding Ms. Elauf.
employer) possessed such knowledge. Accordingly, even under the broader view the notice requirement that the EEOC principally espouses here, cannot
prevail. note that the EEOC also takes different tack defeat this
outcome. Recall that, following her discussion with Mr. McJilton, Ms.
Sepahvand communicated Ms. Elauf that headscarf would permitted, but
because Abercrombie no-black-clothing policy, she would not able
wear black one. Based upon this relaying information, the EEOC argues that
 there evidence suggesting that Elauf had any reason believe that her
headscarf had not already been approved Abercrombie, that Elauf had any
reason ask any questions about her headscarf the interview. Aplee. Br.
45. The EEOC argument, however, wholly unpersuasive. Ms. Elauf could
not possibly have formed reasonable judgment these circumstances based
upon second-hand information delivered her friend, Ms. Sepahvand who was
not herself member Abercrombie management, nor involved Ms. Elauf
hiring process that Abercrombie had agreed accommodate her practice
wearing hijab and, consequence, that she was free remain silent about
that practice the interview. This especially true because, prior the
interview, Ms. Elauf was well aware that employee attire was significant matter Abercrombie that is, matter considerable consequence and the person
who Ms. Elauf reasonably could have concluded had some responsibility her
hiring process, Ms. Cooke, expressly raised the topic employee attire the
interview without indicating that Abercrombie would accommodate Ms. Elauf
practice wearing hijab. Contrary the EEOC contention, then,
conclude that there was evidence reasonably support the notion that
Abercrombie conduct led Ms. Elauf believe she had need speak
secure accommodation for her claimed religious practice wearing
headscarf.
Moreover, lest there any doubt, employer not legally obligated
under Title VII prompt applicants employees deliver notice the need
for religious accommodation, initially recounting laundry list all the
practices that employees cannot the workplace. The burden rests with
applicants employees ensure that the workplace will suitable work
environment for them, light their required religious practices. See
Chalmers, 101 F.3d 1019 Initially, [the plaintiff] asserts that [the employer]
(continued...) recognize that its briefing, the EEOC intimates that something
less than employer particularized, actual knowledge would suffice. See
Aplee. Br. [T]his not say that employers are required inquire
applicants employees whether there are any religious beliefs that need accommodated, absent some reasonable indication the employer that
accommodation may needed. (emphases added)). However, cites
authorities support this proposition, and are not aware any. See Aplt.
Reply Br. Had courts intended that reasonable indication (or some other
sort constructive notice) sufficient satisfy the prima facie case, they
would have said so. sum, hold that, order establish the second element their prima
facie case under Title VII religion-accommodation theory, ordinarily plaintiffs
must establish that they initially informed the employer that they engage
(...continued)
never explicitly informed her company policy against writing religious letters fellow employees their homes and she had reason request
accommodation. However, companies cannot expected notify employees
explicitly all types conduct that might annoy co-workers, damage working
relationships, and thereby provide grounds for discharge. (citation omitted)
(internal quotation marks omitted)). Thus, the EEOC suggestion the contrary misguided. See EEOC Response Abercrombie Rule 28(j) Letter, No. 115110, (10th Cir., filed May 11, 2012) [I]t uncontested that Elauf was not
informed any time Abercrombie that has unwritten prohibition
Models wearing headscarves. Therefore, there was reason for Elauf believe
there was any conflict requiring accommodation. (citation omitted)); see also
Aplt. App. (testifying that Ms. Cooke did not tell her (Ms. Elauf) that she
 wouldn able wear [her headscarf] anything like that
particular practice for religious reasons and that they need accommodation for
the practice, due conflict between the practice and the employer work rules. noted, recognize that some courts have taken different path this
question. However, are confident that our approach the sounder one.
Given Title VII conception religion and the interactive nature the
religion-accommodation process, are hard-pressed see how could
logically reach another conclusion regarding the notice element the prima facie
case. This because the answers the key questions that determine whether
employer has obligation under Title VII provide reasonable religious
accommodation ordinarily are only within the ken the applicant employee;
because employer obligation engage the interactive religionaccommodation process only triggered when the employer has answers those
questions; and because, implementing Title VII anti-discrimination mandate,
the EEOC has expressly disapproved employers inquiring the first instance speculating about the answers such questions.
For example, recall that Title VII only obliges employers provide
reasonable accommodation for practices that applicants employees engage
because bona fide, sincerely held religious beliefs. See, e.g., EEOC
supra Title VII requires employers accommodate only those religious beliefs
that are religious and sincerely held (internal quotation marks omitted)). 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
practices that are engaged matter personal preference for cultural
reasons, see, e.g., Reed, 330 F.3d 935 [A]n employee not permitted
redefine purely personal preference aversion religious belief. and
matter how strongly applicant employee believes certain political,
economic, social ideas, those ideas not otherwise relate the stuff
religion (e.g., ultimate notions about life, purpose, death), then practices based
upon them not fall within Title VII protective ambit, see, e.g., EEOC
Compliance Manual 12-I(A)(1).
But how employer know that applicants employees are engaged practice for religious reasons, unless they inform the employer? Cf. id. Determining whether practice religious turns not the nature the
activity, but the employee motivation. The same practice might engaged one person for religious reasons and another person for purely secular
reasons. sure, certain instances, applicants employees may engage practices that are traditionally associated with particular religion. However,
Title VII does not require employers become knowledgeable about the customs
and observances religions. See, e.g., Wilkerson, 522 F.3d 319 [W]e not
impute the employer the duty possess knowledge particularized beliefs
religious sects. Reed, 330 F.3d 936 (noting that employers are not charged
with detailed knowledge the beliefs and observances associated with particular
sects EEOC Compliance Manual 12-IV(A)(1) (noting that employee
 cannot assume that the employer will already know understand the religious
nature the belief practice issue
Furthermore, even employer was generally aware the beliefs and
observances that are traditionally associated with particular religious group, and
also knew that the applicant employee displayed symbols associated with that
group even that the applicant employee specifically claimed
member that group ordinarily, the employer would still not know whether the
conflicting practice question actually stemmed from religious beliefs unless the
particular applicant employee informed the employer, because under Title VII, have discussed, religion uniquely personal and individual matter. See,
e.g., EEOC Compliance Manual 12-I(A)(1) employee belief practice
can religious under Title VII even the employee affiliated with
religious group that does not espouse recognize that individual belief
practice, few other people adhere it. (emphasis added)); see
also id. [A] person religious beliefs need not confined either source
content traditional parochial concepts religion. belief religious for
Title VII purposes religious the person own scheme things
(emphasis added) (footnotes omitted) (internal quotation marks omitted)).
holding that Title VII places duty the employee give fair warning the
employment practices that will interfere with his religion, Reed, 330 F.3d 935,
the Seventh Circuit succinctly and cogently touched like point. Specifically,
the court Reed stated: person religion not like his sex
race something obvious glance. Even wears religious symbol, such cross yarmulka, this may not pinpoint his particular beliefs and
observances Id. 935 (emphasis added).
Similarly, upholding the dismissal the plaintiff religionaccommodation claim because she failed inform her employer her need for accommodation due conflict between her Christian beliefs and the
employer libation alcohol-drinking ceremony, the Third Circuit
Wilkerson rejected the plaintiff suggestion that the employer knowledge that
she was Christian was enough trigger its accommodation obligation.
Specifically, the Third Circuit stated, that [the employer] knew she was
Christian does not sufficiently satisfy [the plaintiff duty provide fair
warning [the employer] that she possessed religious belief that specifically
prevented her from participating the libations ceremony. Wilkerson, 522 F.3d 319 (emphasis added). Indeed, the Third Circuit went further and concluded
that even the employer suspected that the libations ceremony would
specifically offensive the plaintiff, that would not relieve the plaintiff the
obligation inform the defendants that the libation ceremony would offend her
religious beliefs. Id. 319 (emphasis added). the same vein,
upholding the denial the plaintiff religion-accommodation claim, the Fourth
Circuit rejected the plaintiff argument that the employer knowledge the
plaintiff strongly held religious beliefs was enough put notice that
those beliefs would the plaintiff view oblige her write, and send,
personal, accusatory letters co-workers their homes. Chalmers, 101 F.3d
1020 n.3. Therefore, even employer were notice that applicant
employee subscribed particular religious belief system, because religion
under Title VII uniquely personal matter, that information would not
enough tell the employer what practices are religious the person own
scheme things. EEOC Compliance Manual 12-I(A)(1) (internal quotation
marks omitted). Ordinarily, the only way the employer would know such
information the applicant employee informed the employer.
Knowing this much demonstrates why the most natural reading Title
VII religion-accommodation provision one that ordinarily places the burden the applicant employee inform the employer the conflicting religious
practice and the need for accommodation, and why contrary reading the
statute would patently unfair employers. Reed provides hypothetical that
powerfully underscores this point:
Suppose the employee Orthodox Jew and believes that
deeply sinful work past sundown Friday. does not tell
his employer, the owner hardware store that open from
a.m. p.m. Fridays, who leaves the employee sole
charge the store one Friday afternoon mid-winter, and
p.m. the employee leaves the store. The employer could fire him
without being thought guilty failing accommodate his
religious needs.
330 F.3d 936. contrary reading the statute would be, think, misguided
and quite unfair because that time when the employer fired the employee
 there was nothing accommodate. Wilkerson, 522 F.3d 319. Reed,
 [t]his case similar the hypothetical: Ms. Elauf undisputedly did not inform
Abercrombie that her conflicting practice wearing hijab stemmed from her
religious beliefs and that she needed accommodation; consequently, with the
hypothetical employer, Abercrombie could elect not hire Ms. Elauf without
being thought guilty failing accommodate [her] religious needs. 330 F.3d 936. Nothing was present accommodate.
Moreover, contrary the EEOC suggestion oral argument, see Oral
Arg. 26:40 27:10, the fact that applicant headscarf (like Ms. Elauf was
visible would not materially distinguish her circumstances from those the
person whose religious beliefs did not allow for work the Sabbath. Even
though that person religious beliefs regarding the Sabbath would invisible
the naked eye, would the religious significance that the applicant attached
wearing the headscarf. noted, Muslim women (and certainly non-Muslim
women) wear headscarfs for reasons other than religion, and whether they are
doing for religious reasons depends their (invisible) motivation. EEOC
Compliance Manual 12-I(A)(1); see Aplt. App. 292 (indicating that the
EEOC expert opined, regarding the reasons why people maintain certain dress, really is, the question is, what their motivation Therefore, employers
confronted with the Sabbath-adherent and the headscarf-wearer would
similarly situated that is, they would not reasonably put notice the need
for religious accommodation unless they were informed the applicant.
Lastly, even employer has particularized, actual knowledge the
religious nature the practice that is, knowledge that the practice
particular applicant employee stems from his her religious beliefs that still
would not sufficient information trigger the employer duty offer
reasonable accommodation. That because the applicant employee may not
actually need accommodation. other words, applicant employee may
not consider his her religious practice inflexible; that is, she may
not feel obliged religion adhere the practice. that the situation, then
there actually conflict, nor consequent need for the employer provide
reasonable accommodation. Given that [a] belief religious for Title VII
purposes religious the person own scheme things, EEOC
Compliance Manual 12-I(A)(1) (emphasis added) (internal quotation marks
omitted), whether particular practice religiously required ultimately
question that only particular individual can answer even the same practice
customarily required the religion that the person claims follow. Cf. Turner,
2009 2567962, (noting that the record did not indicate that the plaintiff
ever told his employer that his religious beliefs required meeting with his
pastor that time that the meeting was anything other than personal
preference (emphasis added)). suggested Thomas, Title VII interactive process requires
participation both the employer and the employee. 225 F.3d 1155
(emphasis added). Yet, how can employer meaningfully participate the
accommodation process, when lacks concrete information from which discern need so? See Wilkerson, 522 F.3d 319 Because [the plaintiff] did not
inform [her employer] that the [libation] ceremony presented [religious]
conflict, did not have duty accommodate her. Although [the plaintiff] told
[her employer] after the fact, that time there was nothing accommodate. 
(emphasis added)); Larson, supra, 56.05, 56-21 Indeed, would seem
unreasonable require employer accommodate the religious practices
employee when the employer unaware the need so. (emphases
added)). true that logic does not perforce dictate that just because the foregoing
critical questions ordinarily must answered the particular applicant
employee, before the employer duty offer reasonable accommodation
triggered, that the applicant employee must initiate the communication:
conceivable that one could fashion regulatory regime which the employer was
obliged inquire the first instance concerning the religious beliefs and needs applicants employees. Yet, under Title VII interactive accommodation
scheme, clear that, not only the employer not obliged make such
religious inquiries, the employer affirmatively discouraged from doing
because applicant religious affiliation beliefs are generally viewed
non job-related and problematic under federal law. EEOC Pre-Employment
Inquiries, supra; see, e.g., Prise, 657 Supp. 597 (noting that questioning
applicants concerning their religious beliefs could, under some circumstances,
permit inference drawn that employer engaged improper religionbased discrimination EEOC Best Practices, supra conducting job
interviews, employers can ensure nondiscriminatory treatment inquiring
about matters directly related the position question. Furthermore,
have discussed, the religion-accommodation context, the EEOC has specifically
cautioned employers avoid assumptions stereotypes about what constitutes religious belief practice what type accommodation appropriate. 
EEOC Best Practices, supra; see id. (noting that [m]anagers and employees
should trained not engage stereotyping based religious dress and
grooming practices Thus, under Title VII employer affirmatively
discouraged from asking applicants employees whether their seemingly
conflicting practice based religious beliefs, and, so, whether they actually
will need accommodation for the practice, because inflexible (i.e., truly
conflicting), and the employer also discouraged the EEOC from speculating
about such matters, then the interactive accommodation process ordinarily only
can triggered when applicants employees first provide the requisite
information the employer. sum, light Title VII conception religion and the interactive
nature the religion-accommodation process, have difficulty seeing how
could logically reach conclusion other than the one that explicate here
regarding the notice element the prima facie case. also find further support for our view the notice requirement which
places the onus the applicant employee initially provide explicit notice
the employer the conflicting religious practice and the need for
accommodation references found the EEOC own regulations and policy
documents regarding the source the employer notice. These
authorities repeatedly, expressly, and unequivocally assign the notice
responsibility the applicant employee. Beginning with its substantive
regulation, the EEOC states, After employee prospective employee notifies
the employer his her need for religious accommodation, the employer has obligation reasonably accommodate the individual religious
practices. C.F.R. 1605.2(c)(1) (emphasis added). other words, its
plain terms, the regulation contemplates that the employer duty provide
reasonable religious accommodation comes after receives notice from the
prospective employee employee. such notice provided, would seem ineluctably follow under the regulation that the employer has duty
provide reasonable religious accommodation and cannot (as matter law)
held liable for failing so.
The agency compliance manual follows suit and, notably, underscores
that the notice provided the applicant employee cannot consist vague
reference[s], Johnson, 762 F.2d 673, but instead must specific: applicant employee who seeks religious accommodation
must make the employer aware both the need for
accommodation and that being requested due conflict
between religion and work. The employee obligated explain
the religious nature the belief practice issue, and cannot
assume that the employer will already know understand it.
EEOC Compliance Manual 12-IV(A)(1). sure, there not any particular talismanic litany that the applicant
employee must recite effectively put the employer notice. this regard,
the EEOC states, magic words are required place employer notice applicant employee conflict between religious needs and work
requirement. request accommodation, individual may use plain language
and need not mention any particular terms such Title VII religious
accommodation. Id. But the EEOC does insist that the applicant employee
 provide enough information make the employer aware that there exists
conflict between the individual religious practice belief and requirement for
applying for performing the job. Id.
Indeed, the EEOC effectively underscores hypothetical that
applicant employee cannot remain silent before the employer regarding the
religious nature his her conflicting practice and need for accommodation
and still hope prevail religion-accommodation case:
EXAMPLE
Failure Advise Employer That Request Due
Religious Practice Belief
Jim agreed take his employer drug test but was terminated
because refused sign the accompanying consent form.
After his termination, Jim filed charge alleging that the
employer failed accommodate his religious objection
swearing oath. Until received notice the charge, the
employer did not know that Jim refusal sign the form was
based his religious beliefs. Because the employer was not
notified the conflict the time Jim refused sign the form, any time prior Jim termination, did not have
opportunity offer accommodate him. The employer has not
violated Title VII.
EEOC Compliance Manual 12-IV(A)(1) (emphasis added). our view, the
facts this hypothetical are closely akin the facts present here: point
(continued...)
And other policy documents the EEOC are similar import, placing the
burden the applicant the employee provide notice the employer the
conflicting religious practice and the need for accommodation. See, e.g.,
EEOC Best Practices, supra (noting that [e]mployees should advise their
supervisors managers the nature the conflict between their religious needs
and the work rules and they should provide enough information enable the
employer understand what accommodation needed, and why necessitated religious practice belief EEOC supra (responding the
question, [h]ow does employer learn that accommodation may needed?
stating, [a]n applicant employee who seeks religious accommodation must
make the employer aware both the need for accommodation and that being
requested due conflict between religion and work (emphasis added)).
sum, the clear, unequivocal guidance reflected the EEOC own regulation and
policy documents supports our view that the onus upon the applicant
employee initially provide explicit notice the employer the conflicting
religious practice and the need for accommodation.
(...continued)
during her interview with Ms. Cooke (Abercrombie agent) did Ms. Elauf
expressly inform her directly indirectly that she wore her hijab for religious
reasons and felt obliged so, and, therefore, would need accommodation.
Like the hypothetical employer, Abercrombie did not have chance
accommodate Ms. Elauf allegedly religious practice.
The EEOC intimates that this reading its regulation and policy
documents too facile. See Aplee. Br. These policy documents and
regulations not elevate form over substance and require this Court take
nonsensical approach the notice requirement. effect, the EEOC contends
that the plain language these materials not tell the complete story because
they not take into account the circumstances the instant case where, the
EEOC view, the employer had notice from source other than explicit
communication from the applicant the need provide religious
accommodation. See id. [T]he Commission policy documents not
address the situation where there evidence that the employer was aware the
applicant religious belief without the applicant herself informing it.
such, none these policy documents indicates that employer excused from
its obligation provide reasonable accommodation for applicant religious
belief that conflicts with work requirement simply because someone other than
the applicant herself informed the employer the belief. (quoting EEOC
Compliance Manual 12-IV(A))); id. [A]s with the aforementioned policy
documents, the regulations not address the situation where the employer
otherwise aware the individual religious belief, and accordingly not
preclude plaintiff from satisfying the notice requirement under such
circumstances. (emphasis added)). The EEOC asserts that its reading the
scope its regulation, C.F.R. 1605.2(c), entitled Auer deference. See
Auer Robbins, 519 U.S. 452, 461 (1997).
However, believe that the EEOC views are unpersuasive and cannot
control the outcome here. Notably, conclude that there are strong reasons for
withholding the deference that Auer generally requires. Christopher
SmithKline Beecham Corp., --- U.S. ----, 132 Ct. 2156, 2167 (2012). Auer
ordinarily calls for deference agency interpretation its own ambiguous
regulation, even when that interpretation advanced legal brief Id.
2166; see Chase Bank USA, N.A. McCoy, --- U.S. ----, 131 Ct. 871, 880
(2011) [W]e defer agency interpretation its own regulation, advanced legal brief see also Decker Nw. Envtl. Def. Ctr., --- U.S. ----, 133 Ct. 1326, 1337 (2013) When agency interprets its own regulation, the
Court, general rule, defers
However, this general rule does not apply all cases. Christopher, 132 Ct. 2166; see, e.g., Harry Edwards al., Federal Standards Review,
ch. XIV (Westlaw Database updated Apr. 2013) [hereinafter Federal Standards] [T]he deference afforded agency interpretation its own regulations
significant, but not without limits. threshold matter, order for Auer
deference warranted, the language the regulation question must
ambiguous, lest substantively new rule promulgated under the guise
interpretation. Drake FAA, 291 F.3d 59, (D.C. Cir. 2002); see Christensen Harris Cnty., 529 U.S. 576, 588 (2000) Auer deference warranted only
when the language the regulation ambiguous. The regulation this case,
however, not ambiguous defer the agency position would
permit the agency, under the guise interpreting regulation, create facto
new regulation.
Even that threshold crossed, there are other circumstances under which
the application Auer deference would unjustified:
Deference undoubtedly inappropriate, for example, when the
agency interpretation plainly erroneous inconsistent with
the regulation. And deference likewise unwarranted when
there reason suspect that the agency interpretation does
not reflect the agency fair and considered judgment the
matter question. This might occur when the agency
interpretation conflicts with prior interpretation, when
appears that the interpretation nothing more than convenient
litigating position
Christopher, 132 Ct. 2166 (citations omitted) (quoting Auer, 519 U.S.
461 (internal quotation marks omitted); Bowen Georgetown Univ. Hosp.,
488 U.S. 204, 213 (1988) (internal quotation marks omitted)). considering the appropriateness deferring agency
interpretation, the Christopher Court also highlighted the importance
safeguarding the principle that agencies should provide regulated parties fair
warning the conduct regulation] prohibits requires. 132 Ct. 2167
(alteration original) (quoting Gates Fox Co. Occupational Safety Health
Review Comm 790 F.2d 154, 156 (D.C. Cir. 1986) (Scalia, J.)); see Drake, 291
F.3d (listing one the preconditions for applying this socalled Auer
deference that the agency reading its regulation must fairly supported
the text the regulation itself, ensure that adequate notice that
interpretation contained within the rule itself (emphasis added)); see Federal
Standards, supra, ch. XIV (noting that Christopher the Court ruled that Auer deference would afforded agency interpretation disputed
regulation the statute, published regulations, and the agency prior
enforcement regime gave notice regulated parties the interpretation
proposed the agency during the course litigation the Christopher
Court elaborated: one thing expect regulated parties conform their
conduct agency interpretations once the agency announces
them; quite another require regulated parties divine the
agency interpretations advance else held liable when
the agency announces its interpretations for the first time
enforcement proceeding and demands deference.
132 Ct. 2168. decline accord Auer deference the EEOC interpretation its
own regulation, C.F.R. 1605.2(c)(1). First, far from clear that the
regulation actually ambiguous concerning the central question before us:
whether applicants employees initially must provide express notice the
employer their conflicting religious practice and their need for
accommodation, order trigger the employer legal duty provide
reasonable religious accommodation. The regulation language seems
 plainly answer yes that question. Christensen, 529 U.S. 588; see id. Nothing the regulation even arguably requires that employer compelled
use policy must included agreement. The text the regulation itself
indicates that its command permissive, not mandatory. cf. Chase Bank, 131 Ct. 879 (noting that the key question was whether the [interest-rate]
increase actually changed term the Agreement that was required
disclosed within the meaning the regulation and concluding that the
regulation was ambiguous the question presented, and [the Court] must
therefore look [the agency own interpretation the regulation for guidance deciding this case And the text regulation unambiguous,
appears the situation here, conflicting agency interpretation will
necessarily plainly erroneous inconsistent with the regulation question. 
Chase Bank, 131 Ct. 882 (quoting Auer, 519 U.S. 461). Thus, the
threshold, doubtful that Auer deference the EEOC interpretation
appropriate.
Second, even the regulation were actually ambiguous its reach, 
Drake, 291 F.3d 68, there would reason suspect that the [EEOC
interpretation does not reflect [its] fair and considered judgment the matter
question, Auer, 519 U.S. 462. demonstrated above, through its
Compliance Manual and other policy documents, the EEOC has repeatedly,
explicitly, and unequivocally indicated that the notice necessary trigger
employer duty provide reasonable religious accommodation notice that
initially provided express terms applicants and employees. See, e.g., EEOC
Compliance Manual 12-IV(A)(1) The employee obligated explain the
religious nature the belief practice issue (emphasis added)); EEOC
Best Practices, supra (noting that [e]mployees should advise their supervisors
managers the nature the conflict between their religious needs and the work
rules and should provide enough information enable the employer
understand what accommodation needed, and why necessitated
religious practice belief other words, prior occasions, the EEOC has
repeatedly taken position the notice question that inconsistent, and
conflicts with, the interpretation that question that now seeks engraft onto
its regulation. such circumstance, Auer deference unwarranted. Christopher, 132 Ct. 2166; see id. (noting that the situation might occur where Auer
deference unjustified because the agency interpretation conflicts with prior
interpretation see Thomas Jefferson Univ. Shalala, 512 U.S. 504, 515 (1994)
(noting that agency interpretation statute regulation that conflicts
with prior interpretation entitled considerably less deference than
consistently held agency view (quoting INS Cardoza-Fonseca, 480 U.S. 421,
446 n.30 (1987))); cf. Bowen, 488 U.S. 212 (noting that [f]ar from being
reasoned and consistent view the scope [the statutory] clause, the agency
 current interpretation contrary the narrow view that provision
advocated past cases Drake, 291 F.3d Where the agency litigation
position consistent with its past statements and actions, there good reason for
the court defer, for then the position seems simply articulate explanation longstanding agency practice. (quoting Akzo Nobel Salt, Inc. Fed. Mine
Safety Health Review Comm 212 F.3d 1301, 1304 (D.C. Cir. 2000))).
Furthermore, the EEOC does not identify any prior instance where has
taken the stance regarding notice that does here, and its position does not
appear anything other than creature this proceeding where
party this case. Chase Bank, 131 Ct. 881. least coupled with its prior
inconsistent conduct, this circumstance gives some reason suspect that the
EEOC view regarding notice nothing more than agency convenient
litigating position such, giving Auer deference would entirely
inappropriate. Bowen, 488 U.S. 213; accord Christopher, 132 Ct. 2166.
Moreover, have difficulty concluding that the EEOC has provided
 adequate notice (Drake, 291 F.3d 68) fair warning (Christopher, 132
Ct. 2167 (quoting Gates Fox Co., 790 F.2d 156) (internal quotation marks
omitted)) employers that their obligation provide reasonable religious
accommodation may triggered something other than explicit
communication from applicants employees regarding their conflicting religious
practice and need for accommodation. Nothing the text the EEOC
regulation, C.F.R. 1605.2(c)(1), would provide clear notice this. 
Christopher, 132 Ct. 2167. describing the circumstances under which the
employer obligation offer reasonable religious accommodation triggered,
the regulation speaks solely employee prospective employee notif[ying]
the employer [of the need for such accommodation]. C.F.R.
 1605.2(c)(1). And, commonly understood, the term notify means make usu[ally] formal communication generally about something requiring worthy