U.S. v. NEW YORK CITY TRANSIT AUTHORITY

arises from the Government's prima facie case, a trial court may then conclude that a violation has occurred and determine the appropriate remedy." Id. at 361. On the other hand, if the defendant employer "introduces evidence satisfying this burden . . ., the trier of fact then must consider the evidence introduced by both sides to determine whether the plaintiffs have established by a preponderance of the evidence that the defendant engaged in a pattern or practice of intentional discrimination." Robinson, 267 F.3d at 159. "Should the plaintiffs prove a pattern or practice of discrimination, the court may proceed to fashion class-wide injunctive relief." Id.

In this action, plaintiff alleges that "[d]efendants have pursued and continue to pursue policies and practices that discriminate against employees on the basis of religion, in violation of Section 707 of Title VII of the Civil Rights Act of 1964. . . ." Complaint at ¶ 15. Plaintiff then identifies two categories of policies or practices. First, plaintiff alleges that defendants have engaged in disparate treatment of "Muslim, Sikh and similarly situated employees who are unable to comply with uniform policies for religious reasons" by "[s]electively enforcing uniform policies and taking adverse employment action against [them]." Id. at ¶ 15(A). Second, plaintiff alleges that defendants have failed to make reasonable accommodations for "Muslim, Sikh and similarly situated employees who, in accordance with their religious belief and practices, are unable to comply with uniform policies." Id. at ¶ 15(B).

Although the complaint does not specifically define the term "employees," Defendants' Memo implies that this term encompasses only bus and train operators, or those engaged in "transporting" passengers. See, e.g., Defendants' Memo at 29. In support of this contention, defendants cite to paragraph 5 of the complaint, which alleges that "[d]efendants employ, among other individuals, bus and subway train operators, responsible for transporting individuals throughout the New York City metropolitan area." Complaint at ¶ 5 (emphasis added). However, this language itself expressly states that defendants employ more than just bus and train operators, and there is nothing in the complaint that implies that the term "employees" should be read as encompassing only a subset of all employees. In a Section 707 pattern-or-practice suit, the focus is "on the employment system as a whole rather than just a part of it." United States v. Buffalo, 457 F.Supp. 612, 620 (W.D.N.Y. 1978).

To be sure, the complaint makes specific allegations with respect to five employees, four of whom are bus operators and one of whom is a train operator. However, these allegations serve only to show examples of instances in which defendants have engaged in the alleged discriminatory policies or practices. Indeed, the complaint does not seek damages for these specific employees, but seeks only injunctive relief prohibiting the alleged selective enforcement and mandating reasonable accommodation. Accordingly, this Court does not construe the complaint as limited solely to bus and train operators or to those employees engaged in the actual transportation of passengers.

Defendants' First Point

Defendants' first point — that this action cannot be maintained as a "pattern or practice" action — encapsulates two separate arguments. First, citing to Lopez v. Metropolitan Life Ins. Co., 930 F.2d 157, 160 (2d Cir. 1991), defendants argue that because "pattern or practice" actions must involve intentional discrimination, only "disparate treatment" claims can be raised in an action pursuant to section 707. Defendants' Memo at 18. Second, defendants argue that because the government has so far identified only ten alleged victims of the discrimination, there is no evidence that the discrimination was widespread enough to be characterized as the TA's "standard operating procedure." Id. at 19.

With respect to the first of these arguments, this Court does not read Lopez as implying that "Title VII's `pattern or practice' claims are limited to `disparate treatment' claims." Defendants' Memo at 18. The only pattern-or-practice claim raised in Lopez was based on disparate treatment, not disparate impact. See Lopez, 930 F.2d at 160. Accordingly, the Lopez Court did not have occasion to hold that a pattern or practice claim could be based on theories other than disparate treatment.

While Section 707 requires that the pattern or practice of resistance to the full enjoyment of any of the rights secured by Title VII be "intended to deny the full exercise of the rights . . . described [Title VII]," this requirement does not limit Section 707 actions to disparate treatment claims. To the contrary, it appear to be well-settled that "[a] `pattern or practice' of discrimination could be either a pattern of disparate treatment of a number of individuals, or the wide-scale application of tests or other neutral factors having disparate impact, or both." 1 Lex K. Larson, Employment Discrimination, at § 8.01[3], at 8-12. Indeed, the very argument that defendants make here was expressly rejected in United States v. City of Yonkers, 609 F.Supp. 1281 (S.D.N.Y. 1984), a section 707 action founded "wholly on the disparate impact model of employment discrimination and attack[ing] only certain facially neutral selection criteria in the hiring of Yonkers police officers." Id. at 1283. Addressing Yonkers' argument that "as a matter of law disparate impact analysis cannot establish a pattern or practice of discrimination within the meaning of section 707(a)," Judge Sofaer explained:

The argument confuses the breadth of discrimination necessary to support the Attorney General's suit with the means available to prove it. The Supreme Court has advised that in a pattern-or-practice action the government "ultimately had to prove more than the mere occurrence of isolated or `accidental' or sporadic discriminatory acts," Teamsters, 431 U.S. at 336[;] "`single, insignificant, isolated acts of discrimination'" would not do, id. at 336 n. 16 (quoting Senator Humphrey, 110 Cong.Rec. 14270 (1964)). But as the [Supreme] Court's comparison in Teamsters of the disparate treatment and disparate impact analyses in the context of a section 707(a) suit suggests, see id. at 335 n. 15, a pattern of discrimination might be proved by either widespread disparate impact or regular disparate treatment. "Either theory may, of course, be applied to a particular set of facts." Id. For this reason, courts have employed disparate impact analysis in pattern-or-practice suits without comment. See, e.g., United States v. City of Chicago, 573 F.2d 416, 424 (7th Cir. 1978) (suit by Attorney General under 42 U.S.C. 2000e et seq.); Walls v. Mississippi State Department of Public Welfare, 542 F.Supp. 281, 309-10 (N.D.Miss. 1982) (government challenge under section 707 to educational qualifications and testing program utilizing disparate impact analysis), aff'd in part, rev'd in part on other grounds, 730 F.2d 306 (5th Cir. 1984); United States v. City of Buffalo, 457 F.Supp. 612, 621-22 (N.D.N.Y. 1978), modified on other grounds, 633 F.2d 643 (2d Cir. 1980).

Id. at 1284-85.

Plaintiff's second argument focuses incorrectly on the absolute number of employees affected by the allegedly discriminatory policy. As the Second Circuit emphasized in Ste. Marie v. Eastern R.R. Ass'n, 650 F.2d 395 (2d Cir. 1981), if there is evidence of systemic discrimination, the fact that plaintiff cannot establish a large number of victims of that discrimination is of no moment. The Second Circuit stated:

While the definition of a pattern or practice is not capable of a precise mathematical formulation, . . . more than two acts will ordinarily be required. If there were evidence that a policy of discrimination had been adopted, perhaps two or even one confirmatory act would be enough.

Id. at 406 (internal citations omitted). Accordingly, the fact that plaintiff has so far identified only ten "victims" of the TA's allegedly discriminatory headwear policy does not mandate dismissal.

The cases cited in footnote 70 of Defendants' Memo are not to the contrary. Mitchell v. New York Blood Center, No. 94 CV 5156 (NG), 1998 WL 846828 (E.D.N.Y. Oct. 1, 1998), and In re Western Dist. Xerox Litig., 850 F.Supp. 1079 (W.D.N.Y. 1994), both held that anecdotal evidence of a few incidents of discrimination involving a large employer, without more, is rarely sufficient to "give rise to an inference that defendant engaged in a corporate-wide pattern or practice of discrimination." In re Western Dist. Xerox Litig., 850 F.Supp. at 1086 (quoted in Mitchell, 1998 WL 846828, at *3). Similarly, EEOC v. Carrols Corp., No. 98-CV-1772, 2005 WL 928634 (N.D.N.Y. 2005), held that evidence that .367% of the defendants' 90,835 female employees had experienced sexual harassment was insufficient to establish a pattern or practice of sexual discrimination. Id. at *5. However, none of these three cases stands for the proposition that a plaintiff must establish that there have been a certain number of victims in order to make out a pattern-or-practice claim.

This Court further notes that defendants' attempt to engage in statistical analysis of the sort used by Chief Judge Scullin in Carrols Corp. is flawed. As plaintiff correctly notes, see Memorandum of Plaintiff United States in Opposition to Defendants' Motion for Summary Judgment ("Plaintiff's Memo") at 18, n. 13, Judge Scullin determined what percentage of the protected class had been subjected to discrimination and concluded that not even "a substantial minority of Defendant's female employees experienced harassment." Carrols Corp., 2005 WL 928634, at *5 (emphasis added). Defendants, however, have calculated what percentage of the TA's total workforce has been affected by the discrimination alleged herein.

Defendants' Second Point

The three arguments raised in defendants' second point relate to plaintiff's claim that the TA has engaged in a pattern or practice of unlawful religious discrimination by failing to accommodate the religious practices of Muslim, Sikh and similarly situated employees as required by Title VII. Title VII makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to [his] compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion," 42 U.S.C. § 2000e-2(a)(1), or to "limit, segregate or classify" an employee "in a way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee" because of that employee's religion. 42 U.S.C. § 2000e-2(a)(2). The term "religion" is defined to "include all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's . . . religious observance or practice without undue hardship on the conduct of the employers's business." 42 U.S.C. § 2000e(j). Thus, "it is `an unlawful employment practice . . . for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of his employees. . . .'" Baker v. Home Depot, 445 F.3d 541, 546 (2d Cir. 2006) (quoting Trans World Airlines. Inc. v. Hardison, 432 U.S. 63, 74 (1977)). "[A]n accommodation causes `undue hardship' whenever that accommodation results in `more than a de minimis cost' to the employer." Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 67 (1986) (quoting Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977))

In Title VII actions brought by individuals alleging that their employers failed to reasonably accommodate their religious practices, the plaintiffs' claims are analyzed under the burden-shifting framework of the sort prescribed in McDonnell Douglas v. Green, 411 U.S. 792 (1973). Under this framework, plaintiffs must first make out a prima facie case by showing that "(1) they held a bona fide religious belief conflicting with an employment requirement; (2) they informed their employers of this belief; and (3) they were disciplined for failure to comply with the conflicting employment requirement." Baker, 445 F.3d at 546 (quoting Knight v. Conn. Dep't of Pub. Health, 275 F.3d 156, 167 (2d Cir. 2001)). Once a prima facie case is established, the burden shifts to the employer to show that it could not reasonably accommodate plaintiff without undue hardship. Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476, 481 (2d Cir. 1985), aff'd remanded on other grounds, 479 U.S. 60 (1986).

Defendants' arguments implicitly assume that the same burden-shifting analysis that applies in Title VII actions brought by individual employees must also apply in this § 707 action. Focusing entirely on the Ten Employees, defendants first argue that these employees were never disciplined and, therefore, cannot make out the third prong of a prima facie case. Next, defendants argue that the accommodations offered to the ten employees were reasonable. Finally, defendants argue that, if these accommodations were not reasonable, no reasonable accommodations could be offered to these employees without creating an undue hardship on defendants.

However, the assumption underlying these arguments is incorrect. In Teamsters, the Supreme Court expressly rejected the argument that "the Government's burden of proof in a pattern-or-practice case must be equivalent to that outlined in McDonnell Douglas. . . ." Teamsters, 431 U.S. at 357. Noting that McDonnell Douglas "did not purport to create an inflexible formulation" for analyzing claims of discrimination under Title VII, the Court adapted the method of proof it used in adjudicating a class-action pattern-or-practice claim of race discrimination under Title VII in Franks v. Bowman Transportation Co., 424 U.S. 747 (1976). The Teamsters Court then proceeded to promulgate the two-stage framework discussed above at pp. 21-23, under which the government's "initial burden is to demonstrate that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers." Teamsters, 431 U.S. at 360.

At this initial phase, the focus is on the employer's policies or practices, rather than on its actions with regard to individual employees. As the Supreme Court noted:

[A]t the liability stage of a pattern-or-practice trial the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking. While a pattern might be demonstrated by examining the discrete decisions of which it is composed, the Government's suits have more commonly involved proof of the expected result of a regularly followed discriminatory policy.

Teamsters, 431 U.S. at 360 n. 46. Thus, unlike in a Title VII action brought by an individual employee, "[a]t the initial, `liability' stage of a pattern-or-practice suit the Government is not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer's discriminatory policy." Id. at 360.

In light of the foregoing, this Court finds no merit in Defendants' argument that this action must be dismissed because plaintiff has not proved that any of the Ten Employees have ever been disciplined. Plaintiff can prove a prima facie case by showing that the TA's headwear policies, which are set forth in painstaking detail in bulletins issued by various TA officials, discriminate on the basis of religion. See id. In a typical Title VII pattern-and-practice suit, "the question of individual relief does not arise until it has been proved that the employer has followed an employment policy of unlawful discrimination." Id. at 361. Accordingly, the facts relating to the Ten Employees will only become an issue when, and if, the government seeks individual relief for the victims of the allegedly discriminatory policies. See id. at 361 ("When the Government seeks individual relief for the victims of the discriminatory practice, a district court must usually conduct additional proceedings after the liability phase of the trial to determine the scope of individual relief.").

There is also no merit to the second argument raised in Defendants' second point: that, even assuming plaintiff could make out a prima facie case, the record establishes as a matter of law that the TA offered a reasonable accommodation. The determination of "[w]hether or not something constitutes a reasonable accommodation is necessarily fact-specific." Wernick v. Fed. Reserve Bank, 91 F.3d 379, 385 (2d Cir. 1996). It typically requires a cost-benefit analysis: an evaluation of "the desirability of a particular accommodation according to the consequences that the accommodation will produce." Borkowski v. Valley Cent. School Dist., 63 F.3d 131, 138 (2d Cir. 1995). "[D]eterminations on this issue must be made on a case-by-case basis, Wernick, 91 F.3d at 385, and "[o]rdinarily, questions of reasonableness are best left to the fact finder." Baker, 445 F.3d at 548 (quoting EEOC v. Universal Mfg. Corp., 914 F.2d 71, 73 (5th Cir. 1990)).

Defendants have not persuaded this Court that this is the extraordinary case in which the reasonableness of defendants' proposed accommodations can be determined as a matter of law. "[A]n offer of accommodation may be unreasonable `if it cause[s] [an employee] to suffer an inexplicable diminution in his employee status or benefits. . . . In other words, an accommodation might be unreasonable if it imposes a significant work-related burden on the employee without justification, such as the neutral operation of a seniority system.'" Baker, 445 F.3d at 548 (emphasis omitted; brackets in original) (citing Cosme v. Henderson, 287 F.3d 152, 160 (2d Cir. 2002)). In this case, plaintiff has adduced proof which, if credited, might establish a diminution of status and benefits. For example, plaintiff has introduced declarations from three female Muslim bus operators who testified that the TA's policies rendered them unable to use their seniority to pick the routes and hours they wanted, including routes that guaranteed overtime. See Alkebulan Dec. at ¶ 56; Lewis Dec.at ¶ 26; Small Dec. at ¶ 30. Two of these bus drivers either "regularly picked routes with built in overtime," Lewis Dec. at ¶ 26, or did so "occasionally." Small Dec. at ¶ 30.

Although defendants claim that "planned overtime" is available to shifters, there is nothing to suggest that the three bus operators could have worked any overtime. Defendants themselves have adduced testimony that, prior to the women's reassignment, all shifter positions were occupied by bus operators with more seniority than any of the women. Hyland Dec. at ¶ 14(a). Moreover, the women testified that they were harassed because their positions — created, in part, by "taking away from existing shifters' assignments pieces of planned overtime," id. — deprived other, more senior shifters of overtime. Lewis Dec. at ¶ 32 (harassed by co-workers commenting that she "was taking overtime away from them"); Small Dec. at ¶ 35 (same). While the women received a shifter's "differential," this amounted to only $4.00 per eight-hour shift in early 2003. Hyland Dec. at ¶ 14(a).

In addition to this evidence of a diminution of benefits, there was a genuine issue of fact regarding a diminution in status. Although shifting work might generally be viewed as desirable, as evidenced by the seniority of the shifters, at least two of the female Muslim bus operators testified that they were required to perform menial, janitorial work, such washing buses (Alkebulan Dec. at ¶ 57) and washing windows (Lewis Dec. at ¶ 28). In addition, the women stated that the bus depots were "dangerous" and "full of noxious fumes" (Alkebulan Dec. at ¶ 57; Lewis Dec. at ¶ 33; Small Dec. at ¶ 28). One of the women stated that the fumes irritated her sinuses and gave her headaches (Small Dec. at ¶ 28), while another claimed to have suffered serious injury to her head and back as a result of dangerous conditions in the workplace (Lewis Dec. at ¶ 33). Accordingly, while the "shifter" job may have been viewed as desirable by senior employees, there is a genuine issue of material fact concerning whether the reassignment diminished the relatively junior women's status or otherwise imposed a significant work-related burden on these employees without justification. See Baker, 445 F.3d at 548.

With respect to station agents, there is a genuine issue of material fact as to whether the TA offered any accommodation whatsoever. The only evidence of an accommodation is contained in a letter, sent in the course of a pre-litigation dialogue with the attorney for the Station Agent Defendants, in which the TA's attorney offered to "discuss . . . other positions and how they could be applied for." Schoolman Dec., Ex. 17(c), at 2. Plaintiff argues that the attorney's offer was made in the course of settlement negotiations and is, therefore, inadmissible under Federal Rule of Evidence 408. Plaintiff also points out, inter alia, that the TA did not actually offer the Five Station Agents other positions, and that the TA's attorney's offer amounted to "a suggestion . . . that the Sikh station agents give up their jobs altogether and `apply' through the regular civil service process for other jobs within the TA that did not require uniforms." Plaintiff's Memo at 38.

This Court is not convinced by the first of plaintiff's arguments. "Rule 408 codifies the long-standing axiom in federal courts that compromises proposed . . . are not evidence of an admission of the validity . . . of the claim or the amount of damage." 2 Jack B. Weinstein Margaret A. Berger, Weinstein's Federal Evidence § 408.03[1] (Joseph M. McLauglin ed., 2d ed. 2009) (cited with approval in Rein v. Socialist People's Libyan Arab Jamahiriya, 568 F.3d 345, 351-52 (2d Cir. 2009)). By its terms, Rule 408 makes evidence that a party offered to furnish "valuable consideration in . . . attempting to compromise a claim" inadmissible "to prove liability for or invalidity of the claim or its amount." Fed.R.Evid. 408. Since the TA's attorney was not offering "valuable consideration" and since the TA does not intend to offer this evidence for the proscribed purposes, Rule 408 would not preclude its admission.

However, this Court cannot find, as a matter of law, that the TA's counsel's offer was an accommodation. This case is distinguishable from Bruff v. North Miss. Health Servs., Inc., 244 F.3d 495 (5^th Cir. 2001) — a case on which defendants principally rely — in which the Fifth Circuit held that a medical center offered an at-will employee an accommodation by giving her "30 days, and the assistance of its in-house employment counselor, to find another position at the Center where the likelihood of encountering further conflicts with her religious beliefs would be reduced." Id. at 501. The offer in Bruff implied that the hospital's human resources department would work with the plaintiff to help her find another position in the hospital. In contrast, the attorney's offer in this case was much more vague. The TA's counsel did not expressly offer the assistance of a human resources professional, but merely stated, "we could discuss . . . other positions and how they could be applied for." Schoolman Dec., Ex. 17(c) at 2. A reasonable juror could, like plaintiff's counsel herein, reasonably interpret this statement as "a suggestion . . . that the Sikh station agents give up their jobs altogether and `apply' through the regular civil service process for other jobs within the TA that did not require uniforms." Plaintiff's Memo at 38. Interpreted in that way, the TA's counsel offer would be tantamount to no accommodation at all.

The third argument raised in defendants' second point — that, even assuming defendants have failed to offer a reasonable accommodation, no accommodation could be granted without undue hardship — is also without merit. In making this argument, defendants essentially attempt to analogize this case to Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1^st Cir. 2004), and other cases in which courts have found that entirely exempting employees from certain grooming and personal appearance requirements can create an undue hardship if it causes an employer to lose control of its public image. However, Cloutier and the cases it cites are readily distinguishable in that these cases involve instances in which an employee would not, or could not, accept any accommodation short of an outright exemption from a dress code and in which there was no question that granting such an exception would adversely affect the employer's public image.

In Cloutier, the plaintiff — an adherent of the Church of Body Modification — insisted in wearing facial jewelry while working as a cashier for defendant Costco, a well-known retailer. The plaintiff expressly rejected compromises such as covering her facial piercings with bandages, leaving the court with the choice of either upholding or rejecting that portion of Costco's dress code which forbade all facial jewelry other than earrings. Noting that Costco had made a business determination that "facial piercings, aside from earrings, detract from the `neat, clean professional image' that it aims to cultivate," Cloutier, 390 F.3d at 136, the First Circuit ruled that forcing Costco to "lose[] control over its public image . . . would constitute an undue hardship." Id. at 137. The Court stated:

[W]e are faced with the . . . situation of an employee who will accept no accommodation short of an outright exemption from a neutral dress code. Granting such an exemption would be an undue hardship because it would adversely affect the employer's public image.

Id. at 136.

The cases discussed by the Cloutier Court in support of its holding can be segregated into two broad categories. First, there were cases in which the plaintiff refused to accept any accommodation short of capitulation. For example, the Cloutier Court cited to Daniels v. City of Arlington, 246 F.3d 500 (5^th Cir. 2001), a case in which a former police officer challenged a police department policy that prevented him from wearing a gold cross on his uniform. Although the police department was prepared to have him wear a cross around his neck or wrist, the only accommodation the officer proposed was that he be permitted to wear the cross on his uniform. Similarly, in Wilson v. U.S. West Communications, 58 F.3d 1337 (8^th Cir. 1995), the plaintiff claimed she had taken a religious vow to wear a graphic anti-abortion button and insisted that no alternative was reasonable.

Second, there were cases in which compromise was simply impossible. Many of those cases involved "no beards" policies and other grooming requirements which prohibited, for example, men wearing their hair below the collar. See Fagan v. Nat'l Cash Register Co., 481 F.2d 1115 (D.C. Cir. 1973). By their very nature, these requirements afforded no possibility of compromise. For example, there is no middle ground between a company's requirements that employees be clean-shaven and the employees' religious beliefs prohibiting shaving.

In all of these cases, the accommodation urged by the plaintiff posed obvious hardships on the employer. In Daniels, for example, the Fifth Circuit found that the accommodation sought by the officer constituted "an undue hardship for the city as a matter of law," stating, "[a] police department cannot be forced to let individual officers add religious symbols to their official uniforms." Daniels, 246 F.3d at 506. In Wilson, the plaintiff conceded that her anti-abortion button "caused substantial disruption at work." Wilson, 58 F.3d at 1341.

With respect to the grooming cases, the Cloutier Court noted that grooming regulations were often held to be justified by "safety concerns." Cloutier, 390 F.3d at 135. As an example, the Cloutier Court cited to Bhatia v. Chevron U.S.A., 734 F.2d 1382 (9^th Cir. 1984), which held that a requirement that all machinists be clean-shaven was necessary because all machinists needed to be able to wear a respirator with a gas-tight facial seal. However, the Cloutier Court also cited to cases in which a grooming policy was upheld in light of the employers' legitimate business concerns that hirsute employees could cost the employer business. Cloutier, 390 F.3d at 136 (citing cases). The Cloutier Court quoted at length from the opinion in Fagan, in which the D.C. Circuit observed:

Perhaps no facet of business life is more important than a company's place in public estimation. That the image created by its employees dealing with the public when on company assignment affects its relations is so well known that we may take judicial notice of an employer's proper desire to achieve favorable acceptance. Good grooming regulations reflect a company's policy in our highly competitive business environment.

Fagan, 481 F.2d at 1124-25. Cloutier also cited, inter alia, to Hussien v. The Waldorf-Astoria, 134 F. Supp. 2d 591, 599 (S.D.N.Y. 2001), for the proposition that "[s]ome courts have found that clean-shavenness is a bona fide occupational qualification in certain businesses," and to Woods v. Safeway Stores, Inc., 420 F.Supp. 35, 43 (E.D.Va. 1976), which deferred to the "judgment of the Safeway management tending stores in the Virginia area, that a grooming code, maintaining an image of cleanliness, was necessary to attract and retain customers."

This case is readily distinguishable from Cloutier and the cases cited therein. First, although defendants assert the Government is seeking an "exemption" from the TA's headwear policies, Defendants' Reply Memorandum of Law ("Defendants' Reply") at 13, the Government states that "[t]he accommodation requested by Muslim and Sikh employees was not — as the TA claims — that they be `exempted' from TA uniform policies." Plaintiff's Memo at 40. Rather, the Government presents evidence that Mr. Bhalla — the attorney for Mr. Harrington and the Five Station Agents — proposed a compromise whereby the employees would wear turbans and khimars in the same blue color as their TA uniforms, but would affix the TA logo they were required to place on the turban or khimar on the front pocket or collars of their uniform shirts. Declaration of Ravinder Singh Bhalla (Pl. Ex. 6) at ¶ 8. Alternatively, Mr. Bhalla suggested that the employees prominently display their TA photo identification cards in lieu of wearing the logo. Id.

Second, this is not a case in which the uniform requirement at issue is obviously justifiable based on safety concerns or other legitimate business concerns. The only portion of the uniform policy on which the parties cannot compromise relates to the placement of the TA logo on the front of the employees' uniforms. Unlike the hard hat in Kalsi v. New York City Transit Auth., 62 F. Supp. 2d 745 (E.D.N.Y. 1998) — a case frequently cited by defendants — the logo at issue was not designed to protect the wearer. Accordingly, there are no safety considerations which would justify the TA's refusal to make this accommodation.

Moreover, there is no proof that the subtle change in the placement of the TA logo would adversely affect the TA's business in any way. As the Cloutier Court recognized, "[t]he assessment of what constitutes an undue hardship may be somewhat different for a private employer than for [as public one]." Cloutier, 390 F.3d at 136 (citing Daniels, 246 F.3d at 503-04). The TA, which runs all of New York City's subways and most City buses, simply does not face the "highly competitive business environment" that justified upholding the grooming requirements in cases like Fagan, Hussien and Woods.

In this connection, the Court notes that the hardships identified by the TA are nowhere near as obvious as the hardships posed by exempting the employees of commercial businesses from grooming requirements. Defendants argue that this exemption would (1) "vitiate the TA's right . . . to present its chosen image to the public," (2) cause arbitrators not to enforce the headwear policy against non-observant employees, (3) saddle the TA with the "difficult" task of determining who to exempt, (4) imply that the TA favors certain religions, in violation of the Establishment Clause, and (5) likely lead to a loss of employee morale. Defendants' Memo at 24-26. Although defendants may be able to introduce evidence that these hardships will result, that evidence comes largely from defendants' own employees or retained experts and is somewhat speculative in nature. While these employees and experts might be able to persuade a reasonable fact-finder that exempting certain Muslim and Sikh employees from the requirement that a TA logo be worn on their turbans or khimars would result in these hardships, the causal relationship between the exemption and hardships is not intuitively obvious, as it was in the grooming cases.

While this Court's analysis assumes the admissibility of the testimony of defendants' expert — the industrial and organizational psychologist Thomas D. Hollmann — this analysis should not be read as a determination of plaintiff's motion in limine to exclude Dr. Hollmann's testimony. Since this Court need not resolve that motion in order to resolve the instant motion for summary judgment, that motion shall remain pending and will be decided only if necessary in advance of trial.

Defendants' Third Point

In their third point, defendants request that plaintiff's "intentional discrimination (disparate treatment) claim" be dismissed. Since defendants' second point focused on plaintiff's allegations that the TA engaged in a pattern or practice of denying reasonable accommodations to Muslim, Sikh and similarly situated employees whose religious beliefs were in conflict with the uniform policies, this Court assumes this third point focuses on the Government's claim that the TA engaged in a pattern or practice of selectively enforcing those policies against Muslim, Sikh and similarly situated employees.

All of the arguments raised in defendants' third-point are predicated on the erroneous assumption that this claim is subject to the same McDonnell Douglas burden-shifting analysis that applies to individual Title VII actions. Defendants first argue that plaintiff has not made out a prima facie case of disparate treatment with regard to any of the five individuals named in the complaint or the Five Station Agents because (1) none of these employees suffered an adverse employment action and (2) plaintiff's evidence does not support an inference of intentional religious discrimination. Defendants next assert that they have offered legitimate non-discriminatory reasons for their allegedly discriminatory actions. Finally, defendants anticipate and address the arguments that plaintiff might advance in attempting to show that defendants' non-discriminatory reasons are pretextual.

However, as noted above, pp. 29-30, the McDonnell Douglas framework does not apply in Section 707 cases. See Teamsters, 431 U.S. at 357. Rather, courts use the two-step framework which the Teamsters Court derived from Franks v. Bowman Transportation Co., 424 U.S. 747 (1976), and under which the government's "initial burden is to demonstrate that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers." Teamsters, 431 U.S. at 360. Although a pattern of discrimination can be demonstrated by examining discrete decisions, the Government typically relies on statistical proof to satisfy its initial burden. Indeed, in light of the enormous number of persons employed by the TA, it is unlikely that the burden could be met any other way in this case. See In re Western Dist. Xerox Litig., 850 F.Supp. at 1086; Mitchell, 1998 WL 846828, at *3.

For these reasons, the Government does not yet have to offer evidence that the persons for whom it will ultimately seek relief were victims of the discriminatory policy. Teamsters, 431 U.S. at 360. Even assuming the defendants could establish that each of the Ten Employees were not victims of disparate treatment, the Government could still meet its initial burden through statistical proof. Accordingly, proof that none of the Ten Employees identified by the Government thus far could state a prima face of case discrimination under Title VII would not mandate the dismissal of this action.

CONCLUSION

For the reasons stated above, defendants' motion for summary judgment is denied.

SO ORDERED.

Dated: September 24, 2010

Brooklyn, New York