EQUAL EMPLOYMENT OPPORTUNITY COMMIS v. GEO GRP

minate on the basis of religion by merely inventing a post-hoc safety rationale for its refusal to accommodate its employees' religious practices. An employer cannot evade liability for religious discrimination by merely asserting that it has a legitimate business interest, no matter how important, for refusing to accommodate an employee's religious practice. Rather, the burden is on the employer to show that accommodating the employee's religious practice "would impose more than a de minimis cost on the employer." Webb, 562 F.3d at 260. As we said in Webb, that cost may be an a noneconomic cost, such as creating a safety risk. Id. However, the majority has failed even to perform, the necessary inquiry into whether making a religious exception from the general headgear ban to accommodate khimars would, in fact, impose such an undue hardship on GEO.

The majority's approach creates an exception to the normal burden-shifting rule, which is an established part of our Title VII analysis when safety is the employer's asserted rationale. The majority acknowledges that the District Court did not made any finding or reach any conclusion about the existence of an undue hardship. Maj. Op. at 274. By the majority's own admission, this is also "a close case." Id. at 275. But the majority concludes nonetheless that "[e]ven assuming khimars present only a small threat of the asserted dangers, they do present a threat which is something that GEO is entitled to attempt to prevent." Id. at 274. The majority thereby effectively exempts GEO from Title VII's requirement that an employer must prove that its hardship is more than de minimis; instead, it concludes that this requirement is met merely because GEO has asserted that its hardship is safety. The majority, in effect, establishes a per se rule that when an employer asserts that its rationale for denying a religious accommodation is safety, the employer need not adduce any evidence to prove the existence of, let alone the magnitude of, the burden it would suffer by accommodating the religious practice. This is error, especially in light of plaintiffs' evidence to the contrary.

I agree with the majority that "`safety is undoubtedly an interest of the greatest importance.'" Webb, 562 F.3d at 262 (quoting Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999)). Certainly, "Title VII does not require that safety be subordinated to the religious beliefs of an employee." Draper v. U.S. Pipe Foundry Co., 527 F.2d 515, 521 (6th Cir. 1975). The importance of the employer's interest, however, does not ipso facto relieve the employer of its burden of proof. It is established law in this Circuit that "`[t]he magnitude as well as the fact of hardship must be determined by the examination of the facts of each case.'" Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 134 (3d Cir. 1986) (quoting Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1243 (9th Cir. 1981)). On this record, a reasonable jury could easily find that GEO has proven neither the fact nor magnitude of its asserted hardship.

Plaintiffs Have Raised Disputed Questions of Material Fact of GEO's Asserted Safety Interest

Plaintiffs also have raised a disputed question of fact as to whether safety was even the reason that GEO changed its policy about head coverings. The shifting testimony of Nardolillo and Holm is internally inconsistent. At times, they testified that they when they decided to ban hats, they were motivated by safety concerns. On other occasions, they testified that they just did not like the way it appeared to have employees commonly wearing various non-uniform hats. A jury could infer that GEO's inconsistent and shifting rationale for its change in policy is "evidence tending to show pretext." Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 284 (3d Cir. 2001).

It would be perfectly reasonable for a jury to find, despite Nardolillo and Holm's testimony, that safety concerns did not actually motivate them to change the hat policy. Such a finding would be supported by the fact that the changes to the dress code in April 2005 did not actually include any changes to the hat policy, and that plaintiffs introduced evidence that hats continued to be commonly worn within the secure perimeter of the facility after the adoption of the new version of the dress code in April 2005. One could assume that if concern about the safety of hats had motivated the adoption of the April 2005 dress code, the new dress code would include revised language on hats, hats would have ceased to be issued with uniforms, hats would have been banned for all employees, and the new policy would have been implemented immediately.

A finding that the ban on khimars was not motivated by safety would be further bolstered by the fact that plaintiffs introduced evidence that GEO did not make any attempt to stop employees from wearing hats or khimars in the facility until the very day that Nardolillo became aware of Moss' request for permission to wear her khimar, and by the fact that after the issuance of the October 24, 2005 memorandum, Moss was singled out for reprimand for wearing her khimar the next day, while other correctional officers continued to wear their secular hats without incident. Additionally, kitchen employees who interact with prisoners on a more frequent basis than either Sharpe-Allen or King continue to wear hats within the secure facility. Further, two of the plaintiff-employees do not even work regularly within the secure areas of the prison.

The testimony of Nardolillo and Holm about their motivations simply does not match up with the evidence of their actions. Moss testified that Nardolillo told her that he did not want her "starting a fad or a fashion statement," that "[n]o religion will be honored" in the prison, and that religion was simply not important to him. JA 159-160. These contemporaneous statements directly contradict his later-asserted rationales for the change in policy. A reasonable jury could conclude that Nardolillo and Holm, were not actually motivated by any safety concerns about head coverings and, consistent with that mindset, did not take any actions to limit the wearing of hats in April 2005. Rather, when they became aware of Moss' request to wear a khimar in October of 2005, they discriminatorily decided to deny it, and decided they would rather ban all hats than allow khimars to be worn.

Even assuming that safety was the motivating factor behind the prohibition on hats within the facility, based on the record before us, plaintiffs have raised a disputed question of fact as to whether accommodating the wearing of khimars actually creates a significant safety risk. It is error for the majority to conclude, relying solely on the speculative testimony of Nardolillo and Holm that the wearing of khimars creates a safety risk, Maj. Op at 274, in the face of all of the evidence in the record to the contrary. GEO is not entitled to judgment simply because its officials have conclusorily recited imagined and hypothetical situations in which khimars could pose potential safety problems.

In order to succeeded on a motion for summary judgment, GEO cannot merely recite hypothetical safety concerns. It must adduce evidence that accommodating the wearing of khimars would have caused safety risks. As the Sixth Circuit has observed, the notion that an employer's mere assertion of speculative and hypothetical safety concerns can serve as the basis of an undue hardship is contrary to Title VII's burden of proof on the employer. In Draper v. U.S. Pipe Foundry Co., 527 F.2d 515, 521 (6th Cir. 1975), the employer asserted that allowing an employee to take Saturdays off for religious observances would compromise safety because it would require some employees to work longer than eight hour shifts, which would be dangerous because they worked around sophisticated and potentially dangerous electrical equipment. While recognizing that safety concerns are "highly relevant" to the employer's refusal to offer an accommodation, the court rejected the employer's unsupported argument that an accommodation would create a safety risk because the employer had not actually proven the fact of the claimed risk. The court found that the record indicated that employees "not infrequently are required to work more than eight hours in one day," so allowing such a practice would not be an undue hardship. Id.

The safety arguments advanced by GEO suffer from the same logical flaws and insufficient proof as the safety arguments rejected in Draper. GEO argues that all hats and khimars are unsafe, yet offers no explanation for why it (presumably safely) allows kitchen workers to continue to wear headcoverings during daily interactions with prisoners. The number of Muslim women who seek a religious accommodation to wear khimars is likely smaller than number of kitchen staff who wear hats around prisoners daily. Furthermore, the Muslim women employees perform a variety of jobs, serving as correctional officers, nurses, and intake specialists. In this wide range of positions, many have far less prisoner interaction than the kitchen staff.

GEO's kitchen is staffed by a mix of outside employees and inmates who work daily side-by-side in the kitchen. App. at 80. As the majority notes, all of these workers, employees and inmates a like, wear hats in order to comply with a Pennsylvania Administrative Code hygienic requirement applying to food workers. Maj. Op. at 275-76 (quoting 7 Pa. Code § 46.152(a)). Although GEO maintains no written policy against kitchen employees wearing their hats outside of the kitchen, Nardolillo testified that it is "just practice" that :he hats are worn only in the kitchen. App. at, 30. One could argue that if GEO were truly interested in safety, it could comply with the regulation by providing its kitchen workers with hair nets instead of hats, which would reduce the risk of secreting contraband inside them. That GEO has chosen, instead, to provide both inmates and employees who work side-by-side with hats would seemingly indicate that it does not view every hat as a potential safety threat. I also find it curious that GEO apparently has little difficulty safely accommodating headgear required by the Pennsylvania regulation, while at the same time claiming undue hardship in accommodating headgear worn by Muslim employees, as required by Title VII.

Nardolillo and Holm's testimony about their safety concerns becomes much less convincing when it is considered with the healthy skepticism required on review of summary judgment. For example, Holm testified that he had difficulty identifying which prisoners were involved in a riot in a California prison because they were all wearing hats. But this case is not about whether all prisoners should be issued hats, or whether all correctional officers should be allowed to wear hats. It is only about whether the religious practice of a few Muslim women employees, most of whom do not work as correctional officers, can be reasonably accommodated. The potential risk for obscured identity created by allowing a handful of correctional officers to wear underscarves does not remotely compare with the same risk created by issuing to or permitting the wearing of hats by hundreds of inmates.

On summary judgment, we must draw all inferences favorably to plaintiffs, because they are the non-moving parties. The assertion that khimars are a threat to safety in GEO's facilities is a factual one that has been vigorously disputed by plaintiffs, who presented ample evidence, including expert evidence, that khimars pose no threat at all. The correctional facilities in "Connecticut, Delaware, Massachusetts, Pennsylvania, Rhode Island, New York City, New York State, the District of Columbia, Indiana, Oklahoma, and the Federal Bureau of Prisons" allow all staff to wear headgear in their facilities. One can safely assume that these jurisdictions are not sacrificing safety for their employees' freedom of religion or even of style. Plaintiffs' expert noted that there had never been any contraband incidents involving headgear, and that the amount of contraband found by Staff did not decrease after the dress code change of April 2005, nor did it decrease subsequent to the October 24, 2005 memorandum. JA 220. He noted that "[comparing the types of serious contraband items reported prior to the change in the khimar policy on October 24, 2005, with a comparable length of time after it was changed, reveals that the number of contraband items found at the facility actually rose by 91 percent." JA 220.

The majority misapplies the summary judgment standard in taking Nardolillo and Holm at their word that khimars pose even a "small threat" to prison safety. When the facts are interpreted in the light most favorable to plaintiffs, as the law requires on summary judgment, one must conclude that there are genuine disputed issues of material fact as to whether khimars pose a safety threat in the prison context.

Furthermore, whether that alleged safety risk can be alleviated by any measure short of banning all khimars worn by Muslim women employees, performing any job function, without working an undue hardship on GEO is an additional disputed question of fact. Moreover, even if the existence of a safety risk had been conceded by plaintiffs, GEO would not be entitled to summary judgment without demonstrating that the safety risk could not be remedied by some other measure short of banning khimars without imposing an undue burden on GEO. The majority does not even proceed to conduct this inquiry.

The majority acknowledges that GEO has argued "that the costs that it would incur were it to adopt the accommodation requested by the Muslim employees of allowing them to wear khimars would `cause an undue burden with respect to prison resources.'" Maj. Op. at 274 (quoting Appellee's Br. at 18). The majority then admits that GEO "has not entirely convinced us that adopting the proposed accommodation of allowing female Muslim employees to wear khimars but removing them at each checkpoint would require locking down the prisoners in each such location." Id. at 274. Id. However, there has not yet been an opportunity for a finder of fact to determine whether or not accommodating khimars would cause more than a de minimis hardship.

Plaintiffs have raised a material question of fact as to the magnitude of the burden that GEO would bear by accommodating their khimars. Here, a reasonably jury could find that it would not impose an undue hardship on GEO to allow Muslim women employees to wear khimars. In the first instance, it is unclear why GEO would require Muslim women employees to remove their khimars at each checkpoint. It cannot be in order to cheek them for contraband, as they do not perform the same checks on socks or jackets — the only items of staff clothing ever to have been found to secrete contraband. And it is a disputed question of fact whether it would even be necessary for identification purposes, given that removal of hats, when they were in common use, was never required for identification purposes at these very same checkpoints. The khimars worn by plaintiffs do not include veils over their faces. GEO does not explain why women in khimars cannot be adequately identified via closed circuit video cameras simply by looking at the camera, thereby ensuring that the camera has an unobstructed view of their faces, before they are allowed to pass.

The majority is not persuaded by plaintiffs evidence that their suggested accommodation would not cause undue hardship. It, concludes that "[t]he khimar-switching proposals, either switching khimars or removing them at checkpoints, are facially implausible and time consuming." Maj. Op. at 276. In so concluding, the majority again engages in improper weighing of the evidence. See Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224, 1230 (3d Cir. 1993) ("at the summary judgment stage, a court is not to weigh the evidence or make credibility determinations. Instead, these tasks are left for the fact-finder.") (citation omitted). Determining the magnitude of GEO's burden is a task for the finder of fact, not an appellate court. Id. To defeat summary judgment, Plaintiffs do not need to convince the Court that the accommodating khimars would not impose an undue burden on GEO. They need only produce enough evidence to create a disputed question of fact as to the magnitude of the burden that an accommodation would impose. Because Plaintiffs have done so, GEO is not entitled to summary judgment. Webb Does Not Control This Case

It is clear that the majority has unabashedly adopted GEO's view of the evidence as the "facts" that control this case. See, e.g., Maj. Op. at 276 ("The Dissent appears to place more reliance on the testimony of the EEOC's expert witness than on the testimony of the experienced prison officials on the site at issue."). It does so under the guise of complying with the "direction we have been given by the Supreme Court." Id. (quoting Turner v. Safley, 482 U.S. 78, 84-85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) ("federal courts [should] accord deference to the appropriate prison authorities")). But Turner does not even inform, much less control, the issues in this case. It involved a facial constitutional challenge to a prison regulation. Turner involved neither the standard of reviewing evidence on the grant of summary judgment nor the obligations of a private employer under Title VII.

The District Court, in granting summary judgment to GEO, held that Webb was dispositive, concluding that there was "no meaningful distinction between prison guards and similar personnel, on the one hand, and police officers." EEOC v. GEO Group, Inc., 2009 WL 1382914 (E.D.Pa. 2008). The majority elides this issue, see Maj. Op. at 274 ("It is unnecessary for us to decide whether this interest alone would support summary judgment, as we decide the case on different grounds."), but I must address it because I disagree that this case can be decided in GEO's favor "on different grounds."

Because GEO has not met its burden of proving the fact or the magnitude of the burden to its safety interest that it would bear by allowing a religious accommodation for khimars, I now turn to whether GEO's asserted interest in the uniform appearance of it's employees justifies the ban on khimars under Webb. We held in Webb that requiring the Philadelphia Police Department to allow Muslim women police officers to wear khimars while on duty would work an undue hardship upon it because it would compromise the police department's interest in promoting the essential values of "impartiality, religious neutrality, uniformity, and the subordination of personal preference." Webb, 562 F.3d 256, 261 (2009).

GEO argues that it is entitled to summary judgment as a matter of law because it has asserted an interest in uniform dress among a "`paramilitary law enforcement unit'" similar to the police. Id. at 262 (quoting Thomas v. Whalen, 51 F.3d 1285, 1291 (6th Cir. 1995)). However, the interest in uniformity that Nardolillo and Holm actually testified to was not akin to the interest recognized in Webb. Nardolillo and Holm were concerned that their employees looked sloppy wearing whatever they wanted on their heads. The Philadelphia police department was concerned about "the safety of officers (so that the public will be able to identify officers as genuine, based on their uniform appearance), morale and esprit de corps, and public confidence in the police." Id. (discussing Fraternal Order of Police, 170 F.3d at 366).

Prison employees, unlike police officers, do not serve as an impartial symbol of law enforcement authority to the general public. There is no evidence, for example, that a prisoner would think a GEO employee wearing a khimar was not a genuine GEO employee. There is also no evidence that any prisoner has ever expressed a concern that they are being discriminated against because of the religious affiliation of a GEO employee, as indicated by that employee's wearing of a khimar. There is no evidence that being a prison guard requires the same level of cohesiveness and esprit de corps of a paramilitary organization such as the police.

On the factors Webb found dispositive, the record was uncontroverted and consisted largely of the affidavit of the Police Commissioner. See Webb, 562 F.3d at 261. Here, the record is highly controverted and the only expert declaration was submitted by plaintiffs. Moreover, GEO is a private corporation which runs the prison under contract. One could argue that one reason which supports the contracting out of prison administration to a private corporation is that, unlike a metropolitan police department, a prison need not be run by an official, governmental, paramilitary organization.

There was also no indication in Webb that the Philadelphia Police Department also sought to prohibit non-uniformed employees who did not regularly interact with the public from wearing khimars, as GEO does. Prison nurses and intake officers certainly do not share the same safety or morale concerns as sworn police officers, because they are not trained or expected to participate in use of force events. Additionally, given that neither King nor Sharpe-Allen are classified as uniformed employees, it is disingenuous, at best, for GEO to argue that it would work an undue hardship to allow them to wear non-uniform attire. In fact, they are not uniformed guard-employees with routine access to the prison's secure areas.

The record before us indicates that GEO's interest in uniformity only encompassed an aesthetic disapproval of employees starting a "fad or fashion statement" by wearing khimars. JA 159. That concern is not equivalent to those we found to be "`of the greatest importance'" in Webb. Id. (quoting Fraternal Order of Police, 170 F.3d at 365). Webb does not control this case. GEO is free to ban its employees from wearing Yankees caps backwards and sideways if they just do not like the way they look. But they are not free to ban khimars for the same reason.

The Alternative Accommodation Offered by GEO Is Unreasonable as a Matter of Law

Having concluded that issues of material fact remain with respect to GEO's arguments that accommodating khimars would work an undue burden upon their interests in safety and uniformity, I next consider whether GEO "made a good-faith effort to reasonably accommodate the religious beliefs" of plaintiffs. Id. at 259. GEO argues that it did offer a reasonable alternative accommodation, allowing them to wear a hairpiece, presumably a wig, instead of a khimar. An accommodation is reasonable if it "eliminates the conflict between employment requirements and religious practices by allowing the individual to observe fully." Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70, 107 S.Ct. 367, 93 L.Ed.2d 305 (1986). GEO contends that wearing a wig would eliminate the religious conflict of having uncovered hair for its Muslim women employees because their natural hair would be covered by synthetic hair. It further asserts that the fact that one Muslim woman employee allegedly agreed to wear such a hairpiece instead of a khimar is evidence that the offered accommodation would resolve class members' religious conflicts.

The offered accommodation is not reasonable and was rightly rejected by the majority. Maj. Op. at 271. The Koran teaches that women must "guard their modesty" by wearing a khimar to cover their hair, heads, neck, and breast. JA 28-29. Plaintiffs maintain that covering their hair with natural-1ooking synthetic hair would not achieve that goal and eliminate the religious conflict at issue. GEO has not questioned the sincerity of this religious belief. Therefore, under our religious accommodation precedents, this assertion is enough to resolve the question of whether the offer of an alternate hairpiece accommodation was reasonable.

Further, under the safety rationale, one could argue that contraband could be more easily hidden under a wig than under a khimar.

An employer is not entitled to interpret the employee's religion and determine what is and is not religiously acceptable to them. For example, in EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1576 (7th Cir. 1997), two Jewish employees requested Yom Kippur off from work so that they could observe the religious holiday. The employer offered the employees another day off instead to observe the holiday. The Court held that this was not a reasonable accommodation. Just as it is not reasonable to ask a Christian employee to observe Christmas in July, it is not reasonable to ask a Muslim woman who must hide her hair to appear in public displaying a full head of hair. GEO's assertion that it has found one person who would agree to such a scheme does not prove that it is a reasonable accommodation. It is neither the court's nor the employer's prerogative to dictate to an employee how she should comply with the requirements of her religion. As the majority observes, "[w]e are unwilling to delve into any matters of theology." Maj. Op. at 271.

Conclusion

Today the majority ignores the facts in the record and the well-established standard for reviewing them on summary judgment. In doing so, it establishes an unwise and unworkable exception that makes a shambles of our Title VII religious accommodation jurisprudence. The record in this case is full of contradictions. It is impossible to tell whether, at what point, and how the prison's dress code and uniform were ever officially changed, or whether the warden simply changed his mind about allowing hats and khimars in the prison and for what reason.

Having demonstrated that there are triable issues of material fact in this case, plaintiffs deserve their day in court so that a jury can consider the parties conflicting accounts and determine what the facts are. Because I would reverse the district court's grant of summary judgment to GEO, I respectfully dissent.