United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-3880
___________
Equal Employment Opportunity *
Commission, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Kelly Services, Incorporated, *
*
Appellee. *
___________
Submitted: October 21, 2009
Filed: March 25, 2010
___________
Before MELLOY, SMITH, and SHEPHERD, Circuit Judges.
___________
SMITH, Circuit Judge.
The Equal Employment Opportunity Commission (EEOC) brought suit against
Kelly Services, Inc. ("Kelly"), an employment agency that places temporary
employees with businesses, alleging that Kelly discriminated against Asthma Suliman,
a Muslim, by failing to refer her to Nahan Printing, Inc. ("Nahan") for employment
because of Suliman's refusal to remove her khimar1 for work at the commercial
1
A khimar is "a traditional garment worn by Muslim women which covers the
hair, forehead, sides of the head, neck, shoulders, and chest and sometimes extends
down to the waist." Webb v. City of Phila., Civil Action No. 05-5238, 2007 WL
printing company. The district court2 granted summary judgment to Kelly, and we
now affirm.
I. Background
Kelly is a temporary employment agency that places workers in temporary
positions with its clients' businesses. Kelly conditionally hires individuals and assigns
them to temporary jobs based on their clients' specified requirements and fluctuating
needs. Nahan, a commercial printing company, contracts with Kelly for temporary
workers. Nahan operates an industrial plant with large machines. The machines pull
paper into printing presses using conveyor belts with rollers, sorting and "jogging"3
machines, binding machines, and packaging machines. All of this machinery uses fast-
moving parts that pose a safety risk to workers wearing loose-fitting clothing or
headwear should it become entangled in the machinery. Nahan requires all temporary
workers to work along the assembly line, which places these workers in close
proximity4 to rollers, chains, and moving parts. Workers stand near these machines at
about waist height or mid-torso level. Nahan requires that temporary workers be able
to perform all jobs.
Nahan has a dress policy that applies to all workers—permanent and temporary.
The policy prohibits headwear and loose-fitting clothing. The dress policy seeks to
prevent loose apparel from getting caught in the machinery's moving parts and
1866763, at *1 (E.D. Pa. June 27, 2007) (unpublished).
2
The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
3
A "jogging" machine works to quickly shake a stack of printed materials to
ensure that the edges are flush so that the cutting machines cut the material in an even
fashion and to correct dimensions.
4
"Close proximity" at Nahan is defined as within one foot of the machinery,
fast-moving parts, conveyor belts, and rollers.
-2-
injuring workers. Nahan strictly and uniformly enforces its dress policy to all
employees. Nahan has previously sent home Kelly-supplied, non-Muslim temporary
workers before the end of their shifts for violating the dress policy. And, Kelly has
referred other individuals believed to be Muslim to Nahan, and these individual
complied with Nahan's dress policy.
In July 2004, Suliman, a Muslim, applied at Kelly for temporary employment.
As a part of her Muslim faith, Suliman wears a khimar. On August 5, 2004, Suliman
took and passed a skills test at Kelly. On August 10, 2004, Suliman met with Sarah
Corrieri, a staffing supervisor, to discuss potential opportunities for a temporary
assignment. Corrieri mentioned placing Suliman on the production floor at Nahan.
Corrieri does not recall whether there was a specific opening at Nahan on August 10,
2004, for which she could place Suliman.5 The apparent purpose of Corrieri advising
Suliman about job opportunities at Nahan was to evaluate Suliman's eligibility to work
at Nahan in the event that a position became available.6
Corrieri showed Suliman the Nahan brochure and reviewed all the sections of
the brochure with her, including the dress policy. Corrieri considered Suliman's
khimar to be "headwear" under the dress policy. Corrieri understood Nahan's
headwear prohibition to be a safety-based policy and that it excluded all
headwear—even religious headwear. She reached this conclusion through her training
at Kelly on Nahan's employment requirements. Corrieri believed that a temporary
5
The EEOC has not provided any evidence to show that a position at Nahan was
available on August 10, 2008.
6
Corrieri explained "[h]ow the hiring process works," stating that "if [an
applicant] pass[es] the evaluations, which [Suliman] did, she's considered a
conditional-hire person, so anytime there's an opening she's ready to go." Corrieri
"d[id]n't recall if there was a specific opening at the time that [Suliman] was sitting
at the desk" but stated that "[Suliman] would be eligible to work any opening that
would come available."
-3-
worker would have to remove his or her religious headwear to work at Nahan. As a
result, Corrieri informed Suliman, "You will have to take your scarf off—you cannot
cover your hair." Suliman replied that she could not remove the khimar because her
religion required her to wear it. Corrieri repeated that Suliman would have to take the
khimar off for safety reasons if she desired to work at Nahan, explaining to Suliman
that the khimar could become entangled in a machine and injure her. Corrieri's
coworker, Brandi Bruns, agreed with Corrieri, stating that Suliman "cannot have the
job until she uncovers her hair." Corrieri told Suliman, "I'm sorry. You have to make
a wise choice."
Corrieri did not consider contacting Nahan to find out whether Nahan could
accommodate Suliman, nor did she discuss with Suliman the possibility of Suliman
tying back the khimar. Corrieri had previously visited Nahan and knew the dangerous
nature of its machinery. She explained, "I was going to—[b]ecause that was
a—something that I knew was a safety concern working with Nahan knowing the
equipment that's at Nahan and that it would be a safety concern for her wearing that
there." Corrieri believed that Suliman's clothing "could have been pulled into a
machine causing severe damage to her." Corrieri noted that Suliman's khimar was "all
the way around her body." And, although Corrieri was aware that certain jobs at
Nahan did not require an employee to work on or near machinery, she explained that
those jobs are "sometimes available, not always available." Corrieri did not inquire of
Nahan as to whether such positions were available that day for Suliman or whether
Nahan could move other employees to other positions to accommodate Suliman.
Corrieri did not consult with anyone else before concluding that Suliman was not a
"candidate for employment at Nahan Printing."
When Corrieri informed Suliman that she did not meet the safety requirements
to work at Nahan, Suliman did not appear upset. She simply replied "okay" and left
the office. Suliman then informed her husband that Kelly refused to refer her to Nahan
because of her khimar. Her husband immediately went to Kelly with Suliman to speak
-4-
with Corrieri. Corrieri explained to him that Suliman could not work at Nahan with
her hair covered and pointed to a rule in Nahan's handbook, which Kelly had
cowritten with Nahan, which states "no hats, no caps." The handbook also stated that
the guidelines in the handbook were "to be administered in a way that does not
discriminate against persons due to sex, race, disability, veteran status, or religion. We
realize there may be individual circumstances where these guidelines may need to be
modified." Corrieri did not discuss this provision with Suliman and her husband.
Suliman's husband told Corrieri that the khimar was neither a hat nor a cap but was
a religious requirement and that Kelly's refusal to refer Suliman to Nahan was
religious discrimination. The option of tying the khimar back in some fashion was
never discussed. Both Corrieri and Bruns repeated that Suliman could not work at
Nahan with the khimar.
Later, Corrieri informed Kelly's Branch Manager, Julie Hentges, about the
incident with Suliman. She explained to Hentges that she asked Suliman to remove
her khimar, but Suliman told her that she could not remove it. Corrieri described how
she told Suliman that she would not be allowed to work at Nahan. Corrieri also
advised Hentges that Suliman's husband came in the office and that Corrieri was
concerned because he was very upset. Corrieri told Hentges that she tried to explain
to Suliman's husband that Kelly was following Nahan's safety guidelines. Hentges had
previously told Corrieri that no one would be allowed to wear anything on their head
while working at Nahan because of safety concerns about headwear getting caught in
the machinery.
According to Hentges, she had merely communicated to Corrieri what Nahan
had previously communicated to Kelly. Kelly obtained that directive from Nahan at
the start of its business relationship with Nahan. According to Hentges, Jackie Olson,
Nahan's employee relations leader, previously told Hentges that anything covering the
-5-
head was prohibited at Nahan. According to Hentges, on a prior occasion7, she had
asked Olson about an employee wearing a head scarf because she wanted to know if
that was included in the policy, and Olson replied that Nahan's "policy is nothing can
be worn on the head because of safety."
After speaking with Corrieri, Hentges called Kelly's corporate office, and she
spoke to Sharon Woods, Kelly's regional manager for human resources. Woods
informed Hentges that she needed to ask Olson whether Suliman could tie back her
khimar. Woods also advised Hentges to offer Suliman other work because its Kelly's
policy, as Kelly had conditionally hired Suliman. According to Hentges, she then
called Olson at Nahan to ask whether Suliman could work there if she tied back her
khimar like people with long hair are allowed to do. Hentges maintains that Olson said
that the khimar would pose a safety risk even if it was tied back. Hentges did not ask
why a tied-back khimar would pose more of a safety risk than tied-back hair, nor did
she suggest to Olson that tying back the khimar could be a potential accommodation
to Suliman's religion.
7
Hentges asked about the head scarf because an individual was wearing one
who had applied for a position with Nahan, and Hentges wanted to see if that
individual could go to work at Nahan. Olson did not ask Hentges why the person wore
a scarf on her head, and Hentges did not ask the individual why she needed to wear
the scarf. Hentges did not know what religion that individual practiced. When Hentges
spoke with Olson about the individual wearing the head scarf, there was a discussion
about whether the individual could tie back her scarf, as Nahan's policy stated that,
when in production, long hair needs to be tied back to stay away from the front of the
employee's face. Olson responded that the head scarf was a concern for safety because
it could get stuck in a machine; it would violate the dress code that states nothing can
be worn on an employee's head. Hentges did not ask Olson how it was that Nahan
permits people with long hair to tie it back to keep it away from their face, yet Nahan
would not allow an individual to tie back her scarf as other people tie back their hair.
Ultimately, Hentges never asked the individual to remove her head scarf in order to
work at Nahan, and Hentges did not send that individual to Nahan because of the
information that she received from Olson, but she did offer the individual other work.
-6-
When asked whether she had ever spoken with anyone at Kelly about an
applicant's need for religious accommodation at Nahan, Olson replied that "[t]here
was an individual Stephanie Lateral that was filling in for [Hentges] and had asked if
an individual could tie her khimar back and still be within the guidelines to work [at
Nahan], and we said no." This occurred in 2005. Thereafter, Olson was again
questioned about her conversation in 2005 with Lateral. When asked what she recalled
about that discussion, she testified:
I recall asking Stephanie if an individual had been placed at Nahan,
because I had heard from somebody in our manufacturing facility that
there was someone that had a skirt on. And so I had called Stephanie to
ask if that was true because I don't place who the individuals are, so I
was following up on a question that was asked to me by a supervisor.
According to Olson, Lateral told her that there was an individual that was wearing a
skirt. Olson did not "recall the specifics if a khimar was involved or not, but [Olson]
had told [Lateral] that based off [Nahan's] policy for safety purposes that the
individuals weren't allowed to wear that type of attire." Nothing from Olson's
conversation with Lateral indicated that this skirt was related to the Muslim religion.
Olson never talked about this incident with Hentges.
When asked whether Olson had ever spoken with Hentges about an applicant's
need for religious accommodation, Olson stated, "Not that I recall." But Olson
admitted that she had previously spoken about the dress policy with Hentges, stating:
When we put the information together in the packets, we had talked
about hats, caps, headwear. Julie had raised the question are khimars
allowed, and we had indicated because of safety purposes, again, for the
employees' purpose, the individuals that we work with and for machine
purposes that we weren't—wouldn't allow the employee to do that.
-7-
She had indicated that she needed to talk to corporate counsel and she
would get back to me.
(Emphasis added.) Olson explained that Nahan's dress policy prohibits hats and caps
because the employees work around moving parts and that safety risks exist to the
individual employee and his or her coworkers. According to Olson, all employees
work around this equipment, as the majority of the areas in Nahan have moving
equipment. Olson stated that Nahan has never granted a modification to its dress
policy for a temporary employee at Kelly or any other temporary agency. When asked
whether a woman wearing a khimar could tie her khimar back in order to comply with
the dress code, Olson said no. She stated that khimars were not allowed for safety
reasons, just as hats and caps are not allowed. When asked how a khimar is different
from tying long hair back, which is mandated under the dress code, Olson replied,
"Because your hair is permanent. It sticks to your head." She said that a khimar is
different from hair because of the risk that the khimar, like a hat, could fall off. Olson
testified that if the khimar fell off, the risk would be "[r]eaching in and trying to grab
it, pulling an individual into the piece of equipment, damaging equipment, or other
individuals that are trying to help could potentially be hurt as well."
Based on her alleged conversation with Olson about Suliman, Hentges did not
pursue the possibility of referring Suliman to future job openings at Nahan. Kelly
subsequently offered to place Suliman in at least seven different jobs, all of which
could safely be performed while wearing a khimar. In each instance, Suliman told
Kelly that she would need to check with her husband before accepting any
placements. Suliman declined all other temporary jobs that Kelly offered.
Suliman filed a charge of discrimination, alleging that Kelly had discriminated
against her by refusing to refer her to Nahan. An investigator from the Minnesota
Department of Human Rights contacted Nahan to learn more about the work
environment and asked to speak to a shift leader. The shift leader was not present.
-8-
Instead, the investigator spoke with Doug Karls, a stitcher operator. Karls's job was
not a supervisory position; instead, he gave direction to the helpers on his machine as
to how he wanted the task performed. As a stitcher operator, Karls reported to Kevin
Schultzetenberg, the shift leader. But on the day that the investigator spoke with Karls,
he was filling in for a shift leader.
The investigator asked Karls whether there was a no-hat policy at Nahan, and
Karls responded that employees are not allowed to wear headgear of any type. Karls
explained to the investigator that the policy was in place for safety reasons and
professionalism. With regard to safety, Karls informed the investigator that "a hat
could fall off into a piece of equipment, someone could get hurt trying to reach for the
hat, pulling it out of the equipment." The investigator then asked Karls whether Nahan
had any Muslim workers, and Karls said yes. The investigator asked Karls if Nahan
had any female Muslims working at Nahan, and Karls stated that Nahan did have such
workers and that there was a Muslim female working at Nahan that day. The
investigator inquired as to whether Karls asked the Muslim female to remove her
headdress, and Karls said that he did not. As acting shift supervisor that day, Karls
believed that it could have been his job to ask the Muslim female to remove the
headgear, but he did not ask her to remove it because he "assumed it was a religious
situation." He understood that if it were for a religious reason, he would have to let her
wear it. Karls based this understanding on Nahan's handbook that states that Nahan
does not discriminate against religion.
Nevertheless, Karls was concerned that the Muslim female's clothing put her
in danger because "her clothing could get caught in the machine." Karls referenced the
woman's "clothing" because she was actually wearing "a full gown" that was "like a
dress." The garment covered both her hair and her body, and the garment was loose
and touched the floor. Karls was not concerned about the head covering; instead, he
was concerned about the loose clothing, as the woman was working on the end of the
stitcher filling boxes. He moved her from that position because of "a possible safety
-9-
hazard with the tape machine" to the cutter, where she was stacking paper. Karls did
not have a problem moving the woman because he had moved other employees
around that day. When Karls spoke with the investigator, he had no responsibility to
decide anything about religious accommodations or who could wear a khimar; he also
expressed that safety was the paramount concern and that this occasion was the only
time that he had ever seen anyone similarly attired on the production floor. Karls
advised the investigator to call back to speak with Jim Olson, Nahan's head of human
resources.
Karls reported his conversation with the investigator to Jim Olson. He told
Olson that the investigator had asked him whether he had told the woman wearing a
khimar to take it off and that he had said he did not because "I thought it was a
religious situation and Nahan does not discriminate against religion." Karls testified
that he left his conversation with Olson feeling that he had done the right thing. He
said that Olson did not tell him that he was wrong for permitting the woman to wear
the khimar while she worked.
The EEOC filed suit against Kelly, and Kelly moved for summary judgment,
arguing that the EEOC could not prove a prima facie case of discrimination and that,
in any event, it would have been an undue hardship to send Suliman to Nahan because
Suliman could not meet Nahan's safety requirements. The EEOC argued in response
that Kelly had violated the central prohibition of Title VII governing employment
agencies. The EEOC also argued that because Nahan had safely accommodated at
least one other temporary employee who wore a khimar, the record raised a question
of fact about whether Nahan could safely have accommodated Suliman. The EEOC
maintained that Kelly had not satisfied its obligation to investigate the question before
refusing to refer Suliman to Nahan.
The district court granted Kelly's motion for summary judgment on three
grounds. First, the court found that the EEOC failed to establish a prima facie case of
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religious discrimination. Specifically, the court found that the EEOC failed to show
that Suliman suffered an adverse employment action. According to the court, the
record reflected that Kelly offered Suliman temporary employment at least seven
different times. The court opined that "Suliman did not have a guarantee or reasonable
expectation of being placed with any particular employer. Rather, she was
conditionally hired by Kelly to perform temporary work on an as-needed basis for its
client businesses." Therefore, the court concluded that "Suliman's refusal to accept any
of the multitude of jobs Kelly offered her cannot be seen as an adverse employment
action for which Kelly should now be liable."
Next, the court determined that even if the EEOC had proven a prima facie case
of religious discrimination, Kelly reasonably accommodated Suliman by offering
Suliman several other jobs. Finally, the court found that the record "clearly
demonstrates that Nahan's dress policy prohibiting head coverings of any kind is
safety-based and strictly enforced," meaning that Nahan could not have safely
accommodated Suliman without undue hardship.
II. Discussion
The EEOC asserts that the district court erroneously granted summary judgment
to Kelly because a reasonable jury could conclude that Kelly discriminated against
Suliman. According to the EEOC, Title VII required Kelly to refer Suliman to Nahan
without reference to the khimar unless Nahan could not reasonably accommodate
Suliman's religious need to keep her head covered. The EEOC maintains that Kelly's
Title VII obligations as an employment agency were independent of Nahan's
obligations under Title VII, meaning that Kelly cannot rely on Nahan's generalized
statements about safety to preclude the possibility of a religious accommodation for
a particular individual. The EEOC argues that Kelly had a duty to investigate whether
Nahan's generalized rules could have been safely modified to accommodate Suliman.
Kelly violated this duty by failing to investigate whether Nahan could have assigned
-11-
Suliman a job away from moving machinery or whether she could have worked safely
at Nahan if she had tied back her khimar.
In response, Kelly argues that the district court properly granted it summary
judgment. According to Kelly, in light of (1) the industrial nature of Nahan's
workplace and the safety hazards resulting from the fast-moving machines and
conveyor belts and (2) Nahan's business requirement that any temporary worker be
able to perform all jobs at Nahan, Suliman was correctly disqualified for placement
at Nahan. Kelly points out that Suliman was offered several other alternative
assignments, all of which she refused. Therefore, Kelly contends that because Suliman
was not qualified to work safely at Nahan, and because she refused alternate job
assignments, Suliman suffered no adverse employment action. As a result, Kelly
asserts that the district court correctly determined that the EEOC did not establish a
prima facie case.
In the alterative, Kelly argues that even if the EEOC established a prima facie
case, Kelly could not reasonably accommodate Suliman without undue hardship in
light of Nahan's neutral and strictly enforced safety-based dress code. According
Kelly, prior to Suliman's first contact with Kelly, Nahan had made it clear to Kelly
that, for safety reasons, there could be no waiver of its safety-based dress policy
requiring no loose clothing and no headwear of any sort. Kelly notes that Nahan had
previously rejected non-Muslim temporary workers that Kelly referred to it for the
workers' failure to comply with this policy and that workers believed to be Muslim,
who could comply with this policy, were successfully placed at Nahan without issue.
It is illegal "for an employment agency to fail or refuse to refer for employment,
or otherwise to discriminate against, any individual because of his . . . religion . . . ."
42 U.S.C. § 2000e-2(b) (emphasis added). An "employment agency" is "any person
regularly undertaking with or without compensation to procure employees for an
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employer or to procure for employees opportunities to work for an employer and
includes an agent of such a person." Id. § 2000e(c).
An employment agency's referral obligations under § 2000e-2 is a question of
first impression for this court. In cases involving alleged religious discrimination by
an employer against an employee, we have explained that
[t]o establish a prima facie case of religious discrimination, a plaintiff
must show he (1) has a bona fide religious belief that conflicts with an
employment requirement, (2) informed the employer of such conflict,
and (3) suffered an adverse employment action. If the plaintiff
establishes these elements, the burden shifts to the employer to offer a
legitimate, nondiscriminatory reason for the adverse employment action.
Thereafter, the burden shifts back to the plaintiff to show the reason
offered by the employer is pretextual.
Ollis v. HearthStone Homes, Inc., 495 F.3d 570, 575 (8th Cir. 2007) (internal citations
omitted).
In this case, neither party disputes the sincerity of Suliman's religious beliefs
or that Suliman advised Kelly that she could not remove her khimar for religious
reasons. Therefore, the only question is whether an employment agency's failure to
refer an applicant may constitute an "adverse employment action."
The plain language of § 2000e-2(b) states that an employment agency violates
Title VII if it "fail[s] or refuse[s] to refer for employment . . . any individual because
of his . . . religion . . . ." "The term 'religion' includes all aspects of religious
observance and practice, as well as belief . . . ." Id. § 2000e(j). Therefore, the plaintiff
must show that the employment agency discriminated against her "based on her
[religion] in relation to referrals." Williams v. Caruso, 966 F. Supp. 287, 297 (D. Del.
1997) ("Giving [the plaintiff] the benefit of all reasonable inferences, there are no
-13-
allegations that [the employment agency] discriminated against [the plaintiff] based
on her sex in relation to referrals.").
Here, the EEOC alleges that Kelly's refusal to refer Suliman to Nahan based on
her refusal to remove her khimar constituted an adverse employment action. However,
the EEOC has produced no evidence that Nahan actually had a referable position for
Suliman or any other applicant on August 10, 2004. Upon Suliman's application,
Corrieri merely discussed Suliman's potential eligibility to work at Nahan with her in
the event that a position became available. Corrieri specifically testified that she did
not recall whether there was an actual opening at Nahan on August 10, 2004, for
which she could place Suliman, and the EEOC has produced no evidence that a
position at Nahan was available that day. On these facts, we need not decide whether
an employment agency's failure to refer a plaintiff for employment qualifies as an
"adverse employment" action to resolve this case. The EEOC has failed to show that
Nahan had an available position to which Kelly could actually refer Suliman when she
applied for available temporary work through Kelly.
Even if we assume that the EEOC established a prima facie case of religious
discrimination by Kelly, Kelly would still be entitled to summary judgment, as it
provided a legitimate, non-discriminatory reason for its failure to refer Suliman to
Nahan for employment, and EEOC failed to show that this reason was pretextual.
In a typical religious discrimination claim against an employer, once the
plaintiff establishes a prima facie case, we require "the employer to offer a legitimate,
nondiscriminatory reason for the adverse employment action." Ollis, 495 F.3d at 575.
We see no reason to vary from this burden-shifting scheme simply because the claim
is against an employment agency instead of an employer. Cf. Ostroff v. Employment
Exchange, Inc., 683 F.2d 302, 304 (9th Cir. 1982) (explaining that, in a case involving
plaintiff's claim of discrimination against an employment agency under § 2000e-2(b),
once the plaintiff "established a prima facie case of differential treatment based on
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sex, the burden fell upon defendants to articulate a legitimate, nondiscriminatory
reason for their refusal to refer [the plaintiff]") (internal quotations and citation
omitted).
Nevertheless, this inquiry is complicated by § 2000e(j)'s requirement that an
"employer" accommodate a worker's religious beliefs unless doing so would create an
undue hardship. 42 U.S.C. § 2000e(j) ("The term 'religious' includes all aspects of
religious observance and practice, as well as belief, unless an employer demonstrates
that he is unable to reasonably accommodate to an employee's or prospective
employee's religious observance or practice without undue hardship on the conduct
of the employer's business.") (emphasis added). But, in the present case, the EEOC
sued Kelly in its capacity as an "employment agency," not an "employer," and nothing
in § 2000e(j) suggests that an "employment agency," in defending itself against a
claim of religious discrimination, must demonstrate that the employer to which it
would be referring the temporary worker would suffer an undue hardship if it had to
accommodate that worker.8 Therefore, the only question before us is whether Kelly
has provided a legitimate, nondiscriminatory reason for declining to refer Suliman to
Nahan for employment.
8
Even if the statute requires employment agencies themselves to "reasonably
accommodate" a plaintiff in the referral process, we note that Kelly did so by offering
Suliman at least seven alternative positions. See, e.g., Bruff v. N. Miss. Health Servs.,
Inc., 244 F.3d 495, 500 (5th Cir. 2001) ("Accommodation can take place in two
fundamental ways: (1) an employee can be accommodated in his or her current
position by changing the working conditions, or (2) the employer can offer to let the
employee transfer to another reasonably comparable position where conflicts are less
likely to arise."); Medina v. Adecco, 561 F. Supp. 2d 162, 178–79 (D.P.R. 2008)
(granting summary judgment to employment agency because no reasonable juror
could conclude that employment agency engaged in pregnancy-based discrimination
where the agency knew about the pregnancy and offered the plaintiff two job
assignments after the employer to which the agency had referred her had terminated
her).
-15-
Here, Kelly's legitimate, nondiscriminatory reason for not referring Suliman to
Nahan was Nahan's facially neutral, safety-driven dress policy prohibiting all
employees—permanent and temporary—from wearing loose clothing or headwear of
any kind. Kelly's understanding that Nahan would not permit temporary workers to
wear any type of headwear, including khimars, was well established. While Hentges
and Jackie Olson gave conflicting testimony about whether they had spoken to one
another specifically about Suliman wearing a khimar at Nahan, the evidence
establishes that Nahan had previously informed Kelly that, due to safety concerns, no
worker wearing a khimar would be permitted to work at Nahan. Olson testified that,
when previously discussing the dress policy with Hentges, Hentges "had raised the
question are khimars allowed, and we had indicated because of safety purposes
. . . that we . . . wouldn't allow the employee to do that."
Moreover, assuming, as we must, that Hentges never called to discuss Suliman
specifically with Olson, the record reflects that even if Kelly had asked whether
Nahan could accommodate Suliman by allowing her to wear the khimar, the answer
would have been "no." Olson testified that Nahan would not permit a woman wearing
a khimar to tie her khimar back as an accommodation due to safety reasons. And,
when asked how tying a khimar back is different from tying long hair back, Olson
explained that "hair is permanent"; a khimar is different from hair because of the risk
that the khimar—like a hat—could fall off in to the machinery. According to Olson,
the safety risk would be the worker "[r]eaching in and trying to grab it, pulling an
individual into a piece of equipment, damaging equipment, or other individuals that
are trying to help could potentially be hurt as well."
And, the EEOC does not dispute that Nahan has a facially-neutral
requirement—which was communicated to Kelly—that temporary workers should be
able to perform all jobs. See, e.g., EEOC v. Oak-Rite Mfg. Corp., No. IP99-1962-C-
H/G, 2001 WL 1168156, at *15 (S.D. Ind. Aug. 27, 2001) (unpublished) ("The record
also contains evidence about Oak-Rite's policy and practice of requiring employees
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to be able to work on any of the company's machinery. Requiring Oak-Rite to
accommodate Enlow by assigning her only to those machines that could be operated
most safely in a skirt also would impose an undue hardship on the administration of
Oak-Rite's business. This is particularly true because Oak-Rite is a job shop with
changing production needs.") (internal citations omitted).
Finally, there is no evidence in the record that Nahan's safety-driven dress
policy was a pretext for discriminating against employees requiring religious
accommodation or that Kelly had knowledge of such pretext.9 Nothing in § 2000e-
9
"[S]afety considerations are highly relevant in determining whether a proposed
accommodation would produce an undue hardship on the employer's business."
Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515, 521 (6th Cir. 1975); see also
Bhatia v. Chevron U.S.A., Inc., 734 F.2d 1382, 1384 (9th Cir. 1984) (upholding grant
of summary judgment to employer where plaintiff alleged employer discriminated
against him on the basis of his religion by requiring all employees whose duties
involved potential exposure to toxic gases to shave any facial hair that prevented them
from achieving gastight face seal when wearing a respirator because employer
established that if "it retained [the plaintiff] as a machinist and directed his supervisors
to assign [him] to only such duties as involved no exposure to toxic gas," the employer
would be burdened by having to "revamp its currently unpredictable system of duty
assignments to accommodate the need for predicting whether particular assignments
involved potential exposure to toxic gases" and requiring the plaintiff's coworkers "to
assume his share of potentially hazardous work"); Oak-Rite, 2001 WL 1168156, at *1
("The accommodation that the EEOC suggests—'a reasonably close-fitting, denim or
canvas dress/skirt that extends to within two or three inches above the ankle, when
worn with leather above-the-ankle boots extending up under the dress/skirt'—would
impose an undue hardship on Oak-Rite by requiring it to experiment with employee
safety."); Kalsi v. New York City Transit Auth., 62 F. Supp. 2d 745 (E.D.N.Y. 1998)
(holding that transit authority's termination of Sikh subway car inspector for his
refusal to comply with a requirement that subway car inspectors wear hard hats was
not pretext for religious discrimination but instead reflected transit authority's
nondiscriminatory, legitimate interest in protecting its employees from workplace
hazards and that Sikh subway car inspector's proposal that transit company
accommodate his religion-based refusal to wear hard hat by permitting him to perform
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2(b) suggests that an employment agency should be held liable if the agency has no
reason to believe that the "the employer's claim of bona fide occupations qualification
is without substance." Cf. 29 C.F.R. § 1604.6(b) ("An employment agency that
receives a job order containing an unlawful sex specification will share responsibility
with the employer placing the job order if the agency fills the order knowing that the
sex specification is not based upon a bona fide occupational qualification. However,
an employment agency will not be deemed to be in violation of the law, regardless of
the determination as to the employer, if the agency does not have reason to believe
that the employer's claim of bona fide occupations qualification is without substance
and the agency makes and maintains a written record available to the Commission of
each such job order. Such record shall include the name of the employer, the
description of the job and the basis for the employer's claim of bona fide occupational
qualification.").10
Because the EEOC has failed to argue or produce any evidence that Kelly's
legitimate, nondiscriminatory reason for not referring Suliman is pretextual, see Ollis,
495 F.3d at 575, we hold that the district court properly granted summary judgment
to Kelly.
III. Conclusion
Accordingly, the judgment of the district court is affirmed.
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only work duties that did not require a hard hat would have imposed an undue
hardship on transit authority because the costs would have been significant and other
workers might have been placed at risk by inspector's refusal).
10
The EEOC places a great deal of emphasis on Karls's testimony regarding his
decision to move a Muslim woman wearing a full gown and a head covering from the
end of the stitcher filling boxes to the cutter to stack paper on the day he filled in as
a shift leader. While this testimony might be relevant in a lawsuit against Nahan
regarding its ability to accommodate a worker under § 2000e(j), the testimony does
not impact our analysis of whether Kelly has established a legitimate,
nondiscriminatory reason for not referring Suliman to Nahan.
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