Equal Employment Opportunity Commission v. Geo Group, Inc.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 09-3093

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Appellant
v.

THE GEO GROUP, INC.

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-07-cv-04043)
District Judge: Honorable John P. Fullam

Argued February 11, 2010

Before: SLOVITER, ROTH, and TASHIMA,* Circuit Judges

(Filed : August 2, 2010)
____

Dawn M. Edge
Iris A. Santiago-Flores
Equal Employment Opportunity Commission
Philadelphia, PA l9l06

*
Honorable A. Wallace Tashima, Senior Judge of the United
States Court of Appeals for the Ninth Circuit, sitting by
designation.
James L. Lee
Carolyn L. Wheeler
Lorraine C. Davis
Elizabeth E. Theran (Argued)
Equal Employment Opportunity Commission
Washington, D.C. 20507

Attorneys for Appellant

John P. Gonzales
Joseph J. Santarone, Jr.
Marshall, Dennehey, Warner, Coleman & Goggin
King of Prussia, PA l9406

Walter F. Kawalec, III (Argued)
Marshall, Dennehey, Warner, Coleman & Goggin
Cherry Hill, N.J. 08002

Attorneys for Appellee
____

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

The Equal Employment Opportunity Commission
(“EEOC”) appeals from the decision of the District Court
granting the summary judgment motion of defendant, the GEO
Group, Inc. (“GEO”). GEO is a private company that was
contracted to run the George W. Hill Correctional Facility (the
“Hill Facility”), which is the prison for Delaware County,
Pennsylvania. The EEOC filed its complaint pursuant to Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§
2000e, et seq., on behalf of a class of Muslim women employees,
alleging that GEO violated Title VII’s prohibitions on religious
discrimination when it failed to accommodate the class members
by providing them an exception to the prison’s dress policy that

2
otherwise precluded them from wearing Muslim head coverings
called khimars at work. GEO moved for summary judgment,
arguing in part that a deviation from its policy would cause it an
undue hardship by compromising its institutional interests in
security and safety. Although the EEOC had filed a cross
motion for summary judgment, on appeal it argues that the
District Court erred because questions of material fact exist
about whether accommodating the class would in fact constitute
an undue hardship for GEO.

GEO is a private, international corporation that, among
other related things, runs federal and state prisons in the United
States. The Hill Facility in Thornton, Pennsylvania holds “pre-
trial detainees and persons serving a county sentence of two
years less one day or a state sentence of five years less one day.”
Appellant’s Brief at 3 (quotation omitted). During the relevant
period Raymond Nardolillo was the warden at the Hill Facility
and Matthew Holm, who was hired in August 2004, was the
deputy warden. In about February 2008, Holm became warden
of the Hill Facility.

In April 2005, the Hill Facility instituted a dress policy
that provided that “[n]o hats or caps will be permitted to be worn
in the facility unless issued with the uniform.” App. at 207. The
new policy also stated that “[s]carves and hooded jackets or
sweatshirts will not be permitted past the Front Security Desk.”
App. at 207. These directives were interpreted to prohibit the
wearing of a khimar, an “Islamic religious head scarf, designed
to cover the hair, forehead, sides of the neck, shoulders, and
chest,” 1 which was until then worn by some female Muslim
employees inside of the Hill Facility. App. at 15.

To reinforce the April 2005 prohibitions on hats, head

1
Although there appear to be many different styles of
khimars, neither party has attempted to describe the khimars at
issue here with any particularity. The quoted definition is from the
complaint, and we will accept it as an accurate description that
applies to the khimars worn by the class members.

3
scarves and hoods, Holm issued a memorandum on October 24,
2005, entitled “UNIFORM POLICY,” that stated:

Reminder! All employees, while on duty, will if
required, wear only an official GEO uniform, which
adheres to the dress code and standards, described in
Policy 300.19. This includes, but [is] not limited to the
length of your hair, scarves, hooded jackets, sweatshirts
and specifically hats. The following are excerpts form
[sic] the policy:
“No hats or caps will be permitted to be worn in
the facility unless issued with the uniform.”
“The Uniform described below is not to be altered,
modified, or embellished upon. Only items approved by
the Warden will be authorized.”
Those employees not subjected to the uniform
policy will adhere to the Facility dress code, which is
posted at the Front Entrance Security Post/ION Scan.
This means that all hats, caps or religious attire
will not be permitted to be worn with your uniform or by
non-uniformed employees unless specifically authorized
by the Warden. At this time there are no authorized hats,
caps or attire, which can be worn inside the jail and there
are no exceptions to this policy.

App. at 215.

After the October 2005 memorandum was issued, Holm
and Nardolillo adopted and enforced a “zero tolerance headgear
policy. . . .” Appellant’s Br. at 6. According to GEO, the no-
headgear policy was adopted for safety and security reasons to
prevent the introduction of contraband into the prison facility
and to avoid misidentification.

Three Muslim women employees of the Hill Facility,
Carmen Sharpe-Allen, Marquita King, and Rashemma Moss,
protested, claiming that wearing of the khimar was required by
the Islamic religion. They sought an exception to the policy,
arguing that before the April 2005 dress code, they had all been
wearing some style of khimar or head covering at work. After

4
the April 2005 dress code was instituted, they were all prevented
from doing so.

Sharpe-Allen was hired as a medication nurse at the Hill
Facility in 2004. During her interview for that position she
explained that her faith required her to wear a khimar, and that
she “wasn’t willing to compromise” concerning the wearing of
her khimar at work. App. at 43. According to Sharpe-Allen, the
interviewer told her that “[h]e didn’t see it being a problem.”
App. at 44. Part of Sharpe-Allen’s initial job at the Hill Facility
was to “go from cell block to cell block” to “dispense
medication” accompanied by a prison “officer.” App. at 45.

In early 2005, Sharpe-Allen became the chronic
infectious disease nurse, a position in which she worked “closely
with the doctor” in the infirmary “with the inmates who had
infectious diseases, such as hepatitis, [and] HIV . . . [to] ma[k]e
sure that they got their medication, [and] made sure it was
ordered . . . . [and in which she] did all of the PPDs, which is the
tuberculosis test, for the entire prison.” App. at 49. “From
November 2004 through mid-July 2005, when Sharpe-Allen
went out on medical leave, she wore her khimar to work daily
at” the Hill Facility. Appellant’s Br. at 8. When Sharpe-Allen
was preparing to return to work from that medical leave,
colleagues called to tell her that she could not “wear [her]
khimar when [she] c[a]me back to work.” App. at 52. Sharpe-
Allen then spoke with someone in human resources at the Hill
Facility who told her that “the khimar would be an issue.” App.
at 54. As a result, Sharpe-Allen asked to speak with Warden
Nardolillo.

According to Sharpe-Allen, when she and Nardolillo
spoke,2 the warden told her that the policy would be enforced

2
Sharpe-Allen testified that she had two meetings with the
warden, but she could not remember exactly what transpired at
either of them. According to Sharpe-Allen’s testimony, Nardolillo
took the consistent position at both meetings that she would not
receive an exception to the no khimar rule.

5
against her but asked if she would be willing to “wear a
headpiece [or] hairpiece . . . .” App. at 58. He also told Sharpe-
Allen that her “job was there, if [she] wanted it, [she] just
couldn’t wear [her] khimar,” but that if she refused to work
without the khimar or resign, the prison would have to fire her.
App. at 59. Sharpe-Allen told Nardolillo that she enjoyed her
job and that the khimar had never presented any problem in the
past, but also that she would not compromise about wearing the
khimar to work. In December 2005, Allen was fired on the
ground that “she had ‘effectively abandoned her job’ by
‘refus[ing] to comply with [the] directive to return to work
without the wearing of her’” khimar. Appellant’s Br. at 10
(quoting App. at 216-17).

Marquita King is a Muslim woman who was hired at the
Hill Facility in July 2000 as an “intake specialist” at the prison:
the person who does the paperwork to process new prisoners into
the facility. King’s job entailed such duties as performing a
“bench warrant check” on new prisoners. App. at 129. She
would also have corrections officers bring individual prisoners
to her so that she could ask them questions and input their
answers into a computer. Unlike the corrections officers, she
had no keys to the facility. At her interview for the job, King
wore her khimar and a veil. The interviewer asked King if she
would take her veil off at work, and King agreed that would be
acceptable. There was no discussion of King’s khimar at the
interview, and she wore it to work for the first five years of her
employment.

In October 2005, King was told by a fellow employee that
she and other Muslim women were no longer allowed to wear
their khimars at work. King then called warden Nardolillo who,
according to King, told her that she “will be fired if [she] ha[s] a
khimar on [her] head” at work. App. at 131. Stressed by this
new situation, King took leave for the next four to six weeks.
When she returned, King took off her khimar at work.

Rashemma Moss began working as a correctional officer
at the Hill Facility in March 2002, a job which sometimes
required her to be close to inmates and sometimes even to come

6
into physical contact with them. In July 2005, after Moss took
her Shahada – “the Muslim confession of faith,” Appellant’s Br.
at 6 n.2 – at work she began to wear underneath her hat a
triangle shaped underscarf that she would tie around her head.
In a meeting in October 2005, Nardolillo told Moss that she
could no longer wear her head scarf, and that she would be
suspended without pay if she did. Thereafter, Moss stopped
wearing her head scarf to work.

In September 2007, the EEOC as plaintiff, with Sharpe-
Allen as the charging party, filed a complaint alleging that GEO
violated Title VII’s prohibitions on religious discrimination
when GEO failed to accommodate the religious beliefs of
Sharpe-Allen and other female Muslim GEO employees by
refusing their requests for an exception to the Hill Facility’s
dress policy that would have allowed them to wear khimars at
work.

GEO moved for summary judgment, in part asserting the
affirmative defense that it would be an undue hardship as a
matter of law for the prison to allow its Muslim employees a
complete exception to the non-headgear policy because such an
accommodation would compromise the prison’s interest in safety
and security and/or would result in more than de minimis cost.
The EEOC opposed that motion on the ground that these
interests were insufficiently founded, relying heavily on the
report of its expert, George Camp (the “Camp Report”), which
generally concluded that: “(1) GEO’s professed reasons for
denying any of its female employees the ability to wear a khimar
lack merit and substance; (2) GEO made no genuine attempt to,
nor reasonable offer of, an alternative method (of which several
exist) for accommodating the wearing of the khimar; and (3)
[t]here is no sound legitimate correctional reason for GEO to
deny its female employees to wear a khimar within the secure
perimeter of the facility.” App. at 219.

The District Court granted GEO’s motion, finding
dispositive this court’s reasoning in Webb v. City of Phila., 562
F.3d 256, 258 (3d Cir. 2009). In Webb this court held that the
dress code adopted by the Philadelphia police, which did not

7
“authorize[] the wearing of religious symbols or garb as part of
the uniform” and therefore precluded Muslim women from
wearing khimars on the job, was not a violation of Title VII. Id.
In granting GEO’s motion for summary judgment, the District
Court concluded that there was “no meaningful distinction
between prison guards and similar personnel, on the one hand,
and police officers,” who were at issue in Webb. EEOC v. GEO
Group, Inc., No. 07-cv-04043-JF, 2009 WL 1382914, at *1
(E.D. Pa. May 18, 2009). The Court also stated that the “same
considerations advanced to justify the regulation in question
apply equally to prison guards and employees working in the
medical department.” Id.

II.

Our review of the District Court’s grant of summary
judgment is plenary. Jackson v. Danberg, 594 F.3d 210, 215 (3d
Cir. 2010). Summary judgment “should be rendered if the
pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c).3

Title VII of the Civil Rights Act of 1964 reads, in
relevant part:

(a) It shall be an unlawful employment practice for an
employer -

(1) to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s . .
. religion . . .; or

(2) to limit, segregate or classify his employees or

3
The District Court had jurisdiction under 28 U.S.C. §
1331. We have jurisdiction under 28 U.S.C. § 1291.

8
 applicants for employment in any way which would
deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an
employee, because of such individual’s . . . religion . . . .

42 U.S.C. § 2000e-2(a). “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
employer’s business.” Id. § 2000e(j).

This court has recently stated: “To establish a prima facie
case of religious discrimination, the employee must show: (1)
she holds a sincere religious belief that conflicts with a job
requirement; (2) she informed her employer of the conflict; and
(3) she was disciplined for failing to comply with the conflicting
requirement.” Webb, 562 F.3d at 259. “[T]he burden [then]
shifts to the employer to show either [1] it made a good-faith
effort to reasonably accommodate the religious belief, or [2]
such an accommodation would work an undue hardship upon the
employer and its business.” Id. (citation omitted).

GEO does not argue that the EEOC failed to present a
prima facie case. Instead, GEO argues that it offered plaintiffs
“a reasonable accommodation, by offering to permit the Muslim
women employees to wear a hairpiece in place of the khimar”
because “it fulfills the stated religious requirement that the hair
be covered.” Appellee’s Br. at 13-14; see Ansonia Bd. of Educ.
v. Philbrook, 479 U.S. 60, 68 (1986) (noting that there is “no
basis in either the statute or its legislative history for requiring an
employer to choose any particular reasonable accommodation.”).
GEO notes that one female Muslim employee found that a
hairpiece was sufficient to fulfill the religious requirement to
cover her hair. We are not persuaded by this argument. There is
no evidence about the proposed hairpiece nor any details about
the Muslim employee who found it acceptable.
We are unwilling to delve into any matters of theology, and will
therefore decline GEO’s invitation to decide on our own what
might constitute a reasonable substitute for a khimar under the

9
Islamic faith. GEO does not challenge the assertion of the three
Muslim employees that they believe wearing the khimar is
integral to their religion, and we proceed on the basis that this is
their sincere religious belief.

In response to the EEOC’s motion for summary
judgment, which relied primarily on the Camp Report and the
deposition testimony of the three female employees, GEO
proffered the testimony of the two GEO wardens. Warden Holm
testified that before he became deputy warden at the Hill
Facility, he had previously worked as the lead investigator for
GEO at the Taft Correctional Institution in Taft, California. In
that position, he was responsible for “initial criminal
investigation on new crimes committed by inmates, all serious
crimes committed by inmates.” App. at 169. His “personal
focus” was on “internal affairs, violations of the rules by staff.”
App. at 169. He investigated GEO staff for, among other things,
having introduced contraband to prisons, and for “actually
selling and distributing controlled substances to inmates.” App.
at 169. Holm was also the lead investigator of “a fairly large
disturbance at the Taft Correctional Facility that involved
approximately 900 to 1,000 inmates,” an incident that he
described as “more or less a riot . . . .” App. at 169. According
to Holm, that investigation involved “issues about identification
of inmate and video surveillance.” App. at 169. Before working
with the GEO Group, Holm was a California police officer for
18 years.

In the year after Holm was hired at the Hill Facility, he
and Nardolillo made numerous changes to the prison’s policies
to address what they perceived as the prison’s “need[] to . . .
improve the performance of the facility and the staff and to
enhance security and tighten a few things up.” App. at 171. One
thing that Holm had noticed was that despite a long-standing,
apparently unspoken ban on prison employees wearing
unauthorized hats, that ban was not well-enforced. Although the
only hats that were authorized were a black baseball hat with the
GEO logo on and a knit cap that could be used outdoors, Holm
had observed employees wearing unauthorized hats with
“different logos, different things that weren’t appropriate to the

10
uniform of the GEO Group,” App. at 184, and wearing hats
“backwards and sideways,” App. at 183. During his deposition,
Holm also recalled one incident of an employee wearing a “New
York Yankees baseball hat inside the institution while in full
uniform.” App. at 183.

This concerned Holm in part because of his view that “the
band inside of a baseball cap is an excellent place to hide small
amount[s] of narcotics and small amounts of contraband. A
wire, a small knife, anything can go in there.” App. at 183.
“[A]nother issue” he had with employees wearing hats was
“based on [his] personal experience”: the “identification of an
individual wearing a hat when they would be inside [the] secure
portion [of the prison] . . . where we rely heavily on video
surveillance . . . [because a hat] distorts the identity of the
individual wearing the cap, which to me is an overall safety and
security issue for the prison because it would be entirely possible
for an inmate to get a uniform shirt, put a hat on, pull it real
close . . . [so that] it distorts the view of their face and you can’t
tell who they are when they walk out.” App. at 183.

Holm’s experience was that “during the riot in Taft
Correctional Facility based on the review of video surveillance,
which is what [GEO] based most of [its] investigation on . . . .
there were probably better than 300 or 400 inmates that [GEO]
couldn’t identify . . . simply because they had a baseball cap on.”
App. at 184. Moreover, one “inmate put a hat on . . . change[d]
[his] shirt . . . pulled [a] hat over his face and walked out the
front door.” App. at 203. As a result, Holm approached
Nardolillo to crack down on employees wearing unauthorized
hats and other “headgear.”

When asked for additional reasons for why this no-khimar
policy was adopted, Holm opined that a head scarf could be
“taken away from an individual and used against them, in any
form of a choking movement . . . . [i]t could be used as a
restraint device . . . [and it] provides unwanted material for
inmates to grab ahold of and/or use against [the] staff.” App. at
201. Asked to distinguish the safety difference presented by a
“head covering” and that presented by “someone’s shirt or

11
someone’s pants,” Holm answered that a khimar, if “grabbed
from the behind by the sides of it, . . . immediately becomes a
choking instrument,” App. at 201, as would a man’s tie, an item
of clothing also generally forbidden for anyone who “has direct
contact with inmates on a daily basis . . . . ,” App. at 202. Holm
also noted that because a “khimar [has] [a] band right across the
forehead and . . . it has the two pieces of material that come
down the side of [the] face, anything that casts a shadow on the
face, be it from above or the side . . . it casts a shadow,” making
identification difficult. App. at 202.

Warden Nardolillo also explained that the justification for
the new zero-tolerance headgear policy was instituted because
“[w]e have had some security issues that were becoming
extremely problematic. One primarily being the increased
introduction of contraband, specifically drugs, into the
institution.” App. at 75.

The EEOC characterizes Holm’s testimony as “utterly
speculative and conclusory.” EEOC Br. at 39. However, Holm
had significant prior experience in prison administration, and
that practical experience adds weight to the concerns that he
expressed as the basis for the no-headgear policy. We must
therefore decide whether GEO made the necessary showing of
the undue hardship defense.

An “undue hardship” is one that results in more than a de
minimis cost to the employer. Webb, 562 F.3d at 260 (citing
Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977)).
“Both economic and non-economic costs can pose an undue
hardship upon employers . . . .” Id. (citations omitted). In
deciding whether undue hardship exists, “[w]e focus on the
specific context of each case, looking to both the fact as well as
the magnitude of the alleged undue hardship.” Id. (citing Protos
v. Volkswagen of Am., Inc., 797 F.2d 129, 134 (3d Cir. 1986)).
In Webb, we stated that the Supreme Court’s decision in Trans
World Airlines, 432 U.S. at 84, “strongly suggests that the undue
hardship test is not a difficult threshold to pass.” Webb, 562
F.3d at 260. A religious accommodation that creates a genuine
safety or security risk can undoubtedly constitute an undue

12
hardship for an employer-prison. As noted above, the specific
safety and security risks that GEO asserts regarding the wearing
of head coverings in prison are the “smuggling of contraband,
misidentification and the use of [a] khimar as a strangulation
weapon in a conflict with an inmate.” Appellee’s Br. at 17.

We agree with the EEOC that the Webb court did not
purport to establish a per se rule of law about religious head
coverings or safety “that would govern in all religious
discrimination cases, all ‘paramilitary organization’ cases, or
even all police department cases.” Appellant’s Br. at 31-32.
GEO does not disagree. Nonetheless, Webb is relevant to this
case by analogy, as some security and uniformity interests held
by the police force are also implicated in the prison context.

In its brief to this court, GEO also supports its no
headgear policy “due to its effect on [its] legitimate interest [ ] in
requiring uniformity of appearance among prison employees to
promote an environment of discipline and an esprit de corps.”
Appellee’s Br. at 19. It notes that this interest was cited in Webb
where we stated “that uniform requirements are crucial to 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.” 562
F.3d at 262 (citing Fraternal Order of Police Newark Lodge No.
12 v. City of Newark, 170 F.3d 359, 366 (3d Cir. 1999)). The
EEOC points out that unlike the City of Philadelphia in Webb,
GEO’s witnesses did not refer to the uniformity of appearance as
justification for GEO’s dress code policy at the summary
judgment stage, suggesting that this was an afterthought that
arose only after the Webb opinion was filed. In fact, both
wardens did testify about their concern regarding the employees’
lack of uniform appearance, see App. at 77-81 (Nardolillo) and
App. at 183 (Holm).4 Even the EEOC’s expert Camp concurred

4
In Webb, there was uncontradicted evidence that the
Philadelphia Police Department had a “vital” interest in
maintaining its “uniform as a symbol of neutral government
authority, free from expressions of personal religion, bent or bias.”

13
“that uniformed employees should wear only agency issued
visible items.” App. at 226. It is unnecessary for us to decide
whether this interest alone would support summary judgment, as
we decide the case on different grounds.

GEO also argues 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.” Appellee’s Br. at 18.
According to GEO, this is because “Muslim female employees
can move freely throughout [the prison]” and “[w]hen doing so .
. . must pass through numerous checkpoints to pass between
secured portions of the facility” including “approximately
[sixteen] different entry/exit doors that are monitored by closed-
circuit video cameras at which visual identification/recognition
is required prior to the door being electronically opened.”
Appellee’s Br. at 18. Although GEO has not entirely convinced
us that adopting the proposed accommodations of allowing
female Muslim employees to wear khimars but removing them at
each checkpoint would require locking down the prisoners in
each such location, we recognize that adopting the proposed
procedure would necessarily require some additional time and
resources of prison officials.

In the last analysis, GEO’s no headgear policy must stand
on the testimony of Holm and Nardolillo that (1) khimars, like
hats, could be used to smuggle contraband into and around the

Webb, 562 F.3d at 261. Although neither warden in this case tied
the uniformity of appearance requirement to safety concerns, we
cannot completely reject their concern about staff wearing
unauthorized hats and the need for staff adherence to the dress code
in order for the employees to present the appearance of a
disciplined prison staff. See, e.g., App. at 78, 84 (Nardolillo); App.
at 183, 185 (Holm). Similarly, the concern referred to in Webb
about the need for police to present an appearance of religious
neutrality is also applicable to prison staff, as we can take judicial
notice of the prevalence of different religious groups within a
prison.

14
Hill Facility, (2) that khimars can be used to conceal the identity
of the wearer, which creates problems of misidentification, and
(3) that khimars could be used against a prison employee in an
attack. To be sure, GEO acknowledges that “there were no
reports of these types of incidents at [the Hill Facility] during
Warden Nardolillo’s and Warden Holm’s tenure[s] at the
facility,” but we agree with GEO that a prison “should not have
to wait for a khimar to actually be used in an unsafe or risky
manner, risking harm to employees or inmates, before this
foreseeable risk is considered in determining undue hardship.”
Appellee’s Br. at 17. In other words, because “[i]n a prison
setting, the safety of the employees and inmates is of top priority
. . . . [GEO] should not be prevent[ed] from countering, through
appropriate policies, the risks which might be posed by the
plaintiff[s’] preferred accommodation.” Appellee’s Br. at 17.

Even 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. To GEO, the fact that
inmates have other clothes that could also be used to strangle a
guard “does not mean that the facility would be out of line in
banning something else which can also be used as such a
weapon,” especially given that a khimar does not have a
legitimate penological justification. Appellee’s Br. at 36. It
argues that unlike other clothing, “the khimar is already located
about the guard’s head, virtually around the neck already.”
Appellee’s Br. at 36.

The arguments presented by the parties make this a close
case. The EEOC has an enviable history of taking steps to
enforce the prohibition against religious discrimination in many
forms and its sincerity in support of its arguments against the
application of the no headgear policy to Muslim employees
wearing khimars is evident. On the other hand, the prison has an
overriding responsibility to ensure the safety of its prisoners, its
staff, and the visitors. A prison is not a summer camp and prison
officials have the unenviable task of preserving order in difficult
circumstances.

In Bell v. Wolfish, the Supreme Court, albeit faced with

15
different prison regulations that were challenged under the
Fourth Amendment, noted that “[t]he Government also has
legitimate interests that stem from its need to manage the facility
in which the individual is detained.” 441 U.S. 520, 540 (1979).
The Court also noted that prisons are “unique place[s] fraught
with serious security dangers” and therefore the effective
management of a detention facility is a valid objective that may
justify imposition of various conditions. Id. at 559. In that case,
the Court cautioned the federal courts to make only limited
inquiry into prison management because “[t]he wide range of
‘judgment calls’ that meet constitutional and statutory
requirements are confided to officials outside of the Judicial
Branch of Government.” Id. at 562. Although we do not take
those remarks to deter federal courts from upholding the
constitutional rights of prisoners and prison staff alike, they must
be considered in making the kind of delicate balance called for
in this case.

This court’s recent opinion in Webb held that
notwithstanding the sincere religious beliefs of the plaintiff
police officer of the need to wear a khimar, that belief was
subordinate to the police department’s policy prohibiting the
wearing of a khimar because “‘safety is undoubtedly an interest
of the greatest importance.’” Webb, 562 F.3d at 262 (quoting
Fraternal Order of Police, 170 F.3d at 366). The District Court
did not err by relying on Webb in granting summary judgment to
GEO. We reach the same result in balancing the respective
considerations here.

We respond to the comments of our dissenting colleague.
Judge Tashima takes issue with our acceptance of GEO’s
explanation that its no-headgear policy was based on its interest
in safety, i.e., prevention of the introduction of contraband, and
the undue hardship that the proffered accommodations would
entail. He has a lengthy discussion impugning the reasons given
by Warden Nardolillo and Deputy Warden (later Warden) Holm
for the 2005 change in policy. We find that criticism unfairly
cynical.

Deputy Holm had transferred to the Hill Facility in 2004,

16
after working for another GEO facility for six years. App. at
170. In that capacity he focused on internal affairs, violations of
the rules by the staff, including, inter alia, introduction of
contraband. App. at 169. He had previously been a state police
officer for eighteen years. App. at 170. Thus, it should not be
considered surprising that after he was transferred to the Hill
Facility he reviewed the security procedures. His testimony
persuasively refutes any suggestion by the Dissent that
Nardolillo and Holm were not actually concerned about the
introduction of contraband. Holm testified that the issue of
contraband was the subject of discussion with Nardolillo
“probably close to 100” times. App. at 173. Certainly a prison
facility should not be faulted for making changes that
strengthened its security policies when reviewed by a new set of
eyes.

The Dissent downplays GEO’s claim that the
accommodations suggested by the EEOC would cause undue
hardship. The khimar-switching proposals, either switching
khimars or removing them at checkpoints, are facially
implausible and time consuming. They would need to be
removed, folded, and stored in a locker not yet available. It is
worth noting that there are elaborate precautions taken when
visitors to the prison wear khimars. A female officer escorts the
visitor to the ladies’ room where the khimar is removed, the
visitor is photographed, and the khimar replaced. This process
entails considerable time and effort for the staff, but the
authorities deem it necessary to protect against contraband. App.
at 102-03, 286.

The Dissent apparently believes it is unlikely that a
khimar may be used to strangle the wearer. The Dissent posits
the possibility that a khimar could be worn as a bandana is worn.
See Dissent at 13 n.1. The EEOC never introduced a khimar into
evidence. Although khimars may come in different shapes and
sizes we note the description adopted by a sister circuit that
stated “A khimar is a traditional garment worn by Muslim
women that covers the forehead, sides of the head, neck
shoulders, chest and sometimes their waist,” EEOC v. Kelly
Servs., 598 F.3d 1022, 1023 n.1 (8th Cir. 2010) (quotation and

17
citation omitted), a description similar to that provided in the
EEOC’s complaint. If that were the size of the garment worn by
a staff member, the possibility of strangulation should not be
taken lightly. Nor does the Dissent explain how allowing
Muslim women to wear bandana-like khimars would entirely
alleviate the safety concern as a bandana, too, could be used as a
weapon. A blanket policy to prohibit all headgear except those
issued with the prison uniform seems the sensible solution.

Judge Tashima notes that kitchen employees who
frequently interact with prisoners continue to wear hats within
the secure facility. Had the EEOC raised that issue in the
District Court, GEO undoubtedly would have pointed to
Nardolillo’s deposition testimony that there were specific safety
measures applicable to kitchen workers. App. at 79-80. In fact,
the Pennsylvania Administrative Code provides:

General requirement. Employees shall wear hair
restraints such as hats, hair coverings or nets, beard
restraints and clothing that covers body hair, that are
effectively designed and worn to keep their hair from
contacting exposed food; clean equipment, utensils and
linens; and unwrapped single-service and single-use
articles.

7 Pa. Code § 46.152(a). Anyone who has visited a prison will
observe many prisoners with long, sometimes unruly, hair, a
sanitary concern addressed by the general state requirement that
kitchen workers who handle food wear hats. Moreover, the
kitchen workers at the Hill Facility were not permitted to wear
the hats outside of the kitchen. App. at 80. The Dissent’s
reference to kitchen hats is just another red herring.

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. The
Dissent’s view of how a prison should be run, particularly its
minimization of the security concerns that motivated the change
in headgear policy at the Hill Facility, runs counter to the
direction we have been given by the Supreme Court which

18
stated:
Running a prison is an inordinately difficult undertaking
that requires expertise, planning, and the commitment of
resources, all of which are peculiarly within the province
of the legislative and executive branches of government.
Prison administration is, moreover, a task that has been
committed to the responsibility of those branches, and
separation of powers concerns counsel a policy of judicial
restraint. Where a state penal system is involved, federal
courts have . . . additional reason to accord deference to
the appropriate prison authorities.

Turner v. Safley, 482 U.S. 78, 84-85 (1987).

As the en banc Ninth Circuit recently stated, its obligation
is “to comply with the Supreme Court’s direction that we not
substitute our judgment for that of corrections facility officials.”
Bull v. City and Cnty. of San Francisco, 595 F.3d 964, 978 (9th
Cir. 2010) (citation omitted).

III.

Accordingly, we will affirm the District Court’s order
granting summary judgment to GEO.

19
E QUAL E MPLOYMENT O PPORTUNITY C OMM’N V. T HE GEO
G ROUP, I NC., 09-3093

TASHIMA, Circuit Judge, dissenting:

Because I believe the majority misapplies both long-
standing Circuit law on how we review summary judgment and,
in doing so, ignores our substantive Title VII law, I respectfully
dissent.

The GEO Group, Inc., a private corporation, runs the
George W. Hill Correctional Facility (the “prison”) under
contract with Delaware County, Pennsylvania. The Equal
Employment Opportunity Commission (“EEOC”) sued GEO on
behalf of a class of Muslim women employees of GEO, alleging
religious discrimination prohibited by Title VII of the Civil
Rights Act of 1964, as amended (“Title VII”), 42 U.S.C. §
2000e, et seq. The majority holds that requiring GEO to
accommodate the wearing of khimars by its Muslim women
employees would work an undue hardship on GEO. But in
reaching that conclusion, it chooses to give credence to the
testimony of Warden Raymond Nardolillo and Deputy Warden
Matthew Holm that khimars pose a threat to safety within the
prison, Maj. Op. at 14, and to ignore the ample evidence in the
record contradicting and undermining that testimony. In doing
so, the majority fails to apply our summary judgment standard of
review, which requires us to conduct a plenary review of the
record and draw all inferences in favor of the non-moving party.
See, e.g., Webb v. City of Phila., 562 F.3d 256, 259 (3d. Cir.
2009). The majority, thus, effectively relieves GEO, as the
employer and moving party asserting safety concerns, of the
burden of proving the existence of the asserted safety concerns,
as well as of the fact and magnitude of the asserted hardship in
accommodating plaintiffs religious needs. I cannot agree that
this approach and its result are consistent with Circuit law.

Viewing the record in the light most favorable to the non-
movant EEOC and the Muslim women employees it represents
(collectively, “plaintiffs”) and drawing all reasonable inferences
from the evidence in plaintiff’s favor, GEO has not

1
demonstrated that accommodating plaintiffs’ religious practice
of wearing a khimar would compromise its interest in safety in a
manner that could not be prevented without “work[ing] an undue
hardship” upon it such that it is entitled to summary judgment.
Id. When considered as a whole, the record before us would
allow a reasonable jury to find that GEO did not make a good-
faith effort to reasonably accommodate the religious practice of
its Muslim women employees. See id. at 262. That reasonable
jury could also find that allowing its Muslim women employees
to continue wearing their khimars at work would not work an
undue hardship upon GEO. Id. I would, therefore, reverse the
District Court’s grant of summary judgment to GEO.

A close examination of the record reveals that Nardolillo
and Holm’s testimony about how, why, and when the khimar
policy was changed is internally inconsistent and is further called
into question by the testimony of other witnesses and GEO’s
own business records. The record also supports the inference
that GEO’s stated rationales for banning khimars may be
pretextual and are highly speculative. The majority characterizes
this analysis of the record as “unfairly cynical.” Maj. Op. at 16.
I believe that it is merely the application of the proper standard
of review. The Supreme Court long ago adopted this Circuit’s
rule that “‘[i]f . . . there is any evidence in record from any
source from which a reasonable inference in the [nonmoving
party’s] favor may be drawn, the moving party simply cannot
obtain a summary judgment.’” Celotex Corp. v. Catrett, 477
U.S. 317, 331 n.2 (1986) (quoting In re Japanese Elec. Prod.
Antitrust Litig., 723 F.2d 238, 258 (3d Cir. 1983), rev’d on other
grounds sub nom. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574 (1986)) (omissions in Celotex) (emphasis
added). “[A]ny doubt as to the existence of a genuine issue for
trial should be resolved against the moving party.” Id. at 331
n.2.

The majority clearly finds the testimony of Nardillo and
Holm to be persuasive, and believes that, as the testimony of
“experienced prison officials on the site at issue,” it should be
given great weight. Maj. Op. at 18. A trier of fact might very
well agree, but “at the summary judgment stage, the judge’s

2
function is not himself to weight the evidence and determine the
truth of the matter but to determine whether there is a genuine
issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). “[T]he judge must ask himself not whether he
thinks the evidence unmistakably favors one side or the other but
whether a fair-mided jury could return a verdict for the plaintiff
on the evidence presented.” Id. at 252. We must not engage in
the making of “[c]redibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
facts” as these “are jury functions, not those of a judge, [when]
he is ruling on a motion for summary judgment.” Id. at 254.
Thus, the purpose of my “cynical” analysis of the facts is simply
to follow the Supreme Court’s mandate that “[t]he evidence of
the non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor.” Id.

Facts

Carmen Sharpe-Allen

Carmen Sharpe-Allen began wearing the khimar and
overgarment that make up the hijab when she converted to the
Muslim faith by taking her shahada, nearly a decade before she
became a GEO employee. JA 37, 39. Sharpe-Allen wore her
full hijab to her November, 2004 interview for a position as a
medication nurse at the prison. As a medication nurse, she
would be required to visit the cell-blocks within the secure area
of the prison on a daily basis. According to the dress code on
record in the prison at that time, scarves were not allowed within
the prison past a certain security station. Yet that policy
appeared not to be enforced, as Sharpe-Allen’s practice of
wearing a khimar posed no obstacle for her in getting hired.

During the interview, she inquired about whether she
would be allowed to wear her religious attire in her new position,
because she “wasn’t willing to compromise” wearing her
khimar. JA 43. The prison dress code required all medical staff
members to wear matching scrubs to work, in purple and teal
green. JA 43, 209. Because Sharpe-Allen did not own
overgarments in the colors of the medical uniform, she told the

3
interviewer, “I would be willing to wear the scrubs, but
definitely wasn’t compromising my khimar.” JA 43. Her
interviewer told her that she could wear her khimar, but he
would have to ask someone else whether she could wear an
overgarment instead of medical scrubs. JA 44. She was offered
the job at the interview, and accepted it on the spot. JA 44.
Because Sharpe-Allen agreed to wear the uniform medical
scrubs with her khimar, no further inquiry was made about the
possibility of wearing an overgarment. JA 44.

In 2005, Sharpe-Allen became a chronic infectious
disease nurse in the prison. JA 48-49. In this new position,
Sharpe Allen was no longer required to go cell-to-cell and began
working almost exclusively in the infirmary. JA 49. She would
only go to cells if she needed to check the results of inmates’
tuberculosis tests. JA 49. Throughout her employment at GEO,
she continued to wear her khimar. Sharpe-Allen’s khimar posed
no safety threat during the time that she was required to go cell-
to-cell on a daily basis. Only later, when she was mostly
working in an office setting without prisoner interaction, did
Nardolillo and Holm claim that her khimar was a so dangerous
that it could no longer be worn.

Marquita King

Marquita King has worn a khimar during all of the years
that she has been a practicing Muslim, from 1993 to 2001, and
after 2004. JA 124-25. Like Sharpe-Allen, she was hired while
wearing traditional Muslim garb. She interviewed for her
position as an intake specialist in 2000 while wearing a long
dress and overgarment that were part of her religious attire, as
well as a khimar and veil over her face. JA 127. Her
interviewer asked whether she would be able to remove her veil
when she came to work at the prison facility so that her face
could be seen. JA 127. King confirmed that she could remove
the veil while at work and she was offered the job during her
interview and immediately accepted. JA 127. It appears that the
job interviewer believed that having a veiled face would
compromise safety within the prison and be unacceptable, but
wearing only a khimar would not.

4
 King worked doing paperwork in an office setting. JA
129. Unlike correctional officers, she did not have keys to the
facility. JA 129. The only time that she would interact with
inmates was when they would be brought from a holding area to
her desk by a correctional officer so that she could input their
answers to intake questions into her computer. JA 129.

As a member of the administrative and clerical staff, King
was not required to wear a uniform. JA 210. She therefore
would not be bound to dress restrictions imposed only on
uniform employees, such as wearing only headgear issued with
one’s uniform. Instead, the dress code applicable to her position
only required her to wear professional attire at all times. JA 210.
During the years that King was a practicing Muslim and working
at the prison, she would wear her khimar with either a long dress
that is part of Muslim religious attire or slacks with long shirts.
JA 127. As agreed upon in her interview, she did not wear her
veil to work. JA 127.

Rashemma Moss

Rashemma Moss began working at the prison in 2002 as a
correctional officer. As a correctional officer, Moss is the only
GEO employee involved in this suit who had to wear a
correctional officer uniform, had keys to the facility, regularly
worked in the secured areas of the prison with inmates, and
responded to use of force incidents. JA 155. Moss did not wear
a khimar to her interview, or during the first few years of her
employment with GEO, as she was not yet a practicing Muslim.
JA 151.

In July of 2005, Moss took her shahada, thereby
becoming a full-fledged member of the Islamic faith. JA 151.
In lieu of wearing an overgarment, she exchanged her
correctional officer uniform for a larger size “to suffice for not
showing [her] shape so it wouldn’t be tight-fitting.” JA 158. To
cover her hair in accordance with her religion, Moss began
wearing an underscarf, which she described as a “triangle-
shaped” piece of fabric that is “tie[d] around [one’s] head, under
the hat that was issued to her as part of her uniform. JA 156.

5
Moss testified that at that time, “underscarfs was [sic] already
being worn,” she had already worn one to work on previous
occasions and, at that time, “it was common practice [among
prison employees] to wear things on [their] head[s], not
necessarily an underscarf, but a hat, a scarf, a headband.” JA
157.

The record indicates that events stemming from Moss’
conversion to Islam prompted the change in the enforcement of
the dress code. Moss asked her union representatives whether
there was any policy preventing her from wearing a head
covering in accordance with her faith and was told that there was
not. AR 157. However, Moss decided that it would be best to
confirm this with her supervisors at the prison, so in August of
2005, she wrote a “letter to the chief of security informing him
that [she] was Muslim, [she] had [taken] her shahada, on what
date, what the requirements were that was [sic] stipulated on
[her] by [her] religion, and what I have to do.” AR 157.
Repeatedly receiving no response, she continued informing the
next person in the chain of command, eventually writing Warden
Nardolillo on October 24, 2005.

The Prison Dress Code

The majority’s discussion of the prison dress code is
inaccurate to the extent that it indicates that the new dress code
adopted by Warden Nardolillo in April of 2005 changed the
facility’s policy on the wearing of hats, caps, khimars, or any
other headcoverings in any substantive way. See Maj. Op. at 3.
Nardolillo did sign a new dress code on April 21, 2005.
However, that new policy made only one minor change to the
prison’s preexisting general grooming standards, which govern
the wearing of headgear by employees within the facility. JA 77.
The old dress code had prohibited “scarves and hooded jackets
or sweatshirts” from being worn past the “mousetrap,” which is
an area beyond the front desk. JA 77, 207. The new policy
prohibited those items from being worn past the “ION SCAN,”
at the front security desk. JA 77, 207.

The prison’s previous dress code had been in effect since

6
February 19, 2004. JA 207. Other than the change in location at
which scarves and hooded jackets or sweatshirts needed to be
removed, both the 2004 dress code and the 2005 dress code
contained exactly the same language regarding headgear.
Therefore, there was no material in the official prison dress code
with regard to hats or headcoverings between 2004, the time at
which all three plaintiff Muslim women employees began
wearing their khimars to work on a daily basis, and October 24,
2005, when Nardolillo issued a memorandum to employees
prohibiting the wearing of hats.

The unchanged portion of the prison’s official policy on
personal grooming prohibits “alter[ation], modifi[cation], or
embellish[ment]” of the standardized uniform provided by GEO.
JA 207. It prohibited “scarves and hooded jackets or
sweatshirts” from being worn past a specified security screening
location. JA 207. And it provided that “[n]o hats or caps will be
permitted to be worn in the facility unless issued with a
uniform.”

Moss testified that the hat she wore to work was issued to
her as part of her official uniform. JA 156. Under the dress
code as written, she should therefore have been allowed to wear
the hat within the facility. This directly contradicts Nardolillo’s
testimony that no hats could be worn within the facility because
no hats were issued with uniforms, as “the hat was not, per se, an
official part of the uniform.” JA 78. Nardolillo’s claim that a hat
was not part of the correctional officer uniform is further
contradicted by GEO’s own records tracking the uniforms that
were issued to its correctional employees. Those records
corroborate Moss’ testimony that hats were distributed as part of
the uniforms. JA 78-80.

Nardolillo testified that even if employees were given
hats as part of their official uniform, they were not allowed to
wear them within the secured perimeter of the facility. JA 83.
Again, this is contradicted by Moss’ testimony that various
headcoverings were commonly worn by employees within the
facility. JA 157. It is also contradicted by Nardolillo’s own
testimony that employees were “wearing whatever they wanted

7
to wear on their heads” until he took action to end this practice.
JA 78.

Nardolillo testified that he believed the only appropriate
situation in which an employee could wear a head covering was
if a guard who worked at the guard shack outside of the secure
perimeter of the prison was granted his personal permission to
wear a GEO ski cap due to cold winter temperatures. JA 83.
However, the plain language of the prison dress code that existed
in 2004 and was readopted by Nardolillo in April 2005, allows
hats to be worn “in the facility” if they are “issued with the
uniform.” JA 207. Holm testified that “there has only ever been
one official hat issued with the uniform and that was to that first
group of employees in 1998 and none of them wore it and it’s
not in existence anymore.” JA 185. That statement is directly
contradicted by GEO’s own records, which indicate that a cap
continued to be issued to correctional officers at the prison as
part of their uniform through 2005. JA 80. Nardolillo testified
that he did not change the policy of distributing caps to
employees as part of their uniforms when he readopted the
prison dress code in April of 2005. Plaintiffs presented evidence
that hats continued to be commonly worn within the secure areas
of the prison just as they had been under the identical and
identically unenforced 2004 policy until October 24, 2005.

The Implementation of the Policy

Moss’ letter explaining her religious conversion and
requesting permission to continue wearing her khimar reached
Nardolillo’s desk on October 24, 2005. JA 157. Within hours,
Moss was called into Deputy Warden Holm’s office to speak
with Holm and Nardillo. JA 157. Nardolillo told her that he
was denying her request to wear her khimar and was stopping
everyone in the facility “from wearing hats and covering their
head.” JA 159. At this point, Nardolillo presented Moss with
the October 24, 2005 memorandum regarding the uniform policy
that would later be distributed to all employees. JA 215. The
memorandum differed from the official policy that had been
adopted in April of 2005, stating that “all hats, caps or religious
attire will not be permitted to be worn with your uniform or by

8
non-uniformed employees unless specifically authorized by the
Warden.” JA 215.

The memo also clarified that “there are no authorized
hats, caps or attire, which can be worn inside the jail and there
are no exceptions to this policy.” JA 215. The lack of a
religious exception for hats contrasted with the specific religious
exemption to the general grooming standards requirement that
“[m]ale staff is to be clean-shaven at all times.” This exception
was created for men who wear beard for “Medical or Religious
reasons” supported by “written documentation.” JA 207.

Moss offered to get her Koran from her car to show
Nardolillo and Holm that her religion required her to cover her
hair, but they told her that would not be necessary. JA 159.
They told her that they would be informing the other Muslim
women that they could not wear head coverings either. JA 159.
Nardolillo or Holm told Moss that she might be “starting a fad or
a fashion statement because now others are wearing the same . . .
headscarf and hat.” JA 159.

Moss requested a religious exception. Nardolillo then
told Moss that “no religion will be honored in the jail” and that
“he doesn’t care if it’s a Jewish person with a turban on his head
or rosary beads around their neck.” JA 159. When Moss asked
why Muslim women visitors to the secured area of the prison
were permitted to wear their khimars, but she could not, Nardillo
replied, “that will be stopped, too.” JA 159. Moss then asked
why female inmates were permitted to wear khimars. The
Warden replied, “[d]ue to Title 37, they have the right of
freedom of religion.” JA 159. Moss, pointing out that she was
not incarcerated, asked why she did not have the same right. JA
159. Nardolillo replied, “[b]ecause you’re not. No religion will
be honored.” JA 159. Nardolillo continued to explain, “this is
the battle he’s choosing to fight.” JA 159.

As Moss was leaving, Nardolillo asked her, “[i]s it really
that important to you?” JA 160. She answered, “[y]es, my
religion is important to me. Isn’t your religion important to you?
He said he really didn’t think it made that big of a difference.”

9
JA 160. These statements clearly indicate that Nardolillo was
not interested in providing any sort of religious accomodation.

The contents of the memorandum were announced at roll
call that day. The change in policy became “a major topic in the
facility.” Employees blamed Moss for the policy change, saying
that she was responsible “for people that’s been [sic] wearing
hats for ten years not able to wear a hat anymore.” JA 161.

The next day, Moss arrived at work wearing her
underscarf and hat as usual. JA 162. First thing, before Moss
had reached the ION SCAN, she was called into Holm’s office
again. JA 162. At that point, “everybody out there still ha[d] on
hats,” and except for Moss, “none of them [we]re being
disciplined or called into the office or told to remove their hats . .
. including supervisors.” JA 162. She was told that if she
continued to wear her headscarf, she would be suspended
without pay. JA 162. Moss stopped covering her head at work
and continued to work as a correctional officer.

On October 25, 2005, King received a call at home to tell
her that she could no longer wear her khimar at work and would
need to speak with Nardolillo. JA 131. She called Nardolillo
and reported that she had “heard that we were no longer allowed
to wear our khimars.” JA 131. Nardolillo confirmed the news,
and said “if you show up to work, you will be fired if you have a
khimar on your head.” JA 131. King responded that she had
been “hired with [her] khimar on . . . [and] was just in [his]
office last month with [her] khimar, and there was not an issue
with it.” JA 131-32. Nardolillo replied that “he didn’t care, this
is what he’s saying now.” JA 132.

King took several weeks of medical leave due to stress.
JA 134. When she returned to work, she wore her khimar until
she arrived in the parking lot, and then took it off as she entered
the building. JA 134.

Sharpe-Allen was out on a medical leave during October
2005. JA 52. Her sister, who also worked at the prison at that
time, called her to tell her that the she could no longer wear her

10
khimar when she was ready to return to work. JA 52. Her
human resources representative confirmed this, and so Sharpe-
Allen asked to meet with the warden. JA 54. She met with
Nardolillo twice, hoping to get his permission to continue
wearing her khimar on the job. JA 62. Wearing her khimar
during the meetings, Sharpe-Allen “stressed the fact that [she
has] been here and . . . [is] doing [her] job . . . [and has] never
given [him] any problem. [Her] khimar hasn’t interfered.” JA
61. Nardolillo “wasn’t willing to compromise at all.” JA 61.
He told her that she “wouldn’t get in the building” as long as she
showed up for work wearing her khimar. JA 62. Nardolillo then
terminated Sharpe-Allen, asserting that she had “effectively
abandoned her job” by “refus[ing] to comply with [his] directive
to return to work with the wearing of her Kimar [sic].” JA 216-
17.

The Asserted Rationale for the Policy

Nardolillo and Holm have provided shifting testimony
about their rationales for the prison’s change in dress code
policy. At times, their testimony indicated that the decision to
ban all headgear was motivated by a concern about employees
appearing unkempt and out of uniform. Nardolillo testified that
prior to the policy change, uniformed security officers were
“wearing hats inside, various and sundry type hats,” with
“different baseball team logos,” which did not have GEO logos
on them. JA 78. Nardolillo thought “it didn’t look well. It was
not a uniformed appearance.” JA 78. Holm also testified that he
wanted to change the dress code because he was unhappy that he
saw a “New York Yankees baseball hat inside the institution
while in full uniform, [which was] not authorized” as well as
“hats being worn backwards and sideways.” JA 183.

The majority focuses on testimony that the policy change
was instead “prompted” by security issues. JA 75. Nardolillo
stated that “[p]rimarily,” he was having a problem with the
increased introduction of contraband, specifically drugs, into the
institution.” JA 75. Holm hypothesized that “the band inside of
a baseball cap is an excellent place to hide a small amount of
narcotics and small amounts of contraband.” JA 183. Holm

11
recalled that at another facility, he had encountered a problem
identifying which prisoners had been involved in a riot because
they had baseball caps on. JA 184. This gave him concerns that
“the identification of an individual wearing a hat when they
would be inside . . . the secure portion of our institution where
we rely heavily on video surveillance” would be difficult and
create safety or escape risks. JA 184. Holm later asserted that
khimars pose a special risk that hats do not because “scar[ves]
and hoods . . . can be taken away from an individual and used
against them, in any form of choking movement.” JA 201.

GEO presented no evidence whatsoever that any
employee head covering has ever been used in the prison to
smuggle contraband, to conceal a prisoner’s identity, or as a
weapon. JA 220. Plaintiffs presented expert testimony that
called into question whether the safety risk that Nardolillo and
Holm feared from Khimars actually existed. For example,
although Nardolillo testified that he banned headcoverings in
response to an increased introduction in contraband, the prison
had not actually experienced any increase in contraband
introduction through employees. JA 224. Plaintiffs’ expert
noted that “not one of the 359 [total] serious contraband reports
involved secreting contraband in a cap, hat, or khimar, and only
two involved a staff member.” JA 222. Of these two staff-
related contraband incidents, representing only approximately
half a percent of total contraband reports, one involved a
correctional officer bringing food and cigarettes in his jacket
pocket, and the other involved a kitchen worker who was found
with cigarettes and latex gloves in his sock. JA 224. It is worth
noting that kitchen workers continue to wear hats as part of their
uniform, including during their daily interactions with prisoners
during meals. JA 80. After the headgear policy change, “the
amount of contraband found by staff did not decrease.” JA 220.

The expert also opined that khimars would not create
difficulty in identifying employees because they can “be worn in
such a manner so as not to inhibit visual identification of the
employee, and even if it were, the temporary removal of the
khimar to verify/confirm the employee’s identification could be
easily accomplished.” JA 226. Furthermore, he pointed out that

12
a khimar’s ability to obscure a prisoner’s identity, allowing him
to escape, does not differ from that of any other piece of clothing
or fabric present in the prison. JA 226-27. He also concluded
that GEO’s concerns that a khimar could be used as a
strangulation device were similarly unsupported, as any item of
clothing can similarly be used for strangulation. JA 227-28.
Neither Sharpe-Allen nor King regularly work within the secure
perimeter of the prison, have frequent contact with prisoners, or
participate in use of force events. Moss testified that she wore
her underscarf in a manner that fit underneath a baseball cap,
which seems to indicate that it could be tied like a bandana, and
would not be tied under the neck.1

According to the expert report, “all of the other
jurisdictions” he surveyed “permit staff to wear uniform caps
and or hats within their facilities,” including jurisdictions in
eight states, the District of Columbia, and the Federal Bureau of
Prisons. JA 230. In particular, “[b]oth New York City and the
District of Columbia correctional systems permit correctional
officers and other female employees to wear the khimar within
the secure perimeter of their facilities without adverse
consequences.” JA 230.

D ISCUSSION

The Majority Applied the Wrong Legal Standard

1
The majority credits GEO’s assertion that one of the
safety hazards posed by wearing a khimar is that it “could be used
against a prison employee in an attack.” Maj. Op. at 14. This is
based on Holm’s testimony that a khimar could be used in the
“form of a choking movement . . . used against the staff.” Id. at 11.
This testimony assumes that the only way to wear a khimar is to tie
it under the chin at the neck. But GEO never explored a possible
accommodation of permitting the wearing of a khimar as a bandana
would be worn, i.e., not tied under the chin at the neck, or any other
similar accommodation, or of wearing a bandana, underscarf, or
smaller piece of fabric in lieu of a khimar, as Moss apparently was
already doing.

13
 The majority’s holding 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,” Maj. Op. at 14, represents an unexplained
shift from our established jurisprudence. The majority’s
approach allows an employer facing an asserted safety concern
freely to discriminate 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 non-
economic 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 14. By the
majority’s own admission, this is also “a close case.” Id. at 15.
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 14. 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

14
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.” Abrahamson v. William
Patterson 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

15
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

16
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 14, 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

17
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.2

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

2
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 17-18 (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 the hats are worn
only in the kitchen. App. at 80. 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.

18
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
“[c]omparing 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.

19
 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 13-14 (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 14. 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 check 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

20
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 plaintiff’s 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 16. 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.3

3
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 18 (“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 (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.

21
 Webb Does Not Control This Case

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 13 (“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).

22
 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.4

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

4
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,
para-military organization.

23
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 (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 9. 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-looking
synthetic hair would not achieve that goal and eliminate the

24
religious conflict at issue.5 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.

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 9.

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.

5
Further, under the safety rationale, one could argue
that contraband could be more easily hidden under a wig than
under a khimar.

25
 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.

26