By Gerald L. Maatman, Jr. and Christina M. Janice
In an order recently issued in EEOC v Jetstream Ground Services, Inc., Case No. 13-CV-02340 (D. Colo. Sept. 29, 2015), Judge Christine Arguello of the U.S. District Court for the District of Colorado ruled that the EEOC had satisfied all of its pre-suit conciliation requirements and demonstrated sufficient evidence to proceed to trial on behalf of a class of Muslim women who allege that Jetstream Ground Services, Inc. (“Jetstream”), failed to accommodate their wearing hajibs and long skirts on the job, failed to hire them, laid off or reduced their hours, and discriminated against them on the basis of their religion.
This case is an important primer for employers facing EEOC litigation, as well as companies with strict uniform and dress code policies.
Case Background
In October 2008, Florida-based Jetstream was awarded a cabin cleaning contract with United Airlines at Denver International Airport. Jetstream offered job interviews to employees of its predecessor contractor. Id. at 3-4. Jetstream used several criteria in its hiring process, one of which was the applicant’s willingness to wear a gender neutral uniform of pants, shirt, and hat. Id. at 8. Five Muslim women of Ethiopian or Somali nationality, Safia Adbulle Ali, Sahra Bashi Abdirahman, Hana Bokku, Sadiyo Hassan Jama and Saida Warsame (“Intervenors”), applied for the position of Aircraft Cleaner, but were not offered employment. The Intervenors filed charges of discrimination locally with the Colorado Civil Rights Division, alleging that Jetstream discriminated against them on the basis of their sex (female) and religion (Muslim), and denied them the religious accommodations of wearing a hijab to cover their hair, ears, and neck, and of wearing long skirts to cover the form of their bodies. Id. at 3. After the charges were filed, Jetstream amended its uniform policy “based on legal issues regarding the burka headgear” to allow secured headscarves within specifications for dimension and color. Id. at 7.
The Colorado Civil Rights Division transferred the charges to the EEOC, which broadened its investigation through a series of requests for information. On August 29, 2012, the EEOC issued its Letter of Determination as to each Intervenor’s charge, stating that it had found reasonable cause to believe Jetstream had violated Title VII by: (1) refusing to provide Intervenors and a “class” of other female Muslim employees or applicants a reasonable accommodation based on their religion; (2) refusing to hire the charging parties “and others like” them for the position of Aircraft Cleaner based on sex, religion; and (3) by retaliating against them for engaging in protected activity. Id. at 9.
A number of conciliation proposals were exchanged between the EEOC and Jetstream, and the parties met once. Id. at 11. During the conciliation process, the EEOC identified two other women it characterized as “aggrieved,” and submitted a conciliation proposal including: (1) a lump sum demand for $775,000 in damages; (2) the creation of a settlement fund of $436,500 to be paid to other aggrieved individuals identified by the EEOC in the course of its investigation; and (3) Jetstream’s development of a plan for accommodating deviations from its uniform policy. Subsequently, the EEOC reduced its demand twice. Id. Jetstream, however, offered $75,000 for back pay and compensatory damages, and conciliation was terminated. Id. at 12.
The EEOC brought its lawsuit against Jetstream on August 20, 2013. In the lawsuit, the EEOC also asserted individual claims on behalf of the two “aggrieved” individuals, Amina Oba and Milko Haji, who had been employed by Jetstream and who had not filed charges. On October 13, 2014 Jetstream made offers of full-time employment to the Intervenors, stating that the Intervenors “may wear a headscarf at work that meets their religious requirements but does not present safety risks,” but also requiring that they “wear pants at work, as they claim they are willing to do.” Id. at 12.
Jetstream filed a motion for summary judgment arguing that: (1) the EEOC failed to satisfy its pre-suit conciliation obligations; (2) Oba’s and Haji’s claims were for various reasons deficient; and (3) the damages alleged were limited by Jetstream’s offers of employment to the Intervenors. The EEOC filed a cross-motion for summary judgment regarding Jetstream’s defenses of exhaustion of administrative remedies and prerequisites, statute of limitations, waiver, estoppel and laches, and undue burden. Id. at 2. The Court granted and denied each motion, in part.
The Court’s Decision
Jetstream brought a motion for summary judgment. The EEOC also filed a cross-motion for summary judgment.
Jetstream’s Motion for Summary Judgment
Jetstream sought summary judgment against the EEOC on the basis of its failure to meet its pre-suit conciliation obligation. The Court rejected Jetstream’s arguments: (1) that the EEOC did not conduct a “sincere and reasonable conciliation” by negotiation a fund for aggrieved individuals the EEOC had not yet identified; and (2) that the EEOC acted in bad faith by making an “unsubstantiated” lump sum demand rather than individual demands for each Intervenor. Id. at 20-21. Relying on the recent decision of the U.S. Supreme Court in Mach Mining LLC v. EEOC, 135 S.Ct. 1645, 1655-56 (2015), the Court reasoned that the scope of its judicial review of the EEOC’s conciliation efforts was “narrow.” Id. at 20. The Court further determined that the EEOC need only show that it endeavored to conciliate; that the EEOC is not required to engage in any specific steps or measures in its conciliation process; and that it is up to the EEOC to decide when conciliation has failed. Id. at 20-23.
The Court then turned to Jetstream’s motion for summary judgment on the EEOC’s claims for Amina Oba, a Jetstream employee who never requested accommodation, was observed by co-workers to change from headscarf and long skirt to the company’s uniform while at work, and who subsequently was laid off. Relying on EEOC v Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2031 (2015), the Court determined that an employee need only show that his or her need for accommodation was a motivating factor in the employer’s decision. Id. at 23. Denying summary judgment on the EEOC’s claims for disparate treatment and discrimination, the Court ruled there was a triable issue of fact as to whether Jetstream knew “or, at the very least, suspected” that Oba desired an accommodation. Id. at 26, 28-29.
Turning to the EEOC’s claim for retaliation, which requires an employee to engage in “protected activity” under Title VII to be actionable, the Court considered “as a matter of first impression” whether Oba engaged in protected activity merely by wearing religious clothing on the employer’s premises but during her breaks. Id. at 32. On this issue, the Court granted Jetstream summary judgment on the grounds that Oba did not actually convey to Jetstream any concern about unlawful practices. Id. at 34.
Regarding the EEOC’s individual claims for Milko Haji, who allegedly had her hours reduced on account of her religion and desire to wear a hajib and pants, the Court observed that the EEOC had failed to accurately establish Haji’s actual start date at Jetstream, limiting the EEOC’s provable loss to eight hours of pay. Finding this potential amount of loss to be “de minimis,” the Court granted Jetstream summary judgment on the EEOC’s claims for discrimination, failure to accommodate, and retaliation. Id. at 39-40.
Finally, the Court rejected Jetstream’s contentions that the EEOC’s claims for Oba should be dismissed because Oba had not filed a charge and not exhausted her administrative remedies, on the grounds that the EEOC has enforcement power to bring suit in its own name on behalf of others. Id. at 42-43 (citing Gen. Tel. Co. of the Nw., Inc. v. EEOC, 445 U.S. 319, 331 (1980)). In rejecting Jetstream’s motion for summary judgment as to damages, the Court observed that only “unconditional” offers of employment can end on-going liability for back pay. Id. at 46 (citing Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1493 (10th Cir. 1989)). Accordingly, the Court found there was a triable issue as to whether a reasonable person would have rejected the terms of Jetstream’s offers of employment. Id. at 47-48.
EEOC’s Motion for Summary Judgment
The Court then addressed the Commission’s cross-motion for summary judgment. Finding that Jetstream, through expert evidence, raised a triable issue of fact as to whether wearing a long skirt climbing steps constituted a “task interference” that could increase the risk of injury, the Court denied the EEOC’s motion for summary judgment regarding Jetstream’s defense of undue hardship in accommodating long skirts in the workplace. However, based on Jetstream’s own actions in amending its policy to allow hijabs to specifications and making offers of employment that conceded wearing hijabs on duty, the Court granted summary judgment to the EEOC regarding the defense of undue hardship in allowing hijabs in the workplace. Id. at 56-58.
The Court further granted summary judgment to the EEOC on Jetstream’s defenses of failure to exhaust administrative remedies, statute of limitations, waiver, and estoppel.
Implications for Employers
As the workforce diversifies and employers with uniform or dress code policies increasingly face requests for accommodation, it is important to exercise diligence in considering the reasonableness of the accommodation sought, the reasons accommodation may constitute an undue hardship affording employers relief, and the careful crafting of policies and practices that are compliant with federal discrimination laws.
Readers can also find this post on our EEOC Countdown blog here.