No. 11-5110 _______________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _______________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. ABERCROMBIE & FITCH STORES, INC., d/b/a ABERCROMBIE KIDS, Defendant-Appellant. _______________________________________ On Appeal from the United States District Court for the Northern District of Oklahoma, No.09-cv-602 Hon. Gregory K. Frizzell, U.S. District Judge _______________________________________ RESPONSE BRIEF OF APPELLEE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________ P. DAVID LOPEZ U.S. EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 131 M St. NE, Rm. 5NW10P Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4870 DANIEL T. VAIL James.Tucker@EEOC.gov Acting Assistant General Counsel JAMES M. TUCKER Attorney - ORAL ARGUMENT REQUESTED - Table of Contents Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . iii Statement of Related Cases. . . . . . . . . . . . . . . . . . . . . . . .1 Statement of the Issues . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 District Court Ruling on Summary Judgment. . . . . . . . . . . . . . . 17 Jury Verdict on Damages . . . . . . . . . . . . . . . . . . . . . . . . 21 Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . 21 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 I. The District Court Properly Concluded that No Reasonable Jury Could Find that Abercrombie Reasonably Accommodated Elauf's Religious Belief. . . . . . . . . . . . . . . . . . . . . . . . . 23 A. There is no genuine dispute that Elauf wears a headscarf in public because of a sincerely held, bona fide religious belief. . . . . . . . . . . . . . . . 25 B. There is no genuine dispute that Abercrombie was on notice of Elauf's religious belief. . . . . . . . . . . . . 30 II. The District Court Properly Concluded that No Reasonable Jury Could Conclude that Abercrombie Would Suffer an Undue Hardship if It Permitted Elauf to Wear a Headscarf At Work. . . . . . . . . . . . . . . . 47 III. The District Court Properly Excluded from the Damages Trial Evidence Challenging the Sincerity with Which Elauf Held Her Religious Beliefs. . . . . . . . . . 64 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . 69 Addendum 42 U.S.C. § 12111(8) . . . . . . . . . . . . . . . Addendum - 2 42 U.S.C. § 2000e(b), (j) . . . . . . . . . . . . Addendum - 5 29 C.F.R. § 1605.2(c) . . . . . . . . . . . . . . Addendum - 8 EEOC Compliance Manual, No. 915-008, Section 12 - Religious Discrimination, § 12-IV(A) . . . . . . . . . . . . . . . . . . . .Addendum - 11 EEOC - Best Practices for Eradicating Religious Discrimination in the Workplace . . . Addendum - 20 EEOC - Questions and Answers: Religious Discrimination in the Workplace (excerpt) . . . . Addendum - 26 Certificate of Compliance and Digital Submission Certificate of Service Table of Authorities Cases Page(s) Adler v. Wal-Mart Stores, Inc., 144 F.3d 664 (10th Cir. 1998) . . . . . . . . . . . . . . . 67 Auer v. Robbins, 519 U.S. 452 (1997). . . . . . . . . . . . . . . . . . . . . 39 Brown v. Polk County, Iowa, 61 F.3d 650 (8th Cir. 1995) (en banc) . . . . . . . . . . . .48 Davidson v. Am. Online, Inc., 337 F.3d 1179 (10th Cir. 2003). . . . . . . . . . . . . . . 56 Dixon v. Hallmark Cos., 627 F.3d 849 (11th Cir. 2010) . . . . . . . . . 30-32, 37 EEOC v. Abercrombie & Fitch Stores, Inc., No.09-CV-602, Opinion and Order (N.D. Okla. July 13, 2011) . . . . . . . . . . . . . . . 17-20 EEOC v. GEO Group, Inc., 616 F.3d 265 (3d Cir. 2010) . . . . . . . . . . . . . . .60, 61 EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569 (7th Cir. 1998) . . . . . . . . . . . . 29, 30 Furnco Const. Corp. v. Waters, 438 U.S. 567 (1978) . . . . . . . . . . . . . . . . . . . . .32 Hellinger v. Eckerd Corp., 67 F. Supp. 2d 1359 (S.D. Fla. Sept. 28, 1999) . . . . . 30, 32 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . . . . . . . . . .32 McInnis v. Fairfield Cmtys., Inc., 458 F.3d 1129 (10th Cir. 2006) . . . . . . . . . . . . . . . 67 Mosier v. Maynard, 937 F.2d 1521 (10th Cir. 1991) . . . . . . . . . . . . 26, 27 Protos v. Volkswagen of Am., Inc., 797 F.2d 129 (3d Cir. 1986) . . . . . . . . . . . . . . . 48 Qwest Corp. v. Colo. Pub. Util. Comm'n, 656 F.3d 1093 (10th Cir. 2011) . . . . . . . . . . . . . . . 39 Sauer v. Salt Lake County, 1 F.3d 1122 (10th Cir. 1993) . . . . . . . . . . . . . . . . 35 Shapolia v. Los Alamos Nat'l Labs., 992 F.2d 1033 (10th Cir. 1993) . . . . . . . . . . . . . 24, 32 Thomas v. Nat'l Ass'n of Letter Carriers, 225 F.3d 1149 (10th Cir. 2000) . . . . . . 17, 30, 34, 36, 41 Thomas v. Review Bd., 450 U.S. 707 (1981) . . . . . . . . . . . . . . . . . . . . .26 Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481 (10th Cir. 1989) . . . . . . . . . . . . passim Tooley v. Martin-Marietta Corp., 648 F.2d 1239 (9th Cir. 1981) . . . . . . . . . . . . . . . .48 United States v. Ballard, 322 U.S. 78 (1944) . . . . . . . . . . . . . . . . . . . . 26 United States v. Call, 129 F.3d 1402 (10th Cir. 1997) . . . . . . . . . . . . . . 65 United States v. Esch, 832 F.2d 531 (10th Cir.1988) . . . . . . . . . . . . . . 65, 66 United States v. Neal, 718 F.2d 1505 (10th Cir.1983) . . . . . . . . . . . . . . . .65 United States v. Seeger, 380 U.S. 163 (1965) . . . . . . . . . . . . . . . . . . . . 26 Wolfgang v. Mid-America Motorsports, Inc., 111 F.3d 1515 (10th Cir.1997) . . . . . . . . . . . . . . . .66 Statutes 42 U.S.C. § 12111(8) . . . . . . . . . . . . . . . . . . . . . . . . 56 42 U.S.C. § 2000e(b) . . . . . . . . . . . . . . . . . . . . . . . . 35 42 U.S.C. § 2000e(j) . . . . . . . . . . . . . . . . . . . . . . 24, 56 42 U.S.C. § 2000e-2(a) . . . . . . . . . . . . . . . . . . . . . . . . 24 Rules and Regulations Fed. R. Evid. 403 . . . . . . . . . . . . . . . . . . . . . . . . . . 65 29 C.F.R. § 1605.2(c) . . . . . . . . . . . . . . . . . . . . . . . . 39 Other Authorities EEOC - Best Practices for Eradicating Religious Discrimination in the Workplace, available at http://www.eeoc.gov/policy/docs/qanda_religion.html (last visited Jan. 20, 2012) . . . . . . . . . . . . . . . . . . . 38, 42 EEOC Compliance Manual, No. 915-008, Section 12 - Religious Discrimination, (July 22, 2008), available at http://www.eeoc.gov/policy/docs/religion.html (last visited Jan. 20, 2012) . . . . . . . . . . . . . . . . . . 38, 42 EEOC - Questions and Answers: Religious Discrimination in the Workplace, available at http://www.eeoc.gov/policy/docs/qanda_religion.html (last visited Jan. 20, 2012) . . . . . . . . . . . . . . . . . . . . . 38 Statement of Related Cases There are no known prior or related appeals. Statement of the Issues 1. Whether the district court properly concluded that there was no genuine dispute that Elauf wore a headscarf due to a bona fide religious belief. 2. Whether the district court properly concluded that there was no genuine dispute that Abercrombie was on notice that Elauf wore a headscarf because of her religious beliefs.<1> 3. Whether the district court properly concluded that there was no genuine dispute that reasonably accommodating Elauf's religious practice would not have imposed an undue hardship on the conduct of Abercrombie's business. 4. Whether, during the jury trial on damages, the district court properly concluded that Abercrombie could not cross-examine Elauf on the sincerity of her religious beliefs because that issue was irrelevant to her damages claim, and, even if it had some minimal relevance, any probative value was outweighed by its prejudicial effect. Statement of Facts Samantha Elauf was born in Tulsa, Oklahoma, graduated from Union High School in Tulsa, and attended Tulsa Community College with plans to transfer to Oklahoma State University and earn a degree in Business Management. Appellee's Supplemental Appendix ("Supp.App.") 9-11. Elauf plans to use her degree to own and operate a clothing store that focuses on stylish, "fashion-forward" clothing. Supp.App.10. Elauf is also a lifelong practicing Muslim. Elauf's parents are practicing Muslims, and she was raised Muslim. Supp.App.10-11. In the Islamic faith, the Quran is the sacred scripture-the word of God- just as the Bible is to Christians. Supp.App.5. The Quran provides that Muslim women should "lower their gaze and guard their modesty. They should draw their veils over their bosoms and not display their beauty." Supp.App.2. Some Islam scholars interpret the Quran to require women to wear a hijab, or headscarf, in order to show their modesty.<2> Supp.App.2, 10-11, 21. A hijab is an Islamic religious symbol. Supp.App.21. There is no single type of hijab that must be worn by a devout Muslim woman; there are many different styles and colors of hijabs or headscarves that are consistent with Islam.<3> Supp.App.6. Elauf began wearing a headscarf at age thirteen "to represent who [she] was as far as [her] faith," and continues to wear one "as a reminder of her faith."<4> Supp.App.11, 13; see also Supp.App.183-84 (images of Elauf wearing her headscarf). The obligation to wear a headscarf becomes more of a requirement after puberty, because "[t]hat's when your deeds are considered to be counted." Supp.App.12. Elauf wears a headscarf any time she is in public, and when she is with her family at home and there is a male visitor. Supp.App.11-12. Several of Elauf's female relatives-also practicing Muslims-wear headscarves, including her mother, an aunt, and several cousins. Supp.App.12. In addition to wearing a headscarf, Elauf's religious practices include fasting (no eating, drinking, or medicine taken from sunrise to sunset) during Ramadan, the Islamic holy month; studying the Quran during Ramadan; praying by reading verses out of the Quran about two times a month; attending services at her mosque on religious holidays; and not doing "anything that would be considered not Islamic" such as drinking, partying, or gambling. Supp.App.8, 13-14. Elauf also observes her religion by wearing clothes that are not too tight but are still "normal," trying to cover the majority of her arms and wearing leggings or tights with skirts. Supp.App.15. Elauf worked for two different establishments at the Woodland Hills Mall in Tulsa. From September 2006 through May 2008 Elauf worked at Limited Too, a clothing retailer, as a Sales Brand Rep. Supp.App.14, 23. Elauf also worked in early 2008 at Fruit Fondue, selling fruit and chocolate. Supp.App.17, 23. Elauf wore her headscarf at both jobs. Supp.App.14, 17. On May 25, 2008, Elauf applied for an open "Model" position at the Abercrombie Kids store at the Woodland Hills Mall. Supp.App.16- 17. A Model's duties include cleaning, organizing, and maintaining the store; operating the cash register; opening and closing the store; training new Models; greeting customers and helping them find the right size clothing; and preventing shoplifting. Supp.App.44; see also Supp.App.57-58 (job description for "Model" position). Wearing Abercrombie's style of clothing is also considered part of the Model's job, but Models "did more than just stand around and model the clothes." Appellant's Appendix ("App.") 376-77; Supp.App.44. In 2008, Abercrombie had a "Look Policy" governing the appearance of employees in its stores. Supp.App.68-69. The policy notes that while Abercrombie "realizes that your manner of dress and grooming habits are highly personal and subject to your own tastes and preferences," it wishes to "respect your individuality and still maintain a consistent level of dress and grooming that represents what people expect" from the company. Supp.App.68. The policy sets out a number of specific appearance guidelines. The policy prohibits any facial hair, requires employees to dress in a manner similar to the company's brand, and limits jewelry to that which is "simple and classic." Supp.App.68-69. Abercrombie interprets the policy to prohibit headwear of any kind, despite the policy's only explicit restriction on headwear being its prohibition on wearing "caps." App.380; Supp.App.68-69. Abercrombie permits exceptions to the policy, but any exceptions must be presented to upper management and HR for approval. Supp.App.76. Since as early as 2006, Abercrombie has approved numerous religious-practice-based exceptions to the Look Policy, from permitting men to wear yarmulkes and facial hair to permitting women to wear long skirts, leggings, and religious bracelets and jewelry. Supp.App.89-91, 93-95, 97-100, 102-04, 113, 122, 129-30, 132-36, 145- 46, 151-53, 164, 166-68. Most importantly, on eight different occasions, Abercrombie has permitted Models to wear headscarves for religious reasons.<5> Supp.App.81; see also Supp.App.145, 151-54 (HR documentation regarding some Models being permitted to wear headscarves). Abercrombie has also permitted employees in other positions to wear headscarves for religious purposes.<6> Supp.App.135, 144, 147-49. When Elauf applied for the Model position, she was familiar with the Abercrombie Kids store, having shopped there previously. Supp.App.15. Elauf had purchased and worn Abercrombie clothing. Supp.App.16. Elauf's "best friend" Farisa Sepahvand worked at this store, and Elauf visited her during Elauf's breaks from work. Supp.App.180. Prior to her interview at Abercrombie, Elauf discussed with Sepahvand the issue of Elauf's wearing a headscarf at Abercrombie. Supp.App.17-18. Sepahvand testified that she raised the issue with Kalen McJilton, the Assistant Manager in charge of the store's "visual," or appearance, and who knew Elauf from her "coming in [the store] all the time." Supp.App.72, 181. Noting that he had previously worked at Abercrombie with someone who was Jewish and wore a white yarmulke, McJilton told Sepahvand that he did not see any problem with Elauf wearing a headscarf, "especially if she didn't wear a headscarf that was black." Supp.App.181. Sepahvand then told Elauf that she would not be able to wear a black headscarf at Abercrombie, and that Abercrombie has a no- black-clothing policy for its employees. Supp.App.17, 181. Elauf "was fine with that." Supp.App.18. On May 27, 2008, Elauf was interviewed by Heather Cooke, the Assistant Manager in charge of interviewing, hiring, and firing employees. Supp.App.17-18, 41-42, 71-72. At the time of the interview, Cooke was aware that Elauf is Muslim and wears a headscarf for religious reasons. Cooke was familiar with Elauf from her frequent visits to Sepahvand, from seeing Elauf at work in the mall, and also from Sepahvand's previously introducing Cooke to Elauf. Supp.App.46, 180. When Cooke had seen Elauf on previous occasions, she had observed Elauf wearing her headscarf. Supp.App.48. Cooke interpreted Elauf's wearing the headscarf as signifying that Elauf was Muslim. Supp.App.48. Cooke "figured that was the religious reason why [Elauf] wore the headscarf, she was Muslim." Supp.App.48, 56. At the interview, Elauf wore her headscarf. Cooke testified that the headscarf Elauf wore to the interview was similar to that worn by Elauf in two pictures in the record. Supp.App.48; see also Supp.App.183-84 (images of Elauf wearing her headscarf). While Elauf wore a black headscarf to the interview, Cooke made no mention of either the headscarf or its color to Elauf.<7> Supp.App.49. During the interview, Cooke read Elauf the abbreviated version of the Look Policy that was provided in Abercrombie's interview guide. Supp.App.56; see also Supp.App.59-65 (interview guide). The interview guide did not refer to the Look Policy by name or mention any specific items that are not to be worn by employees, including headwear. Supp.App.45, 59-65. Cooke did not tell Elauf that she could not wear any headwear because Cooke had been instructed to stay on the script provided in the interview guide, and the interview guide did not address headwear. Supp.App.49. Cooke rated Elauf using the interview guide, which provides three assessment areas: appearance and sense of style, outgoing and promotes diversity, and sophistication and aspiration. Supp.App.48-49, 61, 63-65. Each area is graded on a three-point scale, and an applicant with a total combined score of five or less was not to be hired. Supp.App.64. Cooke scored Elauf at "two" on each element, for a total of six, and recommended that Abercrombie hire Elauf. Supp.App.50-51. Cooke thought Elauf was an active, energetic, outgoing, confident, happy and fun person with a positive attitude, wholesome, stylish, and pretty. Supp.App.54-56. Cooke believed Elauf would be a "really good" Model candidate because she was "excited about the company and the brand," had retail experience, and was outgoing. Supp.App.51, 53. While Cooke scored Elauf highly enough to be hired on the spot, Cooke was concerned about ambiguity in Abercrombie's policy regarding headgear and black clothing and wanted to confirm that Elauf's headscarf was acceptable. Supp.App.49, 51. However, Cooke had no problem with Elauf wearing a headscarf at Abercrombie. Supp.App.49. Cooke contacted Randall Johnson, District Manager, to discuss Elauf's headscarf. Supp.App.51. Cooke told Johnson that Elauf "was very pretty," that she wore a black headscarf, and that Abercrombie should hire her. Supp.App.51. Johnson stated that Cooke told him that Elauf was wearing "a hat, or headscarf," which, in Johnson's opinion, are "the same thing." Supp.App.73-74. Johnson told Cooke that Elauf was not compliant with the Look Policy and could not be hired.<8> Supp.App.75. Johnson stated that Cooke did not tell him why Elauf wore the headscarf, and did not recall if he asked Cooke whether Elauf could take off her headscarf or if he otherwise discussed with Cooke how Elauf could come into compliance with the Look Policy.<9> Supp.App.75, 77. Cooke did not inform Elauf that she would not be hired. Supp.App.52. A week after Elauf's interview, Sepahvand asked Cooke about Elauf, and Cooke replied that she was told not to hire Elauf because of her headscarf. Supp.App.52. In early 2011, Dr. Erich Joachimsthaler drafted a report on the effect of permitting exceptions to the Look Policy on Abercrombie's "brand." App.95, 97; Supp.App.170. Regarding this report, Joachimsthaler testified that he was asked "to look at what an off-brand experience does, and opine on the off-brand experience based on comprehensive research on the brand and on sales performance, comprehensive empirical research of off-brand experiences that is governed by the Look Policy," particularly regarding headscarves. Supp.App.174 (emphasis added). Joachimsthaler opined that an employee wearing a headscarf at Abercrombie "can negatively impact the brand and can impact sales," but he would not state that such a harm "would" occur, because "[y]ou never know for sure."<10> Supp.App.170 (emphasis added). While Joachimsthaler attempted to qualify this answer by asserting that more certainty on this point could be provided by "comprehensive empirical research," he admitted that he knew at the time of his report that Abercrombie had been permitting employees to wear headscarves, that he was unaware of any studies by Abercrombie on whether its sales had been impacted by these exceptions, and that he did not undertake such a study. Supp.App.170, 173. Joachimsthaler added that Abercrombie's permitting employees to wear headscarves could be either "a foolish thing or a smart thing to do," as "it could be foolish for a brand but smart for business, for-for doing additional sales." Supp.App.171-72. Joachimsthaler concluded both that "one exemption from the Look Policy could result in a breakdown of [Abercrombie's] control over the in-store brand experience," and that Abercrombie's granting such exceptions would not break down its control over the brand because when Abercrombie "decides" to permit an exception "then they are in control." Supp.App.173. Deon Riley, Abercrombie's Group Vice President for Human Resources, Stores, testified that other than the Joachimsthaler report, Abercrombie had not studied how deviating from the Look Policy might impact how customers view Abercrombie, and had not studied how Abercrombie's having permitted numerous employees to wear headscarves may have impacted how customers view "the Abercrombie style." Supp.App.79, 83. When asked if allowing employees to wear headscarves as religious accommodations has had any negative impact on sales, Riley responded that she does not study "the impact on sales." Supp.App.87. Amy Yoakum, Abercrombie's Director of Stores, Human Resources, testified that permitting Elauf to wear a headscarf would have harmed Abercrombie because "if we accommodate every request for accommodation that we receive, that could negatively impact that store experience for our customers." Supp.App.175-76 (emphasis added). Yoakum was unaware that before and after refusing to hire Elauf, Abercrombie permitted employees to wear headscarves for religious purposes. Supp.App.176. Yoakum was similarly unaware of and/or had not seen any measurement, study, or report by Abercrombie on the impact of these exceptions to the Look Policy, including any financial or other numerical impact. Supp.App.177-78. Yoakum stated that the basis for her opinion was "[her] own personal experience" where she has "walked into stores that have Look Policy exceptions, ones that we have dealt with, and the experience is different." Supp.App.177. Yoakum further testified that she believed the company's ability to enforce the Look Policy uniformly would be "negatively impacted" because the customer's experience in each store would "differ." Supp.App.177. Chad Moorefield, Abercrombie's Director of Stores, testified that Abercrombie routinely audits its stores, rating them on presentation, operations, systems, and store experience. Supp.App.28-30, 32-33. In Moorefield's opinion, a drop in a store's overall audit score would have an impact on sales because "we believe that the customer's experiences and what people have when they come into our stores is what drives our business." Supp.App.33-34. However, Moorefield was not aware of any effort by Abercrombie to examine audit scores to determine if lower scores correlated to a drop in a store's sales. Supp.App.33. Abercrombie also uses "Secret Shopper" reports to evaluate its stores, but Moorefield admitted that in trying to correlate a drop in sales with a lower Secret Shopper score in the "properly dressed" category (presumably corresponding to a violation of the Look Policy), "you're guessing essentially." Supp.App.31, 34-36. Moorefield has never done any type of statistical analysis to try to make such a determination. Supp.App.36. Moorefield added that Abercrombie has data on a multitude of factors relating to a store's operation. Supp.App.37. However, when asked if Abercrombie tries to draw any correlation between such data and the store's sales performance, and to isolate whether a drop in the "properly dressed" score correlates with a drop in sales, Moorefield stated that he "believed" that there was such a correlation but that he could not provide a specific example. Supp.App.38. Moorefield offered that he had concluded in some instances that poor enforcement of the Look Policy led to decreased sales, but he did not record that conclusion anywhere, could not provide any examples, did not describe the type of Look Policy violation(s) that led to this conclusion, and never did any type of mathematical calculation in reaching that conclusion. Supp.App.39. District Court Ruling on Summary Judgment In its Opinion and Order granting summary judgment to the Commission on liability, the court observed that to establish a prima facie case, the Commission needed to show that Elauf had "a bona fide religious belief that conflicts with an employment requirement," that she "informed the employer of this belief," and that she "was not hired for failing to comply with the employment requirement." App.574 (citing Thomas v. Nat'l Ass'n of Letter Carriers, 225 F.3d 1149, 1155 (10th Cir. 2000)). If the plaintiff makes this showing, the court continued, the burden then shifts to the defendant to conclusively rebut one or more elements of the plaintiff's prima facie case, show that it offered a reasonable accommodation, or show that it was unable to accommodate the employee's religious needs reasonably without undue hardship. App.574-75 (citing Thomas, 225 F.3d at 1156). The court concluded that the Commission had established a prima facie case through evidence that Elauf wears her headscarf "based on her belief that the Quran requires her to do so, that this belief conflicts with Abercrombie's prohibition against headwear, that Abercrombie had notice she wore a head scarf because of her religious belief, and that it refused to hire her because the head scarf conflicted with its look policy." App.575 (footnote omitted). The court rejected Abercrombie's assertions that Elauf's wearing of a headscarf was not based on a bona fide religious belief, noting Elauf's testimony that she considers her headscarf to be a representation of her faith, and "the record is devoid of evidence that her decision to don a head scarf at age 13 and continue to wear it to this time is based on anything other than her religious belief." App.575-76 (emphasis in original). The court also rejected Abercrombie's argument that Elauf did not sincerely hold her religious belief. The court observed that "the record is devoid of any evidence that Elauf's belief is animated by motives of deception or fraud," adding that the practice of Muslim women wearing headscarves "is neither new nor uncommon." App.579 (emphasis in original). The court next rejected Abercrombie's argument that the "notice" element of the prima facie case was not satisfied because Elauf did not herself inform Abercrombie of her religious belief. App.579-80. The court recognized that while the Tenth Circuit has not directly addressed this issue, other circuits have held that "the notice requirement is met when an employer has enough information to make it aware that there exists a conflict between the individual's religious practice or belief and a requirement for applying for or performing the job." App.580 (citing cases). The court concluded that, "faced with the issue of whether the employee must explicitly request an accommodation or whether it is enough that the employer has notice that an accommodation is needed, the Tenth Circuit would likely opt for the latter choice." App.581. The court observed that it was uncontested that Elauf wore her headscarf to her interview with Cooke, and that Cooke knew that Elauf wore her headscarf based on her religious belief. App.581. The court added that while a fact question may exist as to whether Cooke told Johnson that Elauf wore her headscarf for religious reasons, this question was immaterial "because the knowledge of Cooke-who had responsibility for hiring decisions in the Abercrombie Kids store-is attributable to Abercrombie." App.581 & n.11. The court further noted that "there could be no bilateral, interactive process of accommodation because, although Abercrombie was on notice that Elauf wore a headscarf for religious reasons, it denied Elauf's application for employment without informing her that she was not being hired or telling her why." App.582 n.12. Finally, the court rejected Abercrombie's undue hardship argument, observing that while several Abercrombie executives "testified they believe granting Elauf an exception to the Look Policy would negatively impact the brand, sales and compliance," "none have conducted any studies or cite specific examples to support this opinion." App.582. The court noted that while Joachimsthaler "opined that the granting of even one exception to the Look Policy would negatively impact the brand," he "made no effort, however, to collect or analyze data to corroborate his opinion." App.582. The court emphasized that Abercrombie has made "[e]ight or nine head scarf exceptions" but Joachimsthaler "completely failed to consider the impact, if any, of those exceptions." App.583. The court concluded that Joachimsthaler's opinion was thus "too speculative to establish actual hardship." App.583 (citation omitted). Jury Verdict on Damages During the trial on damages, the district court granted the Commission's motion in limine to exclude evidence of Islamic religious beliefs or practices unrelated to the wearing of a headscarf, as well as others' interpretations of Islamic religious requirements including those pertaining to the wearing of headscarves. App.207-13 (motion); 683-87 (district court's ruling). Abercrombie argued that in pursuing this line of cross-examination "[w]e're not trying to attack [Elauf's] credibility or anything else." The court observed that Abercrombie was attempting to introduce evidence on an issue (the sincerity of Elauf's religious belief) that had already been resolved on summary judgment. App.686. The court concluded that this type of evidence was irrelevant to the quantum of harm Elauf suffered as a result of Abercrombie's discriminatory action, and that even if it did have some minimal relevance its probative value on damages was sufficiently outweighed by its potential prejudicial effect to warrant exclusion. App.687. Summary of the Argument In granting the Commission's motion for summary judgment and denying Abercrombie's motion, the district court properly concluded that on this evidentiary record, there was no genuine issue as to any fact material to whether Abercrombie discriminated against Elauf because of her religion in violation of Title VII. The court correctly concluded that the evidence was unequivocal that Elauf had a bona fide religious belief that conflicted with a job requirement for the Model position, that Abercrombie was fully aware of the conflict, and that the company failed to hire her because of the conflict without making even the slightest effort to try and explore how it might resolve the conflict. The court was also correct in its conclusion that despite having a history of permitting employees, including Models, to wear headscarves for religious purposes, Abercrombie's witnesses-including its expert witness-completely failed to account for this fact and instead simply speculated that Abercrombie would have suffered undue hardship had it permitted Elauf to wear a headscarf while working as a Model. As the evidence showed there was no genuine dispute as to any element of the Commission's prima facie case, and that Abercrombie's undue hardship evidence failed to rise above the level of speculation-a level long rejected by this Court as sufficient to establish undue hardship- the district court did not err in granting summary judgment to the Commission. Further, the court did not err in refusing to permit Abercrombie to cross-examine Elauf at the trial on damages with respect to sincerity of her religious beliefs. The court correctly determined that this would allow Abercrombie to essentially relitigate the merits of the EEOC's claim, that the line of questioning was irrelevant to the harm Elauf suffered, and that the probative value of any evidence produced through such questioning was substantially outweighed by the danger of unfair prejudice. The court's determination was not an abuse of discretion, much less harmful error. For these reasons, the Commission respectfully requests that this Court affirm the district court's summary judgment ruling and uphold the jury's damages award. Argument I. The District Court Properly Concluded that No Reasonable Jury Could Find that Abercrombie Reasonably Accommodated Elauf's Religious Belief. Title VII provides that it is an unlawful employment practice for an employer to "fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion." 42 U.S.C. § 2000e-2(a). The statute broadly defines the term "religion" to include "all aspects of religious observance and practice, as well as belief," but further provides that an employer does not violate the statute if it demonstrates that it "is unable to reasonably accommodate an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j) (attached at Addendum p.7). The primary concern in Title VII religious accommodation cases is "an employer's intolerance of an employee's religious practice or an employee's inability to comply with a job requirement because of religious beliefs." Shapolia v. Los Alamos Nat'l Labs., 992 F.2d 1033, 1037 (10th Cir. 1993). As this Court has observed, "acting to the detriment of an applicant or employee because of his religion before attempting accommodation is illegal." Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1487 (10th Cir. 1989) (emphasis and alteration in original). In determining whether an employer has failed to reasonably accommodate a prospective employee's religious observance or practice, this Court applies a two-step approach. Id. at 1486. First, the plaintiff must make out a prima facie case of religious discrimination by establishing that she has "a bona fide religious belief that conflicts with an employment requirement"; she "informed the employer of this belief"; and she "was [not hired] for failure to comply with the conflicting employment requirement." Id. (citations omitted). Once a plaintiff meets this standard, the burden shifts to the defendant to establish that it was unable to provide such accommodation without suffering undue hardship. Id. While Abercrombie challenges the first and second elements of the Commission's prima facie case, the record on summary judgment is sufficiently one-sided on these points to support the district court's grant of summary judgment to the Commission. A. There is no genuine dispute that Elauf wears a headscarf in public because of a sincerely-held, bona fide religious belief. The Supreme Court has recognized that "the claim of the [individual] that his belief is an essential part of a religious faith must be given great weight" and "[t]he validity of what he believes cannot be questioned." United States v. Seeger, 380 U.S. 163, 184 (1965). "'Men may believe what they cannot prove. They may not be put to the proof of their religious beliefs or doctrines.'" Id. (quoting United States v. Ballard, 322 U.S. 78, 86 (1944)). As this Court has further noticed, "[s]crutiny of the validity of particular beliefs largely is beyond our judicial function because 'religious beliefs need not be acceptable, logical, consistent, or comprehensible to others.'" Mosier v. Maynard, 937 F.2d 1521, 1526 (10th Cir. 1991) (quoting in part Thomas v. Review Bd., 450 U.S. 707, 714 (1981)). The district court was presented with uncontradicted evidence that Elauf believed that her religion required her to wear a headscarf in public. It is uncontested that Elauf is a lifelong practicing Muslim, and that some Muslims interpret their religion to require women to wear a headscarf. Supp.App.2, 10-11, 21. Elauf began wearing a headscarf at age thirteen "to represent who [she] was as far as [her] faith" and "as a reminder of [her] faith." Supp.App.11, 13. Elauf believes that a female Muslim's obligation to wear a headscarf becomes more of a requirement after puberty, because "[t]hat's when your deeds are considered to be counted." Supp.App.12. Pursuant to her religious belief, Elauf wears a headscarf any time she is in public, and also when she is with her family at home but there is a male visitor. Supp.App.11-12; see also Supp.App.183-84 (images of Elauf wearing her headscarf). Given this evidence that Elauf's belief that wearing a headscarf is an essential part of her religious faith, and the precedent warning against judicial scrutiny of the validity of an individual's religious beliefs, the district court properly resolved this question in favor of the Commission. The district court's subsequent conclusion that it was beyond dispute that Elauf's religious belief was sincerely held was also supported by the evidence. In determining whether an individual's beliefs are sincere, courts examine whether the belief at issue is "'truly held and religious in nature.'" Mosier, 937 F.2d at 1526 (citation omitted). Here, as recounted above, the evidence was uncontradicted that the reason that Elauf wore her headscarf was because of her belief that her religion required he to do so. There was no evidence that Elauf wore her headscarf for some non-religious reason.<11> Abercrombie argues that the sincerity of Elauf's belief is in question because not all Muslim women wear headscarves and some women wear headscarves for secular reasons. See AtBr.54. However, the fact that some Muslim women may choose not to wear headscarves is irrelevant to whether Elauf sincerely believes that she must do so as a tenet of her faith. As such, the practice of other Muslim women is irrelevant to the question of whether Elauf's practice of wearing a headscarf is a sincere expression of her own truly held religious belief. The evidence is uncontradicted that Elauf does truly hold such a belief. Abercrombie argues that the sincerity of Elauf's belief is questionable in light of the occasional nature of some of her other religious observances. AtBr.54. This is a non-sequitur. As both common sense and precedent dictate, the proper focus under the sincerity inquiry is on the particular religious belief at issue, and not on other religious beliefs that the individual may or may not hold. As this Court implicitly recognized in Toledo, the requirement that the individual have "a bona fide religious belief that conflicts with an employment requirement" naturally focuses the inquiry on the sincerity and bona fide nature of the religious belief that conflicts with the employment requirement, and not on other beliefs that are irrelevant to the sincerity analysis because they do not conflict with any employment requirements. See 892 F.2d at 1486. Thus, in EEOC v. Ilona of Hungary, Inc., the Seventh Circuit rejected the defendant's argument that the individual's religious belief that conflicted with her employer's work requirements was not sincerely held because she was generally "not a religious person." 108 F.3d 1569, 1575 (7th Cir. 1998). The Court noted that the defendant's argument did "not address the Commission's prima facie case" because "the sincerity of [the individual's] religious beliefs is relevant to whether or not the observance or practice for which an accommodation was requested will be considered 'religious' in nature." Id. (emphasis added). Accordingly, Elauf's other religious beliefs, or lack thereof, have no bearing whatsoever on the sincerity with which she believes that she must wear a headscarf in public-the religious belief that conflicts with an Abercrombie work requirement. B. There is no genuine dispute that Abercrombie was on notice of Elauf's religious belief. In order to establish a prima facie case of discrimination based on an employer's failure to reasonably accommodate an individual's religious belief, the plaintiff must show that the defendant had notice of the individual's religious belief. See, e.g., Toledo, 892 F.2d at 1486 (noting the individual must "inform[] the employer of this belief"); Dixon v. Hallmark Cos., 627 F.3d 849, 856 (11th Cir. 2010) (holding that employer's "awareness" of the religious conflict "would satisfy the second prong"). "The notice requirement is meant in part to allow the company an opportunity to attempt to reasonably accommodate the plaintiff's needs." Hellinger v. Eckerd Corp., 67 F. Supp. 2d 1359, 1363 (S.D. Fla. Sept. 28, 1999). This is consistent with this Court's recognition that Title VII's religious accommodation "statutory and regulatory framework . . . involves an interactive process that requires the participation of both the employer and the employee." Thomas, 225 F.3d at 1155. While this Court typically describes the notice element in terms of the employee or applicant "inform[ing] the employer" of the religious belief, see, e.g., Toledo, 892 F.2d at 1486, the critical fact is the existence of the notice itself, not how the employer came to have such notice. See Dixon, 627 F.3d at 856 (describing the notice element of the prima facie case as requiring evidence that the plaintiffs "informed" the employer of their religious belief, but holding that the employer's "awareness" of the religious belief was sufficient to satisfy this standard, even though the plaintiffs did not affirmatively "inform" the employer of their religious belief). Where there is evidence that the employer was on notice of the employee's or applicant's religious belief, such evidence is sufficient to satisfy the notice element regardless of the source of that notice. See id. at 856; see also Hellinger, 67 F. Supp. 2d at 1363. This, quite sensibly, is because an employer "[is] not deprived of the opportunity to attempt to accommodate the plaintiff's beliefs merely because the notice did not come from the plaintiff." Hellinger, 67 F. Supp. 2d at 1363. As the Eleventh Circuit observed, "'[i]t would be hyper-technical . . . to require notice of the Plaintiff's religious beliefs to come only from the Plaintiff.'" Dixon, 627 F.3d at 856 (omission in original) (quoting Hellinger, 67 F. Supp. 2d at 1363). This flexible, common-sense approach to notice is consistent with this Court's recognition that "the elements of proof in employment discrimination cases were not meant to be 'rigid, mechanized or ritualistic.'" Shapolia, 992 F.2d at 1037 (quoting in part Furnco Const. Corp. v. Waters, 438 U.S. 567, 577 (1978)). "'[T]he facts necessary will vary in Title VII cases, and the . . . prima facie proof required from [the plaintiff] is not necessarily applicable in every respect to differing factual situations.'" Id. (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n.13 (1973)). Accordingly, when the facts indicate that notice of an individual's religious belief was provided by some means other than the individual affirmatively "informing" the employer of the belief, the prima facie notice requirement should be flexibly interpreted to conform to such factual situations. There are strong policy reasons supporting this approach. Limiting Title VII's protection to individuals who affirmatively inform employers of their religious beliefs would have the absurd result of permitting employers to refuse to even consider accommodating an individual's known religious beliefs simply because the employer learned of the religious belief from some other source. Moreover, a rigid, hypertechnical approach to the notice requirement would have the perverse effect of discouraging employers from engaging in an interactive process with individuals whom the employer believes have religious beliefs that conflict with work requirements. Employers would avoid such discussions out of concern that, should the individual reinforce the employer's prior awareness of the religious belief by "informing" the employer of the belief during such a discussion, the employer would then-as a result of this "informing"- be obligated to consider reasonable accommodation options for the individual, but would not be so obligated if they simply left the matter unaddressed despite their awareness of the religious belief. This would plainly subvert the interactive process that plays such an important role in Title VII's statutory and regulatory framework. See Thomas, 225 F.3d at 1155. Of course, this is not to say that employers are required to inquire of applicants or employees as to whether there are any religious beliefs that need to be accommodated, absent some reasonable indication to the employer that an accommodation may be needed. However, where, as here, an employer is aware that a conflict exists between an individual's religious belief and a work requirement, it is nonsensical to exempt the employer from Title VII's reasonable accommodation requirement simply because the source of the employer's knowledge was not the individual's own affirmative statement to the employer. For all these reasons, the district court properly interpreted the notice requirement flexibly, rather than rigidly and hypertechnically, to only require evidence that the employer was aware of the religious belief and conflict, regardless of how that information was imparted to the employer. The court also correctly concluded that there was no genuine dispute as to whether Abercrombie had notice of Elauf's religious practice of wearing her headscarf in public. Cooke, the Abercrombie official who interviewed Elauf, testified that she was aware that Elauf was Muslim and that she wore her headscarf for religious reasons.<13> Supp.App.48, 56. Cooke had seen Elauf on numerous occasions prior to interviewing her, and had observed her wearing her headscarf. Supp.App.46, 48, 180. When Cooke interviewed Elauf, Elauf wore a headscarf to the interview. Supp.App.48-49. Cooke "figured that was the religious reason why [Elauf] wore the headscarf, she was Muslim." Supp.App.48, 56. On this record, there is no question that Abercrombie, through Cooke, was on notice that Elauf wore a headscarf because she is Muslim. Abercrombie raises several arguments to the contrary, but none have any merit. First, Abercrombie asserts the same type of argument rejected in Dixon-that the Commission cannot establish notice because its awareness of her religious belief did not come from Elauf herself affirmatively "informing" Abercrombie of that belief. AtBr.21. As described above, it is irrelevant for purposes of the notice element how the employer gained its awareness of the individual's religious belief- all that matters is that the employer had notice of that belief. See supra, at 30-34. Abercrombie asserts that in Thomas, this court "established" that an applicant or employee "must inform the employer of a religious belief . . . in order to establish a prima facie case." AtBr.21-22 (emphasis in original). This is incorrect. In Thomas this Court was not faced with the question of whether to establish a prima facie case, the plaintiff had to produce evidence that the employer's awareness of her religious belief came from her and not some other source. See 225 F.3d at 1154- 55 (making no mention of this issue, and noting that it was uncontested that the plaintiff had established a prima facie case). Thomas repeated the elements of a prima facie case previously described in Toledo, which, as with Thomas, did not address whether the only permissible source of the employer's awareness of the subject religious belief was the employee or applicant herself. See id.; Toledo, 892 F.2d at 1486 (making no mention of any dispute regarding whether the plaintiff himself was required to affirmatively notify the employer of his religious belief). Similarly, none of the other circuits' decisions cited by Abercrombie hold that if the employer's awareness of the religious belief came from some source other than the plaintiff herself, the plaintiff cannot establish a prima facie case.<14> See AtBr.22-23 & n.10 (citing cases). Abercrombie similarly asserts that the Commission's Compliance Manual and other policy guidances "place the burden on the employee to inform the employer of a religious belief that conflicts with an employment requirement." AtBr.23-24 (citations omitted). However, just as with Toledo and Thomas, the Commission's policy documents do not address the situation where there is evidence that the employer was aware of the applicant's religious belief without the applicant herself so "informing" it. See EEOC Compliance Manual, No. 915-008, Section 12 - Religious Discrimination, at 12-IV(A) (July 22, 2008) (attached at Addendum pp.14-19), available at http://www.eeoc.gov/policy/docs/religion.html (last visited Jan. 20, 2012) (no discussion of whether notice requirement is satisfied when employer has notice of the individual's religious belief from source other than the applicant herself so informing the employer); EEOC - Questions and Answers: Religious Discrimination in the Workplace, at 6-7 (attached at Addendum p.28), available at http://www.eeoc.gov/policy/docs/qanda_religion.html (last visited Jan. 20, 2012) (same); EEOC - Best Practices for Eradicating Religious Discrimination in the Workplace (attached at Addendum pp.21-25), available at http://www.eeoc.gov/policy/docs/qanda_religion.html (last visited Jan. 20, 2012) (same). As such, none of these policy documents indicates that an employer is excused from its obligation to provide reasonable accommodation for an applicant's religious belief that conflicts with a work requirement simply because someone other than the applicant herself informed the employer of the belief. The Commission's regulations also discuss the notice requirement in the context of the individual "notif[ying]" the employer. 29 C.F.R. § 1605.2(c) (attached at Addendum p.10). However, as with the aforementioned policy documents, the regulations do not address the situation where the employer is otherwise aware of the individual's religious belief, and accordingly do not preclude a plaintiff from satisfying the notice requirement under such circumstances. These policy documents and regulations do not elevate form over substance and require this Court to take a nonsensical approach to the notice requirement.<15> Abercrombie further asserts that the district court's approach is contrary to law, the "purpose of the 'notice' requirement," and "good policy." AtBr.25. This, Abercrombie posits, is because this approach will "require employers to inquire into the details of an applicant's religion if they have any reason to believe that the applicant has a religious belief." Id. To the contrary, the court's approach presents no such difficulties and is fully consistent with Title VII, its purposes, and public policy. Abercrombie predicts the district court's approach would compel employers to be "clairvoyant experts" on a wide range of religious practices, able to discern at a glance whether an individual has a religious belief in need of reasonable accommodation; force employers to either "question applicants about their religion," or make "assumptions based on stereotypes of protected classifications"; and permit an applicant to "ambush" an employer by attending an interview wearing a "potentially religious symbol" but remaining silent when presented with information about job duties. AtBr.27-33. The law already anticipates that employers may not be aware of an individual's specific religious beliefs or how to resolve any conflicts between such beliefs and work requirements. It does not require employers to affirmatively broach the issue of religious beliefs with every applicant or employee, regardless of whether the employer has reason to believe that the individual may have a religious belief that conflicts with a work requirement. The employer's obligation is to attempt reasonable accommodation (where no undue hardship would result) when it has notice-be it from an affirmative statement by the individual, or some other source-of an individual's religious belief that conflicts with a work requirement. This is why the law requires employers to engage in an interactive process with employees or applicants with religious beliefs that conflict with work requirements, once they are on notice of such religious beliefs-to determine what reasonable accommodation, if any, may be provided in order to eliminate the conflict. See Thomas, 225 F.3d at 1155 (discussing the interactive process). It is inherent in the notion of an interactive process that the employer may not adequately understand the individual's religious belief, and that through such a process, the employer and the individual can discuss the religious belief at issue and possible accommodation options. This approach also encourages employers to avoid stereotyping and unnecessary inquiries into an individual's religious beliefs. For example, if an employer is presented with a situation in which it believes an applicant may have a religious belief that conflicts with a work requirement, it can simply inform the applicant that it will make reasonable efforts to accommodate employees' religious practices, describe the relevant job duties, and then ask the applicant if she believes she can perform those duties. See generally EEOC - Best Practices for Eradicating Religious Discrimination in the Workplace, Reasonable Accommodation of Religious Beliefs and Practices, Employer Best Practices (attached at Addendum pp.21-24), available at http://www.eeoc.gov/policy/docs/best_practices_religion.html (last visited Jan. 20, 2012); EEOC Compliance Manual, No. 915-008, Section 12 - Religious Discrimination, at 12-IV(A) (July 22, 2008) (attached at Addendum pp.14-19), available at http://www.eeoc.gov/policy/docs/religion.html (last visited Jan. 20, 2012). By so acting, employers can engage in just the type of narrowly- tailored interactive process intended under Title VII, and avoid making decisions based on stereotypes or assumptions about an individual's religious beliefs.<16> Abercrombie points to a number of instances where, it contends, the district court failed to examine the evidence in the light most favorable to the company. AtBr.33-38. However, Abercrombie fails to identify how any of these contested factual conclusions are "material" to the case. See id. Nevertheless, none of these assertions indicate the district court's ruling was incorrect. For example, Abercrombie argues that there is evidence that Elauf was aware of the Look Policy, suggesting that at the time of her interview she was aware that headscarves were not permitted under that policy. AtBr.34. However, there is no evidence-and Abercrombie does not even argue-that Elauf was aware that the Look Policy forbade headwear. At the interview Cooke only read Elauf the abbreviated version of the Look Policy provided in the company's interview guide, which does not mention any items that an employee may not wear at work, including headgear, and there is no evidence that Cooke explained the Look Policy to Elauf as prohibiting headscarves. Supp.App.45, 49, 56, 61-62. Nor is there any evidence that prior to her interview, any other individual informed Elauf that she could not wear a headscarf while working at Abercrombie. Relatedly, Abercrombie asserts that the court was required to conclude that Sepahvand did not discuss Elauf's headscarf with Cooke prior to the interview. AtBr.34-35. Abercrombie ignores, however, Sepahvand's uncontradicted testimony that she discussed Elauf's headscarf with McJilton, another Assistant Manager at Abercrombie, that McJilton told Sepahvand that Elauf's headscarf would be fine so long as it was not black, and that Sepahvand then provided Elauf this information. Supp.App.181. Elauf similarly testified that Sepahvand told her that wearing a headscarf would be allowed at Abercrombie so long as it was not black. Supp.App.17. While it is true that Sepahvand testified that she discussed this with McJilton (Supp.App.181), and Elauf testified that Sepahvand said she discussed this with Cooke (Supp.App.17-18), this dispute is immaterial. There is no dispute that Elauf was informed by Sepahvand, prior to the interview, that her wearing a headscarf was acceptable to Abercrombie management. Accordingly, there is no evidence suggesting that Elauf had any reason to believe that her headscarf had not already been approved by Abercrombie, or that Elauf had any reason to ask any questions about her headscarf at the interview. Abercrombie claims that because Cooke testified that she "assume[d]" Elauf was Muslim and that her headscarf was worn for religious reasons, and did not actually "know" these facts, the court was required to conclude that Cooke did not "know" Elauf's religion. AtBr.35-36. It is uncontested that Cooke correctly interpreted Elauf's wearing a headscarf as indicating that she is Muslim and wore the headscarf for a religious purpose. As such, even if the district court had stated only that Cooke "assumed" Elauf was Muslim and wore a headscarf because of her religious belief because Elauf's headscarf "signif[ied]" to Cooke that Elauf was Muslim-Cooke's testimony on this point, Supp.App.48, 56-the court would still be correct that it was uncontested that Abercrombie was on sufficient notice of Elauf's religious belief. Abercrombie also asserts that the official who decided not to hire Elauf-Johnson-knew nothing of Elauf's religion or that she wore a headscarf for religious reasons. AtBr.37. This proposition is immaterial. It is uncontested that Cooke was aware of Elauf's religion and that she wore her headscarf for religious reasons. Regardless of whether it was Cooke or Johnson who failed to take the necessary steps to consider reasonable accommodation of Elauf's religious belief, it is uncontested that Abercrombie was aware of Elauf's religious practice and failed to even consider any possible accommodation options. Abercrombie claims that the district court erred in concluding that the interactive process failed because Abercrombie failed to initiate it. See AtBr.36. However, it is well established that the burden of initiating the accommodation process is on the employer. Toledo, 892 F.2d at 1488-90. It is uncontested that Cooke was aware of Elauf's religious belief and its conflict with the Look Policy, but failed to pass this information along to Johnson or HR as required so the company could explore accommodation options.<17> II. The District Court Properly Concluded that No Reasonable Jury Could Conclude that Abercrombie Would Suffer an Undue Hardship if It Permitted Elauf to Wear a Headscarf At Work. Once a plaintiff presents sufficient evidence to establish a prima facie case of an employer's failure to reasonably accommodate a religious belief, the burden shifts to the defendant to prove that it was unable to provide such accommodation without suffering undue hardship on the conduct of its business. Toledo, 892 F.2d at 1486. If, as happened here, the employer makes no effort to accommodate an individual's religious beliefs before taking action against her, liability attaches unless the employer "shows that no accommodation could have been made without undue hardship." Id. at 1490; see also id. at 1492 (concluding that the employer's failure to show that "accommodation of [the employee's] religious practices without undue hardship was impossible" resulted in liability). "Absent this showing, failure to attempt some reasonable accommodation would breach the employer's duty to initiate accommodation of religious practices." Id. at 1490. Determining whether a particular accommodation would cause an undue hardship is a case-by-case factual inquiry. Id. (citing Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 134 (3d Cir. 1986)). While the employer is not required to incur more than a de minimis hardship, "[a]ny proffered hardship . . . must be actual; '[a]n employer . . . cannot rely merely on speculation'" to meet its burden of proof. Id. at 1492. As this Court approvingly described another circuit's explanation of this burden, "'a claim of undue hardship cannot be supported by merely conceivable or hypothetical hardships . . . [and t]he magnitude as well as the fact of hardship must be determined by examination of the facts of each case.'" Id. (quoting Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1243 (9th Cir. 1981)). Similarly, the Eighth Circuit, sitting en banc, recognized that "[a]ny hardship asserted, furthermore, must be 'real' rather than 'speculative,' 'merely conceivable,' or 'hypothetical.' An employer 'stands on weak ground when advancing hypothetical hardships in a factual vacuum. 'Undue hardship cannot be proved by assumptions nor by opinions based on hypothetical facts.'" Brown v. Polk County, Iowa, 61 F.3d 650, 655 (8th Cir. 1995) (en banc) (citations omitted). It is uncontested that Abercrombie failed to even consider whether it could reasonably accommodate Elauf's religious belief before deciding not to hire her. Johnson, the District Manager, testified that the manner by which Abercrombie approaches reasonable accommodation of individuals' religious beliefs is by referring the matter to HR to make the accommodation decision, and that he has never referred any such matter-including Elauf's situation-to HR. Supp.App.76-77. Nor, according to Abercrombie, did Cooke refer the religious conflict issue to either Johnson or HR, despite Cooke's being aware of Elauf's religious belief and the conflict it posed with the Look Policy. As a result, Abercrombie can only survive summary judgment by presenting evidence that it would be impossible for it to reasonably accommodate Elauf's religious belief without suffering undue hardship. Toledo, 892 F.2d at 1490. As the district court correctly recognized, given the purely hypothetical and speculative nature of Abercrombie's undue hardship evidence, Abercrombie failed to meet this burden. First, it must be noted that over the last few years Abercrombie has provided employees with exactly the reasonable accommodation sought by Elauf-permission to wear a headscarf for religious reasons while performing the Model position-without any indication that any harm resulted. See supra, at 6-7 (exceptions), 12-17 (Abercrombie's witness testimony regarding undue hardship). If Abercrombie's assertion of undue hardship were correct, these multiple Look Policy exceptions would reveal exactly how detrimental to the conduct of its business such exceptions truly are. Yet Abercrombie has not identified a single adverse effect it has actually suffered from any of these instances-either to its sales, to its "brand," or otherwise. See AtBr.38- 52. Given Abercrombie's inability to identify a single harm it has actually suffered by permitting a tiny fraction of its Models to wear headscarves as reasonable accommodations-eight out of 70,000- 100,000, Supp.App.79, 81-it is not surprising that Abercrombie's witnesses were unable to identify any nonspeculative or nonhypothetical harm that would result from similarly accommodating Elauf's religious belief. Abercrombie's expert witness, Joachimsthaler, opined that an employee wearing a headscarf "can negatively impact the brand and can impact sales," but would not go so far as to state that such a harm "would" in fact occur, because "[y]ou never know for sure." Supp.App.170 (emphasis added). Joachimsthaler added that such certainty could be gained from "comprehensive empirical research"-in fact, this is exactly what Abercrombie asked him to perform, "comprehensive empirical research" on the potential impact "on sales performance" of employees wearing headscarves-yet he was still uncertain in his conclusion. Supp.App.170, 174. Joachimsthaler was supposed to examine the impact of permitting employees to wear headscarves on Abercrombie's sales performance. Supp.App.174. Yet he admitted that he knew Abercrombie had been permitting employees to wear headscarves, that he was unaware of any studies on whether Abercrombie's sales had been impacted by these exceptions, and that he himself did not undertake any such study.<18> Supp.App.170, 173. Joachimsthaler's other opinions were no less speculative. Joachimsthaler testified that Abercrombie's permitting employees to wear headscarves could be either "a foolish thing or a smart thing to do," as "it could be foolish for a brand but smart for business, for-for doing additional sales." Supp.App.171-72. Joachimsthaler further asserted both that "one exemption from the Look Policy could result in a breakdown of [Abercrombie's] control over the in-store brand experience," and that Abercrombie's granting such exceptions would not break down the company's control over the brand "[b]ecause . . . they are in control." Supp.App.173. Abercrombie's management officials were just as speculative. Yoakum, Abercrombie's Director of Stores, Human Resources, testified that permitting Elauf to wear a headscarf would have caused undue hardship because "if we accommodate every request for accommodation that we receive, that could negatively impact that store experience for our customers." Supp.App.175-76 (emphasis added). Despite being Abercrombie's Director of Stores, Human Resources, Yoakum was unaware that Abercrombie had been permitting employees to wear headscarves for religious purposes, and was similarly unaware of and/or had not seen any measurement, study, or report by Abercrombie on any adverse impact from these exceptions. Supp.App.176-78. The basis for Yoakum's opinion was simply "[her] own personal experience" where she has "walked into stores that have Look Policy exceptions, ones that we have dealt with, and the experience is different." Supp.App.177. Yoakum did not describe, however, whether the Look Policy exceptions she experienced were analogous to permitting Elauf to wear a headscarf, if the exceptions she witnessed caused any actual harm to Abercrombie, or if Abercrombie's actual practice of permitting Models to wear headscarves had caused the harm she speculated. Similarly, Riley, Abercrombie's Group Vice President for Human Resources, Stores, testified that other than the Joachimsthaler report, Abercrombie had not studied how deviating from the Look Policy might impact how customers view Abercrombie. Supp.App.79, 83. Moorefield, Abercrombie's Director of Stores, testified that while Abercrombie conducts audits of its stores, he was not aware of any effort by Abercrombie to examine the audit scores to see if they correlated with a store's lower sales. Supp.App.33. Moorefield further testified that Abercrombie uses "Secret Shopper" reports to evaluate its stores, but admitted that in trying to correlate a drop in sales with a lower score in the "properly dressed" category (presumably corresponding to a violation of the Look Policy), "you're guessing essentially." Supp.App.31, 34-36. Moorefield added that he has never done any type of statistical analysis to try and make such a determination. Supp.App.36. Moorefield stated that Abercrombie has data on numerous factors relating to a store's operation. Supp.App.37. However, when asked if Abercrombie tries to draw a correlation between all this data and the store's sales performance, and to isolate whether a drop in the "properly dressed" score causes a drop in sales, Moorefield could only opine that he "believed" that there was such a correlation and could not provide any specific examples. Supp.App.38. Moorefield also stated that while he had concluded in some instances that poor enforcement of the Look Policy led to decreased sales, he did not record that conclusion anywhere, could not provide any examples, did not describe the type of Look Policy violation that led to this conclusion (such as whether the violation he witnessed was analogous to wearing a headscarf), and never did any type of mathematical calculation in reaching that conclusion. Supp.App.39. Viewing all of this evidence in the light most favorable to Abercrombie, no reasonable jury could conclude that providing Elauf with a reasonable accommodation would have caused it to suffer an undue hardship. Despite having every opportunity to present evidence of its actual practice of permitting Models and other employees to wear headscarves as reasonable accommodations for their religious beliefs, Abercrombie instead relied only on speculative, hypothetical opinions. As such, Abercrombie has failed to satisfy this Court's well-established requirement that evidence of undue hardship rise above the level of the speculative and theoretical and into the realm of the actual. Abercrombie argues that permitting exceptions to the Look Policy would "eliminate" an "essential function" of the Model position. AtBr.41-42. This argument is both legally and factually infirm. First, the legal basis for this "essential function" argument is completely inapplicable to Title VII religious accommodation cases. Abercrombie's argument is based on the Americans with Disabilities Act's ("ADA") unique statutory provision that limits its protections in large part to individuals who are able to perform a job's "essential functions" with or without reasonable accommodation. See AtBr.41-42 (citing exclusively to ADA decisions and regulations); 42 U.S.C. § 12111(8) (attached at Addendum p.3) (defining the term "qualified individual" as someone "who, with or without reasonable accommodation, can perform the essential functions of the employment position"). The ADA does not require employers to eliminate a job's "essential function" as a reasonable accommodation. Davidson v. Am. Online, Inc., 337 F.3d 1179, 1190, 1192 (10th Cir. 2003). There is no corresponding concept of "essential functions" under Title VII, either in the context of defining who is covered by the statute or in regard to an employer's obligation to provide reasonable accommodation for an applicant's or employee's religious practice absent undue hardship. See 42 U.S.C. § 2000e(j) (attached at Addendum p.7) (defining the term "religion"). The only consideration under Title VII relevant here is its requirement that the employer demonstrate that it is unable to reasonably accommodate an individual's religious belief without suffering undue hardship on the conduct of its business, and that the employer make such a demonstration through presentation of evidence that shows that the undue hardship is actual, not speculative, hypothetical, or theoretical. Title VII does not carve out a category of job duties that are entitled to special treatment, as does the ADA with its term "essential functions." Under Title VII an employer could be required to eliminate an "essential function" if doing so would not result in an undue hardship. As such, Abercrombie's ADA-based "essential function" argument is legally irrelevant. Abercrombie next asserts that its witnesses' testimony "demonstrated" and "established" that permitting an exception to the Look Policy damages its brand and business. AtBr.43-45. However, as described above, these witnesses' testimony was devoid of any indication that harm would have actually resulted had Abercrombie hired Elauf and permitted her to wear her headscarf at work, and lacks any consideration of Abercrombie's actual practice of having provided exactly such a reasonable accommodation to other employees.<19> See supra, at 49-55. Abercrombie also asserts that the Commission "acknowledged that deviations from the Look Policy damage Abercrombie's brand," but this is incorrect. As Abercrombie identifies in its brief, this supposed "acknowledgement" is attributed to the Commission's statement in the June 29, 2011, motion hearing that "we accept the general principle that in marketing one deviation from the brand could harm the company, could harm the brand." AtBr.45 (quoting App.668) (emphasis added). As is clear from this quotation, the Commission was only agreeing to the general principle that brand damage is possible in such situations-not that it was a certainty, and certainly not that it would have happened here. Abercrombie asserts that it would lose the ability to "uniformly enforce" its Look Policy if it were required to permit Elauf to wear a headscarf at work, because noncompliance with the policy interferes with its ability to enforce the policy, compromising its control of the brand. AtBr.46. As an example, it asserts that because it permitted one employee to wear a yarmulke at work, other employees in other stores "believe[d] that Abercrombie should allow further exceptions to the Look Policy." Id. Even if true, this is hardly a harm suffered by Abercrombie-that employees simply believed it should permit exceptions to the policy. Moreover, highlighting the inconsequential nature of this alleged harm is the fact that the company produced some eighty pages of documented requests for Look Policy exceptions (granted and denied), yet has presented no evidence that granting those exceptions (including several for non-religious purposes) in any way, shape or form diluted its ability to enforce the policy. See Supp.App.88- 168 (HR's Look Policy exception records). Abercrombie's argument here is also in apparent disregard of Joachimsthaler's testimony that granting exceptions would not break down Abercrombie's control over the brand because when it decides to permit exceptions "they [Abercrombie] are in control." Supp.App.173. Abercrombie claims Moorefield and Yoakum cited "specific examples" of Look Policy noncompliance damaging its brand, AtBr.48, but this, too, is incorrect. Abercrombie ignores Moorefield's statement on this point: "Do I have a specific answer or example? No." Supp.App.38. Similarly, Yoakum's general statement that she has "walked into stores that have Look Policy exceptions . . . and the experience is different," AtBr.48, is hardly a specific example of a particular Look Policy exception damaging the company's brand. Abercrombie further asserts that other courts have considered such speculative, general personal opinions as sufficient to establish undue hardship. AtBr.39. However, the one case cited by Abercrombie-EEOC v. GEO Group, Inc., 616 F.3d 265 (3d Cir. 2010)- is directly at odds with this Court's Title VII jurisprudence. As Abercrombie admits, the court in GEO found summary judgment for the defendant was appropriate on undue hardship grounds based on speculative evidence. See AtBr.39; GEO, 616 F.3d at 278 (Tashima, J., dissenting) (characterizing the relevant witness testimony as "highly speculative"). This, however, is exactly the type of evidence this Court has held cannot satisfy the employer's undue hardship burden.<20> See Toledo, 892 F.2d at 1492 (speculation insufficient to show undue hardship). Furthermore, GEO permitted the employer-a private company running a prison-to be more speculative in its conclusions about the possible safety ramifications of the accommodation sought, given not only the safety element at issue in that case but also the unique nature of the prison environment. 616 F.3d at 267, 274-75. Neither of these unusual, unique considerations is at issue in the present case. Abercrombie also argues that it is not required to show "economic harm" in order to prove undue hardship. AtBr.39. The Commission does not disagree. However, Abercrombie has not presented evidence that even the slightest of harm-economic or otherwise-would have resulted from its permitting Elauf to wear a headscarf at work. Abercrombie similarly claims the district court erroneously required it to prove undue hardship "in economic terms and with exactitude" and through a "formal empirical study," AtBr.49-50, because the court faulted Abercrombie's witnesses for failing to account for the fact that it has repeatedly provided the reasonable accommodation that Elauf would need, and their failure to present any evidence whatsoever regarding the harm, if any, that resulted from those repeated accommodations. This is hardly requiring a showing of economic harm with "exactitude" or on the basis of formal empirical study. Rather, the court properly recognized that Abercrombie's witness testimony failed to account for Abercrombie's history of repeatedly providing the very accommodation it now claims would visit undue hardship on the conduct of its business. Abercrombie asserts that it made these other exceptions to avoid litigation and "in spite of the associated harm." AtBr.50-51. However, the reason Abercrombie granted these exceptions is irrelevant to whether the exceptions in fact resulted in undue hardship to the company-a proposition in support of which Abercrombie offers no evidence. Additionally, while Abercrombie states that it was undisputed that these other exceptions were allowed "in spite of the associated harm," AtBr.51, the Commission has consistently argued that there is no evidence that any actual harm has resulted, or would result, from permitting such exceptions. Abercrombie is also incorrect in claiming that the district court "punished Abercrombie for making exceptions," and this will dissuade employers from granting requests for accommodation out of fear that granting one accommodation will bar the employer from asserting undue hardship in any other case. AtBr.51-52. This is simply nonsensical. To the contrary, when an employer provides a reasonable accommodation and incurs an undue hardship as a result, such evidence of actual harm would potentially support its position in a similar case, not necessarily undermine it. Abercrombie also asserts that the other headscarf accommodations it provided were "approved only after Abercrombie determined that the accommodation would not distract from the brand," and that Elauf was not "similarly situated" to those individuals. AtBr.52. These assertions are meritless. First, Riley, the Abercrombie official attributed with making the former assertion, did not so testify. At the cited page, Riley actually testified that HR officials who "initially field[] a call" from a manager regarding a possible reasonable accommodation issue have the authority to authorize an accommodation "as long as it's not going to distract from the brand." App.69. Riley was not asked, and did not testify, about the individuals who have been permitted to wear headscarves. See id. Second, Abercrombie has offered no evidence that Elauf was not similarly situated to the eight other Models who were permitted to wear headscarves as religious accommodations. AtBr.52. The record evidence-that Abercrombie permitted eight other Models to wear headscarves as reasonable accommodations for their religious beliefs, just as Elauf needed to be reasonably accommodated-supports exactly the contrary conclusion, that there was no meaningful difference between the reasonable accommodation Elauf needed and the reasonable accommodation the eight other Models were provided, apparently without undue hardship. III. The District Court Properly Excluded from the Damages Trial Evidence Challenging the Sincerity with Which Elauf Held Her Religious Beliefs. During the damages trial, the district court granted the Commission's motion in limine to exclude testimony, evidence, or argument regarding Islamic religious beliefs or practices unrelated to the wearing of a headscarf, as well as other individuals' interpretations of Islamic religious requirements including those pertaining to the wearing of headscarves. App.207-13 (motion); 683-87 (district court's ruling). The court observed that Abercrombie was attempting to introduce evidence on an issue (namely, the sincerity of Elauf's religious beliefs) that had already been resolved on summary judgment. See App.683-87. The court concluded that this evidence was irrelevant to the amount of harm Elauf suffered as a result of Abercrombie's discriminatory action, and that, even if it did have some minimal relevance its probative value on damages was sufficiently outweighed by its prejudicial effect to warrant exclusion. App.687. The court's preclusion of this line of cross-examination was appropriate under the circumstances and well within its discretion. "Under Rule 403, the district court may exclude evidence if its 'probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .'" United States v. Call, 129 F.3d 1402, 1405 (10th Cir. 1997) (quoting in part Fed. R. Evid. 403). As this court has long, and frequently, recognized, "[t]he trial court has broad discretion to determine whether prejudice inherent in otherwise relevant evidence outweighs its probative value." United States v. Esch, 832 F.2d 531, 535 (10th Cir.1988) (citing United States v. Neal, 718 F.2d 1505, 1509-10 (10th Cir.1983)). In addition, "[t]he determination of whether evidence is relevant lies 'within the sound discretion of the trial court, and the court's determination will not be disturbed absent a clear showing of an abuse of that discretion.'" Esch, 832 F.2d at 535 (quoting in part Neal, 718 F.2d at 1510). Therefore, this Court will not reverse a district court's decision to exclude certain evidence absent a "'definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.'" Id. (quoting Wolfgang v. Mid- America Motorsports, Inc., 111 F.3d 1515, 1526 (10th Cir.1997)). Here, there is no indication that the district court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances when it precluded this line of cross-examination during the damages trial. The district court rejected Abercrombie's argument that the level of Elauf's devotion to her faith was sufficiently probative on the question of whether she suffered emotional harm (and how much harm) as a result of Abercrombie's refusing to hire her because of her religious belief. Abercrombie refused to hire Elauf because she wears a headscarf in observance of her religion. Under these circumstances, the level of her devotion to other tenets of her religion was irrelevant to the harm she suffered as a result of Abercrombie's actions. Moreover, permitting Abercrombie to attempt to impugn Elauf's religious devotion and suggest that she did not have a bona fide religious belief could have substantially prejudiced Elauf by casting her in an unfavorable light before the jury, on the basis of a substantive question that was already resolved in favor of the Commission. Under these circumstances, it is hard to imagine that Abercrombie sought to cross-examine Elauf on the depth of her religious devotion for any other reason. Accordingly, the court acted fully within its discretion in excluding this line of cross- examination. Abercrombie has not argued to the contrary on appeal. The company has offered no argument that the court's weighing of the potential harm as greater than the probative value was somehow an abuse of discretion. See AtBr.54-56. In fact, this portion of its brief makes no mention of the touchstone elements of a challenge to a court's Rule 403 ruling, such as "probative value," "substantially outweighed," "unfair prejudice," or, perhaps most importantly, "abuse of discretion." See AtBr.55-57; see also Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) ("Arguments inadequately briefed in the opening brief are waived."). Nor has Abercrombie explained how, if the court did err as claimed, such error was anything but harmless. See McInnis v. Fairfield Cmtys., Inc., 458 F.3d 1129, 1142 (10th Cir. 2006) ("Even assuming the district court abused its discretion in excluding evidence, we must also determine whether the exclusion was harmless error because 'we will not set aside a jury verdict unless the error prejudicially affects a substantial right of a party.'") (citation omitted). Instead, Abercrombie argues that it should have been permitted to introduce this evidence because it is the province of the jury to determine witness credibility and the company therefore should have been permitted to challenge Elauf's credibility on the question of her level of devotion to her religion. AtBr.55-57. Abercrombie argues that "juries are entitled to evaluate the credibility of a plaintiff and draw inferences upon which to base an award of damages for emotional distress," citing no fewer than five cases in support of the unremarkable proposition that juries may take the credibility of a victim into account when determining damages. See AtBr.55-57 (citing cases). But simply because evidence may go to the credibility of a witness does not divest a court of discretion to preclude the evidence for some other reason. Furthermore, Abercrombie's argument on appeal is directly contrary to the position it took in the district court-that it was not seeking to present this evidence in order to challenge the credibility of Elauf. At trial, Abercrombie specifically and unequivocally argued that in pursuing this line of cross-examination "[w]e're not trying to attack her credibility or anything else." App.686. Notwithstanding the complete and total inconsistency between what Abercrombie argued to the district court and what it now argues on appeal, Abercrombie has failed to identify how the district court's exercise of its discretion on this issue constituted a clear error of judgment or exceeded the bounds of permissible choice in the circumstances. Conclusion For the aforementioned reasons, the Commission respectfully requests that this Court affirm the district court's summary judgment ruling and uphold the jury's damages award. Statement Regarding Oral Argument The Commission believes that oral argument would assist this Court in its examination of the fact-intensive questions presented in this appeal. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel DANIEL T. VAIL Acting Assistant General Counsel s/ James M. Tucker JAMES M. TUCKER Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov Certificate of Compliance and Digital Submission I hereby certify that this brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure 32(a)(7)(B). This brief contains 13,281 words, from the Statement of Related Cases through the Conclusion, as determined by the Microsoft Word 2003 word processing program, with 14-point proportionally spaced type for text and 14- point proportionally spaced type for footnotes. I further certify that all required privacy redactions (in this document, none) have been made to this document, that this ECF submission is an exact copy of the brief filed in hard copy with the Court, and that this digital submission has been scanned for viruses with the most recent version of a commercial virus scanning program, Trend Micro OfficeScan, and, according to that program, is free of viruses. s/ James M. Tucker JAMES M. TUCKER Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov Certificate of Service I hereby certify that on January 20, 2012, this document was electronically served on the counsel listed below via the Court's ECF Notice of Docket Activity system at their electronic addresses of record: Knueve, Mark A., Esq. maknueve@vorys.com Clark, Daniel J., Esq. djclark@vorys.com Fungsang, Joseph C., Esq. jfungsang@vorys.com Brightmire, Jon E., Esq. jbrightmire@dsda.com I further certify that on this same date, seven hard copies of the foregoing brief were submitted to the Clerk of Court, United States Court of Appeals for the Tenth Circuit, Byron White U.S. Courthouse, 1823 Stout St., Denver, CO 80257. s/ James M. Tucker JAMES M. TUCKER Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov ********************************************************************************** <> <1> Defendant-Appellant Abercrombie & Fitch, Inc., d/b/a Abercrombie Kids, is referred to throughout this brief as "Abercrombie." <2> The terms "hijab" and "headscarf" are used interchangeably throughout this brief, as there is no material difference between the terms for purposes of this appeal. <3> Abercrombie claims that a hijab is designed to be noticed. Appellant's Brief ("AtBr.") 14. However, none of Abercrombie's record cites support this assertion. Moreover, while deposing the Commission's expert witness on Islam, Abercrombie's counsel stated that he was "retreat[ing] from saying [that hijabs are] designed to be noticed." Supp.App.3. <4> Elauf was twenty years old at the time of her deposition. Supp.App.11. <5> In 2008, Abercrombie employed between 70,000-100,000 Models nationwide. Supp.App.79. <6> In 2010, Abercrombie instructed its managers that "[i]f any applicant or associate requests an exception to the Look Policy for religious or disability reasons . . . please contact human resources immediately." Supp.App.81, 84-86. This instruction resulted from Abercrombie's internal discussions in 2010 regarding permitting employees to wear headscarves for religious reasons. Supp.App.85-86. At that time, Abercrombie was permitting Models to wear headscarves as religious accommodations so long as the headscarf was in one of Abercrombie's core colors, such as Navy, only came down to the shoulders, and did not involve any face covering. Supp.App.85. <7> It is uncontested that applicants are not required to be in compliance with the Look Policy at the time of the interview. Supp.App.80. <8> Johnson's testimony is inconsistent with the position Abercrombie took during the Commission's investigation of Elauf's charge of discrimination, wherein Abercrombie asserted that it was "Cooke [who] decided that Ms. Elauf was not qualified for a Model because both her head covering and the color of her covering violated the Look Policy." Supp.App.56. <9> Cooke provided a quite different account of her exchange with Johnson. Cooke testified that when Johnson told her not to hire Elauf because of her headscarf, she informed him that Elauf wears a headscarf for religious reasons, and Johnson replied by telling Cooke that she still could not hire Elauf "because someone can come in and paint themselves green and say they were doing it for religious reasons, and we can't hire them." Supp.App.51. Cooke stated that she believed Elauf was Muslim, "which was a recognized religion . . . and that she was wearing [a headscarf] for religious reasons." Supp.App.51. Johnson again told Cooke not to hire Elauf. Supp.App.51. Cooke further testified that Johnson directed her to lower Elauf's interview score in the category of appearance and style from a "two" to a "one," thereby making Elauf's overall score "five" and rendering her ineligible for hire. Supp.App.54; see also Supp.App.64 (Elauf's interview score sheet). <10> Joachimsthaler offered the same opinion regarding the effect of permitting male Jewish employees to wear yarmulkes-despite the fact that Abercrombie routinely does so, see supra, at 6, and that Abercrombie's Vice President for Human Resources, Stores, testified that her "HR team" "strongly felt" yarmulkes "did not distract from our styling." Supp.App.82, 174. <11> Abercrombie incorrectly asserts that the district court impermissibly made a credibility determination and "held as a matter of law that Elauf's beliefs were sincere, stating that 'it's difficult to conceive why anyone would wear a hijab unless they had a sincere religious belief.'" AtBr.54 (citing App.612). This is incorrect. What the district court actually said was "[w]ell, some would argue that it's difficult to conceive why anyone would wear a hijab unless they had a sincere religious belief that they must do so. Your response?" App.612 (emphasis added). Thus, at that hearing, the only ruling the court made in regard to Elauf's religious belief was that it "was not convinced that Abercrombie has raised a genuine issue of material fact" on this point. App.649-50. <12> Abercrombie asserts that the evidence of Elauf's other religious practices goes to "credibility." See AtBr at 53-54. However, as noted above-and displayed by Abercrombie's lack of citation to any evidence suggesting that Elauf's wearing of her headscarf was not for a religious reason- Elauf's other religious practices have no bearing on whether Elauf wears a headscarf for a religious reason. See Ilona of Hung., 108 F.3d at 1575. <13> Abercrombie has not contested that Cooke was an agent of Abercrombie such that her awareness of Elauf's religious belief is fully attributable to Abercrombie. See 42 U.S.C. § 2000e(b) (defining "employer" to include "any agent" of the employer) (attached at Addendum p.6); Sauer v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993) ("'[A]n individual qualifies as an 'employer' under Title VII if he or she serves in a supervisory position and exercises significant control over the plaintiff's hiring, firing, or conditions of employment.'") (citation omitted). <14> Abercrombie's disregard for the actual holdings of these decisions is further displayed by its incorrect description of Dixon as "consider[ing] the question" and ruling that "an applicant or employee must inform the employer" of the religious belief in order to establish a prima facie case. See AtBr.22 (emphasis added by Abercrombie). To be sure, in Dixon the court described the notice element of the prima facie case just as this Court has in Thomas, Toledo, and other decisions, as requiring evidence that the aggrieved individual "informed" the employer of his or her belief. Dixon, 627 F.3d at 856. Nevertheless, the Court did not limit satisfaction of the notice element to situations where the individual with the religious belief affirmatively "informed" the employer of the religious belief. The Court noted there was "ample evidence" the plaintiffs' supervisor was otherwise aware of the plaintiffs' religious belief, and held the supervisor's "awareness" of the religious belief sufficient to establish notice. Id. <15> Since this interpretation by the Commission of its own regulations is neither plainly erroneous nor inconsistent with these regulations, and there is no indication that this interpretation does not reflect the Commission's fair and considered judgment on the matter, this interpretation is "controlling" and entitled to deference. Auer v. Robbins, 519 U.S. 452, 461 (1997); Qwest Corp. v. Colo. Pub. Util. Comm'n, 656 F.3d 1093, 1098 (10th Cir. 2011). <16> There is no merit to Abercrombie's claim that adopting the district court's approach will unleash a torrent of litigation regarding the assumptions of the employer. See AtBr.33. That the employer had notice of the individual's religious belief is always a fact to be proved in Title VII religious accommodation cases, and the paucity of appellate decisions addressing the type of notice circumstances present in this case strongly suggests that there is no such impending flood of litigation. <17> Abercrombie also faults the district court for stating that Cooke contacted Johnson because she was uncertain whether Elauf would need an accommodation, and because Cooke "never testified about an 'accommodation.'" AtBr.36. Abercrombie misses the point. Regardless of whether Cooke used the word "accommodation" with Johnson, it is uncontested that Cooke was aware that Elauf wore a headscarf for religious reasons, that Johnson told Cooke not to hire Elauf because of her headscarf, and that neither official took the proper steps for HR to consider whether Elauf's religious belief could be reasonably accommodated. <18> Abercrombie claims the district court incorrectly characterized Joachimsthaler's testimony as speculative because he did not analyze data to corroborate his opinion. AtBr.49. As stated above, however, Joachimsthaler did not in fact study any data relating to the effect on sales, brand, or otherwise on Abercrombie's actual experience in permitting employees to wear headscarves. <19> Curiously, Abercrombie asserts that permitting exceptions to the Look Policy would be akin to a "clothing retailer allow[ing] a fashion model to wear an off-brand headscarf in a television commercial." AtBr.45. Abercrombie is ignoring that the Look Policy explicitly permits Models to wear non-Abercrombie clothing at work, so long as such clothing is "not clearly that of a competitor" and is otherwise consistent with the Abercrombie "style." See Supp.App.68-69 (Look Policy). <20> While Abercrombie cites GEO for the proposition that "some courts have found undue hardship where the harm was speculative," AtBr.39, Abercrombie fails to acknowledge this Court's rejection in Toledo of speculation as sufficient to show undue hardship, except in the rarest of cases where the religious belief is so "completely incompatible" with the job that it would be futile for the employer to attempt to resolve the conflict, see 892 F.3d at 1489. This is not such a case, and Abercrombie has not argued otherwise.