No. 09-3093 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff/Appellant, v. THE GEO GROUP, INC., Defendant/Appellee. _______________________________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania _______________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _______________________________________________________ JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ELIZABETH E. THERAN Attorney New York State Bar No. 4020079 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . .iii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . .1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 23 CERTIFICATE OF BAR MEMBERSHIP. . . . . . . . . . . . . . . . . 24 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 24 CERTIFICATE OF IDENTICALLY FILED BRIEFS. . . . . . . . . . . . 24 CERTIFICATE OF VIRUS CHECK . . . . . . . . . . . . . . . . . . 25 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Anderson v. Gen. Dynamics Convair Aerospace Div., 589 F.2d 397 (9th Cir. 1978). . . . . . . . . . . . . . . . . . . . . . . . 9 Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986). . . . . . . . . . . . . 5 Brown v. Gen. Motors Corp., 601 F.2d 956 (8th Cir. 1979). . . . . . . . . . . .9 Brown v. Polk County, Iowa, 61 F.3d 650 (8th Cir. 1995). . . . . . . . . . . . 9 Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004). .11, 12, 14-15 Cook v. Chrysler Corp., 981 F.2d 336 (8th Cir. 1992). . . . . . . . . . . . 9 Draper v. United States Pipe & Foundry Co., 527 F.2d 515 (6th Cir. 1975). . . 10 EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569 (7th Cir. 1997). . . . . . . . . 5 Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . 19 Goldman v. Weinberger, 475 U.S. 503 (1986). . . . . . . . . . . . . . . . . . 20 Harris v. City of Phila., 35 F.3d 840 (3d Cir. 1994). . . . . . . . . . . .7, 13 Kelley v. Johnson, 425 U.S. 238 (1976). . . . . . . . . . . . . . . . . . . . 20 Protos v. Volkswagen of Am., Inc., 797 F.2d 129 (3d Cir. 1986). . . . .9, 14, 21 Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220 (3d Cir. 2000). . . 5 Sturgill v. United Parcel Serv., Inc., 512 F.3d 1024 (8th Cir. 2008). . . . . .9 Tooley v. Martin-Marietta Corp., 648 F.2d 1239 (9th Cir. 1981). . . . . . .9, 14 Webb v. City of Phila., 562 F.3d 256 (3d Cir. 2009). . . . . . . . . . . .passim STATUTES & RULES 42 U.S.C. § 2000e(j). . . . . . . . . . . . . 5-6 29 C.F.R. § 1605.2(e). . . . . . . . . . . . 14 Fed. R. App. P. 32(a)(5). . . . . . . . . . . .24 Fed. R. App. P. 32(a)(6). . . . . . . . . . . .24 Fed. R. App. P. 32(a)(7)(B). . . . . . . . . 24 3d Cir. L.A.R. 28.3. . . . . . . . . . . . . . 24 3d Cir. L.A.R. 31.124,. . . . . . . . . . . . 25 OTHER AUTHORITIES 3d Cir. Model Civil Jury Instructions, Ch. 1: Preliminary Instructions for Use at Commencement of Trial and/or at End of Trial . . . . . . . . . . . 7 Islamic Institute of Toronto: Ask the Scholar, at http://www.islam.ca/answers.php?id=255. . . . . . . . . . . . . . . . . . 4 INTRODUCTION The Commission alleges that The GEO Group, Inc. ("GEO") violated Title VII when it denied its Muslim female employees a religious accommodation to its dress code that prohibited all head coverings, including the khimar, a religious head scarf. The district court granted summary judgment for GEO, holding, based on this Court's decision in Webb v. City of Philadelphia, 562 F.3d 256 (3d Cir. 2009), that "it is permissible for the employer of personnel working within a prison to refuse to permit a Muslim employee to wear a head covering while on duty." I-JA-6-7 (Memorandum ("Mem.") at 1-2). In our opening brief ("EEOC-Br."), we argued that the district court erred in granting summary judgment to GEO because there was more than sufficient evidence in the record from which a reasonable jury could find that the three class members in this case held sincere religious beliefs that required them to wear their khimars in public, that GEO failed to offer a reasonable accommodation for those beliefs, and that several such accommodations existed that would not have constituted an undue hardship for GEO. We also argued that this Court's decision in Webb was not outcome-determinative in this case because the factual and legal premises in Webb were distinguishable from this case in a number of respects. In particular, we noted that there were significant, material distinctions between the police department context and that of a privately run prison, and that GEO had not only failed to make the kind of showing in this case that the defendant had in Webb with respect to a critical, historical, public-context-driven need for total uniformity of appearance, but had never even asserted the justifications that were proffered in Webb until the summary judgment stage of this litigation, after the Webb decision was published. In its brief as Appellee ("GEO-Br."), GEO misconstrues the Commission's legal arguments in a number of respects and repeatedly seeks to expand the factual record and its legal arguments beyond what were before the district court. In urging this Court simply to adopt its version of the facts and to disregard the Commission's evidence, GEO also appears to have lost sight of the fact that this appeal is from a grant of summary judgment. We submit this reply brief to clarify the factual record and to respond to GEO's legal arguments. ARGUMENT 1. As we explained in our opening brief, EEOC-Br. 28 n.4, GEO's argument below that it offered Ms. Sharpe-Allen, or any of the other claimants in this case, a reasonable accommodation by offering to allow her to wear a "hairpiece" instead of a khimar is entirely without merit because wearing a hairpiece would not eliminate the religious conflict for any of the claimants. Nonetheless, GEO reiterates the same argument on appeal, claiming that, because the claimants testified that their faith required them to "cover their hair," any hair covering should have sufficed. GEO-Br. 14. This argument is both factually specious and contrary to the existing law on reasonable accommodation. The class members did not testify that their faith simply required them to cover their hair, and only their hair, by any means possible. When they testified that they were required to cover their hair in public, they explained that the source for this requirement was the Koran, their religious instruction in the Koran, and the religious sources interpreting the Koran. See, e.g., II-JA-42 (Sharpe-Allen testimony that the dress requirements for her religion are "[t]o guard my modesty, to cover my hair mostly. Well, to cover my whole body, but definitely have to cover my hair."); id. at 43 (testifying that she learned these requirements "from the classes that I have attended, . . . [and from m]y Koran. I learned that from the books of Hadith and other books that were written."); II-JA-151-52 (Moss testimony that "In the Koran, which is the book that we follow, . . . it has different [allahs] which are like, verses, in it, and some of them say that women must draw their cloaks over their bodies or veil their bodies, guard their modesty, all through it. . . . You are supposed to wear a Kamir to cover your head, and you are supposed to wear a form of dress that guards your shape . . . ."); II-JA-28-29 (King testimony that the Koran teaches "to hide your shame," meaning "to cover your body," including "your hair, your neck, your breast and you could wear shirts that cover — that comes down to mid-thigh. So you're basically covering your shape.").<1> In fact, Sharpe-Allen testified specifically that, when Warden Nardolillo asked her if she would be willing to wear a hairpiece, she told him that she was not because she had "no recollection of ever hearing" that a hairpiece met the Islamic requirements for women's head coverings, and that Nardolillo's understanding in that regard was "incorrect." II-JA-58 (Sharpe-Allen dep. 120). In short, it is simply irrelevant whether GEO, or Nardolillo, believes that a hairpiece should have been sufficient to meet the Islamic religious requirements for all of its Muslim employees.<2> A hairpiece would not have eliminated the religious conflict for the class members as a matter of both religious doctrine and their sincerely held beliefs, and, accordingly, any offer of permission to wear a hairpiece cannot suffice as a reasonable accommodation in this case. See, e.g., Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70 (1986) (holding an accommodation reasonable where it "eliminates the conflict between employment requirements and religious practices"); Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220, 226 (3d Cir. 2000) (observing that a proffered accommodation was reasonable "because it eliminated the religious conflict"); EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1576 (7th Cir. 1997) (holding that employer's "offered accommodation cannot be considered reasonable [] because it does not eliminate the conflict between the employment requirement and the religious practice"). 2. Next, GEO argues that allowing the three class members to wear their khimars to work as a reasonable accommodation would have constituted an undue hardship because it would have involved unacceptable safety and/or security risks and because, even apart from the potential risks, it would have caused GEO to incur more than de minimis costs. We begin by noting that it is GEO's burden to show that there is no genuine dispute of material fact on this point, not only as the moving party on summary judgment, but because it is the employer who bears the burden of demonstrating undue hardship as an affirmative defense under Title VII. See 42 U.S.C. § 2000e(j) ("The term ‘religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee's . . . religious observance or practice without undue hardship on the conduct of the employer's business.") (emphasis added); Webb, 562 F.3d at 259. Under these circumstances, in order to prevail as the movant on summary judgment, GEO was required to present evidence that would compel a reasonable jury to find that GEO proved its defense of "undue hardship." The record on summary judgment reveals that GEO failed to meet this burden of proof. GEO's principal point with respect to its safety and security argument is that, even if there had not been a single documented (or even rumored) occurrence of an altercation with an inmate or a smuggling incident involving a khimar, or any other headgear, at GWHCF, the mere possibility that there might be one in the future was sufficient grounds for GEO to refuse categorically any and all religious accommodations pertaining to headgear. As we explained in our opening brief, with respect to GEO's adoption of the headgear policy as one of general applicability, we agree that this is a measure that GEO had a right to take. EEOC-Br. 35-36, 38. However, the issue here, on summary judgment, is whether there was evidence in the record from which a reasonable jury could find that the requested accommodation would not have imposed more than a de minimis burden on GEO's operations because it would not have presented a significant safety or security threat. Based on the evidence in the record with regard to the actual or prospective threat posed by these employees and their khimars at GWHCF, it is abundantly clear that a jury would not be compelled to find in GEO's favor on this point, and accordingly summary judgment was inappropriate. The contents of the Camp expert report, which GEO admits it never challenged in district court for purposes of summary judgment (GEO-Br. 31), are precisely such evidence.<3> As we explained in our opening brief, based on data from incidents at GWHCF as well as Nardolillo's and Holm's deposition testimony, among other sources, Camp concluded that GEO had "no sound legitimate correctional reason" for not allowing its Muslim female employees to wear khimars within the secure perimeter of the facility. III-JA-219 (Camp Report at 2); EEOC-Br. 17-21. Camp observed that there was, in essence, nothing that could be hidden in a khimar, or done with a khimar, that couldn't be hidden in or done with any number of clothing items that prison employees, and prisoners, wore all the time; that prison employees could easily wear khimars in such a way as to allow for ready identification; and that prison employees who would be involved in use of force actions could remove their khimars prior to engaging in them if the risk of strangulation was at all a concern in that context. III-JA-227-28 (Camp Report 10- 11). Camp concluded by listing four different reasonable accommodations that GEO could have offered the class members had it at all been interested in doing so, and by noting that, with only one exception, "[a]ll of the other jurisdictions that I spoke with permit staff to wear uniform caps and or hats within their facilities," including jurisdictions in eight states, the District of Columbia, and the Federal Bureau of Prisons, and that "both New York City and the District of Columbia correctional systems permit correctional officers and other female employees to wear the khimar within the secure perimeter of their facilities without adverse consequences." III-JA-228, 230 (Id. at 11, 13). Moreover, as we noted in our opening brief (EEOC-Br. 40), the three class members in this case had already been wearing their khimars to work, in some cases for years, without any incident, problem, or "close call" at the time GEO instituted its zero-tolerance policy. When this Court spoke in Webb and Protos about "focus[ing] on the specific context of each case, looking to both the fact as well as the magnitude of the alleged undue hardship," this is exactly what was meant: a detailed analysis of the specific interests and facts actually at issue in the case at hand. See Webb, 562 F.3d at 260; Protos, 797 F.2d at 134. As the Eighth Circuit has put it, "[a]ny hardship asserted [] must be ‘real' rather than ‘speculative,' . . . ‘merely conceivable,' or ‘hypothetical[.]'" Brown v. Polk County, Iowa, 61 F.3d 650, 655 (8th Cir. 1995) (quoting Cook v. Chrysler Corp., 981 F.2d 336, 339 (8th Cir. 1992), and Tooley, 648 F.2d at 1243). "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.'" Id. (quoting Brown v. Gen. Motors Corp., 601 F.2d 956, 961 (8th Cir. 1979), and Anderson v. Gen. Dynamics Convair Aerospace Div., 589 F.2d 397, 402 (9th Cir. 1978)); see also Sturgill v. United Parcel Serv., Inc., 512 F.3d 1024, 1033 n.4 (8th Cir. 2008) (same). While employers are certainly free to be proactive in their rulemaking, the case law makes it clear that they are not free to conjure up the specter of a hypothetical, nonexistent safety or security risk and use it as the basis for denying reasonable accommodations on the basis of religion. See, e.g., Draper v. United States Pipe & Foundry Co., 527 F.2d 515, 521-22 (6th Cir. 1975) (rejecting employer's claim that accommodating employee's religious beliefs would present an unacceptable safety risk because "[t]he evidence demonstrates [] that [the safety risk in question was] not the unavoidable by-product of any accommodation to Draper's religious beliefs. On this record, we believe that the Company has not proved that accommodation would have caused safety problems amounting to undue hardship."). Indeed, the "admittedly absurd" hypothetical example regarding nuclear weapons that GEO proffers in its brief (GEO-Br. 34-35) illustrates this point very aptly. The very reason the example of nuclear weapons is absurd is because the logistics of smuggling a nuclear weapon into a prison facility — given the difficulty of procuring nuclear weapons, their size and weight, the challenge of concealing them, the handling they require, etc. — makes the prospect of a serious nuclear-weapon contraband problem at GWHCF remote indeed. If, hypothetically, the warden were to adopt some measure to preclude the introduction of nuclear weapons into the prison, it would be entirely within the warden's rights to do so, although it might well seem strange in light of the remoteness of the risk. But if the warden were then to use the smuggling of nuclear weapons as a justification for the denial of a religious accommodation such as the wearing of a khimar, it would be virtually impossible for the prison to show that allowing that accommodation would present an undue hardship with respect to the problem of nuclear-weapon-smuggling. In fact, that justification would be so patently absurd that it would certainly allow a reasonable jury to conclude that it was a pretext for religious discrimination — much as Camp concluded that the evidence in this case allowed for a similar conclusion here. III- JA-228-29 (Camp Report 11-12). GEO also tries to argue in its brief that, even though it had allowed both the class members themselves and female visitors to GWHCF to wear khimars in the prison for years, entirely without incident, these facts should have no bearing on the question of whether it would now present an undue hardship for GEO to accommodate the class members. See GEO-Br. 22, 18. With respect to both the class members and female visitors, this point fails. GEO attempts to rely on Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 135-36 (1st Cir. 2004), for the proposition that "the fact that Ms. Allen was initially permitted to wear the khimar is irrelevant," but Cloutier does not stand for this proposition. Cloutier involved an employee's Title VII challenge to her employer's grooming policy that did not allow the wearing of facial jewelry, for which it was undisputed that the sole basis was personal appearance. 390 F.3d at 135. The First Circuit found that the employer had a legitimate interest in having its employees present a professional appearance that did not include facial jewelry, and that it would be an undue hardship for the employer to be required to allow Cloutier to wear her facial jewelry on religious grounds. Id. at 137. The First Circuit also found unpersuasive Cloutier's arguments that she had worn her facial jewelry on the job in the past and had not received any complaints about it or had it affect her job performance, observing that "[e]ven if Cloutier did not personally receive any complaints about her appearance, her facial jewelry influenced Costco's public image and, in Costco's calculation, detracted from its professionalism." Id. at 135. In this case, however, the fact that female Muslim employees at GWHCF had worn khimars in the secured areas of the facility for so long without any incident whatsoever is evidence from which a reasonable jury could find that allowing them to continue to do so would not present an undue hardship to GEO on safety or security grounds. Whereas, in Cloutier, as the First Circuit explained, whether or not Cloutier received any complaints was not determinative of whether her appearance in fact influenced her employer's public image, in this case the incident-free history of khimar-wearing at GWHCF is relevant to the question of whether the khimar presents a significant safety or security threat. Similarly, GEO argues that its history of allowing khimar-wearing female visitors to GWHCF does not undermine its undue hardship showing because visitors "only [need] to be searched and identified once upon arrival to, and once upon departure from the prison visitation area, as visitors cannot move freely throughout the facility." GEO-Br. 18. By the same token, however, whereas a visitor to the prison could literally be anyone, prison employees are individuals who are well known to the prison administrators, who have undergone background checks and pre-employment screening, and who, in some cases, have worked at the prison for years. To the extent that it was feasible to allow khimar-wearing visitors to enter GWHCF safely on a daily basis, this evidence is certainly relevant to the question of whether it presents an unacceptable risk to allow khimar- wearing employees to do the same. GEO next argues, in essence, that even if a jury were to find that allowing the class members to wear their khimars to work did not present an unacceptable safety or security risk, the financial or logistical aspects of accommodating them would impose more than a de minimis burden on GEO's operations. GEO premises virtually this entire argument<4> on the content of Deputy Warden Holm's affirmation. See GEO-Br. 18; III-JA-285-86 (Holm Affirmation). However, as we already pointed out in our opening brief, EEOC-Br. 39-40, Holm's testimony in his affirmation was both speculative and totally generic and conclusory, making no attempt to address the specific facts at issue in this case beyond the layout of the prison itself, such as the daily routines of the class members and the safety and security risks that their specific jobs and routines would have presented. GEO's only response to this point is simply to call this argument "false," GEO-Br. 30, without any substantive rebuttal. The EEOC's Guidelines on Discrimination Because of Religion provide that "[t]he Commission will determine what constitutes ‘more than a de minimis cost' with due regard given to the identifiable cost in relation to the size and operating cost of the employer, and the number of individuals who will in fact need a particular accommodation." 29 C.F.R. § 1605.2(e). As one court has put it, "[a] claim of undue hardship cannot be supported by merely conceivable or hypothetical hardships; instead, it must be supported by proof of ‘actual imposition on co-workers or disruption of the work routine.' The magnitude as well as the fact of hardship must be determined by the examination of the facts of each case." Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1243 (9th Cir. 1981); see also Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 134 (3d Cir. 1986) (quoting Tooley); Cloutier, 390 F.3d at 135 (observing that an employer can prove undue hardship "by examining the specific hardships imposed by specific accommodation proposals") (internal citations and quotation marks omitted); EEOC-Br. 38-39. The testimony in Holm's affirmation, which fails to address how many employees are affected, what their daily routines are and how much they move about within the secured areas of the prison, and, above all else, why they would need to be searched continually within the secured area of the facility while other employees wearing equally problematic garments for security purposes (such as jackets and socks) would not, does not even come close to carrying this burden.<5> Accordingly, on summary judgment, with the facts in the record viewed in the light most favorable to the EEOC as the nonmoving party, a reasonable jury could readily find that the class members' request to continue wearing their khimars to work did not constitute an undue hardship for GEO on safety or security grounds and that it would not impose more than de minimis costs. It was GEO's burden to establish that a jury would have been compelled to find undue hardship at the summary judgment stage, and this it patently failed to do. 3. GEO appears (GEO-Br. 23-27) to have completely misunderstood the Commission's argument with respect to GEO's shifting rationale on uniformity of employee appearance at GWHCF. The Commission's point here obviously is not that Nardolillo and Holm never mentioned uniformity of appearance as a motivation for adopting the zero-tolerance headgear policy prior to summary judgment; in fact, we explained in several places in our opening brief that they testified about it in their depositions. See EEOC-Br. 4, 6, 33. Rather, our point is that GEO never, prior to the summary judgment phase of this litigation, proffered any of the kinds of reasons articulated in Webb for why total uniformity of appearance was so important to the undue hardship analysis in that case: neither the critical need for "impartiality, or more precisely, the perception of [] impartiality by citizens of all races and religions whom the police are charged to serve and protect," nor "the essential values of impartiality, religious neutrality, uniformity, and the subordination of personal preference." Webb, 562 F.3d at 261. In stark contrast to the highly specific justifications for police officers' uniformity of appearance identified in Webb, the sum total of Nardolillo's and Holm's testimony on this point was that prison employees were wearing New York Yankees and other non-standard baseball caps and headgear, that the wardens "didn't like it" and thought the caps "weren't appropriate to the uniform" and "didn't look well," and that the wardens wanted the policy changed for those appearance-related reasons, and no others that they identified. II-JA-78 (Nardolillo), 183, 184 (Holm); GEO-Br. 24-26. In fact, Nardolillo testified that, while "inconsistency of the head gear that everybody decided to wear in the prison in conjunction with their uniform" was one reason for the policy, "more importantly, we felt it was an instrument that could conceal contraband, i.e., drugs, and be brought into the prison." II-JA-82 (emphasis added). This is the basis upon which a jury could find that GEO's shifting appearance rationale was a pretext for religious discrimination: not because Holm and Nardolillo had never mentioned appearance in general before summary judgment, but because they themselves described their appearance rationale only as secondary and as an esthetic preference for their employees not wearing non-standard-issue items like baseball caps. In the wardens' own accounts of why baseball caps and other headgear were unacceptable, terms like "impartiality," "perception of impartiality," "religious neutrality," "morale," and "esprit de corps" were never a part of the discourse; it was only after this Court's decision in Webb came along when they suddenly made an appearance and were elevated to the level of a compelling interest. On a related subject, we note that GEO's attempt to portray the Camp Report as endorsing its argument that it was justified in denying the class members a reasonable accommodation based on appearance concerns is utterly specious. In his expert report, Camp commented that he concurred with Nardolillo's "appearance concerns about employees wearing a non-uniform, non-GEO issued cap," stating in the next sentence that "I concur with this concern in that uniformed employees should wear only agency issued visible items." III-JA-226 (Camp Report 9) (emphasis added). However, a legitimate concern for employees being in uniform does not preclude the wearing of khimars, as Camp ultimately concluded in stating that "GEO's attempt to legitimize the prohibition of the khimar by linking it to the prohibition of caps and hats fails on all counts." III-JA- 228 (Id. at 11). In short, GEO's attempt to take one sentence from the Camp Report out of context to support its argument fails; Camp unmistakably concluded that GEO had no legitimate penological basis for prohibiting khimars at GWHCF. 4. Finally, we respond briefly to what we understand of GEO's argument with respect to the implications of this Court's Webb decision for this case. As we have already explained, supra at 16-17, with respect to the uniformity of appearance rationale, there is a world of difference between the detailed, specific reasons given by Commissioner Johnson as to why uniformity was so critical for the police officers in Webb and the mere expression of that preference as a secondary concern by the wardens in this case. We also note, as we pointed out in our opening brief (EEOC-Br. 36-38), that there are significant differences between employees working exclusively inside a jail and police officers or members of the military. Prison employees' authority extends only within their workplace, and the roles and dress of the people within that prison — inmates, administrators, officers, medical staff — are limited in number and type. Many of the uniformity- related concerns recognized by this Court in Webb that turn on being in a public environment and serving the public at large simply do not apply to the prison context. Finally on this point, we note again that this Court emphasized in Webb that "Commissioner Johnson's testimony was not contradicted or challenged by Webb at any stage in the proceedings," 562 F.3d at 261, whereas the wardens' testimony in this case was thoroughly challenged by the Camp expert report and by the class members. However, GEO also maintains (GEO-Br. 28-29) that Webb somehow stands for the proposition that its proffered safety and security rationales are sufficient to carry its summary judgment burden on undue hardship in this case. This reading of Webb is simply incorrect. Insofar as GEO may merely be making the point that this Court observed, in Webb, that safety can be an extremely important interest in general and in the police context in particular, we agree. See Webb, 562 F.3d at 262 (observing that this Court has "recognized that ‘safety is undoubtedly an interest of the greatest importance' to the police department and that uniform requirements are crucial to the safety of officers (so that the public will be able to identify officers as genuine, based on their uniform appearance), morale and esprit de corps, and public confidence in the police") (quoting Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 366 (3d Cir. 1999)). Indeed, the Commission has never disputed that safety and security in general are extremely important concerns in any context, including a prison, and that, if the record here established that there was no genuine dispute of material fact that the wearing of khimars at GWHCF presented a legitimate safety or security concern for the defendant, it would be able to establish undue hardship. However, neither Webb nor any of the other cases cited by this Court therein or by GEO stands for the premise that the mere invocation of a hypothetical safety or security concern, without substantiation, is sufficient to establish an undue hardship under Title VII. Kelley v. Johnson, 425 U.S. 238 (1976), involved a police officer's constitutional (Fourteenth Amendment) challenge to a police department's hair-length policy, brought under the Civil Rights Act of 1871; there were no religious values at issue, and the question was therefore solely whether the policy had a rational basis, which the Court found that it did. And Goldman v. Weinberger, 475 U.S. 503, 507 (1986), involved an Air Force serviceman's First Amendment challenge to a military prohibition on wearing a yarmulke, in a context where the Court observed that "[o]ur review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society." Neither of these cases arose under Title VII, and both involved either the military or police contexts where there was sufficient record evidence to meet the extremely deferential standard in question (rational basis review) with respect to the safety interests served by the regulations at issue. As we explained in our opening brief, EEOC-Br. 36 n.7, and as this Court has acknowledged repeatedly, religious accommodation cases are intensely fact- specific and the question of undue hardship is particularly dependent on the unique context of each case. See Webb, 562 F.3d at 260; Protos, 797 F.2d at 134. Certainly, we are not suggesting that, in every case, an employer would have to adduce evidence of actual smuggling or safety incidents involving a khimar in order to justify a true zero-tolerance policy; where substantial harm is realistically foreseeable, no one expects that an employer should actually wait for it to occur before taking steps to prevent it. But what is at the heart of this case, as in every case where "safety" or "security" is the proffered justification for the affirmative defense of undue hardship, is just how realistically foreseeable and probable that harm is, in this case, on this record. Here, the issue at hand comes down to whether the extremely remote possibility of a safety or security incident involving a khimar — where there is no evidence suggesting otherwise — is sufficient to justify denying the class members their Title VII rights to continue wearing their khimars to work, as they have done for years at this workplace without any incident or problem whatsoever. At the summary judgment stage, the record reflects this: that there has never been an incident at GWHCF involving any form of headgear whatsoever, much less a khimar; that even the wardens are unaware of any incident anywhere involving a khimar; that they are free to continue their zero-tolerance policy with respect to baseball caps and other non-religious headgear regardless of whether they grant a reasonable accommodation with respect to khimars; and that GEO could easily have granted the claimants any number of reasonable accommodations had it been willing to do so, but that Nardolillo did not even entertain the possibility. This is nowhere near enough to compel a jury finding of undue hardship, and accordingly the district court erred in granting summary judgment to GEO in this case. CONCLUSION For the foregoing reasons and the reasons stated in the EEOC's opening brief, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ____________________________ ELIZABETH E. THERAN Attorney New York State Bar No. 4020079 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov CERTIFICATE OF BAR MEMBERSHIP Pursuant to Third Circuit L.A.R. 28.3(d), I certify that, as an attorney representing an agency of the United States, I am not required to be admitted to the bar of this Court. I also certify that all other attorneys whose names appear on this brief likewise represent an agency of the United States and are also not required to be admitted to the bar of this Court. See 3d Cir. L.A.R. 28.3, comm. cmt. December 1, 2009 _____________________________ Elizabeth E. Theran Counsel for Appellant EEOC CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 5,720 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. December 1, 2009 _____________________________ Elizabeth E. Theran Counsel for Appellant EEOC CERTIFICATE OF IDENTICALLY FILED BRIEFS Pursuant to L.A.R. 31.1(c), I certify that the text of the electronically filed version of this brief is identical to the text of the hard copies of the brief filed with the Court. December 1, 2009 _____________________________ Elizabeth E. Theran Counsel for Appellant EEOC CERTIFICATE OF VIRUS CHECK Pursuant to 3d Cir. L.A.R. 31.1(c), I certify that a virus check using Symantec AntiVirus version 10.1.6.6000 was performed on the electronic version of this brief on December 1, 2009, prior to electronic filing with the Court, and that no virus was detected. December 1, 2009 _____________________________ Elizabeth E. Theran Counsel for Appellant EEOC CERTIFICATE OF SERVICE I, Elizabeth E. Theran, hereby certify that I filed one original and nine hard copies of the foregoing brief with this Court, in addition to electronically filing the foregoing brief with the Court via the appellate CM/ECF system, this 1st day of December, 2009, by overnight delivery, postage pre-paid. I also certify that the following counsel of record, who have consented to electronic service, will be served the foregoing brief via the appellate CM/ECF system: Counsel for Defendant/Appellee: Walter F. Kawalec III, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 200 Lake Drive East, Suite 300 Cherry Hill, NJ 08002 (856) 414-6024 wfkawalec@mdwcg.com December 1, 2009 _____________________________ Elizabeth E. Theran Counsel for Appellant EEOC *********************************************************************** <> <1> The class members' testimony on the Islamic requirements for head coverings is entirely consistent with Islamic scholarly interpretations of the Koranic requirements. See, e.g., Islamic Institute of Toronto: Ask the Scholar, at http://www.islam.ca/answers.php?id=255 (observing that "the specific verse on Hijaab in the Qur'an [provides]: 'And tell the believing women to lower their eyes, and guard their modesty, and that they display not their ornaments except what appears of them. And that they draw their scarves (khumurihinna) over their bosoms...' . . . The word used in this context is khumur which has been variously translated as veils or scarves; the latter is more precise for it is the plural of khimaar, which has been defined as 'a woman's head covering; a piece of cloth with which a woman covers her head.'"). <2> Whether, as GEO points out (GEO-Br. 6), another of its Muslim employees found a "hairpiece" of some kind to be adequate to meet her religious needs and requirements is entirely irrelevant to the question of whether it was sufficient to meet the needs of the class members in this case. The record reflects nothing about who that employee was, what sect of Islam she belonged to, or how observant she was, and, in any case, GEO has never contested the sincerity of the class members' beliefs in this case. <3> While GEO attempts to dismiss its failure to address the Camp report below as "trivial," for summary judgment purposes Camp's report and his expertise were a part of the district court record, uncontested except in small part by the Holm Affirmation. Defense counsel cannot now (GEO-Br. 31-40) seek to offer its own personal opinions of Camp's report for the first time, on appeal, as a means of challenging either the admissibility or the weight of that evidence, as these arguments were never raised below and, in any case, arguments of counsel, without record support, are not evidence. See, e.g., Harris v. City of Phila., 35 F.3d 840, 845 (3d Cir. 1994) (observing that "[t]his court has held consistently that it will not consider issues that are raised for the first time on appeal," and noting that "[t]his general rule 'applies with particular force where the timely raising of the issue would have permitted the parties to develop a factual record'") (internal citation and quotation marks omitted); cf. 3d Cir. Model Civil Jury Instructions, Ch. 1: Preliminary Instructions for Use at Commencement of Trial and/or at End of Trial, at 9 (listing as "not evidence" "[s]tatements, arguments, and questions of the lawyers for the parties in this case"). GEO also argues that Nardolillo's and Holm's testimony constitute a "challenge" to the Camp report. GEO-Br. 31-32. Camp's report, which was dated November 25, 2008, was prepared based on the materials listed in Appendix D, which included Nardolillo's and Holm's deposition testimony, and the report incorporated Camp's professional opinion of the wardens' testimony and the lack of a basis for the justifications they offered for denying the class members a reasonable accommodation. III-JA-276. In any case, to the extent that there was a conflict between the substantive opinion expressed in Camp's report and those expressed by Holm and Nardolillo, this illustrates precisely why summary judgment was inappropriate in this case: because there is, at minimum, a genuine dispute of material fact as to whether a reasonable accommodation was feasible. <4> Admittedly, GEO raises at least one objection to one of Camp's proposed accommodations that was not articulated by Holm in his affidavit, or by anyone else prior to GEO's brief on appeal: that, if GEO were to allow Muslim female employees to wear one khimar inside GWHCF and another outside, it would "require the installation of at least two sets of locker facilities," and that the construction costs of such facilities would constitute an undue hardship. GEO-Br. 39. This argument appears to have sprung from defense counsel out of whole cloth, as it contains no citation to the record, and, as far as we are aware, does not exist in the district court record. Accordingly, as it is totally unsupported by record evidence, it warrants no consideration. See supra n.3; Harris, 35 F.3d at 845. <5> Amazingly, GEO faults Camp's expert report for "ignoring the unrebutted affirmation of Warden Holm" that purports to reject Camp's proposed accommodations on these grounds. GEO-Br. 38. Of course, Holm's affirmation was dated nearly two months after Camp's report, so Camp could not have responded to it in his report.