____________________________________________ 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 _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _______________________________________________________ JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER 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 . . . . . . . . . . . . . . . . . . . . . . . . . . .iv STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF RELATED CASES & PROCEEDINGS . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . .2 A. Course of Proceedings . . . . . . . . . . . . . . . . . . . . . . 2 B. Statement of the Facts . . . . . . . . . . . . . . . . . . . . . 2 C. District Court's Decision . . . . . . . . . . . . . . . . . . . . 23 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26 A REASONABLE JURY COULD FIND THAT THE DEFENDANT VIOLATED TITLE VII BY REFUSING TO ACCOMMODATE THE CLAIMANTS' SINCERELY HELD RELIGIOUS BELIEFS WHERE THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT PERMITTING THEM TO WEAR THEIR KHIMARS IN THE WORKPLACE WOULD NOT HAVE RESULTED IN UNDUE HARDSHIP . . . . . . . . . . . . . . . 26 A. Title VII's Prohibition on Religious Discrimination . . . . . . . 26 B. Webb v. City of Philadelphia . . . . . . . . . . . . . . . . . . 29 C. The Privately Run Jail/Prison Context . . . . . . . . . . . . . . 32 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 CERTIFICATE OF BAR MEMBERSHIP . . . . . . . . . . . . . . . . . . . . . 42 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . 42 CERTIFICATE OF IDENTICALLY FILED BRIEFS . . . . . . . . . . . . . . . 42 CERTIFICATE OF VIRUS CHECK . . . . . . . . . . . . . . . . . . . . . . . .43 CERTIFICATE OF SERVICE JOINT APPENDIX, VOL. I TABLE OF AUTHORITIES CASES Abramson v. William Paterson Coll. of N.J., 260 F.3d 265 (3d Cir. 2001) . .34 Aman v. Cort Furniture Rental Corp., 85 F.3d 1074 (3d Cir. 1996) . . . . 24 Anderson v. Liberty Lobby, 477 U.S. 242 (1986) . . . . . . . . . . . . . . 24 Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986) . . . . . . . . 27-28 Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999) . . . . . . . . . . . . . . . . 30-31, 37 Goldman v. Weinberger, 475 U.S. 503 (1986) . . . . . . . . . . . . . . . . 30 Kelley v. Johnson, 425 U.S. 238 (1975) . . . . . . . . . . . . . . . . . . 30 Marino v. Indus. Crating Co., 358 F.3d 241 (3d Cir. 2004) . . . . . . . . 24 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) . . 24 Protos v. Volkswagen of Am., Inc., 797 F.2d 129 (3d Cir. 1986) . . . .passim Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220 (3d Cir. 2000) .28 Tooley v. Martin-Marietta Corp., 648 F.2d 1239 (9th Cir. 1981) . . . . . . 38 Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1976) . . . . . . passim Union Pac. R.R. v. Greentree Transp. Trucking Co., 293 F.3d 120 (3d Cir. 2002) . . . . . . . . . . . . . . . . . . . .24 United States v. Bd. of Educ., 911 F.2d 882 (3d Cir. 1990) . . . . . . 33-34 Webb v. City of Philadelphia, 562 F.3d 256 (3d Cir. 2009) . . . . . . passim Webb v. City of Philadelphia, No. 05-5238, 2007 WL 1866763 (E.D. Pa. Jun. 27, 2007) . . . . .16, 17 STATUTES 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 42 U.S.C. §§ 2000e et seq . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 26 42 U.S.C. § 2000e(j) . . . . . . . . . . . . . . . . . . . . . . . . . . 26 RULES Fed. R. App. P. 32(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . 42 Fed. R. App. P. 32(a)(6) . . . . . . . . . . . . . . . . . . . . . . . . . 42 Fed. R. App. P. 32(a)(7) . . . . . . . . . . . . . . . . . . . . . . . . . 42 3d Cir. L.A.R. 28.1 . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 2 3d Cir. L.A.R. 28.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 3d Cir. L.A.R. 31.1(c) . . . . . . . . . . . . . . . . . . . . . . . . 42, 43 OTHER AUTHORITIES Section 12, Religious Discrimination, 2 EEOC Compliance Manual (2008), at http://www.eeoc.gov/policy/docs/religion.html . . . . . . . . 35-36, 38-39 The GEO Group, Inc.: Who We Are, http://www.thegeogroupinc.com/about.asp (last visited Aug. 10, 2009) . . .2-3 Delaware County Prison, http://www.co.delaware.pa.us/depts/prison.html (last visited Sept. 10, 2009) . . . . . . . . . . . . . . . . . . . . . . . 3 Shahada (Faith): First Pillar of Islam, http://www.religionfacts.com/islam/practices/shahada-faith.htm (last visited Aug. 28, 2009) . . . . . . . . . . . . . . . . . .6 n.2 STATEMENT OF JURISDICTION This is an enforcement action brought by the Equal Employment Opportunity Commission (hereinafter "EEOC" or "Commission") pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e et seq. The district court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1345. Final judgment was entered on May 18, 2009. I-JA-4.<1> The EEOC filed a timely notice of appeal on July 17, 2009. I-JA-1. This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF ISSUE Whether a reasonable jury could find that the defendant violated Title VII by failing to offer the three claimants in this case a reasonable accommodation to its no-headgear policy based on their sincerely held religious beliefs that required them to wear khimars in public. This issue was raised and argued by the EEOC in multiple places throughout the proceedings below, including the Complaint (II-JA- 13), the EEOC's Cross Motion for Summary Judgment & Response Brief in Opposition to Defendant's Motion for Summary Judgment (R.18 at 5-18), and the EEOC's Supplemental Brief After Third Circuit Decision in Webb v. City of Philadelphia (R.28 at 3-4). The district court ruled on this issue in its Memorandum and Order of May 18, 2009 (I-JA-6-7). See 3d Cir. L.A.R. 28.1. STATEMENT OF RELATED CASES & PROCEEDINGS This case has not previously been before this Court. The EEOC is unaware of any other case or proceeding that is in any way related, completed, pending or about to be presented before this court or any other court or agency, state or federal. See 3d Cir. L.A.R. 28.1. STATEMENT OF THE CASE A. Course of Proceedings This is an appeal from a final judgment of the district court dismissing this Title VII enforcement action. The EEOC's complaint alleges that the defendant 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. II-JA-13. On May 18, 2009, the district court granted the defendant's motion for summary judgment with respect to all claims. I-JA-5. The district court entered judgment the same day. I-JA-4. The EEOC filed a notice of appeal on July 17, 2009. I-JA-1. B. Statement of the Facts 1. The Defendant and its Uniform Policy The defendant, The GEO Group, Inc. ("GEO Group"), is a private company that, inter alia, provides correctional and detention management services to federal, state, and local government agencies. III-JA-300-01; see also The GEO Group, Inc.: Who We Are, http://www.thegeogroupinc.com/about.asp (last visited Aug. 10, 2009). During the relevant time period for this case, the GEO Group provided correctional services to the George W. Hill Correctional Facility ("GWHCF"), which is located in Thornton, Pennsylvania, and is the Delaware County Prison. II-JA-73 (Nardolillo dep. 26); III-JA-296-97. The GWHCF is responsible for "the incarceration of pre-trial detainees and persons serving a county sentence of two years less one day or a state sentence of five years less one day." See Delaware County Prison, http://www.co.delaware.pa.us/depts/prison.html (last visited Sept. 10, 2009). According to the prison's web site, "[i]n 2008, the prison maintained a daily average population of 1841 residents." Id. According to the GWHCF Policy & Procedure Manual, the Warden "shall establish, implement, and monitor the facility dress code to include grooming standards." III-JA-207 (GEO Group Dress Code). The version of this policy that was in place under Warden Ronald Nardolillo provided that "[t]he GEO Group will provide standardized clothing of a suitable quality and style to staff who are in positions that require uniform dress to ensure the performance of official duties. . . . The 'Uniform' described below is not to be altered, modified, or embellished upon. Only items approved by the Warden will be authorized." Id. The April 2005 version of the policy further specified, inter alia, that scarves "will not be permitted past the Front Security Desk (ION SCAN), and that "[n]o hats or caps will be permitted to be worn in the facility unless issued with the uniform." Id. According to then-Deputy Warden Matthew Holm, no hats had been issued with the prison employees' uniforms since 1998, and there had been no authorized hats for wear inside the prison since that point. II-JA-184 (Holm dep. 75). Holm testified that there were two official GEO caps, one a baseball cap and the other a knit watch cap, that Nardolillo had authorized for wear by "individuals that are assigned to the outside duties of the institution in the wintertime," but that those caps were not to be worn inside the prison. II-JA-185 (Holm dep. 77-78); II-JA-83 (Nardolillo dep. 67-68). Holm testified that, shortly after taking over as deputy warden at GWHCF (i.e., in August 2004), he became concerned about employees wearing inappropriate headgear in the prison. II-JA-169, 183 (Holm dep. 13, 70). He testified that he saw an employee wearing an unauthorized New York Yankees baseball hat inside the prison while in full uniform, and others wearing baseball caps backwards and sideways. II-JA-183 (Id. at 71). Holm testified that the "most obvious" problem with hats and caps was that "the band inside of a baseball cap is an excellent place to hide [a] small amount of narcotics and small amounts of contraband." II-JA-183 (Id. at 71-72). He also noted: [A]nother issue for me . . . is the identification of an individual wearing a hat when they would be inside . . . the secure portion of our institution where we rely heavily on video surveillance. I think we have all seen instances of people that go into banks with a baseball cap, pull it down and the camera can't tell who you are. It distorts the identity of the individual wearing the cap, which to me is an overall safety and security issue for the prison . . . . II-JA-183 (Id. at 72.) When asked if there were any other reasons why hats and caps raised concerns, Holm answered, "No. I mean that, for me, is pretty much my motivation, contraband factors, identification factors of the person wearing the hat, which to me leads directly to the safety and security of the institution." II-JA-183- 84 (Id. at 72-73). Holm later testified that scarves and hoods also presented security risks because "[t]hose are all items that can be taken away from an individual and used against them, in any form of a choking movement. It could be used as a restraint device . . . . Anything that provides a handle to a perspective [sic] assaulter is the issue here, that's the safety aspect of it." II-JA-201 (Id. at 142). On October 24, 2005, Holm issued an all-employee memorandum titled "UNIFORM POLICY." III-JA-215. The memo stated: Reminder! All employees, while on duty, will if required, wear only an official GEO uniform, which adheres to the dress code and standards, described in Policy 300.19. This includes, but [is] not limited to the length of your hair, scarves, hooded jackets, sweatshirts and specifically hats. The following are excerpts form [sic] the policy: "No hats or caps will be permitted to be worn in the facility unless issued with the uniform." "The Uniform described below is not to be altered, modified, or embellished upon. Only items approved by the Warden will be authorized." Those employees not subjected to the uniform policy will adhere to the Facility dress code, which is posted at the Front Entrance Security Post/ION Scan. This means that all hats, caps or religious attire will not be permitted to be worn with your uniform or by non-uniformed employees unless specifically authorized by the Warden. At this time there are no authorized hats, caps or attire, which can be worn inside the jail and there are no exceptions to this policy. Nardolillo testified, when asked about the justification for the new zero- tolerance headgear policy, that "[w]e have had some security issues that were becoming extremely problematic. One primarily being the increased introduction of contraband, specifically drugs, into the institution." II-JA-75 (Nardolillo dep. 34). Nardolillo also added, later in his testimony, that "I realized that staff were just wearing whatever they wanted on their heads and it didn't look well. It was not a uniformed appearance . . . ." II-JA-78 (Id. at 47). 2. The Class Members and Their Employment The Commission pursued relief on behalf of three Muslim female class members in this case. The charging party, Carmen Sharpe-Allen, testified that she officially entered the Muslim faith when she took her shahada,<2> or official conversion, in the mid-1990s, when she was in her twenties. II-JA-37 (Sharpe- Allen dep. 37). Sharpe-Allen testified that she had learned from the Koran and from religious instruction that her religion required her "to guard my modesty, to cover my hair mostly. Well, to cover my whole body, but definitely have to cover my hair." II-JA-39 (Id. at 42). She attended her deposition in the Muslim garb, or hijab, that she wore every day whenever she left the house, and explained that the khimar was the part that covered her hair. II-JA-39 (Id. at 43-44). Sharpe-Allen testified that she had worn the hijab, including the khimar, since she had originally accepted the Muslim faith, and that there were no exceptions in the faith to the requirement that the hijab be worn at all times outside the home. II-JA-39 (Id. at 44-45). Sharpe-Allen testified, however, that she did not wear the full hijab when she worked because she could not wear her overgarments on the job and she "needed to work," so she only wore her khimar at work because "[t]he most important thing is for me to cover my hair." II-JA-40 (Id. at 48). Sharpe-Allen began working in the medical department at GWHCF as a medication nurse in November 2004. II-JA-43, 45 (Id. at 58, 68-69). In early 2005, she applied for and was hired into the position of chronic infectious disease nurse, in which she remained until her termination. II-JA-46, 49 (Id. at 70-71, 82- 83). In her initial job position, she went from cell block to cell block dispensing medication to inmates; after becoming an infectious disease nurse, she worked primarily in the infirmary, working with inmates who had infectious conditions such as hepatitis and HIV, monitoring their medication, working with the prison doctor, and giving the tuberculosis tests for the whole prison. II-JA-49 (Id. at 82- 83). Sharpe-Allen testified that she showed up to her job interview in her full hijab, and that she raised the religious dress issue with the interviewer at the time, telling him that she was willing to adhere to the prison's dress code with respect to wearing the prescribed hospital scrubs, but that she "definitely wasn't compromising her khimar." II-JA-43-44 (Id. at 61-62). She testified that she was told that wearing her khimar would not present a problem and that she was offered the job, and accepted it, on the spot. II-JA-44 (Id. at 64). From November 2004 through mid-July 2005, when Sharpe-Allen went out on medical leave, she wore her khimar to work daily at GWHCF. Sometime in September or October of 2005, as Sharpe-Allen was preparing to return to work, she learned from one or more of her coworkers that GWHCF was not allowing prison workers to wear any hats or head coverings on the job. II- JA-52 (Id. at 95-96). Sharpe-Allen testified that she then spoke with HR manager Sean Lilly about the issue, and that Lilly informed her that she would no longer be able to wear her khimar on the job when she returned to work. II-JA-54 (Id. at 103). Sharpe-Allen testified that she then asked to discuss the issue with Nardolillo. Id. According to Sharpe-Allen, she met with Nardolillo twice, on both occasions showing up for work wearing her khimar. II-JA-60 (Id. at 128). Her testimony, and the documentary records, reflect that she arrived at GWHCF on November 14, 2005, with a return-to-work note authorizing her to return to work as of the next day, and that she had an in-person conversation with Lilly and requested to speak with Nardolillo on that day regarding the wearing of a khimar. II-JA-62 (Id. at 135). According to Sharpe-Allen's testimony, on the same day Lilly gave her various paperwork, including a copy of Holm's all-employee memorandum of October 24, 2005. II-JA-58 (Id. at 119). The second meeting between Sharpe-Allen and Nardolillo occurred on November 16, 2005, in the presence of Lilly and Tamika Wooten, the union shop steward. II-JA-62 (Id. at 136). At this meeting, Sharpe-Allen told Nardolillo that she was willing to return to work in her previous position, but that she was not willing ever to compromise on wearing her khimar. II-JA-61, 62 (Id. at 130, 137). Sharpe-Allen testified that Nardolillo told her that he "wasn't willing to compromise either" and that the "only solution was for me to resign [] or he would terminate me." II-JA-61 (Id. at 130). According to Sharpe-Allen, "I stressed the fact that I have been here and . . . I am doing my job. . . . You know, I've never given you any problem. My khimar hasn't interfered. . . . [T]his is a position that I enjoy doing, you know, once I got into it. And I was making a difference. . . . And it just - he wasn't willing to compromise at all. And he stated that." II-JA-61 (Id. at 131). She testified that Nardolillo told her that, so long as she showed up for work wearing her khimar, she would not be allowed into the building. II-JA-62 (Id. at 137). Sharpe-Allen was subsequently terminated effective December 2, 2005. III- JA-216-17 (Sharpe-Allen Termination Request). The reason given by Nardolillo was that she had "effectively abandoned her job" by "refus[ing] to comply with my directive to return to work without the wearing of her Kimar [sic]." Id. The second claimant, Marquita King, worked as an intake specialist at GWHCF, doing paperwork involved with processing new prisoners into the facility. II-JA-129 (King dep. 51-52). King testified that, in this position, her role was different from that of a correctional officer because she did not have keys to the facility and because she did not interact with the inmates beyond asking them questions as necessary to her job of intake processing. II-JA-129 (Id. at 52). King took her shahada at age 21; at the time this lawsuit was filed, she was 34 years old. II-JA-121 (Id. at 21). King testified that she belongs to the Sunni sect of Islam, which does not require her to wear an overgarment in public but does require her to cover her hair. II-JA-124 (Id. at 31-32). King related that she came to her job interview at GWHCF in July 2000 in full Muslim garb, including an overgarment and her khimar. II-JA-127 (Id. at 42). According to King, the interviewer asked her if, "since we [were] in a prison setting, while I was at work, could I take my veil off because they needed to see my face," and she testified that she responded "yes, I could take the veil off." Id. Nonetheless, King testified that she wore her khimar to work until October 2005, when she learned from a coworker that "there was a problem going on at the prison with the khimars" and subsequently called Nardolillo to follow up. II-JA-128 (Id. at 46). King testified that, during their phone conversation, Nardolillo told her that "if you show up to work, you will be fired if you have a khimar on your head." II- JA-131 (Id. at 61). King related that she pointed out to Nardolillo that she had been hired wearing a khimar, and that she "was just in [his] office last month with my khimar, and there was not an issue with it," but that Nardolillo responded that "he didn't care, this is what he's saying now." II-JA-132 (Id. at 62). King stayed out of work on medical leave for four to six weeks due to stress. II-JA-134 (Id. at 70). She returned to work in late November or early December 2005; when she returned, she did not wear her khimar in the building, although she wore it until she got to the parking lot and took it off on her way into the building. II-JA-134 (Id. at 71). On approximately six occasions, King testified, she was not allowed through the ion scan even carrying her khimar, even though she had taken it off, which meant that she was required to leave it at the front desk for the day. II-JA-144 (Id. at 111-12). As a result, she related, she had two khimars stolen from the front desk that were never returned to her. II-JA-145 (Id. at 115). The third claimant, Rashemma Moss, took her shahada on July 8, 2005, at the age of 21. II-JA-151 (Moss dep. 16). She testified that she belongs to the Salafi sect of Islam, which required her to "guard her modesty" by covering her whole body except for her face and hands. II-JA-151 (Id. at 17). Moss worked at GWHCF as a correctional officer beginning in March 2002, and, beginning in July 2005 after she took her shahada, Moss daily began wearing a triangular headscarf underneath the hat that went with her uniform at the time. II-JA-155, 156-57 (Id. at 31, 36-38.) She testified that she specifically asked her union reps whether there were any problems with wearing religious headcoverings to work at the time, and that they told her no, and that she then notified the various prison officials up the chain of command that she had taken her shahada and that she would need to wear her headcovering to work. II-JA-157 (Id. at 38-39). Moss testified that it was only after she communicated with Nardolillo about the issue in October that she was called into the deputy warden's office, given a copy of the new uniform policy, and notified that headcoverings were no longer permitted. II-JA-157, 159, 160 (Id. at 39, 46, 53). According to Moss, Nardolillo told her that "they weren't just telling me. They were telling the . . . other Muslim females as well, and . . . they told me that I could have been starting a fad or a fashion statement because now others are wearing the same thing that I'm wearing as far as the underscarf and the hat." II-JA-159 (Id. at 48). According to Moss's testimony, when she asked why she couldn't wear her khimar, she was told that "no religion will be honored in the jail. The warden said he doesn't care if it's a Jewish person with a turban on his head or rosary beads around their neck." II-JA- 159 (Id. at 48-49). She further testified: I asked why were the visitors . . . that came in the facility allowed to wear their [khimars] and I wasn't. [Nardolillo] said that that will be stopped, too. I asked him why were the female inmates that were housed at the facility able to wear it. He said, "Due to Title 37, they have the right to freedom of religion." And then I stated, "Well, I'm not incarcerated, so why don't I have a right to freedom of religion?" He said, "Because you're not. No religion will be honored." He said this is the battle that he's choosing to fight. Id. According to Moss, on her way out the door, Nardolillo asked her, "Is it [i.e., wearing the khimar] really that important to you?" and that she answered, "Yes, my religion is important to me. Isn't your religion important to you?" II-JA-160 (Id. at 51-52). Moss testified that Nardolillo answered that "he really didn't think it made that big of a difference." II-JA-160 (Id. at 52). Moss testified that, after her meeting with Nardolillo, the new headgear policy was read to the other correctional officers at roll call. II-JA-161 (Id. at 55). She related that it was a "major topic [of discussion] in the facility" and that her fellow officers were saying that "I was the reason why the policy was changed, I was the reason why nobody's allowed to wear hats, it's my fault. . . . I'm the one who got the blame for people that's been wearing hats for ten years not [being] able to wear a hat anymore." II-JA-161 (Id. at 56). Moss testified that she met with Nardolillo a second time the next day, October 25, 2005. II-JA-162 (Id. at 59). On that day, she showed up to work wearing her hat and underscarf, and was immediately called in to the warden's office, along with her union rep, as soon as she reached the ion scan. II-JA-162 (Id. at 59-60). According to Moss's testimony, "the majority" of the employees she had seen on her way into the warden's office were still wearing hats, even after roll call, but she was singled out for wearing her hat and headscarf. II-JA-162, 163 (Id. at 60-61, 64-65). Nardolillo issued Moss a verbal discipline and told her she had until the end of the day to remove her hat and headscarf. II-JA-164 (Id. at 68). Nardolillo told Moss that if she came in again wearing a headcovering, she would be suspended without pay. Id. Moss continued to work at GWHCF thereafter without her khimar. Under Nardolillo's tenure as Warden, GWHCF had a procedure in place whereby female Muslim visitors were able to visit inmates while wearing khimars. II-JA-102 (Nardolillo dep. 143-44). According to Nardolillo, khimar-wearing visitors were escorted to the ladies' room by a female officer, the visitor would remove her khimar, the officer would make a positive identification and photograph the visitor, and the visitor could then put her khimar back on and be escorted by the officer to the visitation room. II-JA-102-03 (Id. at 144-45). Once the visit was over, Nardolillo testified, the same officer who had done the original identification would escort the visitor back to the ladies' room, remove the khimar, do another identification to ensure that the same person who had entered the facility was leaving it, and then allow the visitor to put on her khimar and leave. II-JA-103 (Id. at 145). When Nardolillo was asked whether he had given "any thought at all . . . to permitting your Muslim female employees to wear a kimar and allow them to undergo the additional security measures that are already in place at GEO for addressing [] Muslim visitors," he answered, "No, I did not." II-JA-103 (Id. at 146-47). 3. Litigation History This lawsuit was filed on September 27, 2007, alleging that the defendant violated Title VII when it denied its Muslim female employees, including charging party Sharpe-Allen, "a religious accommodation to its dress code which prohibited head coverings, including the khimar, a religious head scarf." II-JA-13 (Complaint at 1). The defendant moved for summary judgment in November 2008, arguing that it would constitute an undue hardship as a matter of law to require it to provide such an accommodation. II-JA-10 (district court docket entry); R.14 (Defendant's Motion for Summary Judgment) at 3. The defendant relied heavily on the unpublished decision of the United States District Court for the Eastern District of Pennsylvania in Webb v. City of Philadelphia, No. 05-5238, 2007 WL 1866763 (E.D. Pa. Jun. 27, 2007), in which the district court held that it would constitute an undue hardship to require the defendant police department to accommodate a practicing Muslim police officer who sought to wear a khimar while on duty and in uniform. Webb was denied permission to wear a khimar pursuant to a police department uniform policy known as Directive 78, which "describes in detail the approved uniform for Philadelphia police officers" and does not authorize wearing of religious symbols or clothing as part of the uniform. Webb, 2007 WL 1866763, at *1. In the Commission's opposition to summary judgment and cross-motion for summary judgment, we challenged both the applicability of Webb to this case and the factual safety- and security-related bases underlying the defendant's actual proffered rationale. R.18 (EEOC's Cross Motion for Summary Judgment & Response Brief in Opposition to Defendant's Motion for Summary Judgment) at 12-17. With respect to Webb, we pointed out that the defendant in this case, unlike the Philadelphia Police Department, had advanced safety and security issues relating to contraband smuggling and identifiability of employees, and not a critical need for uniformity of appearance and esprit de corps vis-à-vis its relationship with the general public, as the reasons underlying its no-headgear policy. Id. at 16-17. With respect to GEO's argument that, even apart from Webb, the contraband and safety issues at the prison were so critical that it would constitute an undue hardship to accommodate Muslim female employees who wore khimars, the Commission introduced a Rule 26 expert report authored by George M. Camp of the Criminal Justice Institute.<3> III-JA-218. Camp reviewed a number of documents filed in the case and obtained in discovery, including the prison's own records of incident reports involving contraband between 2003 and 2008, and the testimony of the prison officials. III-JA-276-77 (Camp Report Appx. D). Camp concluded that: (1) GEO's professed reasons for denying any of its female employees the ability to wear a khimar lack merit and substance; (2) GEO made no genuine attempt to, nor reasonable offer of, an alternative method (of which several exist) for accommodating the wearing of the khimar; and (3) There is no sound legitimate correctional reason for GEO to deny its female employees [sic] to wear a khimar within the secure perimeter of the facility. III-JA-219 (Camp Report at 2). As bases for these opinions, Camp pointed to various aspects of the defendant's own data regarding contraband incidents at GWHCF, noting that GEO "offer[ed] absolutely no evidence of any incident in which contraband was secreted in a cap or hat or khimar worn by any employee." III-JA-220 (Id. at 3). Camp noted that "Defendant's own data clearly show that the amount of contraband found by staff did not decrease after April 21, 2005, the date when GEO promulgated its policy to prohibit all employees from wearing either GEO issued caps or caps of any kind, nor did it decrease subsequent to issuing its directive on October 24, 2005, to prohibit its female employees from wearing a khimar." Id. In fact, Camp noted, "[c]omparing the types of serious contraband items reported prior to the change in the khimar policy on October 24, 2005, with a comparable length of time after it was changed, reveals that the number of contraband items found at the facility actually rose by 91 percent." Id. Moreover, Camp pointed out, "not one of the 359 [total] serious contraband reports involved secreting contraband in a cap, hat, or khimar, and only two involved a staff member." III- JA-222 (Id. at 5). Camp also noted that GEO could only identify two incident reports from 2005, prior to the institution of the no-khimar policy, involving staff who were found to be in possession of contraband: one on July 15 in which a correctional officer was "caught bringing in an opened pack of cigarettes, a bag of shrimp, and a bottle of cocktail sauce in his jacket pocket," and the other on August 24 in which a kitchen supervisor was found with "an unopened pack of cigarettes and several latex gloves in his sock." III-JA-224 (Id. at 7) (emphases in original). Camp likewise concluded that there was no reasonable basis for GEO's claim that a khimar would obscure an employee's face to the point where she could not be identified as she moved through the facility. III-JA-226 (Id. at 9). He noted that "a khimar could be worn in such a manner so as not to inhibit visual identification of the employee, and even if it were, the temporary removal of the khimar to verify/confirm the employee's identification could be easily accomplished." Id. Camp also found meritless GEO's rationale that a khimar could be used to obscure an inmate's identity for purposes of escape, finding that a khimar was no more susceptible to use in this manner than any other elements of a prison employee's uniform. III-JA-226-27 (Id. at 9-10). As to the khimar's potential for concealing an inmate's identity during a disturbance, Camp explained, "[w]hile of course a khimar could be used for such a purpose, inmates constantly have available to them many other clothing items that they could (and do) use in such circumstances to avoid detection. They include, for example, towels, sheets, and shirts that institutions throughout the country regularly provide to inmates." III-JA-227 (Id. at 10). Finally, Camp found, GEO's arguments that allowing employees to wear khimars jeopardized their own safety did not come close to justifying banning khimars from the facility. Camp noted that the likelihood of any prison employee, particularly Sharpe-Allen, who worked as a nurse, being strangled by an inmate was "remote at best." III-JA-227 (Id. at 10). In any case, Camp pointed out, to the extent that female correctional officers were more likely to be involved in use of force events at the prison, "it is more than reasonable for the female officer to remove her khimar prior to participating in the use of force event so as to eliminate the possibility of it being used against her. Such an accommodation is also easily accomplished and without lessening the level of security within the facility." Id. Camp also observed that "[i]nmates are issued and have access to many other items of clothing including shirts, socks, [and] pants that represent clothing/attire items that inmates could use to harm employees or other inmates, but about which the Defendant as well as correctional administrators throughout the country express no similar concerns that preclude their presence in every jail and prison across the country." III-JA-227-28 (Id. at 10-11). Camp concluded by listing four accommodations that GEO could have offered its khimar-wearing employees, had it been willing to do so. These included: (1) wearing the khimar beneath a GEO uniform cap, nurse's headdress, or cook's cap; (2) requiring that caps, hats, and khimars be removed when passing through secure checkpoints within the facility as well as at facility entry/exit points; (3) requiring that khimars be removed prior to correctional officers' conducting cell extractions or other planned uses of force; and (4) permitting female employees to leave one khimar in a secured area within the facility, while permitting the wearing of a second khimar upon entry into the facility, which would be removed and stored in a secure area before passing into the secure portion of the facility. III-JA-228 (Id. at 11). He also noted that "[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-230 (Id. at 13). In January 2009, the defendant filed with the district court an affirmation by Holm that purported to address the Commission's assertion that "it would not be an undue burden to permit an exception to the revised dress code policy for Muslim female employees." III-JA-286 (Holm affirmation at 2). After noting that "[t]he policy was revised to increase safety and security in the prison," Holm stated that such an accommodation would require every such employee to be checked at "each door in the facility, when moving though the secured portion of GWH." Id. He noted that there was one initial checkpoint at the facility, followed by a total of sixteen "different entry/exit doors that are monitored by closed-circuit video cameras at which visual identification/recognition is required prior to the door being electronically opened." Id. According to Holm, "[t]his accommodation would require locking down the prisoners in each location," and "[t]he employee would then be required to remove the khimar for identification and then searched for contraband." Id. Holm concluded that "[a]n accommodation of this nature would require considerable time and resources of prison officials by requiring a female correctional officer to leave another post inside the prison to conduct a search of a Muslim female employee." Id. On April 2, 2009, the district court entered an order administratively staying this case pending this Court's decision in Webb. II-JA-11 (docket entry #27). That decision came on April 7, 2009, affirming the decision of the district court. This Court ruled that, in light of the Philadelphia Police Department's critical interest in maintaining a uniform and neutral appearance before the general public it served, allowing the plaintiff police officer to wear a khimar while on duty would constitute an undue hardship and was not required by Title VII. Webb v. City of Philadelphia, 562 F.3d 256 (3d Cir. 2009). Shortly after this Court decided Webb, on April 13, 2009, the Commission filed a motion for leave to file a supplemental brief addressing the Webb decision. II-JA-11-12 (docket entry #28). The district court granted the Commission's motion, and the parties filed supplemental briefs in the district court regarding the applicability of Webb to this case. II-JA-12 (docket entries ##28-30). C. District Court's Decision On May 18, 2009, the district court granted summary judgment to the defendant in a two-page decision. I-JA-6 (Memorandum ("Mem.") at 1). The court began by observing that, in Webb, this Court had "held that, notwithstanding th[e] religious requirement [that Muslim women wear head-coverings outside the home], the City of Philadelphia could lawfully discharge a female Muslim police officer for not adhering to Police Department regulations concerning uniforms to be worn by police officers (which did not include head coverings of the type required by the Muslim faith)." Id. The court then reasoned that, "[i]n view of the Court of Appeals decision in that case, I conclude 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. There is, in my view, no meaningful distinction between prison guards and similar personnel, on the one hand, and police officers. The same considerations advanced to justify the regulation in question apply equally to prison guards and employees working in the medical department." Id. at 6-7 (Mem. at 1-2). Accordingly, the court concluded, "the defendant's motion for summary judgment must be granted." Id. at 7 (Mem. at 2). STANDARD OF REVIEW This Court reviews a district court's order granting summary judgment de novo, applying "the same standard the district court should apply." Union Pac. R.R. v. Greentree Transp. Trucking Co., 293 F.3d 120, 125 (3d Cir. 2002). In so doing, this Court "resolve[s] all factual doubts and draw[s] all reasonable inferences in favor of . . . the nonmoving part[y]." Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1077 n.1 (3d Cir. 1996) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence 'is to be believed and all justifiable inferences are to be drawn in his favor.'" Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986)). See also Aman, 85 F.3d at 1080-81 ("[T]he facts asserted by the nonmoving party, if supported by affidavits or other evidentiary material, must be regarded as true, . . . and the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion.") (emphasis in original) (internal citations and quotation marks omitted). SUMMARY OF ARGUMENT The district court erred in granting summary judgment to the defendant because the defendant failed to show as a matter of law that it would constitute an undue hardship within the meaning of Title VII to require it to accommodate the sincerely held religious beliefs of the three claimants in this case. The district court erred in concluding that Webb v. City of Philadelphia directly governs the outcome of this case. First, Webb does not announce any sort of categorical legal rule binding in all "paramilitary organization" cases. Second, the fundamental rationale underlying the Webb decision rests on the concept of a relationship between a public police force and the public it serves, a relationship that is not present between employees of a prison or jail and the general public. Third, there are material factual distinctions between the Webb case and this one, including the uncontroverted testimony of the Commission's expert witness that the accommodations sought here were reasonable and would not constitute an undue hardship for the defendant. ARGUMENT A REASONABLE JURY COULD FIND THAT THE DEFENDANT VIOLATED TITLE VII BY REFUSING TO ACCOMMODATE THE CLAIMANTS' SINCERELY HELD RELIGIOUS BELIEFS WHERE THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT PERMITTING THEM TO WEAR THEIR KHIMARS IN THE WORKPLACE WOULD NOT HAVE RESULTED IN UNDUE HARDSHIP. A. Title VII's Prohibition on Religious Discrimination Title VII provides that it "shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion." 42 U.S.C. § 2000e-2(a). The statute further provides that "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." 42 U.S.C. § 2000e(j); Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1976); Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 133 (3d Cir. 1986). "The intent and effect of this definition was to make it an unlawful employment practice under [Title VII] for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of his employees and prospective employees." Hardison, 432 U.S. at 74; see also Protos, 797 F.2d at 133 (same). As this Court has observed, to establish a prima facie case of religious discrimination based on failure to accommodate an employee's religious belief, the employee must show "(1) she holds a sincere religious belief that conflicts with a job requirement; (2) she informed her employer of the conflict; and (3) she was disciplined for failing to comply with the conflicting requirement." Webb, 562 F.3d at 259; Protos, 797 F.2d at 133. The burden then "shifts to the employer to show either it made a good-faith effort to reasonably accommodate the religious belief, or such an accommodation would work an undue hardship upon the employer and its business." Webb, 562 F.3d at 259. "An accommodation constitutes an 'undue hardship' if it would impose more than a de minimis cost on the employer." Id. (citing Hardison, 432 U.S. at 84). As the Webb Court observed, in analyzing whether a particular accommodation constitutes an undue hardship, "[w]e focus on the specific context of each case, looking to both the fact as well as the magnitude of the alleged undue hardship." Id. at 260 (citing Protos, 797 F.2d at 134). If an employer does offer an accommodation, that accommodation is only "reasonable" to the extent that it actually eliminates the conflict between the employment requirement at issue and the employee's religious practices. See, e.g., Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70 (1986) (observing that the provision of unpaid leave in that case could have constituted a reasonable accommodation, provided it was not offered in a discriminatory manner, because 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").<4> The legal dispute in this case centers on the issue of whether it constitutes an undue hardship within the meaning of Title VII to require the defendant to permit its Muslim female employees to wear khimars on the job.<5> The district court, in addressing this question, simply concluded that this Court's decision in Webb controls the outcome of this case, with minimal to no analysis of the putative factual or legal parallels between the two. However, there are critical factual and legal distinctions between this case and Webb that render the Webb decision both distinguishable from, and inapposite to, to this case. Moreover, the district court erred in treating Webb as if it establishes a per-se rule of law that any paramilitary- type organization is free to ban religious headgear or other garb at will so long as that organization invokes any rationale involving safety or a desire for uniformity, no matter the basis for that rationale. B. Webb v. City of Philadelphia This Court began its analysis in Webb by explaining that "[a]n accommodation constitutes an 'undue hardship' if it would impose more than a de minimis cost on the employer." 562 F.3d at 259-60 (citing Hardison, 432 U.S. at 84). Almost immediately after articulating this standard, the Court took note of its earlier mandate in Protos that "[w]e focus on the specific context of each case, looking to both the fact as well as the magnitude of the alleged undue hardship." Id. at 260 (citing Protos, 797 F.2d at 134). According to Webb, the City gave the following account of its reasoning for refusing to allow Webb to wear her khimar: In the City's view, at stake is the police department's impartiality, or more precisely, the perception of its impartiality by citizens of all races and religions whom the police are charged to serve and protect. If not for the strict enforcement of Directive 78, the City contends, the essential values of impartiality, religious neutrality, uniformity, and the subordination of personal preference would be severely damaged to the detriment of the proper functioning of the police department. In the words of Police Commissioner Sylvester Johnson, uniformity "encourages the subordination of personal preferences in favor of the overall policing mission" and conveys "a sense of authority and competence to other officers inside the Department, as well as to the general public." 562 F.3d at 261. Significantly, the Court noted that Johnson's testimony "was not contradicted or challenged by Webb at any stage in the proceedings." Id. The Webb Court also observed that Johnson's reasoning was supported by the Supreme Court's rationales in Kelley v. Johnson, 425 U.S. 238 (1975), and Goldman v. Weinberger, 475 U.S. 503 (1986). 562 F.3d at 261-62 (observing that "[a]s a para-military entity, the Philadelphia Police Department requires 'a disciplined rank and file for efficient conduct of its affairs'") (quoting Kelley, 425 U.S. at 242); see also id. at 260 (noting that, in Goldman, 475 U.S. at 509, "the [Supreme] Court stated that the 'desirability of dress regulations in the military is decided by the appropriate military officials'"). Accordingly, the Court concluded, "Commissioner Johnson's thorough and uncontradicted reasons for refusing accommodations are sufficient to meet the more than de minimis cost of an undue burden." Id. at 262 (citing Hardison, 432 U.S. at 84). Webb had also argued that this Court's decision in Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999), which held that "government cannot discriminate between conduct that is secularly motivated and similar conduct that is religiously motivated," militated in favor of her being permitted to wear her khimar as a parallel religious exception to a secular one in Directive 78 allowing "scarves-black or navy blue only."<6> 562 F.3d at 260. The Webb Court, however, rejected Webb's reliance on Fraternal Order of Police, observing that "[t]he focus of Fraternal Order of Police is the lack of neutrality in applying the no-beards regulation. . . . The Philadelphia Police Department's Directive 78, by contrast, contains no exceptions, nor is there evidence the City allows other officers to deviate from it." 562 F.3d at 262. The Webb Court also took note of the court's language in Fraternal Order of Police to the effect 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." Id. (quoting Fraternal Order of Police, 170 F.3d at 366). The Court also noted that Webb had not raised the issue of the "scarf exception" to Directive 78 before the district court, and accordingly stated that it would not consider the issue on appeal. Id. at 262 n.5. Accordingly, the Webb Court nowhere purported to establish a per-se rule of law about religious headcoverings or "safety" that would govern in all religious discrimination cases, all "paramilitary organization" cases, or even all police department cases. Rather, this Court specifically observed that "[w]e focus on the specific context of each case," id. at 260 (citing Protos, 797 F.2d at 134), and then went on to analyze the case before it thoroughly and in detail with respect to the particular interests advanced by the Philadelphia Police Department under the circumstances. The Court noted that the interests in question were "the essential values of impartiality, religious neutrality, uniformity, and the subordination of personal preference," and particularly noted that the plaintiff did not contradict or challenge the City's testimony on this point at any stage in the proceedings. Id. at 261 & n.4. The Webb Court then concluded that, based on this record, "Commissioner Johnson's thorough and uncontradicted reasons for refusing accommodations are sufficient to meet the more than de minimis cost of an undue burden." Id. at 262 (citing Hardison, 432 U.S. at 84). C. The Privately Run Jail/Prison Context Both the interests proffered by the defendant and the circumstances of this case, however, are different from Webb in virtually every respect. At their depositions in this case, Warden Nardolillo and Deputy Warden Holm identified two principal motivations for their zero-tolerance policy for headgear: the concern about use of headgear, particularly baseball caps, to conceal and smuggle contraband into the prison, and the concern about use of headgear - again, pointing particularly to baseball caps with brims - to obscure the identities of inmates or of prison employees themselves. See, e.g., II-JA-75 (Nardolillo), 183- 84 (Holm). They also raised some safety concerns, primarily the possibility that an inmate might use a khimar to strangle a prison employee. See II-JA-201 (Holm). (Holm reiterated these justifications, and only these justifications, again in his Affirmation given in January 2009. III-JA-286.) As far as the desire for uniformity of appearance is concerned, never, at any point prior to the summary judgment stage of this litigation, did the defendant or its employees raise the kinds of justifications for its policy that Commissioner Johnson did in Webb. At most, the record contains Nardolillo's comment that "I realized that staff were just wearing whatever they wanted on their heads and it didn't look well," II-JA-78 (Nardolillo dep. 47), and Holm's disapproval of employees wearing unauthorized baseball caps on the job, II-JA-183 (Holm dep. 71). Once the briefing began, however, the defendant suddenly began to echo the language of the district court's, and then this Court's, decisions in Webb that endorsed Commissioner Johnson's reasoning. See, e.g., R.14 (Motion for Summary Judgment) at 11 ("Defendant is permitted to require uniformity of appearance among prison employees to promote an environment of discipline and an esprit de corps among the staff."); id. (citing United States v. Bd. of Educ., 911 F.2d 882 (3d Cir. 1990), in support of the premise that "wearing of religious attire by teachers [w]as a significant threat to the maintenance of religious neutrality in the public school system") (emphasis added); R.29 (Supplemental Brief in Support of Defendant's Motion for Summary Judgment) (asserting that "neutrality and impartiality are critically important issues for prison employees"). However, these were not, and have never been, the reasons proffered by the defendant's own witnesses for the no-khimar policy at issue here, and to the extent the defendant changed its rationale for the policy during the course of litigation, a jury would be free to infer that its shifting reasons were indicative of pretext. See Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 284 (3d Cir. 2001) ("If a plaintiff demonstrates that the reasons given for her termination did not remain consistent, beginning at the time they were proffered and continuing throughout the proceedings, this may be viewed as evidence tending to show pretext, though of course it should be considered in light of the entire record."). Next, unlike the plaintiff in Webb, the Commission did challenge the prison officials' testimony about the rationale they actually proffered for their no-khimar policy. The Commission introduced the Camp expert report, described above and unchallenged by the defendant, which concluded, based on a review of the defendant's own data, that there were at least four different reasonable accommodations the defendant could have offered the claimants, but that "the record is clear that GEO had no real interest in discussing a range of such accommodations with its female Muslim employees because it did not do so. Rather, it chose to impose a blanket prohibition for which they were and are unable to offer a legitimate peneological reason in support of their decision." III-JA-228 (Camp Report at 11). The Commission also introduced the testimony of the claimants themselves, who had already worked at the prison, in some cases for years, wearing khimars without any incident whatsoever. Indeed, their testimony was consistent with the results of the Camp report, which concluded that there was "absolutely no evidence of any incident in which contraband was secreted in a cap or hat or khimar worn by any employee," III-JA-220 (id. at 3), and that there was nothing about a khimar as an item of clothing that distinguished it as a safety or security risk from "many other items of clothing including shirts, socks, [and] pants that represent clothing/attire items that inmates could use to harm employees or other inmates, but about which the Defendant as well as correctional administrators throughout the country express no similar concerns that preclude their presence in every jail and prison in the country." III-JA-227-28 (Id. at 10- 11). We do not dispute that the defendant is entitled to adopt whatever nondiscriminatory policy of general application it sees fit to combat potential or actual problems with contraband and security issues in its prison, nor do we disagree that safety is an extremely important concern in the prison context.<7> However, the question in this case is whether allowing Muslim female employees who wear khimars an exception to this policy constitutes an undue hardship on the operations of this employer, and, at a bare minimum, the presence of the Camp report and the testimony of the Muslim employees in the record creates a genuine dispute of material fact on this point. On this basis alone, summary judgment for the defendant was inappropriate and unwarranted. Even assuming, arguendo, that Webb were the law of the Third Circuit with respect to all police departments and police uniforms, and that the critical need for total uniformity were sufficient to render any accommodation of religious garb an undue burden in that context, the prison context, and the jobs the claimants held in that context, are significantly different in a number of respects. Sharpe-Allen was a nurse who worked almost entirely in the prison infirmary and whose job in no way involved a law enforcement function. King was an intake specialist who sat behind a desk at a set location and processed inmates into the jail; at most, she interacted with inmates when they were brought to her to answer questions pertaining to their processing, and she did not go into the cell blocks and was not involved with use of force incidents. Only Moss worked as a correctional officer who moved among inmates, but, even with respect to her, the prison context is materially different from that of a police officer working with the general public. As the Webb Court explained it, the overriding need for uniformity and neutrality among police officers was driven in large part by the relationship of the police force, as a "symbol of neutral government authority," to the general public it serves and with which it interacts. Webb, 562 F.3d at 261; see also id. at 262 (observing that this Court's decision in Fraternal Order of Police recognized "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"). The employees of a privately run jail do not interact with the general public or, indeed, have authority over the general public in the same way as a public police force does; their position does not carry the same symbolic gravity as that of a police officer, which was emphasized so heavily by this Court in Webb. This difference is further underscored by the fact that in a jail, unlike in public, everyone is in uniform, including inmates, so there is far less difficulty in distinguishing prison employees from non-employees based on slight variations in uniforms (i.e., wearing a khimar vs. not). Thus, yet another one of the key concerns identified by this Court in Webb with respect to police officers is inapposite to the prison context generally, and to this case in particular. Furthermore, while police uniforms may carry special significance historically and culturally, the uniforms at issue in this case are in essence no different from the uniforms that private employers across the country require their employees to wear to work every day. Of course, the workplace here, as a jail, does have heightened security and safety concerns compared to most workplaces, and the defendant is unquestionably entitled to adopt rules and regulations to address those concerns. But, like any other employer subject to Title VII, the defendant here cannot just throw out the words "safety" and "security" and freely discriminate in the name of those interests; rather, as this Court has acknowledged, both the existence and the magnitude of an employer's reasons for denying religious accommodations must be proven as factual matters. See Protos, 797 F.2d at 134 ("'The magnitude as well as the fact of hardship must be determined by the examination of the facts of each case.'" (quoting Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1243 (9th Cir. 1981)) (emphasis in Protos)); see also Section 12, Religious Discrimination, 2 EEOC Compliance Manual 12:57 (2008), at http://www.eeoc.gov/policy/docs/religion.html ("To prove undue hardship, the employer will need to demonstrate how much cost or disruption the employee's proposed accommodation would involve. An employer cannot rely on potential or hypothetical hardship when faced with a religious obligation that conflicts with scheduled work, but rather should rely on objective information.") (internal citations omitted). In this case, GEO has utterly failed to meet this burden. In addition to the conclusions drawn by the Camp report, discussed above, even a cursory review of the Affirmation submitted by Deputy Warden Holm, which purports to address the difficulties GEO would have in accommodating the claimants, reveals that it is utterly speculative and conclusory in nature. For example, Holm asserts that "each employee wearing a head covering would have to be checked at each [of sixteen doors] in the facility, when moving through the secured portion of GWH," and concludes that "[a]n accommodation of this nature would require considerable time and resources of prison officials by requiring a female correctional officer to leave another post inside the prison to conduct a search of a Muslim female employee." III-JA-286. Even leaving aside the absurdity of this explanation in light of the findings of the Camp report, which concluded that contraband was being smuggled in items of clothing such as jackets and socks - the wearing of which by employees did not require inmate lockdowns or strip searches to pass through the secure doors - this explanation is totally speculative and generic. It fails to account, for example, for the fact that Sharpe-Allen works only in the infirmary, and King at an intake desk, and their need to pass through all sixteen secured doors during a work day would be sharply limited. Moreover, it is not clear from the record, and GEO certainly did not inquire, to what extent even Moss would need access to multiple secured doors in a given day. In any case, Warden Nardolillo's own testimony was that he did not even go that far in determining whether an accommodation would be feasible. In fact, he testified that he did not even consider allowing his Muslim female employees to be searched on entry to the jail in the same manner that Muslim visitors were, but instead flatly told them to stop wearing their khimars to work or be fired. II-JA- 103 (Nardolillo dep. 146-47). In short, this is a case where the defendant showed utter indifference to, and blatant disregard for, its employees' sincerely held religious beliefs. The evidence readily supports a jury finding that GEO could have accommodated Sharpe-Allen, King, and Moss easily, and at little to no cost or risk, by simply allowing them to wear their khimars to work as they had done for years before, given that they were willing to remove them to be searched on entry to the facility and wherever else necessary. Because a reasonable jury could find that its refusal to do so violated Title VII, this case should be reversed and remanded for trial. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER 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. September 14, 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 10,088 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. September 14, 2009 _____________________________ Elizabeth E. Theran Counsel for Appellant EEOC CERTIFICATE OF IDENTICALLY FILED BRIEFS Pursuant to L.A.R. 31.1(c), counsel for Appellant EEOC certifies 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. September 14, 2009 _____________________________ Elizabeth E. Theran Counsel for Appellant EEOC CERTIFICATE OF VIRUS CHECK Pursuant to 3d Cir. L.A.R. 31.1(c), Counsel for Appellant EEOC certifies that a virus check using Symantec AntiVirus version 10.1.6.6000 was performed on the electronic version of this brief on September 14, 2009, prior to electronic filing with the Court, and that no virus was detected. September 14, 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 14th day of September, 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, as well as one hard copy of the foregoing brief bound with Volume I of the Joint Appendix, by overnight delivery, postage pre-paid, pursuant to 3d Cir. L.A.R. 31.1(a): 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 September 14, 2009 _____________________________ Elizabeth E. Theran Counsel for Appellant EEOC *********************************************************************** <> <1> "[#]-JA-[#]" refers to material in the Joint Appendix, cited by volume and page number. "R.[#]" refers to the district court docket entry. <2> The Shahada is the Muslim confession of faith and its sincere recitation aloud is the sole prerequisite for entrance into Islam. See II-JA-151 (Moss dep. 16), Shahada (Faith): First Pillar of Islam, http://www.religionfacts.com/islam/practices/shahada-faith.htm (last visited Aug. 28, 2009). <3> The defendant never contested the admissibility of the Rule 26 Expert Report or challenged its accuracy in any way throughout the course of this litigation. <4> Accordingly, to the extent the defendant argued below that it offered Sharpe- Allen, or any of the other claimants, a reasonable accommodation by permitting her to wear a "hairpiece" instead of a khimar, R.14 (Motion for Summary Judgment) at 4-5, this does not constitute a reasonable accommodation within the meaning of Title VII because it would not have eliminated the religious conflict at issue. <5> The defendant has never, during the course of this litigation or otherwise, questioned the sincerity of the claimants' religious beliefs as Muslims, taken the position that it was unaware of their desire to wear khimars on the job, or argued that being given a choice between continued employment without the khimar or termination was insufficient to establish a prima facie case of religious discrimination under Title VII. <6> The City of Newark had proffered reasons for its no-beard policy that were very similar to those later adduced by the City of Philadelphia in Webb: the need to "convey the image of a 'monolithic, highly disciplined force' and that '[u]niformity [of appearance] not only benefits the men and women that risk their lives on a daily basis, but offers the public a sense of security in having readily identifiable and trusted public servants.'" Id. at 366. <7> In the section of the Commission's Compliance Manual dealing with religious discrimination, which is "designed to be a practical resource for employers, employees, practitioners, and EEOC enforcement staff on Title VII's prohibition against religious discrimination," the Commission acknowledges that employers may rely on safety and/or security concerns - where such concerns actually have been proven to exist - as a legitimate rationale for denying employees particular religious accommodations they may seek. See Section 12, Religious Discrimination, 2 EEOC Compliance Manual 12:59-60 (safety), 63-64 (security) (2008), at http://www.eeoc.gov/policy/docs/religion.html. The Compliance Manual even incorporates a hypothetical case involving a prison employee seeking to wear a fez on a religious holiday, and notes that these kinds of cases are ones where individualized review is particularly critical, depending on the nature of the security risk and the particular religious garb at issue. See id. at 64 & n.165, 74 & n.187.