No. 08-3880 ________________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ________________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. KELLY SERVICES, INC., Defendant-Appellee. ________________________________________________________________ On Appeal from the United States District Court for the District of Minnesota Hon. Paul A. Magnuson, Judge ________________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ________________________________________________________________ RONALD S. COOPER GAIL S. COLEMAN General Counsel Attorney EQUAL EMPLOYMENT CAROLYN L. WHEELER OPPORTUNITY COMMISSION Acting Associate General Counsel Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov STATEMENT REGARDING ORAL ARGUMENT The Equal Employment Opportunity Commission ("EEOC") requests oral argument. This case raises important questions regarding the obligations of an employment referral agency towards an applicant whose religious beliefs conflict with a potential employer's generalized safety concerns. Oral argument will allow the Court to explore the issues in greater depth. TABLE OF CONTENTS Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . i Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Course of Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 C. District Court's Opinion. . . . . . . . . . . . . . . . . . . . . . . . 10 Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 The district court erred in granting summary judgment to Kelly Services in this Title VII religious discrimination case when Kelly refused to refer the charging party to Nahan Printing Company based solely on Kelly's unsupported and factually questionable assumption that the charging party's head scarf might pose a safety risk. . . . . . . . . 14 A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . 14 B. Contrary to the district court's holding, Kelly's refusal to refer the charging party to Nahan Printing Company was an adverse employment action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 C. Whether the charging party could have been safely accommodated at Nahan Printing Company was a genuine issue of material fact. . . . . . . . . . . 17 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Anti-Virus Certification Form Addendum Table of Contents. . . . . . . . . i District Court's Opinion. . . . . .1 Charge of Discrimination. . . . . 10 Certificate of Service TABLE OF AUTHORITIES Cases Brown v. Gen. Motors Corp., 601 F.2d 956 (8th Cir. 1979). . . . . . . . . . . . 22 Brown v. Polk County, 61 F.3d 650 (8th Cir. 1995) (en banc). . . . . . . . . 21 Cruzan v. Special Sch. Dist. #1, 294 F.3d 981 (8th Cir. 2002). . . . . . 10, 14-15 Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515 (6th Cir. 1976). . . . . . . . 22 EEOC v. Woodmen of World Life Ins. Soc'y, 479 F.3d 561 (8th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Engleman v. Deputy Murray, 546 F.3d 944 (8th Cir. 2008). . . . . . . . . 14, 17 Griggs v. Duke Power Co., 401 U.S. 424 (1969). . . . . . . . . . . . . . . . . 16 Phillips v. Mathews, 547 F.3d 905 (8th Cir. 2008). . . . . . . . . . . . . . . 14 Seaworth v. Pearson, 203 F.3d 1056 (8th Cir. 2000). . . . . . . . . . . . . . . 17 Sibley Mem'l Hosp. v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973). . . . . . . . 16-17 Sturgill v. UPS, 512 F.3d 1024 (8th Cir. 2008). . . . . . . . . . . . . . . . . 21 Statutes 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. § 2000e(j). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 19 § 2000e-2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 15, 19 § 2000e-5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Rules and Regulations Federal Rules of Appellate Procedure Rule 4(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Miscellaneous Conf. Rep. on H.R. 1746, Equal Employment Opportunity Act of 1972, 92d Cong., 2d Sess. (Mar. 6, 1972), reprinted in 1972 U.S.C.C.A.N. 2137. . . . . . . . . . . . . . . . . . . . . . . . . . . 15 EEOC Compl. Man., "Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms," 1997 WL 33159161 (Dec. 3, 1997). . . . . . . . . . . . . . . . . . . . . 16, 19 EEOC Compl. Man., § 12, "Religious Discrimination" (July 22, 2008), available at http://www.eeoc.gov/policy/docs/religion.html. . . . . . . . . . . . . . . . . 19 STATEMENT OF JURISDICTION The district court had jurisdiction over this Title VII religious discrimination case under 42 U.S.C. § 2000e-5. On October 7, 2008, the district court granted Kelly Services's motion for summary judgment. (R.54, Order, J.A. at Tab 14, Add. at 1.) The district court entered final judgment on October 9, 2008. (R.55, Judgment, J.A. at Tab 15.) Pursuant to Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure, the EEOC filed a timely notice of appeal on December 4, 2008. (R.56, Notice of Appeal.) This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Did the district court err in holding that because Kelly Services referred the charging party to other employers, it did not commit an adverse employment action by refusing to refer her to Nahan Printing Company? 2. Could a reasonable jury, viewing the evidence in the light most favorable to the EEOC, find that the charging party could have been safely accommodated at Nahan Printing Company? STATEMENT OF THE CASE A. Course of Proceedings The EEOC filed this Title VII action against Kelly Services on September 26, 2007. (R.1, Complaint.) On October 7, 2008, the district court granted summary judgment to Kelly Services (R.54, Order, J.A. at Tab 14, Add. at 1), and it entered final judgment on October 9, 2008. (R.55, Judgment, J.A. at Tab 15.) The EEOC filed a timely notice of appeal on December 4, 2008. (R.56, Notice of Appeal.) B. Statement of Facts Kelly Services is a temporary employment referral agency with branch offices throughout the country. (R.41, Hentges Dep. at 134, J.A. at Tab 3.) In July 2004, Asma Suliman applied to the St. Cloud, Minnesota office for a position with a light industrial employer. Suliman is a Muslim woman who wears a khimar (a traditional head scarf) as part of her religion. Suliman passed Kelly's initial screening and, on August 10, 2004, staffing supervisor Sarah Stocker (now Sarah Corrieri) told Suliman about a position that was available at Nahan Printing Company. (R.48, Ex. 1, Charge, J.A. at Tab 2, Add. at 10.) Stocker told Suliman, "You will have to take your scarf off - you cannot cover your hair." Suliman explained that she wore her khimar as part of her religion and that she could not remove it. Stocker repeated that Suliman would have to take the khimar off if she wished to work at Nahan, and Stocker's coworker, Brandi Bruns, agreed that "she cannot have the job until she uncovers her hair." Stocker told Suliman, "I'm sorry. You have to make a wise choice." (Id.; R.42, Corrieri Dep. at 20, 63, 82, J.A. at Tab 4.) The possibility of Suliman's tying back the khimar never came up for discussion. (R.42, Corrieri Dep. at 69, 115, J.A. at Tab 4.) Neither Stocker nor Bruns contacted Nahan to confirm their belief that Nahan could not accommodate a temporary employee with a religious need to wear a khimar. (Id. at 65-67.) Stocker testified that she decided on her own that because Suliman wore a khimar, she was not a candidate for employment at Nahan. (Id. at 67.) Stocker did not consult with anyone else about her decision. (Id.) Suliman left Kelly Services and informed her husband that the agency had refused to refer her to Nahan because of her khimar. Her husband immediately went to Kelly Services with Suliman to confront Stocker. (R.48, Ex. 1, Charge, J.A. at Tab 2, Add. at 10.) Stocker repeated that Suliman could not work at Nahan with her hair covered and pointed to a rule in a handbook that Kelly had cowritten with Nahan stating "no hats, no caps." (Id.) This same handbook also said, "Consistent with Kelly employment practices, these guidelines are to be administered in a way that does not discriminate against persons due to sex, race, disability, veteran status, or religion. We realize there may be individual circumstances where these guidelines may need to be modified. Your Kelly supervisor is available to discuss them with you." (R.48, Ex. 7, at EEOC 1000144, J.A. at Tab 7.) Stocker did not discuss this nondiscrimination provision with Suliman or her husband. (R.42, Corrieri Dep. at 63, J.A. at Tab 4.) Suliman's husband explained to Stocker that the khimar was neither a hat nor a cap but was, instead, a religious requirement, and he told her that Kelly's refusal to refer Suliman to Nahan was religious discrimination. (R.48, Ex. 1, Charge, J.A. at Tab 2, Add. at 10; R.42, Corrieri Dep. at 81, J.A. at Tab 4.) Both Stocker and Bruns repeated, however, that Suliman could not work at Nahan with the khimar. They did not refer her for the available position. (R.48, Ex. 1, Charge, J.A. at Tab 2, Add. at 10.) Not until the next day, when the position in question was no longer at issue, did anyone make even a cursory inquiry into the possibility of Nahan's accommodating a temporary employee with a religious need to cover her hair. At that point, branch manager Julie Hentges returned from vacation and learned about Suliman's non-referral to Nahan. (R.41, Hentges Dep. at 71-72, J.A. at Tab 3.) Hentges understood that Stocker had been following Hentges's own verbal directive that Kelly Services could not send anyone to Nahan with anything on their head. (Id. at 12.) Hentges had issued this directive many years previously following a conversation with Jackie Olson, Nahan's employee relations leader, who had expressed a generalized concern for safety because Nahan employees worked around machines with moving parts. (Id. at 12-14.) Neither Hentges nor Olson had considered at that time the possibility that a temporary employee might need to wear something on her head for religious reasons. (Id. at 58-59.) Once Hentges learned about Suliman's non-referral and her husband's accusation that Kelly Services was engaged in religious discrimination, Hentges telephoned Sharon Woods, Kelly Services's regional manager for human resources, to discuss the situation. (Id. at 73.) Woods told Hentges that she should ask Suliman whether she was able to tie back her khimar. (Id.) According to Hentges, Hentges then called Olson at Nahan to ask whether Suliman could work there if her khimar were tied back. (Id.) Nahan does permit people with long hair to work near its machines as long as their hair is tied back so that it cannot reach their shoulders, and Hentges had previously referred individuals with long hair to Nahan. (Id. at 59, 93, 99; R.43, Ex. A, Nahan Employee Handbook, J.A. at Tab 8.) According to Hentges, Olson said that the khimar would pose a safety risk even if it were tied back. (R.41, Hentges Dep. at 73, J.A at Tab 3.) Hentges did not ask why a tied-back khimar would pose more of a safety risk than tied-back hair. Nor did she suggest to Olson that tying back the khimar could be a potential accommodation to Suliman's religion. (Id. at 73, 88, 130-31.) Based on her alleged conversation with Olson, Hentges said that she did not pursue the possibility of referring Suliman to future job openings at Nahan. (Id. at 74.) Olson, meanwhile, denies ever having spoken with Hentges about the possibility of modifying Nahan's dress code to accommodate Suliman. (R.45, Olson Dep. at 15-16, 23-24, J.A. at Tab 6.) Nahan requires that when Kelly Services sends it temporary employees, those employees must be eligible to work in any or all of the positions on the plant floor. (R.42, Corrieri Dep. at 88-89, 128, J.A. at Tab 4.) Nahan does not normally tell Kelly whether a temporary employee will be working on or near power equipment. (Id.) However, Stocker testified that she was aware that certain jobs at Nahan did not require an employee to work on or near the machines. (Id. at 78, 88, 94.) Those jobs, she said, are "sometimes available, not always available." (Id. at 78.) She noted in particular that based on her knowledge of Nahan, Suliman might have been able to perform "sorting and reject" while wearing her khimar. (Id. at 112.) However, Stocker did not ask Nahan whether the sorting and reject position was available on the day that Suliman applied. She also did not ask Nahan whether it would have been possible to shift existing employees around in order to free up a position where Suliman could work away from any moving equipment. (Id. at 90-91.) Although Kelly Services did not refer Suliman to Nahan, it did subsequently offer her several other referrals. (R.41, Hentges Dep. at 92-93, J.A. at Tab 3.) Hentges testified that she felt she did not discriminate against Suliman because she offered Suliman other assignments. (Id. at 104.) Suliman filed a charge of discrimination alleging that Kelly Services had discriminated against her by refusing to refer her to Nahan. (R.48, Ex. 1, Charge, J.A. at Tab 2, Add. at 10.) An investigator from the Minnesota Department of Human Rights contacted Nahan to learn more about the work environment there. (R.44, Karls Dep. at 36, J.A. at Tab 5.) Doug Karls, a stitcher operator who was serving as the acting shift leader, answered the telephone when the investigator called. (Id. at 37.) The investigator asked Karls whether Nahan had ever had any Muslim workers who wore khimars, and Karls responded that there was a Muslim woman wearing a khimar on the production floor that day. (Id. at 40.) As acting shift supervisor, Karls had the authority that day to ask this woman to remove her khimar. However, he did not do so because he was under the impression that if she were wearing the khimar for a religious reason, he would have to let her wear it. (Id. at 41.) Because the khimar was loose and not tied back, Karls said, he had moved the woman from her original position filling boxes at the end of the stitcher to the cutter, where he had her stacking paper. (Id. at 43.) Karls did not feel that the khimar posed any safety risk in this new position. (Id. at 43, 44.) Had the khimar been tied back, he said, he would not have had any concerns for her safety even while filling boxes. (Id. at 55, 65-66.) Karls testified that "I didn't have any problem moving her. I had other employees to move around." (Id. at 51.) He added that jobs that temporary employees do "[don't] take much training. Just about basically a one-point lesson on how to perform a task." (Id.) A couple of days after his phone call with the investigator, Karls reported on the conversation to Jim Olson, Nahan's head of human resources. (Id. at 46.) He told Olson that the investigator had asked him whether he had told the woman wearing a khimar to take it off, and that he had said he had not because "I thought it was a religious situation and Nahan does not discriminate against religion." Karls testified that he left his conversation with Olson feeling that he had done the right thing. He specifically testified that Olson did not tell him that he was wrong not to have told this woman to remove her khimar. (Id. at 46-47, 53.) In its position statement to the Minnesota Department of Human Rights, Kelly Services reported two "facts" that subsequent depositions proved to be untrue. First, the position statement said that Stocker spoke with Nahan before advising Suliman "that her khimar posed substantial risks to her on this assignment." (R.48, Ex. 2, Position Statement at ¶ 7.) In fact, Stocker testified, she did not contact Nahan and did not even consider doing so. (R.42, Corrieri Dep. at 65, 90-91, J.A. at Tab 4.) The position statement also said, "[Stocker] even suggested that perhaps [Suliman] could pull back and restrict her khimar while on the assignment. Neither [Suliman] nor her husband responded to this suggestion . . . ." (R.48, Ex. 2, Position Statement at ¶ 10.) Stocker testified, however, that she never discussed with Suliman anything other than taking her khimar off. (R.42, Corrieri Dep. at 63, 114- 15, J.A. at Tab 4.) The EEOC filed suit against Kelly Services on September 26, 2007. (R.1, Complaint.) Kelly moved for summary judgment on July 2, 2008 (R.38, Motion), arguing, first, that the EEOC could not prove a prima facie case of discrimination, and, second, that in any event, it would have been an undue hardship to send Suliman to Nahan because Suliman could not meet Nahan's safety requirements. (R.39, Kelly Memo at 18, 24.) The EEOC argued in response that Kelly had violated "the central prohibition of Title VII governing employment agencies: it is an unlawful employment practice 'to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his . . . religion.'" (R.47, EEOC Memo at 1 (citing 42 U.S.C. § 2000e-2(b)).) The EEOC also argued that because Nahan had safely accommodated at least one other temporary employee who wore a khimar, the record raised a question of fact about whether Nahan could safely have accommodated Suliman. (Id. at 8.) The EEOC argued that Kelly had not satisfied its obligation to investigate this question before refusing to refer Suliman to Nahan. (Id. at 10.) C. District Court's Opinion The district court granted summary judgment to Kelly Services. The court agreed with Kelly that the EEOC had not established a prima facie case of discrimination, citing a case against an employer rather than an employment agency to hold that "a plaintiff may establish a prima facie case of failure to accommodate by showing that the plaintiff has a genuine religious belief that conflicted with an employment requirement, that she informed the employer of her belief, and that she suffered an adverse employment action." (R.54, Order at 4, J.A. at Tab 14, Add. at 4 (citing Cruzan v. Special Sch. Dist. #1, 294 F.3d 981, 983 (8th Cir. 2002).) According to the district court, Suliman did not suffer any adverse employment action because she "went to Kelly in order to secure temporary employment, and the record clearly shows that Kelly offered Suliman such work at least seven different times." (Id.) The court emphasized that "Suliman did not have a guarantee or reasonable expectation of being placed with any particular employer." (Id.) The district court held in the alternative that even if the EEOC had established a prima facie case, Kelly would still be entitled to summary judgment. First, the court held, Kelly reasonably accommodated Suliman's religious beliefs by offering her "nearly equivalent employment" with other employers "where she could safely wear her khimar." (Id. at 5-6, J.A. at Tab 14, Add. at 5-6.) An essential assumption behind this holding was that Suliman could not have been safely accommodated at Nahan. (See id. ("Suliman could not work at Nahan without violating its legitimate, safety- based policy.").) "Such efforts by Kelly at finding Suliman a job where she could safely wear her khimar were reasonable efforts to accommodate her religious beliefs," the court said. (Id. at 6, J.A. at Tab 14, Add. at 6.) Second, the district court rejected the EEOC's contention that Suliman could have been safely employed at Nahan, and held that it would have been an undue hardship for Kelly to place her there. (Id. at 7, J.A. at Tab 14, Add. at 7.) The court minimized Karls's testimony about another Muslim woman who was safely working at Nahan while wearing a khimar, stating that Karls "was a stitcher operator with no authority or responsibility for accommodating the religious beliefs of temporary employees." (Id. at 6, J.A. at Tab 14, Add. at 6.) The court said that Karls had testified that he did not believe Nahan could safely accommodate a woman wearing a khimar. (Id. at 7, J.A. at Tab 14, Add. at 7.) Finally, the court said that even if a jury could infer from Karls's testimony that some jobs at Nahan were less dangerous than others for someone wearing a khimar, "it is uncontested that temporary employees must be able to work any and all jobs at Nahan, depending on Nahan's needs on that particular shift." (Id.) The court concluded that "an accommodation is not reasonable if it would expose the employee to danger or the employer to liability." (Id.) Because Nahan's policy against head coverings is safety-based, the court said, Kelly had no obligation to place her there. "Viewing the evidence in the light most favorable to the EEOC," the court said, "the Court finds that no reasonable jury could conclude that Suliman could have been safely accommodated [at] Nahan." (Id. at 8, J.A. at Tab 14, Add. at 8.) SUMMARY OF ARGUMENT The district court wrongly granted summary judgment to Kelly because a reasonable jury could conclude that Kelly discriminated against Suliman. Title VII requires employment referral agencies to act without reference to any aspect of an individual's religious observance as long as the religious observance can be reasonably accommodated without undue hardship. Kelly was prepared to refer Suliman to Nahan if Suliman would remove her khimar. Title VII required Kelly to make that referral without reference to the khimar unless Nahan could not reasonably accommodate Suliman's religious need to keep her head covered. Kelly's Title VII obligations were independent of Nahan's. Accordingly, Kelly could not rely on Nahan's generalized statements about safety to preclude the possibility of a religious accommodation for a particular individual. In order to satisfy its own obligations, Kelly had a duty to investigate whether Nahan's generalized rules could have been safely modified in this case. Kelly violated this duty by failing to investigate whether Nahan could have assigned Suliman a job away from moving machinery and/or whether she could have worked safely at Nahan if she had tied back her khimar. The record raises a genuine issue of material fact about whether such accommodations would have been possible. This Court should therefore reverse the award of summary judgment and remand for further proceedings. ARGUMENT The district court erred in granting summary judgment to Kelly Services in this Title VII religious discrimination case when Kelly refused to refer the charging party to Nahan Printing Company based solely on Kelly's unsupported and factually questionable assumption that the charging party's head scarf might pose a safety risk. A. Standard of Review This Court reviews a district court's award of summary judgment de novo, viewing all facts in the light most favorable to the non-moving party and making all reasonable inferences in the non-moving party's favor. Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Philips v. Mathews, 547 F.3d 905, 909 (8th Cir. 2008); Engleman v. Deputy Murray, 546 F.3d 944, 947 (8th Cir. 2008). B. Contrary to the district court's holding, Kelly's refusal to refer the charging party to Nahan Printing Company was an adverse employment action. The district court erred in holding that the EEOC did not prove a prima facie case of discrimination. The court relied on Cruzan v. Special School District #1, 294 F.3d 981, 983 (8th Cir. 2002), to hold that a plaintiff must show that she suffered an adverse employment action in order to raise a prima facie case of failure to accommodate. (R.54, Order at 4, J.A. at Tab 14, Add. at 4.) That case, however, involves a claim by an employee against an employer, not a claim by an applicant against an employment referral agency. The district court failed to understand that an employment agency's failure to make a specific referral can, itself, be an actionable "adverse employment action." Title VII has express language governing employment referral agencies that does not apply to employers. Under the statute, it is "an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his . . . religion." 42 U.S.C. § 2000e-2(b) (emphasis added). Religion, in turn, is defined as including "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j). Under the plain language of the statute, therefore, unless an employment agency can demonstrate undue hardship, it violates Title VII by refusing to refer an applicant for employment because that applicant wears religious garb. See generally Conf. Rep. on H.R. 1746, Equal Employment Opportunity Act of 1972, 92d Cong., 2d Sess. (Mar. 6, 1972), reprinted in 1972 U.S.C.C.A.N. 2137 (section-by-section analysis, section 701(j)). As the EEOC has made clear, "A staffing firm is obligated . . . as an employment agency to make job referrals in a nondiscriminatory manner." EEOC Compl. Man., "Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms," 1997 WL 33159161, *9 (Dec. 3, 1997) ("Discriminatory Assignment Practices"), reprinted in R. 48, Ex. 9 at 17. Title VII contemplates a low threshold for making a prima facie case because it mandates "equality of employment opportunities." Griggs v. Duke Power Co., 401 U.S. 424, 429 (1969). As the D.C. Circuit has explained, "control over access to the job market may reside, depending on the circumstances of the case, in a labor organization, an employment agency, or an employer . . . [and] Congress has determined to prohibit each of these from exerting any power it may have to foreclose, on invidious grounds, access by any individual to employment opportunities otherwise available to him." Sibley Mem'l Hosp. v. Wilson, 488 F.2d 1338, 1341 (D.C. Cir. 1973). Contrary to the district court's reasoning, the EEOC did not need to demonstrate as part of its prima facie case that Kelly Services denied Suliman any opportunity to work. (See R.54, Order at 4-5, J.A. at Tab 14, Add. at 4-5.) Under Title VII, Kelly could be liable for denying Suliman even a single referral because of her religion. That denial "foreclose[d], on invidious grounds, [her] access . . . to employment opportunities otherwise available to [her]." Sibley Mem'l Hosp., 488 F.2d at 1341. The fact that Kelly Services attempted to rectify its wrong by offering Suliman alternative jobs does not erase the statutory violation, although it may be relevant in determining the appropriate relief. See EEOC v. Woodmen of World Life Ins. Soc'y, 479 F.3d 561, 569 (8th Cir. 2007) (employee's failure to mitigate damages may limit relief that EEOC may obtain in enforcement action). C. Whether the charging party could have been safely accommodated at Nahan Printing Company was a genuine issue of material fact. The district court did not properly place the burden of proving undue hardship on Kelly. See Seaworth v. Pearson, 203 F.3d 1056, 1057 (8th Cir. 2000) (once plaintiff proves prima facie case of religious discrimination, burden of showing undue hardship shifts to defendant). The court accepted at face value Kelly's claim that Suliman could not have been safely accommodated at Nahan. (R.54, Order at 7, J.A. at Tab 14, Add. at 7.) Had the court viewed the evidence, as required, in the light most favorable to the EEOC, see Engleman, 546 F.3d at 947, it would have found a genuine issue of material fact on this question. Notwithstanding the district court's opinion, a reasonable jury could believe that Nahan would have been able to accommodate Suliman. Although the district court dismissed Karls as "a stitcher operator with no authority or responsibility for accommodating the religious beliefs of temporary employees" (R.54, Order at 6, J.A. at Tab 14, Add. at 6), Karls was actually the acting shift supervisor on the day that he spoke to the investigator from the Minnesota Department of Human Rights. (R.44, Karls Dep. at 37, J.A. at Tab 5.) In his position as acting shift supervisor, Karls advised the investigator that Nahan currently had a Muslim woman working on its production floor while wearing a khimar, that he had consciously chosen to allow her to leave the khimar on, and that he had given her a job in which her khimar posed no threat to her safety. (Id. at 40-41, 43-44.) Karls also testified that if the khimar had been tied back, he would have had no concerns for the woman's safety even near moving machinery. (Id. at 55, 65.) The district court ignored Karls's testimony that when he later told Nahan's head of human resources about his decision to let this woman wear her khimar while working on the production floor, the head of human resources left him feeling that he had done the right thing. (Id. at 46-47, 53.) Ignoring the very nature of an accommodation claim, the district court considered it "uncontested that temporary employees must be able to work any and all jobs at Nahan, depending on Nahan's needs on that particular shift." (R.54, Order at 7, J.A. at Tab 14, Add. at 7.) In fact, although this is the stated requirement for Kelly's referrals to Nahan (R.42, Corrieri Dep. at 88-89, 128, J.A. at Tab 4), Title VII requires Kelly and Nahan to modify this requirement to avoid religious conflict if they can do so without undue hardship. See 42 U.S.C. §§ 2000e-2(b), 2000e(j). "The employer's duty to accommodate will usually entail making a special exception from, or adjustment to, the particular requirement so that the employee or applicant will be able to practice his or her religion." EEOC Compl. Man. § 12, "Religious Discrimination" at § 12-IV(A) (July 22, 2008), available at http://www.eeoc.gov/policy/docs/religion.html, reprinted in R.48, Ex. 11 at 46. Kelly had an independent obligation to assess whether this requirement could be modified, because "the fact that a staffing firm's discriminatory assignment practice is based on its client's requirement is no defense." EEOC Compl. Man., "Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms," at Question 7, reprinted in R.48, Ex. 9 at 18 (Dec. 3, 1997). Both Stocker and Karls testified to ways in which Nahan's requirement could have been modified to accommodate Suliman. Stocker testified that she knew that certain jobs at Nahan did not require employees to work on or near machines. (R.42, Corrieri Dep. at 78, 88, 94, J.A. at Tab 4.) Karls testified that it was not difficult to move employees around to give a woman in a khimar one of those jobs. (R.44, Karls Dep. at 51, J.A. at Tab 5.) A jury could find that it would not have been an undue hardship for Nahan to shift its employees from one position to another, if necessary, in order to free up a job away from a machine for Suliman. Notably, the district court failed to impose any obligation upon Kelly Services to investigate whether Nahan could safely modify its dress code to accommodate Suliman. Stocker testified (contrary to Kelly's position statement) that she did not consult with anyone before refusing to refer Suliman to Nahan. (Compare R.42, Corrieri Dep. at 65, 90-91, J.A. at Tab 4 with R.48, Ex. 2, Position Statement at ¶ 7.) She also testified (contrary to Kelly's position statement) that she never explored the possibility of Suliman's tying back her khimar. (Compare R.42, Corrieri Dep. at 63, 114- 15, J.A. at Tab 4 with R.48, Ex. 2, Position Statement at ¶ 10.) Although she was aware that Nahan occasionally had jobs that did not require employees to work near machines, she did not ask Nahan about the nature of the job that was available on the day that Suliman applied. She did not investigate whether Nahan could have moved employees around to accommodate Suliman's religious need to wear a khimar. In short, she did nothing at all to determine whether Nahan could have safely accommodated Suliman's religious need for a head covering. (R.42, Corrieri Dep. at 65, 67, J.A. at Tab 4.) Even though Kelly and Nahan's joint handbook said that employment guidelines could be modified to avoid religious discrimination (R.48, Ex. 7, Kelly/Nahan Handbook, J.A. at Tab 7), Stocker never made any effort at all to determine whether the no-hat guideline could be modified for an individual who needed to wear a khimar. (R.42, Corrieri Dep. at 65, 67, J.A. at Tab 4.) Kelly's mere assumption that Nahan could not safely accommodate Suliman was insufficient to relieve Kelly of liability for failing to refer her. As this Court recently recognized, "Undue hardship 'cannot be proved by assumptions nor by opinions based on hypothetical facts.'" Sturgill v. UPS, 512 F.3d 1024, 1033 n.4 (8th Cir. 2008) (quoting Brown v. Polk County, 61 F.3d 650, 655 (8th Cir. 1995) (en banc)). A reasonable jury could conclude that because Kelly had never specifically asked Nahan about making a religious accommodation for Suliman, it was unreasonable for Kelly to assume that Nahan could not safely do so. Especially in light of the fact that Nahan did safely accommodate a woman in a khimar on the day that the Minnesota Department of Human Rights contacted Karls (R.44, Karls Dep. at 40-41, 43-44, J.A. at Tab 5), a jury could find that only a single phone call would have told Kelly that Nahan could have done the same for Suliman. As this Court has observed, "If an employer stands on weak ground when advancing hypothetical hardships in a factual vacuum, then surely his footing is even more precarious when the proposed accommodation has been tried and the postulated hardship did not arise." Brown v. Gen. Motors Corp., 601 F.2d 956, 960 (8th Cir. 1979); see also Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515, 521 (6th Cir. 1976) (employer did not sustain its burden of proving that religious accommodation would have caused a safety hazard because hypothetical harm "was not inevitable"). CONCLUSION The district court's opinion is both legally and factually flawed. Legally, the district court failed to impose an independent obligation on an employment referral agency to make its referrals in a nondiscriminatory manner. Factually, the district court failed to make all reasonable inferences from Karls's testimony that Nahan reasonably accommodated at least one temporary employee who wore a khimar. For the foregoing reasons, the EEOC respectfully asks this Court to reverse the award of summary judgment and remand for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel _________________________ GAIL S. COLEMAN CAROLYN L. WHEELER Attorney Acting Associate General Counsel U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov ANTI-VIRUS CERTIFICATION FORM (Eighth Circuit Local Rule 28A(d)(2)) CASE NAME: EEOC v. Kelly Services, Inc. DOCKET NUMBER: 08-3880 I, Gail S. Coleman, certify that I have scanned for viruses the diskettes containing the PDF version of the Brief as Appellant that were submitted to the Court and to opposing counsel and that no viruses were detected. NAME AND VERSION OF ANTI-VIRUS DETECTOR USED: Symantec AntiVirus Program 9.0.3.1000, Version 1/22/2009 rev. 20. _____________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov Addendum TABLE OF CONTENTS District Court's Opinion . . . . . . 1 Charge of Discrimination . . . . . 10 CERTIFICATE OF SERVICE I, Gail S. Coleman, hereby certify that I filed ten paper copies of the foregoing Brief as Appellant with the Court by first-class mail, postage pre- paid, on this 30th day of January, 2009. I also certify that, via this same mailing, I submitted the foregoing Brief as Appellant to the Court in PDF format on a 3 1/2 inch computer diskette. I further certify that I served two paper copies of the foregoing Brief as Appellant, as well as an electronic copy in PDF format on a 3 1/2 inch computer diskette, this 30th day of January, 2009, by first-class mail, postage pre-paid, to the following counsel of record: Michelle J. LeBeau Michael C. Wilhelm Ogletree, Deakins, Nash, Steven Wayne Wilson Smoak & Stewart, PLLC Briggs & Morgan 33 Bloomfield Hills Pkwy., Suite 120 80 S. Eighth St. Bloomfield Hills, MI 48304-2945 2200 IDS Center Minneapolis, MN 55402 ___________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov