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 _______________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _______________________________________________________ JAMES LEE GAIL S. COLEMAN Deputy General Counsel Attorney EQUAL EMPLOYMENT VINCENT J. BLACKWOOD OPPORTUNITY COMMISSION Acting Associate General Counsel Office of General Counsel 131 M Street, NE, Room 5SW24L CAROLYN L. WHEELER Washington, DC 20507 Assistant General Counsel (202) 663-4055 gail.coleman@eeoc.gov TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Kelly erroneously argues that its benign motive defeats this failure- to-accommodate claim, which it does not . . . . . . . . . . . . . . . . . . . . . 2 B. An employment agency must affirmatively investigate the possibility of modifying an employer's facially neutral rule in order to accommodate an applicant's religious conflict . . . . . . . . . . . . . . . . . . 5 C. Kelly's focus on the referrals that it made to other employers is a red herring and following its proposed rule leads to absurd results . . . . . . . . . 8 D. Kelly misstates the facts and improperly draws conclusions that are not mandated by the evidence . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Certificate of Compliance with Rule 32(a) Anti-Virus Certification Form Certificate of Service TABLE OF AUTHORITIES Cases Bhatia v. Chevron USA, Inc., 734 F.2d 1382 (9th Cir. 1984) . . . . . . . . . .11 Birdi v. United Airlines Corp., 2002 U.S. Dist. LEXIS 9864 (N.D. Ill. Mar. 28, 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Bruff v. N. Miss. Health Servs., Inc., 244 F.3d 495 (5th Cir. 2001) . . . . . 11 Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515 (6th Cir. 1976) . . . . . . . 8 EEOC v. Heil-Quaker Corp., 1990 U.S. Dist. LEXIS 9948 (M.D. Tenn. Jan. 31, 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . 8 EEOC v. Oak-Rite Mfg. Corp., 2001 U.S. Dist. LEXIS 15621 (S.D. Ind. Aug. 27, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . .8 Griggs v. Duke Power Co., 401 U.S. 424 (1969) . . . . . . . . . . . . . . . 5-6 Kalsi v. New York City Transit Auth., 62 F. Supp. 2d 745 (E.D.N.Y. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Medina v. Adecco, 561 F. Supp. 2d 162 (D.P.R. 2008) . . . . . . . . . . . .12-13 Seaworth v. Pearson, 203 F.3d 1056 (8th Cir. 2000) . . . . . . . . . . . . . . 4 Sibley Mem'l Hosp. v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973) . . . . . . 5-6, 9 Sturgill v. UPS, 512 F.3d 1024 (8th Cir. 2008) . . . . . . . . . . . . . . . 4 Statutes Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. § 2000e(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-5, 16-17 § 2000e-2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 9 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 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) . . . . . . . . . . . . . . . . . . . . . . . 10 EEOC Compl. Man., § 12, "Religious Discrmination" (July 22, 2008), available at http://www.eeoc.gov/policy/docs/religion.html . . . . . . . . . . . . . . . . 3 ARGUMENT In its opening brief, the EEOC urged this Court to reverse the district court's award of summary judgment and to remand for further proceedings. The EEOC argued that the district court erred in granting summary judgment to Kelly Services in this Title VII religious discrimination case when Kelly refused to refer Asma Suliman to Nahan Printing Company based solely on Kelly's unsupported and factually questionable assumption that Suliman's khimar (head scarf) might pose a safety risk. (Opening Br. at 14.) The EEOC explained that, contrary to the district court's holding, Kelly's refusal to refer Suliman to Nahan Printing was an adverse employment action. (Id. at 14-17.) The EEOC also emphasized that whether Suliman could have been safely accommodated at Nahan Printing was a genuine issue of material fact. (Id. at 17-22.) In its responsive brief, Kelly cites its benign intent towards Muslims in general and towards Suliman in particular. (Kelly Br. at 10, 19-20.) Kelly stresses its subjective belief that Suliman could not have worked at Nahan Printing in any capacity without subjecting herself to danger and her employer to liability. (Id. at 20, 25-26.) Kelly also argues that because it referred Suliman to eight other potential employers, Suliman did not suffer any adverse employment action when it refused to refer her to Nahan. (Id. at 21-22.) Legally, Kelly fails to come to terms with the EEOC's principal argument: that employment agencies violate Title VII if they refuse to make referrals on a non-discriminatory basis, and that they are therefore obliged to investigate whether an employer can accommodate an applicant's religious practice rather than simply refer her to alternative employers. Factually, Kelly misstates the record evidence and presents as conclusions items that are actually genuine issues of material fact. For the reasons stated here and in the EEOC's opening brief, the EEOC asks this Court to reject Kelly's arguments and to reverse the district court's judgment. A. Kelly erroneously argues that its benign motive defeats this failure- to-accommodate claim, which it does not. Kelly may well be correct that neither it nor any of its employees harbors discriminatory animus towards Muslims in general or towards Suliman in particular. It also may be true that Kelly's motivation in refusing to refer Suliman to Nahan Printing was a genuine concern for Suliman's safety. When viewed in light of its apparent intentions, Kelly makes a sympathetic defendant. As a legal matter, however, Kelly's intentions are irrelevant to this failure-to-accommodate claim because the standard for liability does not require discriminatory animus. A failure-to-accommodate claim may arise against an employment agency when it "fail[s] or refuse[s] to refer for employment . . . any individual because of [her] . . . religion." 42 U.S.C. § 2000e-2(b). 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 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) (emphasis added). As the EEOC has explained, "An individual alleging denial of religious accommodation is seeking an adjustment to a neutral work rule that infringes on the employee's ability to practice his religion. The accommodation requirement is 'plainly intended to relieve individuals of the burden of choosing between their jobs and their religious convictions, where such relief will not unduly burden others.'" EEOC Compl. Man., § 12, "Religious Discrimination" at § 12-IV (intro) (July 22, 2008) (citation omitted), available at http://www.eeoc.gov/policy/docs/religion.html, reprinted in R.48, Ex. 11 at 46. Under Title VII, therefore, a decision based on Suliman's religious need to wear a khimar was presumptively a decision based on her religion. The EEOC established a prima facie case of religious discrimination simply by showing that Kelly refused to refer Suliman to Nahan Printing unless Suliman removed her khimar. See 42 U.S.C. §§ 2000e-2(b), 2000e(j). Only if Kelly can demonstrate that Nahan Printing was "unable to reasonably accommodate [Suliman's] religious . . . practice without undue hardship on the conduct of [its] business" can Kelly defeat the EEOC's reasonable accommodation claim. See 42 U.S.C. § 2000e(j). Kelly, not the EEOC, has the burden of proof on this issue. See Sturgill v. UPS, 512 F.3d 1024, 1033 n.4 (8th Cir. 2008); Seaworth v. Pearson, 203 F.3d 1056, 1057 (8th Cir. 2000). Prior arrangements between Kelly and Nahan Printing to accommodate prayer breaks (see Kelly Br. at 10) are irrelevant to the question of whether Nahan Printing could have accommodated Suliman's religious need to wear a khimar. Equally irrelevant is the fact that Nahan Printing has consistently refused to employ non-Muslims who wear scarves or hats. (See id.) The EEOC does not dispute that Nahan Printing applies its no-hats policy across the board to all employees. The essence of a reasonable accommodation claim is that, for religious reasons, an individual seeks an exception to a facially neutral rule that is uniformly applied. See 42 U.S.C. §§ 2000e-2(b), 2000e(j). B. An employment referral agency must affirmatively investigate the possibility of modifying an employer's facially neutral rule in order to accommodate an applicant's religious conflict. Kelly misleadingly frames this case as posing a conflict between workplace safety and Title VII. (Kelly Br. at 12.) Nothing could be farther from the truth. The EEOC has no desire to see employers endanger their employees in the name of equal opportunity. However, the fact that an employer has adopted a generalized safety rule for the good of all does not mean that a carefully crafted exception to the rule would be unsafe. Title VII requires that in the absence of undue hardship, employers must reasonably accommodate the religious beliefs and practices of their employees. 42 U.S.C. § 2000e(j). Employment referral agencies must give employers the chance to do so. Because an employment referral agency acts as a gatekeeper between applicants and potential employers, see Sibley Mem'l Hosp. v. Wilson, 488 F.2d 1338, 1341 (D.C. Cir. 1973), it has an affirmative obligation to investigate the possibility of modifying an employer's facially neutral rule in order to accommodate an applicant's religious conflict. Kelly does not discuss this gatekeeper function or even cite to Sibley. Nor does Kelly cite Griggs v. Duke Power Co., 401 U.S. 424 (1969), in which the Supreme Court instructed that Title VII mandates "equality of employment opportunities." 401 U.S. at 429. The combined effect of Griggs and Sibley, which Kelly completely ignores, is to require employment referral agencies to exercise their gatekeeping functions in a nondiscriminatory manner. Failure to pursue the possibility of reasonable accommodation is, itself, an unlawful form of discrimination. Kelly is wrong to suggest that the EEOC has argued that "Kelly is required to refer Ms. Suliman to an assignment for which she is not qualified by virtue of the attendant risk to Ms. Suliman's safety and to the safety of those working around her." (Kelly Br. at 25-26 (emphasis in orginal).) First, contrary to Kelly's assertion, this case does not involve an issue of job qualifications. The undisputed testimony shows that the jobs which temporary employees fill at Nahan Printing "[don't] take much training. Just about basically a one-point lesson on how to perform a task." (R.44, Karls Dep. at 51, J.A. at Tab 5.) The question of safety, which Kelly seeks to subsume into an issue of qualifications, is actually a question of whether Nahan Printing would experience undue hardship by offering Suliman a reasonable accommodation. Second, the EEOC has never argued that Kelly was required to refer Suliman to Nahan. In fact, the EEOC simply wants Kelly (or any other employment referral agency) to make an individualized inquiry into the possibility that an employer with a facially neutral rule might be able to safely modify that rule for a single employee with a religious conflict. A reasonable jury could conclude from the evidence in this case that Kelly did not satisfy this modest burden. The evidence shows (contrary to Kelly's position statement) that staffing supervisor Sarah Stocker Corrieri<1> did not consult with anyone before refusing to refer Suliman to Nahan Printing. (Compare R.42, Corrieri Dep. at 65, 90-91, J.A. at Tab 4 with R.48, Position Statement at ¶ 7.) She decided on her own, without so much as a single phone call to Nahan Printing, that there was no way for Nahan Printing to safely accommodate a temporary employee in a khimar, based only on her knowledge that Nahan had a rule prohibiting headwear. The evidence also shows, however, that Stocker was aware that Nahan Printing occasionally had jobs that did not require employees to work on or near machines. (R.42, Corrieri Dep. at 78, 88, 94, J.A. at Tab 4.) Moreover, the evidence shows that at least one individual has actually worked at Nahan Printing without incident while wearing a khimar. (R.44, Karls Dep. at 40, 43, 44, J.A. at Tab 5.) When told about that individual's employment after the fact, Nahan's Vice President of Human Resources expressed no objection to her presence on the plant floor. (See R.44, Karls Dep. at 46-47, 53, J.A. at Tab 5.) Based on these facts, a reasonable jury could conclude that Nahan Printing would have been able to safely accommodate Suliman. Kelly's citations to other safety cases with other facts are irrelevant. (See Kelly Br. at 23-24 (citing Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515 (6th Cir. 1976); EEOC v. Oak-Rite Mfg. Corp., 2001 U.S. Dist. LEXIS 15621 (S.D. Ind. Aug. 27, 2001); Kalsi v. New York City Transit Auth., 62 F. Supp. 2d 745 (E.D.N.Y. 1998); EEOC v. Heil-Quaker Corp., 1990 U.S. Dist. LEXIS 9948 (M.D. Tenn. Jan. 31, 1990).) Regardless of what other courts have decided on other facts, there is enough evidence here for a jury to find that Nahan not only could, but actually did, safely accommodate an employee in a khimar. C. Kelly's focus on the referrals that it made to other employers is a red herring and following its proposed rule leads to absurd results. Kelly wrongly seeks to divert attention from its statutory violation in failing to inquire whether Nahan Printing could accommodate Suliman by pointing to the other eight jobs that it subsequently offered to Suliman. (Kelly Br. at 9.) As the EEOC explained in its opening brief, the fact that Suliman rejected eight subsequent job offers is relevant to the potential remedy that might be available in this case. It is not, however, relevant to whether Kelly violated the law on August 10, 2004, by refusing to make a nondiscriminatory referral. (See Opening Br. at 17.) By holding that Suliman did not experience any adverse employment action because Kelly offered her eight subsequent jobs, the district court missed the point of Title VII's coverage of employment referral agencies. As the EEOC explained in its opening brief, an employment agency's failure to make a specific referral can, itself, be an actionable "adverse employment action." (Opening Br. at 14-16.) This is so because Title VII makes it "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 [her] . . . religion." 42 U.S.C. § 2000e-2(b) (emphasis added); 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)). Refusing to refer a candidate to a particular employer because of her religion "foreclose[s], on invidious grounds, [her] access . . . to employment opportunities otherwise available to [her]." Sibley Mem'l Hosp., 488 F.2d at 1341. If Kelly were correct that its subsequent job offers to Suliman effectively negated its failure to refer her to Nahan Printing, the result would be an absurd loophole in Title VII. Under Kelly's reasoning, the antidiscrimination statute might not cover the actions of employment agencies even when those agencies actively cooperate with a client's expressly discriminatory requirements. If, for example, an employer were to tell an employment agency not to send it any black candidates, the employment agency could steer all of its black candidates away from that employer but nevertheless escape Title VII liability as long as it offered those candidates an alternative placement. This is not the law. As the EEOC has explained, "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," 1997 WL 33159161, at Question 7, reprinted in R. 48, Ex. 9 at 18 (Dec. 3, 1997). For similar reasons, an offer of alternative assignments to other employers cannot be a reasonable accommodation when an applicant's religious practice conflicts with an employer's facially neutral rule. The transfer cases that Kelly cites all involve employers, not employment agencies. (See Kelly Br. at 28-29 (citing Bruff v. N. Miss. Health Servs., Inc., 244 F.3d 495 (5th Cir. 2001); Bhatia v. Chevron USA, Inc., 734 F.2d 1382 (9th Cir. 1984); Birdi v. United Airlines Corp., 2002 U.S. Dist. LEXIS 9864 (N.D. Ill. Mar. 28, 2002)). The employers in all of these cases first determined that they could not accommodate their employees' religious practices if the employees remained within their current jobs, and only then did they offer a transfer as an accommodation of last resort. See Bruff, 244 F.3d at 497-98; Bhatia, 734 F.2d at 1383; Birdi, 2002 LEXIS 9864 at *1-2. Assuming that a proffered transfer is to a suitable position, the EEOC agrees that an employer who cannot accommodate an employee in his current job satisfies its obligation by offering a transfer elsewhere within the same company. These same principles demonstrate why Kelly acted inappropriately here. Just as the employers in Bruff, Bhatia, and Birdi first considered their ability to accommodate their employees within their existing jobs, employment referral agencies must first determine whether a given employer can, itself, accommodate an applicant's religious practices. Only if the answer to this question is "no" may an agency look for comparable positions with another employer. An immediate referral to alternative companies would abet any discrimination in which the first company may be engaged. Under Kelly's proposed framework, where an employment agency does not have an obligation even to inquire into the possibility of a reasonable accommodation, an employer could expressly tell an employment agency not to send over any Muslims and the employment agency could steer all Muslims elsewhere without violating Title VII. Kelly's emphasis on the alternative job offers is also illogical in this case because the discrimination occurred on August 10, 2004, when Kelly told Suliman that it would not refer her to Nahan Printing on that day unless she removed her khimar. (R.48, Ex. 1, Charge, J.A. at Tab 2, Add. at 10.) The temporary job that Kelly dangled before Suliman may have lasted only a single day. (See R.41, Hentges Dep. at 45-46, J.A. at Tab 3.) Even if Suliman had been referred to Nahan Printing and had worked for that single day, she may still have been offered the other eight jobs that Kelly proposed in the following weeks. It cannot be a reasonable accommodation to offer an applicant additional work that she might have received anyway, even in the absence of discrimination. Contrary to Kelly's suggestion (Kelly Br. at 21-22), Medina v. Adecco, 561 F. Supp. 2d 162 (D.P.R. 2008), is irrelevant to this case. In Medina, an employment referral agency sent the plaintiff to work for one of its clients. The plaintiff remained with this client for several months but was fired when she had pregnancy-related limitations. The plaintiff did not tell the employment referral agency that she suspected pregnancy discrimination. Id. at 178. Knowing only that she had been fired and needed a new job, the employment referral agency offered the plaintiff two new positions, both of which she declined as inconsistent with her pregnancy needs. The plaintiff then sued the employment agency, alleging that it had intentionally discriminated against her on the basis of pregnancy by offering her jobs that she could not take. Id. at 178-79. The court rejected this claim. Id. at 179. Medina does not address the question of whether an employment referral agency can avoid committing an adverse employment action so long as it offers an applicant a variety of jobs. Contrary to Kelly's implication (Kelly Br. at 21-22), it also does not stand for the proposition that an applicant's refusal to accept a job offer precludes any claim against an employment agency. D. Kelly misstates the facts and improperly draws conclusions that are not mandated by the evidence. Kelly's brief does not present the record evidence fairly. Although it is true that Suliman appeared for her interview in a full gown as well as a khimar, no decisionmaker ever cited the full gown as a reason for not referring her to Nahan Printing. (See Kelly Br. at 6, 14, 17 (referencing full gown as a reason for decision but providing no record citation).) This may be because no one ever asked Suliman whether she would be willing to wear different clothes as long as she was able to continue wearing her khimar. Contrary to Kelly's repeated assertion that "Ms. Suliman clearly indicated that she did not wish to alter her attire in any way in order to work at Nahan," (Kelly Br. at 6, 7), Suliman said only that she was unwilling to remove her khimar. (R.42, Corrieri Dep. at 69, 115, J.A. at Tab 4.) Stocker never asked her about any other potential modifications to her attire. (Id.) Stocker told Suliman, "You will have to take your scarf off - you cannot cover your hair," and her coworker Brandi Bruns, agreed that "she cannot have the job until she uncovers her hair." (R.48, Ex. 1, Charge, J.A. at Tab 2, Add. at 10; R.42, Corrieri Dep. at 20, 63, 82, J.A. at Tab 4.) Stocker never asked Suliman about the possibility of removing the full gown or tying the khimar back. (R.42, Corrieri Dep. at 69, 115, J.A. at Tab 4.) Kelly also misstates the testimony of Douglas Karls.<2> Contrary to Kelly's characterization of his testimony regarding the temporary employee who worked at Nahan while wearing a khimar (see Kelly Br. at 11), Karls testified that he was concerned for her safety not because she was wearing a khimar, but only because she was wearing a long gown. (R.44, Karls Dep. at 43-44, J.A. at Tab 5.) When asked if he was concerned about the woman's head covering, Karls said "no." (Id. at 43.) As discussed supra, Stocker cited only Suliman's khimar, and not her gown, as a reason for not referring her to Nahan Printing. Notably, by the time of his deposition, Nahan had promoted Karls to a supervisory position with responsibility for hiring temporary employees. (R.44, Karls Dep. at 8, 17, 25, J.A. at Tab 5.) As a supervisor, Karls continued to believe that Nahan could safely have accommodated Suliman while she wore her khimar. (Id. at 49.) Kelly completely ignores the fact that when Karls told Nahan's Vice President of Human Resources (Jim Olson) that he had permitted someone to work while wearing a khimar, the Vice President left him feeling that he had done the right thing. (R.44, Karls Dep. at 46-47, 53, J.A. at Tab 5.) Kelly points to the testimony of Jacqueline Olson that Nahan could not safely accommodate an individual with a khimar. (Kelly Br. at 19 (citing R.45, Olson Dep. at 41, J.A. at Tab 6).) However, Jim Olson was Jacqueline Olson's supervisor. (R.45, Olson Dep. at 9, J.A. at Tab 6.) Contrary to Kelly's assertion that Jacqueline Olson had "confirmed her instructions" with Jim Olson (Kelly Br. at 17), the evidence actually shows the contrary.<3> Faced with evidence that the Vice President of Human Resources apparently endorsed Karls's decision to allow someone to work while wearing a khimar, a reasonable jury could conclude that Nahan Printing could have safely accommodated Suliman. Next, Kelly wrongly states that the "ability to 'float' was a fundamental aspect of the temporary workers' placement." (Kelly Br. at 8, 27.) Kelly provides no record citation for this "fact." Although the EEOC does not dispute that Nahan Printing generally requires its temporary employees to have the ability to move to any vacant position, Title VII requires an employer to modify a generally applicable rule to avoid religious conflict if it can do so without undue hardship. 42 U.S.C. § 2000e(j). Karls testified that it was not difficult to move temporary employees around. (R.44, Karls Dep. at 51, J.A. at Tab 5.) Stocker, the Kelly supervisor who refused to refer Suliman to Nahan Printing, even testified that she was aware of at least one job at Nahan that could be safely performed while wearing a khimar. (R.42, Corrieri Dep. at 112, J.A. at Tab 4.) In these circumstances, a reasonable jury could conclude that Stocker, at the very least, should have called Nahan Printing to see whether Suliman could be assigned to that one job. Finally, Kelly misleadingly asserts that Hentges checked with Jacqueline Olson about whether Nahan could accommodate an employee wearing a khimar. (Kelly Br. at 17-18.) In fact, the discrimination of which the EEOC complains happened on a single day - August 10, 2004 - when Stocker unilaterally decided not to refer Suliman to Nahan because Suliman would not remove her khimar. (R.42, Corrieri Dep. at 65, 90-91, J.A. at Tab 4.) Any inquiries that Hentges may or may not have made after this date would be relevant only to the possibility of future referrals.<4> They could not negate the discrimination that had already occurred. CONCLUSION The EEOC is, of course, concerned with worker safety. If it is, in fact, impossible without undue hardship for Nahan Printing to accommodate an employee who wears a khimar, then such an employee should not work for Nahan. This lawsuit, however, is against Kelly, not against Nahan. As an employment referral agency, Kelly had an independent obligation to ensure that each of its applicants had a nondiscriminatory opportunity to work for any potential employer. Faced with Suliman's religious need to wear a khimar, Kelly had a duty not just to accept Nahan's no-hat rule as an impossible barrier, but to reach out to Nahan to determine whether a reasonable accommodation would be possible. Stocker made no efforts to investigate the possibility of accommodation even though she knew that Suliman could have performed at least one job at Nahan safely. In these circumstances, a reasonable jury could conclude that Kelly failed to satisfy its obligations under Title VII. For the reasons stated here and in the EEOC's opening brief, the EEOC respectfully asks this Court to reverse the award of summary judgment and remand for further proceedings. Respectfully submitted, ____________________________ JAMES LEE GAIL S. COLEMAN Deputy General Counsel Attorney U.S. EQUAL EMPLOYMENT VINCENT J. BLACKWOOD OPPORTUNITY COMMISSION Acting Associate General Counsel Office of General Counsel 131 M Street, NE, Room 5SW24L CAROLYN L. WHEELER Washington, DC 20507 Assistant General Counsel (202) 663-4055 gail.coleman@eeoc.gov CERTIFICATE OF COMPLIANCE WITH RULE 32(a) This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 3,798 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 14-point Times New Roman. ___________________________ GAIL S. COLEMAN Attorney 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 Reply Brief 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 3/10/2009 rev. 17. ___________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov CERTIFICATE OF SERVICE I, Gail S. Coleman, hereby certify that I filed ten paper copies of the foregoing Reply Brief with the Court by first-class mail, postage pre- paid, on this 13th day of March, 2009. I also certify that, via this same mailing, I submitted the foregoing Reply Brief to the Court in PDF format on a 31/2-inch computer diskette. I further certify that I served two paper copies of the foregoing Reply Brief, as well as an electronic copy in PDF format on a 31/2-inch computer diskette, this 13th day of March, 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 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov *********************************************************************** <> <1> The EEOC refers to this individual by her unmarried name, Sarah Stocker, because this is the name that she used during the events in question. Kelly refers to her by her married name, Sarah Corrieri, no doubt because that is the name that she used at the time of her deposition. <2> Although Kelly accuses the EEOC of "seek[ing] to promote [Karls] to the position of shift supervisor," (Kelly Br. at 10), it was Karls, not the EEOC, who testified, "I was filling in for a shift leader." (R.44, Karls Dep. at 37, J.A. at Tab 5.) Contrary to Kelly's suggestion that Karls was simply a stitcher operator with no authority over his coworkers (Kelly Br. at 11), Karls testified that he was the one who moved the temporary employee who was wearing a khimar from a position filling boxes at the end of the stitcher to a different position stacking paper at the cutter. (R.44, Karls Dep. at 43, J.A. at Tab 5.) He also testified that "it could have been my job" to ask this woman to remove her khimar but that he did not because he believed she was wearing it for religious reasons. (Id. at 41.) <3> When asked at her deposition, "Did Mr. Olson ever indicate to you that Muslim women . . . with a khimar could not be placed at Nahan Printing?" Jacqueline Olson replied nonresponsively, "It was our policy not to have khimars on during working hours." (R.45, Olson Dep. at 42, J.A. at Tab 6.) Jacqueline Olson never actually said that Jim Olson would disallow a reasonable accommodation for a religious conflict. <4> The EEOC disputes that Hentges ever asked Jacqueline Olson about the possibility of reasonable accommodation. Although Hentges and Olson may have discussed the wearing of khimars generally, the evidence shows that they never specifically discussed whether Nahan could permit Suliman to wear a khimar as an accommodation to her religious practice as required by Title VII. (See R.41, Hentges Dep. at 73, 88, 130-31, J.A. at Tab 3; R.45, Olson Dep. at 15-16, 23-24, J.A. at Tab 6.)