This is a Title VII religious discrimination/accommodation case, involving the wearing of a head scarf, complicated by the fact that it was brought against an employment agency under 42 U.S.C. § 2000e-2(b), rather than the company that enforced the restrictive clothing policy. The Eighth Circuit affirms summary judgment on the ground that EEOC does not show that there was a position at the host employer that the employee was qualified to hold.
EEOC v. Kelly Services, Inc., No. 08-3880 (8th Cir. Mar. 25, 2010): “In July 2004, [charging party] Suliman, a Muslim, applied at Kelly for temporary employment. As a part of her Muslim faith, Suliman wears a khimar [head scarf].” Kelly declined to refer Suliman for employment at a client, Nahan Printing, Inc., because the company — which worked with heavy, rotating equipment, banned the wearing of any loose clothing or head gear for safety reasons. The EEOC brought suit claiming that failure to make the referral violated Title VII.
It is illegal “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). The panel recognizes that it is operating in unknown territory dealing with an employment agency’s failure to refer:
“An employment agency’s referral obligations under § 2000e-2 is a question of first impression for this court. . . . [I]n this case, neither party disputes the sincerity of Suliman’s religious beliefs or that Suliman advised Kelly that she could not remove her khimar for religious reasons. Therefore, the only question is whether an employment agency’s failure to refer an applicant may constitute an ‘adverse employment action.'”
But the case founders on a more basic point — a failure to prove that a position existed that Suliman was qualified to fill:
“On these facts, we need not decide whether an employment agency’s failure to refer a plaintiff for employment qualifies as an ‘adverse employment’ action to resolve this case. The EEOC has failed to show that Nahan had an available position to which Kelly could actually refer Suliman when she applied for available temporary work through Kelly.”
It also holds that the employment agency was not obliged to prove that an accommodation (under 42 U.S.C. § 2000e(j)) would place an “undue burden” on the host employer:
“But, in the present case, the EEOC sued Kelly in its capacity as an ’employment agency,’ not an ’employer,’ and nothing in § 2000e(j) suggests that an ’employment agency,’ in defending itself against a claim of religious discrimination, must demonstrate that the employer to which it would be referring the temporary worker would suffer an undue hardship if it had to accommodate that worker.”
Finally, it holds that there was no evidence of discrimination by Kelly, because it had a valid, non-discriminatory reason for not making the referral:
“Here, Kelly’s legitimate, nondiscriminatory reason for not referring Suliman to Nahan was Nahan’s facially neutral, safety-driven dress policy prohibiting all employees-permanent and temporary-from wearing loose clothing or headwear of any kind. Kelly’s understanding that Nahan would not permit temporary workers to wear any type of headwear, including khimars, was well established.”
Winding up, the panel suggests in a closing footnote that the outcome might have been different if the suit had been directly against Nahan: “the EEOC places a great deal of emphasis on Karls’s testimony regarding his decision to move a Muslim woman wearing a full gown and a head covering from the end of the stitcher filling boxes to the cutter to stack paper on the day he filled in as a shift leader. While this testimony might be relevant in a lawsuit against Nahan regarding its ability to accommodate a worker under § 2000e(j), the testimony does not impact our analysis of whether Kelly has established a legitimate, nondiscriminatory reason for not referring Suliman to Nahan.”