E.E.O.C. v. United Parcel Service, 96-1258

• Decision Date: 23 August 1996
• Docket Number: No. 96-1258,96-1258
• Citation: 94 F.3d 314
• Parties: 71 Fair Empl.Prac.Cas. (BNA) 1301, 68 Empl. Prac. Dec. P 44,189 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, an Ohio Corporation, United Parcel Service General Service, Incorporated, a New York Corporation, United Parcel Service General Service, Incorporated, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 314

94 F.3d 314

71 Fair Empl.Prac.Cas. (BNA) 1301,

68 Empl. Prac. Dec. P 44,189

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, an Ohio Corporation, United Parcel Service General Service, Incorporated, a New York Corporation, United Parcel Service General Service Incorporated, et al., Defendants-Appellees.

No. 96-1258.

United States Court of Appeals, Seventh Circuit.

Argued June 4, 1996.

Decided Aug. 23, 1996.

Paula R. Bruner (argued), E.E.O.C., Washington, DC, Jean P. Kamp, Sharon A. Seeley, John P. Rowe, Gregory M. Gochanour, Paul A. Patten, E.E.O.C., Chicago, IL, for plaintiff-appellant.

John A. McDonald (argued), Robert E. Arroyo, Keck, Mahin & Cate, Chicago, IL, Steven H. Adelman, Lord, Bissell & Brook, Chicago, IL, for defendants-appellees.

Before BAUER, CUDAHY, and EASTERBROOK, Circuit Judges.

CUDAHY, Circuit Judge.

The Equal Employment Opportunity Commission (EEOC) appeals the grant of summary judgment in its Title VII religious discrimination suit against the defendants (collectively, "UPS"). 42 U.S.C. 2000e et seq. UPS maintains a strict policy that beards may not be worn by its employees working in public contact positions. ¹ The EEOC contends that this policy of no exceptions demonstrates that UPS refuses to make a reasonable accommodation to the religious practices of certain individuals who have religious objections to shaving. UPS contends that, while it will not make exceptions to its no-beard policy for those with religious objections to shaving, it does reasonably accommodate these men by offering them other positions within the company.

The EEOC brings this action pursuant to its enforcement powers under § 706 of Title VII of the Civil Rights Act. 42 U.S.C. § 2000e-5. The suit, filed on July 10, 1990, stems from a charge filed with the agency by Aiyub Patel, but was brought on behalf of all employees of UPS and applicants for employment wearing beards for religious reasons. Amended Complaint, R. 19.

Beginning in 1985, Patel was employed by UPS in a part-time position which did not involve public contact. On June 30, 1989, when he had obtained sufficient seniority under UPS's collective bargaining agreement, Patel applied for a full-time position as a package delivery driver. He was denied the position because of his refusal to shave his beard, which he wears in accordance with his Islamic religious beliefs. UPS claims to have offered Patel a comparable full-time position which did not require public contact. According to UPS, Patel was uninterested in such a position. Patel, however, claims that he was never offered a comparable position and that, in fact, no reasonable accommodation to his religious practice was made.

The district court found that the EEOC failed to raise an issue of material fact regarding the offer of reasonable accommodation to Patel. The court found that, since it could not prove that UPS failed to reasonably accommodate Patel and had insufficient other evidence of religious discrimination, the EEOC was unable to make out a prima facie case. The court therefore granted summary judgment to UPS on March 24, 1994. The court specifically refused to rule on the issue of religious discrimination with respect to management positions, apparently believing that such positions were not public contact positions. Mar. 24, 1994 Mem. Op., Pl. App. at A-13 n. 5.

In a motion to reconsider, the EEOC pointed out that, in its Rule 12(m) Statement of Material Facts, it had asserted that all management positions were public contact positions and, further, that UPS managers had made categorical statements in their depositions that all management positions were public contact positions. The court granted this motion to reconsider.

UPS and the EEOC then filed cross motions for partial summary judgment with respect to management employees. UPS again argued that, given that the EEOC could not prove failure to accommodate Patel, the EEOC failed to make out a prima facie case of discrimination as to management employees, since it had not produced evidence of even one individual who had been denied employment as a result of the no-beard policy. UPS further argued that Patel's example demonstrates that it does make reasonable accommodation for the religious wearing of beards and that it would reasonably accommodate any applicants for managerial employment as well. The EEOC countered that, since the uncontradicted evidence established that all UPS management positions are public contact positions and that UPS makes no exception to the no-beard policy, UPS cannot make reasonable accommodations for management employees by offering comparable non-public-contact employment. The district court granted summary judgment to UPS, on grounds that, because it had identified no individual who had been denied a management position because of the religiously-motivated wearing of a beard, the EEOC had failed to make out a prima facie case. ²

The EEOC brings this appeal, arguing that the district court erred in finding that the evidence established that UPS had reasonably accommodated Patel and that, therefore, it has made out its prima facie case as to the whole class of public contact employees. Alternatively, the EEOC argues that, even if we agree with the district court's finding regarding Patel, the uncontroverted evidence establishes that UPS is unable to reasonably accommodate a management employee. For this reason, the EEOC urges us to take note of the flexibility available in defining the elements of a prima facie case under Title VII, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n. 13, 93 S.Ct. 1817, 1824 n. 13, 36 L.Ed.2d 668 (1973), and to conclude that the EEOC need not produce an individual victim of discrimination in a case where a categorical refusal to accommodate is established.

Because we find that Patel has raised an issue of material fact whether UPS offered him a reasonable accommodation, we believe that the EEOC has presented sufficient evidence to raise an issue of material fact regarding its prima facie case of discrimination with respect to all public contact positions. We further believe that UPS has not shown that it will reasonably accommodate an employee's religious practice of wearing a beard. We therefore reverse the district court's grant of summary judgment as to all public contact employees. Because we disagree with the district court's conclusions regarding Patel's case, we need not address the question whether the EEOC may make out a prima facie case of religious discrimination without identifying at least one victim. Is it enough for the EEOC to present evidence of a categorical policy which does not leave room for reasonable accommodation? Or, in the alternative, must the EEOC prove, either by anecdotal or statistical evidence, that someone was adversely affected by the policy? We need not resolve this issue here.

I. Background

Title VII provides that it is unlawful to refuse to hire or promote "any individual ... because of such individual's ... religion...." 42 U.S.C. § 2000e-2. Because some religious practices may be incompatible with performance of the job at hand, however, Title VII limits this proscription by defining religion in an unconventional way:

(j) The term "religion" includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate 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). Here, the district court never reached the question whether allowing an exception for the wearing of a beard as a religious observance would cause undue hardship on the conduct of UPS's business. Resolution of this question was unnecessary because the court determined that UPS made reasonable accommodation by offering comparable non-public-contact positions.

An individual alleging religious discrimination must ordinarily show that: (1) a bona fide religious practice conflicts with an employment requirement, (2) he or she brought the practice to the employer's attention, and (3) the religious practice was the basis for the adverse employment decision. Wright v. Runyon, 2 F.3d 214, 216 n. 4 (7th Cir.1993), cert. denied 510 U.S. 1121, 114 S.Ct. 1077, 127 L.Ed.2d 394 (1994). The EEOC may therefore make out its prima facie case by proving these elements with respect to some individual or individuals. ³ The employer may respond to the prima facie case either by proving that it was unable to provide a reasonable accommodation without undue hardship or that it offered a reasonable accommodation which was not accepted by the employee. See, e.g., Wright, 2 F.3d at 217 (employer fulfilled responsibilities by offering employee chance to bid on jobs which would have accommodated his religious practice).

The case before us had its inception in the charge filed by Aiyub Patel with the EEOC on July 19, 1989, in which he alleged that UPS had discriminated against him by denying him the job of package delivery driver on account of his religious practice of wearing a beard. R. 163, Exh. 2. Pursuant to its enforcement authority the EEOC investigated the charge and issued a Determination that there was "reasonable cause to believe that [UPS] has discriminated against [Patel] in violation of Title VII by denying him employment opportunity on the basis of his religion" and that there was "reasonable cause to believe that [UPS's] denial of public contact employment to persons wearing beards as a matter of religious observance or practice discriminates against a class of all such persons at all [UPS] facilities within Title VII jurisdiction, on the basis of religion." R. 163, Exh. 4. When the requisite conciliation attempt failed to produce "a conciliation agreement acceptable to the Commission," the EEOC filed suit. 42 U.S.C. §...