Honorable A. Wallace Tashima, Senior Judge of the United *

States Court of Appeals for the Ninth Circuit, sitting by

designation.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 09-3093

 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

 Appellant

v.

THE GEO GROUP, INC.

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-07-cv-04043)

District Judge: Honorable John P. Fullam

 

Argued February 11, 2010

Before: SLOVITER, ROTH, and TASHIMA, Circuit Judges *

(Filed : August 2, 2010)

____

Dawn M. Edge

Iris A. Santiago-Flores

Equal Employment Opportunity Commission

Philadelphia, PA l9l06
2

James L. Lee

Carolyn L. Wheeler

Lorraine C. Davis

Elizabeth E. Theran (Argued)

Equal Employment Opportunity Commission

Washington, D.C. 20507

Attorneys for Appellant

John P. Gonzales

Joseph J. Santarone, Jr.

Marshall, Dennehey, Warner, Coleman & Goggin

King of Prussia, PA l9406

Walter F. Kawalec, III (Argued)

Marshall, Dennehey, Warner, Coleman & Goggin

Cherry Hill, N.J. 08002

Attorneys for Appellee

____

OPINION OF THE COURT

 

SLOVITER, Circuit Judge.

I.

The Equal Employment Opportunity Commission

(“EEOC”) appeals from the decision of the District Court

granting the summary judgment motion of defendant, the GEO

Group, Inc. (“GEO”). GEO is a private company that was

contracted to run the George W. Hill Correctional Facility (the

“Hill Facility”), which is the prison for Delaware County,

Pennsylvania. The EEOC filed its complaint pursuant to Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§

2000e, et seq., on behalf of a class of Muslim women employees,

alleging that GEO violated Title VII’s prohibitions on religious

discrimination when it failed to accommodate the class members

by providing them an exception to the prison’s dress policy that
Although there appear to be many different styles of 1

khimars, neither party has attempted to describe the khimars at

issue here with any particularity. The quoted definition is from the

complaint, and we will accept it as an accurate description that

applies to the khimars worn by the class members.

3

otherwise precluded them from wearing Muslim head coverings

called khimars at work. GEO moved for summary judgment,

arguing in part that a deviation from its policy would cause it an

undue hardship by compromising its institutional interests in

security and safety. Although the EEOC had filed a cross

motion for summary judgment, on appeal it argues that the

District Court erred because questions of material fact exist

about whether accommodating the class would in fact constitute

an undue hardship for GEO.

GEO is a private, international corporation that, among

other related things, runs federal and state prisons in the United

States. The Hill Facility in Thornton, Pennsylvania holds “pretrial detainees and persons serving a county sentence of two

years less one day or a state sentence of five years less one day.” 

Appellant’s Brief at 3 (quotation omitted). During the relevant

period Raymond Nardolillo was the warden at the Hill Facility

and Matthew Holm, who was hired in August 2004, was the

deputy warden. In about February 2008, Holm became warden

of the Hill Facility.

In April 2005, the Hill Facility instituted a dress policy

that provided that “[n]o hats or caps will be permitted to be worn

in the facility unless issued with the uniform.” App. at 207. The

new policy also stated that “[s]carves and hooded jackets or

sweatshirts will not be permitted past the Front Security Desk.” 

App. at 207. These directives were interpreted to prohibit the

wearing of a khimar, an “Islamic religious head scarf, designed

to cover the hair, forehead, sides of the neck, shoulders, and

chest,” which was until then worn by some female Muslim 1

employees inside of the Hill Facility. App. at 15.

To reinforce the April 2005 prohibitions on hats, head
4

scarves and hoods, Holm issued a memorandum on October 24,

2005, entitled “UNIFORM POLICY,” that 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.

App. at 215.

After the October 2005 memorandum was issued, Holm

and Nardolillo adopted and enforced a “zero tolerance headgear

policy. . . .” Appellant’s Br. at 6. According to GEO, the noheadgear policy was adopted for safety and security reasons to

prevent the introduction of contraband into the prison facility

and to avoid misidentification.

Three Muslim women employees of the Hill Facility,

Carmen Sharpe-Allen, Marquita King, and Rashemma Moss,

protested, claiming that wearing of the khimar was required by

the Islamic religion. They sought an exception to the policy,

arguing that before the April 2005 dress code, they had all been

wearing some style of khimar or head covering at work. After
 Sharpe-Allen testified that she had two meetings with the 2

warden, but she could not remember exactly what transpired at

either of them. According to Sharpe-Allen’s testimony, Nardolillo

took the consistent position at both meetings that she would not

receive an exception to the no khimar rule.

5

the April 2005 dress code was instituted, they were all prevented

from doing so.

Sharpe-Allen was hired as a medication nurse at the Hill

Facility in 2004. During her interview for that position she

explained that her faith required her to wear a khimar, and that

she “wasn’t willing to compromise” concerning the wearing of

her khimar at work. App. at 43. According to Sharpe-Allen, the

interviewer told her that “[h]e didn’t see it being a problem.” 

App. at 44. Part of Sharpe-Allen’s initial job at the Hill Facility

was to “go from cell block to cell block” to “dispense

medication” accompanied by a prison “officer.” App. at 45.

In early 2005, Sharpe-Allen became the chronic

infectious disease nurse, a position in which she worked “closely

with the doctor” in the infirmary “with the inmates who had

infectious diseases, such as hepatitis, [and] HIV . . . [to] ma[k]e

sure that they got their medication, [and] made sure it was

ordered . . . . [and in which she] did all of the PPDs, which is the

tuberculosis test, for the entire prison.” App. at 49. “From

November 2004 through mid-July 2005, when Sharpe-Allen

went out on medical leave, she wore her khimar to work daily

at” the Hill Facility. Appellant’s Br. at 8. When Sharpe-Allen

was preparing to return to work from that medical leave,

colleagues called to tell her that she could not “wear [her]

khimar when [she] c[a]me back to work.” App. at 52. SharpeAllen then spoke with someone in human resources at the Hill

Facility who told her that “the khimar would be an issue.” App.

at 54. As a result, Sharpe-Allen asked to speak with Warden

Nardolillo.

According to Sharpe-Allen, when she and Nardolillo

spoke, the warden told her that the policy would be enforced 2
6

against her but asked if she would be willing to “wear a

headpiece [or] hairpiece . . . .” App. at 58. He also told SharpeAllen that her “job was there, if [she] wanted it, [she] just

couldn’t wear [her] khimar,” but that if she refused to work

without the khimar or resign, the prison would have to fire her. 

App. at 59. Sharpe-Allen told Nardolillo that she enjoyed her

job and that the khimar had never presented any problem in the

past, but also that she would not compromise about wearing the

khimar to work. In December 2005, Allen was fired on the

ground that “she had ‘effectively abandoned her job’ by

‘refus[ing] to comply with [the] directive to return to work

without the wearing of her’” khimar. Appellant’s Br. at 10

(quoting App. at 216-17).

Marquita King is a Muslim woman who was hired at the

Hill Facility in July 2000 as an “intake specialist” at the prison: 

the person who does the paperwork to process new prisoners into

the facility. King’s job entailed such duties as performing a

“bench warrant check” on new prisoners. App. at 129. She

would also have corrections officers bring individual prisoners

to her so that she could ask them questions and input their

answers into a computer. Unlike the corrections officers, she

had no keys to the facility. At her interview for the job, King

wore her khimar and a veil. The interviewer asked King if she

would take her veil off at work, and King agreed that would be

acceptable. There was no discussion of King’s khimar at the

interview, and she wore it to work for the first five years of her

employment.

In October 2005, King was told by a fellow employee that

she and other Muslim women were no longer allowed to wear

their khimars at work. King then called warden Nardolillo who,

according to King, told her that she “will be fired if [she] ha[s] a

khimar on [her] head” at work. App. at 131. Stressed by this

new situation, King took leave for the next four to six weeks. 

When she returned, King took off her khimar at work.

Rashemma Moss began working as a correctional officer

at the Hill Facility in March 2002, a job which sometimes

required her to be close to inmates and sometimes even to come
7

into physical contact with them. In July 2005, after Moss took

her Shahada – “the Muslim confession of faith,” Appellant’s Br.

at 6 n.2 – at work she began to wear underneath her hat a

triangle shaped underscarf that she would tie around her head. 

In a meeting in October 2005, Nardolillo told Moss that she

could no longer wear her head scarf, and that she would be

suspended without pay if she did. Thereafter, Moss stopped

wearing her head scarf to work.

In September 2007, the EEOC as plaintiff, with SharpeAllen as the charging party, filed a complaint alleging that GEO

violated Title VII’s prohibitions on religious discrimination

when GEO failed to accommodate the religious beliefs of

Sharpe-Allen and other female Muslim GEO employees by

refusing their requests for an exception to the Hill Facility’s

dress policy that would have allowed them to wear khimars at

work.

GEO moved for summary judgment, in part asserting the

affirmative defense that it would be an undue hardship as a

matter of law for the prison to allow its Muslim employees a

complete exception to the non-headgear policy because such an

accommodation would compromise the prison’s interest in safety

and security and/or would result in more than de minimis cost. 

The EEOC opposed that motion on the ground that these

interests were insufficiently founded, relying heavily on the

report of its expert, George Camp (the “Camp Report”), which

generally 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)

[t]here is no sound legitimate correctional reason for GEO to

deny its female employees to wear a khimar within the secure

perimeter of the facility.” App. at 219.

The District Court granted GEO’s motion, finding

dispositive this court’s reasoning in Webb v. City of Phila., 562

F.3d 256, 258 (3d Cir. 2009). In Webb this court held that the

dress code adopted by the Philadelphia police, which did not
 The District Court had jurisdiction under 28 U.S.C. § 3

1331. We have jurisdiction under 28 U.S.C. § 1291.

8

“authorize[] the wearing of religious symbols or garb as part of

the uniform” and therefore precluded Muslim women from

wearing khimars on the job, was not a violation of Title VII. Id.

In granting GEO’s motion for summary judgment, the District

Court concluded that there was “no meaningful distinction

between prison guards and similar personnel, on the one hand,

and police officers,” who were at issue in Webb. EEOC v. GEO

Group, Inc., No. 07-cv-04043-JF, 2009 WL 1382914, at *1

(E.D. Pa. May 18, 2009). The Court also stated that the “same

considerations advanced to justify the regulation in question

apply equally to prison guards and employees working in the

medical department.” Id.

II.

Our review of the District Court’s grant of summary

judgment is plenary. Jackson v. Danberg, 594 F.3d 210, 215 (3d

Cir. 2010). Summary judgment “should be rendered if the

pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material

fact and that the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(c).3

Title VII of the Civil Rights Act of 1964 reads, in

relevant part:

(a) It shall be an unlawful employment practice for an

employer -

(1) 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 . . .; or

(2) to limit, segregate or classify his employees or
9

applicants for employment in any way which would

deprive or tend to deprive any individual of employment

opportunities or otherwise adversely affect his status as an

employee, because of such individual’s . . . religion . . . .

42 U.S.C. § 2000e-2(a). “Religion” is defined to include “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 . . . religious observance or

practice without undue hardship on the conduct of the

employer’s business.” Id. § 2000e(j).

This court has recently stated: “To establish a prima facie

case of religious discrimination, 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. “[T]he burden [then]

shifts to the employer to show either [1] it made a good-faith

effort to reasonably accommodate the religious belief, or [2]

such an accommodation would work an undue hardship upon the

employer and its business.” Id. (citation omitted).

GEO does not argue that the EEOC failed to present a

prima facie case. Instead, GEO argues that it offered plaintiffs

“a reasonable accommodation, by offering to permit the Muslim

women employees to wear a hairpiece in place of the khimar”

because “it fulfills the stated religious requirement that the hair

be covered.” Appellee’s Br. at 13-14; see Ansonia Bd. of Educ.

v. Philbrook, 479 U.S. 60, 68 (1986) (noting that there is “no

basis in either the statute or its legislative history for requiring an

employer to choose any particular reasonable accommodation.”). 

GEO notes that one female Muslim employee found that a

hairpiece was sufficient to fulfill the religious requirement to

cover her hair. We are not persuaded by this argument. There is

no evidence about the proposed hairpiece nor any details about

the Muslim employee who found it acceptable. 

We are unwilling to delve into any matters of theology, and will

therefore decline GEO’s invitation to decide on our own what

might constitute a reasonable substitute for a khimar under the
10

Islamic faith. GEO does not challenge the assertion of the three

Muslim employees that they believe wearing the khimar is

integral to their religion, and we proceed on the basis that this is

their sincere religious belief.

In response to the EEOC’s motion for summary

judgment, which relied primarily on the Camp Report and the

deposition testimony of the three female employees, GEO

proffered the testimony of the two GEO wardens. Warden Holm

testified that before he became deputy warden at the Hill

Facility, he had previously worked as the lead investigator for

GEO at the Taft Correctional Institution in Taft, California. In

that position, he was responsible for “initial criminal

investigation on new crimes committed by inmates, all serious

crimes committed by inmates.” App. at 169. His “personal

focus” was on “internal affairs, violations of the rules by staff.” 

App. at 169. He investigated GEO staff for, among other things,

having introduced contraband to prisons, and for “actually

selling and distributing controlled substances to inmates.” App.

at 169. Holm was also the lead investigator of “a fairly large

disturbance at the Taft Correctional Facility that involved

approximately 900 to 1,000 inmates,” an incident that he

described as “more or less a riot . . . .” App. at 169. According

to Holm, that investigation involved “issues about identification

of inmate and video surveillance.” App. at 169. Before working

with the GEO Group, Holm was a California police officer for

18 years.

In the year after Holm was hired at the Hill Facility, he

and Nardolillo made numerous changes to the prison’s policies

to address what they perceived as the prison’s “need[] to . . .

improve the performance of the facility and the staff and to

enhance security and tighten a few things up.” App. at 171. One

thing that Holm had noticed was that despite a long-standing,

apparently unspoken ban on prison employees wearing

unauthorized hats, that ban was not well-enforced. Although the

only hats that were authorized were a black baseball hat with the

GEO logo on and a knit cap that could be used outdoors, Holm

had observed employees wearing unauthorized hats with

“different logos, different things that weren’t appropriate to the
11

uniform of the GEO Group,” App. at 184, and wearing hats

“backwards and sideways,” App. at 183. During his deposition,

Holm also recalled one incident of an employee wearing a “New

York Yankees baseball hat inside the institution while in full

uniform.” App. at 183.

This concerned Holm in part because of his view that “the

band inside of a baseball cap is an excellent place to hide small

amount[s] of narcotics and small amounts of contraband. A

wire, a small knife, anything can go in there.” App. at 183. 

“[A]nother issue” he had with employees wearing hats was

“based on [his] personal experience”: the “identification of an

individual wearing a hat when they would be inside [the] secure

portion [of the prison] . . . where we rely heavily on video

surveillance . . . [because a hat] distorts the identity of the

individual wearing the cap, which to me is an overall safety and

security issue for the prison because it would be entirely possible

for an inmate to get a uniform shirt, put a hat on, pull it real

close . . . [so that] it distorts the view of their face and you can’t

tell who they are when they walk out.” App. at 183.

Holm’s experience was that “during the riot in Taft

Correctional Facility based on the review of video surveillance,

which is what [GEO] based most of [its] investigation on . . . .

there were probably better than 300 or 400 inmates that [GEO]

couldn’t identify . . . simply because they had a baseball cap on.” 

App. at 184. Moreover, one “inmate put a hat on . . . change[d]

[his] shirt . . . pulled [a] hat over his face and walked out the

front door.” App. at 203. As a result, Holm approached

Nardolillo to crack down on employees wearing unauthorized

hats and other “headgear.”

When asked for additional reasons for why this no-khimar

policy was adopted, Holm opined that a head scarf could be

“taken away from an individual and used against them, in any

form of a choking movement . . . . [i]t could be used as a

restraint device . . . [and it] provides unwanted material for

inmates to grab ahold of and/or use against [the] staff.” App. at

201. Asked to distinguish the safety difference presented by a

“head covering” and that presented by “someone’s shirt or
12

someone’s pants,” Holm answered that a khimar, if “grabbed

from the behind by the sides of it, . . . immediately becomes a

choking instrument,” App. at 201, as would a man’s tie, an item

of clothing also generally forbidden for anyone who “has direct

contact with inmates on a daily basis . . . . ,” App. at 202. Holm

also noted that because a “khimar [has] [a] band right across the

forehead and . . . it has the two pieces of material that come

down the side of [the] face, anything that casts a shadow on the

face, be it from above or the side . . . it casts a shadow,” making

identification difficult. App. at 202.

Warden Nardolillo also explained that the justification for

the new zero-tolerance headgear policy was instituted because

“[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.” App. at 75.

The EEOC characterizes Holm’s testimony as “utterly

speculative and conclusory.” EEOC Br. at 39. However, Holm

had significant prior experience in prison administration, and

that practical experience adds weight to the concerns that he

expressed as the basis for the no-headgear policy. We must

therefore decide whether GEO made the necessary showing of

the undue hardship defense.

An “undue hardship” is one that results in more than a de

minimis cost to the employer. Webb, 562 F.3d at 260 (citing

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977)). 

“Both economic and non-economic costs can pose an undue

hardship upon employers . . . .” Id. (citations omitted). In

deciding whether undue hardship exists, “[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. (citing Protos

v. Volkswagen of Am., Inc., 797 F.2d 129, 134 (3d Cir. 1986)). 

In Webb, we stated that the Supreme Court’s decision in Trans

World Airlines, 432 U.S. at 84, “strongly suggests that the undue

hardship test is not a difficult threshold to pass.” Webb, 562

F.3d at 260. A religious accommodation that creates a genuine

safety or security risk can undoubtedly constitute an undue
 In Webb, there was uncontradicted evidence that the 4

Philadelphia Police Department had a “vital” interest in

maintaining its “uniform as a symbol of neutral government

authority, free from expressions of personal religion, bent or bias.”

13

hardship for an employer-prison. As noted above, the specific

safety and security risks that GEO asserts regarding the wearing

of head coverings in prison are the “smuggling of contraband,

misidentification and the use of [a] khimar as a strangulation

weapon in a conflict with an inmate.” Appellee’s Br. at 17.

We agree with the EEOC that the Webb court did not

purport to establish a per se rule of law about religious head

coverings or safety “that would govern in all religious

discrimination cases, all ‘paramilitary organization’ cases, or

even all police department cases.” Appellant’s Br. at 31-32. 

GEO does not disagree. Nonetheless, Webb is relevant to this

case by analogy, as some security and uniformity interests held

by the police force are also implicated in the prison context.

In its brief to this court, GEO also supports its no

headgear policy “due to its effect on [its] legitimate interest [ ] in

requiring uniformity of appearance among prison employees to

promote an environment of discipline and an esprit de corps.” 

Appellee’s Br. at 19. It notes that this interest was cited in Webb

where we stated “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.” 562

F.3d at 262 (citing Fraternal Order of Police Newark Lodge No.

12 v. City of Newark, 170 F.3d 359, 366 (3d Cir. 1999)). The

EEOC points out that unlike the City of Philadelphia in Webb,

GEO’s witnesses did not refer to the uniformity of appearance as

justification for GEO’s dress code policy at the summary

judgment stage, suggesting that this was an afterthought that

arose only after the Webb opinion was filed. In fact, both

wardens did testify about their concern regarding the employees’

lack of uniform appearance, see App. at 77-81 (Nardolillo) and

App. at 183 (Holm). Even the EEOC’s expert Camp concurred 4
Webb, 562 F.3d at 261. Although neither warden in this case tied

the uniformity of appearance requirement to safety concerns, we

cannot completely reject their concern about staff wearing

unauthorized hats and the need for staff adherence to the dress code

in order for the employees to present the appearance of a

disciplined prison staff. See, e.g., App. at 78, 84 (Nardolillo); App.

at 183, 185 (Holm). Similarly, the concern referred to in Webb

about the need for police to present an appearance of religious

neutrality is also applicable to prison staff, as we can take judicial

notice of the prevalence of different religious groups within a

prison.

14

“that uniformed employees should wear only agency issued

visible items.” App. at 226. It is unnecessary for us to decide

whether this interest alone would support summary judgment, as

we decide the case on different grounds.

GEO also argues that the costs that it would incur were it

to adopt the accommodation requested by the Muslim employees

of allowing them to wear khimars would “cause an undue burden

with respect to prison resources.” Appellee’s Br. at 18. 

According to GEO, this is because “Muslim female employees

can move freely throughout [the prison]” and “[w]hen doing so .

. . must pass through numerous checkpoints to pass between

secured portions of the facility” including “approximately

[sixteen] different entry/exit doors that are monitored by closedcircuit video cameras at which visual identification/recognition

is required prior to the door being electronically opened.” 

Appellee’s Br. at 18. Although GEO has not entirely convinced

us that adopting the proposed accommodations of allowing

female Muslim employees to wear khimars but removing them at

each checkpoint would require locking down the prisoners in

each such location, we recognize that adopting the proposed

procedure would necessarily require some additional time and

resources of prison officials.

In the last analysis, GEO’s no headgear policy must stand

on the testimony of Holm and Nardolillo that (1) khimars, like

hats, could be used to smuggle contraband into and around the
15

Hill Facility, (2) that khimars can be used to conceal the identity

of the wearer, which creates problems of misidentification, and

(3) that khimars could be used against a prison employee in an

attack. To be sure, GEO acknowledges that “there were no

reports of these types of incidents at [the Hill Facility] during

Warden Nardolillo’s and Warden Holm’s tenure[s] at the

facility,” but we agree with GEO that a prison “should not have

to wait for a khimar to actually be used in an unsafe or risky

manner, risking harm to employees or inmates, before this

foreseeable risk is considered in determining undue hardship.” 

Appellee’s Br. at 17. In other words, because “[i]n a prison

setting, the safety of the employees and inmates is of top priority

. . . . [GEO] should not be prevent[ed] from countering, through

appropriate policies, the risks which might be posed by the

plaintiff[s’] preferred accommodation.” Appellee’s Br. at 17.

Even assuming khimars present only a small threat of the

asserted dangers, they do present a threat which is something

that GEO is entitled to attempt to prevent. To GEO, the fact that

inmates have other clothes that could also be used to strangle a

guard “does not mean that the facility would be out of line in

banning something else which can also be used as such a

weapon,” especially given that a khimar does not have a

legitimate penological justification. Appellee’s Br. at 36. It

argues that unlike other clothing, “the khimar is already located

about the guard’s head, virtually around the neck already.” 

Appellee’s Br. at 36.

The arguments presented by the parties make this a close

case. The EEOC has an enviable history of taking steps to

enforce the prohibition against religious discrimination in many

forms and its sincerity in support of its arguments against the

application of the no headgear policy to Muslim employees

wearing khimars is evident. On the other hand, the prison has an

overriding responsibility to ensure the safety of its prisoners, its

staff, and the visitors. A prison is not a summer camp and prison

officials have the unenviable task of preserving order in difficult

circumstances.

In Bell v. Wolfish, the Supreme Court, albeit faced with
16

different prison regulations that were challenged under the

Fourth Amendment, noted that “[t]he Government also has

legitimate interests that stem from its need to manage the facility

in which the individual is detained.” 441 U.S. 520, 540 (1979). 

The Court also noted that prisons are “unique place[s] fraught

with serious security dangers” and therefore the effective

management of a detention facility is a valid objective that may

justify imposition of various conditions. Id. at 559. In that case,

the Court cautioned the federal courts to make only limited

inquiry into prison management because “[t]he wide range of

‘judgment calls’ that meet constitutional and statutory

requirements are confided to officials outside of the Judicial

Branch of Government.” Id. at 562. Although we do not take

those remarks to deter federal courts from upholding the

constitutional rights of prisoners and prison staff alike, they must

be considered in making the kind of delicate balance called for

in this case.

This court’s recent opinion in Webb held that

notwithstanding the sincere religious beliefs of the plaintiff

police officer of the need to wear a khimar, that belief was

subordinate to the police department’s policy prohibiting the

wearing of a khimar because “‘safety is undoubtedly an interest

of the greatest importance.’” Webb, 562 F.3d at 262 (quoting

Fraternal Order of Police, 170 F.3d at 366). The District Court

did not err by relying on Webb in granting summary judgment to

GEO. We reach the same result in balancing the respective

considerations here.

We respond to the comments of our dissenting colleague. 

Judge Tashima takes issue with our acceptance of GEO’s

explanation that its no-headgear policy was based on its interest

in safety, i.e., prevention of the introduction of contraband, and

the undue hardship that the proffered accommodations would

entail. He has a lengthy discussion impugning the reasons given

by Warden Nardolillo and Deputy Warden (later Warden) Holm

for the 2005 change in policy. We find that criticism unfairly

cynical.

Deputy Holm had transferred to the Hill Facility in 2004,
17

after working for another GEO facility for six years. App. at

170. In that capacity he focused on internal affairs, violations of

the rules by the staff, including, inter alia, introduction of

contraband. App. at 169. He had previously been a state police

officer for eighteen years. App. at 170. Thus, it should not be

considered surprising that after he was transferred to the Hill

Facility he reviewed the security procedures. His testimony

persuasively refutes any suggestion by the Dissent that

Nardolillo and Holm were not actually concerned about the

introduction of contraband. Holm testified that the issue of

contraband was the subject of discussion with Nardolillo

“probably close to 100” times. App. at 173. Certainly a prison

facility should not be faulted for making changes that

strengthened its security policies when reviewed by a new set of

eyes.

The Dissent downplays GEO’s claim that the

accommodations suggested by the EEOC would cause undue

hardship. The khimar-switching proposals, either switching

khimars or removing them at checkpoints, are facially

implausible and time consuming. They would need to be

removed, folded, and stored in a locker not yet available. It is

worth noting that there are elaborate precautions taken when

visitors to the prison wear khimars. A female officer escorts the

visitor to the ladies’ room where the khimar is removed, the

visitor is photographed, and the khimar replaced. This process

entails considerable time and effort for the staff, but the

authorities deem it necessary to protect against contraband. App.

at 102-03, 286.

The Dissent apparently believes it is unlikely that a

khimar may be used to strangle the wearer. The Dissent posits

the possibility that a khimar could be worn as a bandana is worn. 

See Dissent at 13 n.1. The EEOC never introduced a khimar into

evidence. Although khimars may come in different shapes and

sizes we note the description adopted by a sister circuit that

stated “A khimar is a traditional garment worn by Muslim

women that covers the forehead, sides of the head, neck

shoulders, chest and sometimes their waist,” EEOC v. Kelly

Servs., 598 F.3d 1022, 1023 n.1 (8th Cir. 2010) (quotation and
18

citation omitted), a description similar to that provided in the

EEOC’s complaint. If that were the size of the garment worn by

a staff member, the possibility of strangulation should not be

taken lightly. Nor does the Dissent explain how allowing

Muslim women to wear bandana-like khimars would entirely

alleviate the safety concern as a bandana, too, could be used as a

weapon. A blanket policy to prohibit all headgear except those

issued with the prison uniform seems the sensible solution.

Judge Tashima notes that kitchen employees who

frequently interact with prisoners continue to wear hats within

the secure facility. Had the EEOC raised that issue in the

District Court, GEO undoubtedly would have pointed to

Nardolillo’s deposition testimony that there were specific safety

measures applicable to kitchen workers. App. at 79-80. In fact,

the Pennsylvania Administrative Code provides:

General requirement. Employees shall wear hair

restraints such as hats, hair coverings or nets, beard

restraints and clothing that covers body hair, that are

effectively designed and worn to keep their hair from

contacting exposed food; clean equipment, utensils and

linens; and unwrapped single-service and single-use

articles.

7 Pa. Code § 46.152(a). Anyone who has visited a prison will

observe many prisoners with long, sometimes unruly, hair, a

sanitary concern addressed by the general state requirement that

kitchen workers who handle food wear hats. Moreover, the

kitchen workers at the Hill Facility were not permitted to wear

the hats outside of the kitchen. App. at 80. The Dissent’s

reference to kitchen hats is just another red herring.

The Dissent appears to place more reliance on the

testimony of the EEOC’s expert witness than on the testimony of

the experienced prison officials on the site at issue. The

Dissent’s view of how a prison should be run, particularly its

minimization of the security concerns that motivated the change

in headgear policy at the Hill Facility, runs counter to the

direction we have been given by the Supreme Court which
19

stated:

Running a prison is an inordinately difficult undertaking

that requires expertise, planning, and the commitment of

resources, all of which are peculiarly within the province

of the legislative and executive branches of government. 

Prison administration is, moreover, a task that has been

committed to the responsibility of those branches, and

separation of powers concerns counsel a policy of judicial

restraint. Where a state penal system is involved, federal

courts have . . . additional reason to accord deference to

the appropriate prison authorities.

Turner v. Safley, 482 U.S. 78, 84-85 (1987).

As the en banc Ninth Circuit recently stated, its obligation

is “to comply with the Supreme Court’s direction that we not

substitute our judgment for that of corrections facility officials.” 

Bull v. City and Cnty. of San Francisco, 595 F.3d 964, 978 (9th

Cir. 2010) (citation omitted).

III.

Accordingly, we will affirm the District Court’s order

granting summary judgment to GEO.
1

EQUAL EMPLOYMENT OPPORTUNITY COMM’N V. THE GEO

GROUP, INC., 09-3093

TASHIMA, Circuit Judge, dissenting:

Because I believe the majority misapplies both longstanding Circuit law on how we review summary judgment and,

in doing so, ignores our substantive Title VII law, I respectfully

dissent.

The GEO Group, Inc., a private corporation, runs the

George W. Hill Correctional Facility (the “prison”) under

contract with Delaware County, Pennsylvania. The Equal

Employment Opportunity Commission (“EEOC”) sued GEO on

behalf of a class of Muslim women employees of GEO, alleging

religious discrimination prohibited by Title VII of the Civil

Rights Act of 1964, as amended (“Title VII”), 42 U.S.C. §

2000e, et seq. The majority holds that requiring GEO to

accommodate the wearing of khimars by its Muslim women

employees would work an undue hardship on GEO. But in

reaching that conclusion, it chooses to give credence to the

testimony of Warden Raymond Nardolillo and Deputy Warden

Matthew Holm that khimars pose a threat to safety within the

prison, Maj. Op. at 14, and to ignore the ample evidence in the

record contradicting and undermining that testimony. In doing

so, the majority fails to apply our summary judgment standard of

review, which requires us to conduct a plenary review of the

record and draw all inferences in favor of the non-moving party. 

See, e.g., Webb v. City of Phila., 562 F.3d 256, 259 (3d. Cir.

2009). The majority, thus, effectively relieves GEO, as the

employer and moving party asserting safety concerns, of the

burden of proving the existence of the asserted safety concerns,

as well as of the fact and magnitude of the asserted hardship in

accommodating plaintiffs religious needs. I cannot agree that

this approach and its result are consistent with Circuit law.

Viewing the record in the light most favorable to the nonmovant EEOC and the Muslim women employees it represents

(collectively, “plaintiffs”) and drawing all reasonable inferences

from the evidence in plaintiff’s favor, GEO has not
2

demonstrated that accommodating plaintiffs’ religious practice

of wearing a khimar would compromise its interest in safety in a

manner that could not be prevented without “work[ing] an undue

hardship” upon it such that it is entitled to summary judgment. 

Id. When considered as a whole, the record before us would

allow a reasonable jury to find that GEO did not make a goodfaith effort to reasonably accommodate the religious practice of

its Muslim women employees. See id. at 262. That reasonable

jury could also find that allowing its Muslim women employees

to continue wearing their khimars at work would not work an

undue hardship upon GEO. Id. I would, therefore, reverse the

District Court’s grant of summary judgment to GEO.

A close examination of the record reveals that Nardolillo

and Holm’s testimony about how, why, and when the khimar

policy was changed is internally inconsistent and is further called

into question by the testimony of other witnesses and GEO’s

own business records. The record also supports the inference

that GEO’s stated rationales for banning khimars may be

pretextual and are highly speculative. The majority characterizes

this analysis of the record as “unfairly cynical.” Maj. Op. at 16. 

I believe that it is merely the application of the proper standard

of review. The Supreme Court long ago adopted this Circuit’s

rule that “‘[i]f . . . there is any evidence in record from any

source from which a reasonable inference in the [nonmoving

party’s] favor may be drawn, the moving party simply cannot

obtain a summary judgment.’” Celotex Corp. v. Catrett, 477

U.S. 317, 331 n.2 (1986) (quoting In re Japanese Elec. Prod.

Antitrust Litig., 723 F.2d 238, 258 (3d Cir. 1983), rev’d on other

grounds sub nom. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574 (1986)) (omissions in Celotex) (emphasis

added). “[A]ny doubt as to the existence of a genuine issue for

trial should be resolved against the moving party.” Id. at 331

n.2.

The majority clearly finds the testimony of Nardillo and

Holm to be persuasive, and believes that, as the testimony of

“experienced prison officials on the site at issue,” it should be

given great weight. Maj. Op. at 18. A trier of fact might very

well agree, but “at the summary judgment stage, the judge’s
3

function is not himself to weight the evidence and determine the

truth of the matter but to determine whether there is a genuine

issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249 (1986). “[T]he judge must ask himself not whether he

thinks the evidence unmistakably favors one side or the other but

whether a fair-mided jury could return a verdict for the plaintiff

on the evidence presented.” Id. at 252. We must not engage in

the making of “[c]redibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the

facts” as these “are jury functions, not those of a judge, [when]

he is ruling on a motion for summary judgment.” Id. at 254. 

Thus, the purpose of my “cynical” analysis of the facts is simply

to follow the Supreme Court’s mandate that “[t]he evidence of

the non-movant is to be believed, and all justifiable inferences

are to be drawn in his favor.” Id.

Facts

Carmen Sharpe-Allen

Carmen Sharpe-Allen began wearing the khimar and

overgarment that make up the hijab when she converted to the

Muslim faith by taking her shahada, nearly a decade before she

became a GEO employee. JA 37, 39. Sharpe-Allen wore her

full hijab to her November, 2004 interview for a position as a

medication nurse at the prison. As a medication nurse, she

would be required to visit the cell-blocks within the secure area

of the prison on a daily basis. According to the dress code on

record in the prison at that time, scarves were not allowed within

the prison past a certain security station. Yet that policy

appeared not to be enforced, as Sharpe-Allen’s practice of

wearing a khimar posed no obstacle for her in getting hired.

During the interview, she inquired about whether she

would be allowed to wear her religious attire in her new position,

because she “wasn’t willing to compromise” wearing her

khimar. JA 43. The prison dress code required all medical staff

members to wear matching scrubs to work, in purple and teal

green. JA 43, 209. Because Sharpe-Allen did not own

overgarments in the colors of the medical uniform, she told the
4

interviewer, “I would be willing to wear the scrubs, but

definitely wasn’t compromising my khimar.” JA 43. Her

interviewer told her that she could wear her khimar, but he

would have to ask someone else whether she could wear an

overgarment instead of medical scrubs. JA 44. She was offered

the job at the interview, and accepted it on the spot. JA 44. 

Because Sharpe-Allen agreed to wear the uniform medical

scrubs with her khimar, no further inquiry was made about the

possibility of wearing an overgarment. JA 44.

In 2005, Sharpe-Allen became a chronic infectious

disease nurse in the prison. JA 48-49. In this new position,

Sharpe Allen was no longer required to go cell-to-cell and began

working almost exclusively in the infirmary. JA 49. She would

only go to cells if she needed to check the results of inmates’

tuberculosis tests. JA 49. Throughout her employment at GEO,

she continued to wear her khimar. Sharpe-Allen’s khimar posed

no safety threat during the time that she was required to go cellto-cell on a daily basis. Only later, when she was mostly

working in an office setting without prisoner interaction, did

Nardolillo and Holm claim that her khimar was a so dangerous

that it could no longer be worn.

Marquita King

Marquita King has worn a khimar during all of the years

that she has been a practicing Muslim, from 1993 to 2001, and

after 2004. JA 124-25. Like Sharpe-Allen, she was hired while

wearing traditional Muslim garb. She interviewed for her

position as an intake specialist in 2000 while wearing a long

dress and overgarment that were part of her religious attire, as

well as a khimar and veil over her face. JA 127. Her

interviewer asked whether she would be able to remove her veil

when she came to work at the prison facility so that her face

could be seen. JA 127. King confirmed that she could remove

the veil while at work and she was offered the job during her

interview and immediately accepted. JA 127. It appears that the

job interviewer believed that having a veiled face would

compromise safety within the prison and be unacceptable, but

wearing only a khimar would not.
5

King worked doing paperwork in an office setting. JA

129. Unlike correctional officers, she did not have keys to the

facility. JA 129. The only time that she would interact with

inmates was when they would be brought from a holding area to

her desk by a correctional officer so that she could input their

answers to intake questions into her computer. JA 129.

As a member of the administrative and clerical staff, King

was not required to wear a uniform. JA 210. She therefore

would not be bound to dress restrictions imposed only on

uniform employees, such as wearing only headgear issued with

one’s uniform. Instead, the dress code applicable to her position

only required her to wear professional attire at all times. JA 210. 

During the years that King was a practicing Muslim and working

at the prison, she would wear her khimar with either a long dress

that is part of Muslim religious attire or slacks with long shirts. 

JA 127. As agreed upon in her interview, she did not wear her

veil to work. JA 127.

Rashemma Moss

Rashemma Moss began working at the prison in 2002 as a

correctional officer. As a correctional officer, Moss is the only

GEO employee involved in this suit who had to wear a

correctional officer uniform, had keys to the facility, regularly

worked in the secured areas of the prison with inmates, and

responded to use of force incidents. JA 155. Moss did not wear

a khimar to her interview, or during the first few years of her

employment with GEO, as she was not yet a practicing Muslim. 

JA 151.

In July of 2005, Moss took her shahada, thereby

becoming a full-fledged member of the Islamic faith. JA 151. 

In lieu of wearing an overgarment, she exchanged her

correctional officer uniform for a larger size “to suffice for not

showing [her] shape so it wouldn’t be tight-fitting.” JA 158. To

cover her hair in accordance with her religion, Moss began

wearing an underscarf, which she described as a “triangleshaped” piece of fabric that is “tie[d] around [one’s] head, under

the hat that was issued to her as part of her uniform. JA 156. 
6

Moss testified that at that time, “underscarfs was [sic] already

being worn,” she had already worn one to work on previous

occasions and, at that time, “it was common practice [among

prison employees] to wear things on [their] head[s], not

necessarily an underscarf, but a hat, a scarf, a headband.” JA

157.

The record indicates that events stemming from Moss’

conversion to Islam prompted the change in the enforcement of

the dress code. Moss asked her union representatives whether

there was any policy preventing her from wearing a head

covering in accordance with her faith and was told that there was

not. AR 157. However, Moss decided that it would be best to

confirm this with her supervisors at the prison, so in August of

2005, she wrote a “letter to the chief of security informing him

that [she] was Muslim, [she] had [taken] her shahada, on what

date, what the requirements were that was [sic] stipulated on

[her] by [her] religion, and what I have to do.” AR 157. 

Repeatedly receiving no response, she continued informing the

next person in the chain of command, eventually writing Warden

Nardolillo on October 24, 2005.

The Prison Dress Code

The majority’s discussion of the prison dress code is

inaccurate to the extent that it indicates that the new dress code

adopted by Warden Nardolillo in April of 2005 changed the

facility’s policy on the wearing of hats, caps, khimars, or any

other headcoverings in any substantive way. See Maj. Op. at 3. 

Nardolillo did sign a new dress code on April 21, 2005. 

However, that new policy made only one minor change to the

prison’s preexisting general grooming standards, which govern

the wearing of headgear by employees within the facility. JA 77. 

The old dress code had prohibited “scarves and hooded jackets

or sweatshirts” from being worn past the “mousetrap,” which is

an area beyond the front desk. JA 77, 207. The new policy

prohibited those items from being worn past the “ION SCAN,”

at the front security desk. JA 77, 207.

The prison’s previous dress code had been in effect since
7

February 19, 2004. JA 207. Other than the change in location at

which scarves and hooded jackets or sweatshirts needed to be

removed, both the 2004 dress code and the 2005 dress code

contained exactly the same language regarding headgear. 

Therefore, there was no material in the official prison dress code

with regard to hats or headcoverings between 2004, the time at

which all three plaintiff Muslim women employees began

wearing their khimars to work on a daily basis, and October 24,

2005, when Nardolillo issued a memorandum to employees

prohibiting the wearing of hats.

The unchanged portion of the prison’s official policy on

personal grooming prohibits “alter[ation], modifi[cation], or

embellish[ment]” of the standardized uniform provided by GEO. 

JA 207. It prohibited “scarves and hooded jackets or

sweatshirts” from being worn past a specified security screening

location. JA 207. And it provided that “[n]o hats or caps will be

permitted to be worn in the facility unless issued with a

uniform.”

Moss testified that the hat she wore to work was issued to

her as part of her official uniform. JA 156. Under the dress

code as written, she should therefore have been allowed to wear

the hat within the facility. This directly contradicts Nardolillo’s

testimony that no hats could be worn within the facility because

no hats were issued with uniforms, as “the hat was not, per se, an

official part of the uniform.” JA 78. Nardolillo’s claim that a hat

was not part of the correctional officer uniform is further

contradicted by GEO’s own records tracking the uniforms that

were issued to its correctional employees. Those records

corroborate Moss’ testimony that hats were distributed as part of

the uniforms. JA 78-80.

Nardolillo testified that even if employees were given

hats as part of their official uniform, they were not allowed to

wear them within the secured perimeter of the facility. JA 83. 

Again, this is contradicted by Moss’ testimony that various

headcoverings were commonly worn by employees within the

facility. JA 157. It is also contradicted by Nardolillo’s own

testimony that employees were “wearing whatever they wanted
8

to wear on their heads” until he took action to end this practice. 

JA 78.

Nardolillo testified that he believed the only appropriate

situation in which an employee could wear a head covering was

if a guard who worked at the guard shack outside of the secure

perimeter of the prison was granted his personal permission to

wear a GEO ski cap due to cold winter temperatures. JA 83. 

However, the plain language of the prison dress code that existed

in 2004 and was readopted by Nardolillo in April 2005, allows

hats to be worn “in the facility” if they are “issued with the

uniform.” JA 207. Holm testified that “there has only ever been

one official hat issued with the uniform and that was to that first

group of employees in 1998 and none of them wore it and it’s

not in existence anymore.” JA 185. That statement is directly

contradicted by GEO’s own records, which indicate that a cap

continued to be issued to correctional officers at the prison as

part of their uniform through 2005. JA 80. Nardolillo testified

that he did not change the policy of distributing caps to

employees as part of their uniforms when he readopted the

prison dress code in April of 2005. Plaintiffs presented evidence

that hats continued to be commonly worn within the secure areas

of the prison just as they had been under the identical and

identically unenforced 2004 policy until October 24, 2005.

The Implementation of the Policy

Moss’ letter explaining her religious conversion and

requesting permission to continue wearing her khimar reached

Nardolillo’s desk on October 24, 2005. JA 157. Within hours,

Moss was called into Deputy Warden Holm’s office to speak

with Holm and Nardillo. JA 157. Nardolillo told her that he

was denying her request to wear her khimar and was stopping

everyone in the facility “from wearing hats and covering their

head.” JA 159. At this point, Nardolillo presented Moss with

the October 24, 2005 memorandum regarding the uniform policy

that would later be distributed to all employees. JA 215. The

memorandum differed from the official policy that had been

adopted in April of 2005, stating that “all hats, caps or religious

attire will not be permitted to be worn with your uniform or by
9

non-uniformed employees unless specifically authorized by the

Warden.” JA 215.

The memo also clarified that “there are no authorized

hats, caps or attire, which can be worn inside the jail and there

are no exceptions to this policy.” JA 215. The lack of a

religious exception for hats contrasted with the specific religious

exemption to the general grooming standards requirement that

“[m]ale staff is to be clean-shaven at all times.” This exception

was created for men who wear beard for “Medical or Religious

reasons” supported by “written documentation.” JA 207.

Moss offered to get her Koran from her car to show

Nardolillo and Holm that her religion required her to cover her

hair, but they told her that would not be necessary. JA 159. 

They told her that they would be informing the other Muslim

women that they could not wear head coverings either. JA 159. 

Nardolillo or Holm told Moss that she might be “starting a fad or

a fashion statement because now others are wearing the same . . .

headscarf and hat.” JA 159.

Moss requested a religious exception. Nardolillo then

told Moss that “no religion will be honored in the jail” and that

“he doesn’t care if it’s a Jewish person with a turban on his head

or rosary beads around their neck.” JA 159. When Moss asked

why Muslim women visitors to the secured area of the prison

were permitted to wear their khimars, but she could not, Nardillo

replied, “that will be stopped, too.” JA 159. Moss then asked

why female inmates were permitted to wear khimars. The

Warden replied, “[d]ue to Title 37, they have the right of

freedom of religion.” JA 159. Moss, pointing out that she was

not incarcerated, asked why she did not have the same right. JA

159. Nardolillo replied, “[b]ecause you’re not. No religion will

be honored.” JA 159. Nardolillo continued to explain, “this is

the battle he’s choosing to fight.” JA 159.

As Moss was leaving, Nardolillo asked her, “[i]s it really

that important to you?” JA 160. She answered, “[y]es, my

religion is important to me. Isn’t your religion important to you? 

He said he really didn’t think it made that big of a difference.” 
10

JA 160. These statements clearly indicate that Nardolillo was

not interested in providing any sort of religious accomodation.

The contents of the memorandum were announced at roll

call that day. The change in policy became “a major topic in the

facility.” Employees blamed Moss for the policy change, saying

that she was responsible “for people that’s been [sic] wearing

hats for ten years not able to wear a hat anymore.” JA 161.

The next day, Moss arrived at work wearing her

underscarf and hat as usual. JA 162. First thing, before Moss

had reached the ION SCAN, she was called into Holm’s office

again. JA 162. At that point, “everybody out there still ha[d] on

hats,” and except for Moss, “none of them [we]re being

disciplined or called into the office or told to remove their hats . .

. including supervisors.” JA 162. She was told that if she

continued to wear her headscarf, she would be suspended

without pay. JA 162. Moss stopped covering her head at work

and continued to work as a correctional officer.

On October 25, 2005, King received a call at home to tell

her that she could no longer wear her khimar at work and would

need to speak with Nardolillo. JA 131. She called Nardolillo

and reported that she had “heard that we were no longer allowed

to wear our khimars.” JA 131. Nardolillo confirmed the news,

and said “if you show up to work, you will be fired if you have a

khimar on your head.” JA 131. King responded that she had

been “hired with [her] khimar on . . . [and] was just in [his]

office last month with [her] khimar, and there was not an issue

with it.” JA 131-32. Nardolillo replied that “he didn’t care, this

is what he’s saying now.” JA 132.

King took several weeks of medical leave due to stress. 

JA 134. When she returned to work, she wore her khimar until

she arrived in the parking lot, and then took it off as she entered

the building. JA 134.

Sharpe-Allen was out on a medical leave during October

2005. JA 52. Her sister, who also worked at the prison at that

time, called her to tell her that the she could no longer wear her
11

khimar when she was ready to return to work. JA 52. Her

human resources representative confirmed this, and so SharpeAllen asked to meet with the warden. JA 54. She met with

Nardolillo twice, hoping to get his permission to continue

wearing her khimar on the job. JA 62. Wearing her khimar

during the meetings, Sharpe-Allen “stressed the fact that [she

has] been here and . . . [is] doing [her] job . . . [and has] never

given [him] any problem. [Her] khimar hasn’t interfered.” JA

61. Nardolillo “wasn’t willing to compromise at all.” JA 61. 

He told her that she “wouldn’t get in the building” as long as she

showed up for work wearing her khimar. JA 62. Nardolillo then

terminated Sharpe-Allen, asserting that she had “effectively

abandoned her job” by “refus[ing] to comply with [his] directive

to return to work with the wearing of her Kimar [sic].” JA 216-

17.

The Asserted Rationale for the Policy

Nardolillo and Holm have provided shifting testimony

about their rationales for the prison’s change in dress code

policy. At times, their testimony indicated that the decision to

ban all headgear was motivated by a concern about employees

appearing unkempt and out of uniform. Nardolillo testified that

prior to the policy change, uniformed security officers were

“wearing hats inside, various and sundry type hats,” with

“different baseball team logos,” which did not have GEO logos

on them. JA 78. Nardolillo thought “it didn’t look well. It was

not a uniformed appearance.” JA 78. Holm also testified that he

wanted to change the dress code because he was unhappy that he

saw a “New York Yankees baseball hat inside the institution

while in full uniform, [which was] not authorized” as well as

“hats being worn backwards and sideways.” JA 183.

The majority focuses on testimony that the policy change

was instead “prompted” by security issues. JA 75. Nardolillo

stated that “[p]rimarily,” he was having a problem with the

increased introduction of contraband, specifically drugs, into the

institution.” JA 75. Holm hypothesized that “the band inside of

a baseball cap is an excellent place to hide a small amount of

narcotics and small amounts of contraband.” JA 183. Holm
12

recalled that at another facility, he had encountered a problem

identifying which prisoners had been involved in a riot because

they had baseball caps on. JA 184. This gave him concerns that

“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” would be difficult and

create safety or escape risks. JA 184. Holm later asserted that

khimars pose a special risk that hats do not because “scar[ves]

and hoods . . . can be taken away from an individual and used

against them, in any form of choking movement.” JA 201.

GEO presented no evidence whatsoever that any

employee head covering has ever been used in the prison to

smuggle contraband, to conceal a prisoner’s identity, or as a

weapon. JA 220. Plaintiffs presented expert testimony that

called into question whether the safety risk that Nardolillo and

Holm feared from Khimars actually existed. For example,

although Nardolillo testified that he banned headcoverings in

response to an increased introduction in contraband, the prison

had not actually experienced any increase in contraband

introduction through employees. JA 224. Plaintiffs’ expert

noted that “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.” JA 222. Of these two staffrelated contraband incidents, representing only approximately

half a percent of total contraband reports, one involved a

correctional officer bringing food and cigarettes in his jacket

pocket, and the other involved a kitchen worker who was found

with cigarettes and latex gloves in his sock. JA 224. It is worth

noting that kitchen workers continue to wear hats as part of their

uniform, including during their daily interactions with prisoners

during meals. JA 80. After the headgear policy change, “the

amount of contraband found by staff did not decrease.” JA 220.

The expert also opined that khimars would not create

difficulty in identifying employees because they can “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.” JA 226. Furthermore, he pointed out that
The majority credits GEO’s assertion that one of the 1

safety hazards posed by wearing a khimar is that it “could be used

against a prison employee in an attack.” Maj. Op. at 14. This is

based on Holm’s testimony that a khimar could be used in the

“form of a choking movement . . . used against the staff.” Id. at 11.

This testimony assumes that the only way to wear a khimar is to tie

it under the chin at the neck. But GEO never explored a possible

accommodation of permitting the wearing of a khimar as a bandana

would be worn, i.e., not tied under the chin at the neck, or any other

similar accommodation, or of wearing a bandana, underscarf, or

smaller piece of fabric in lieu of a khimar, as Moss apparently was

already doing.

13

a khimar’s ability to obscure a prisoner’s identity, allowing him

to escape, does not differ from that of any other piece of clothing

or fabric present in the prison. JA 226-27. He also concluded

that GEO’s concerns that a khimar could be used as a

strangulation device were similarly unsupported, as any item of

clothing can similarly be used for strangulation. JA 227-28. 

Neither Sharpe-Allen nor King regularly work within the secure

perimeter of the prison, have frequent contact with prisoners, or

participate in use of force events. Moss testified that she wore

her underscarf in a manner that fit underneath a baseball cap,

which seems to indicate that it could be tied like a bandana, and

would not be tied under the neck.1

According to the expert report, “all of the other

jurisdictions” he surveyed “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. JA 230. In particular, “[b]oth 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.” JA 230.

DISCUSSION

The Majority Applied the Wrong Legal Standard
14

The majority’s holding that “[e]ven assuming khimars

present only a small threat of the asserted dangers, they do

present a threat which is something that GEO is entitled to

attempt to prevent,” Maj. Op. at 14, represents an unexplained

shift from our established jurisprudence. The majority’s

approach allows an employer facing an asserted safety concern

freely to discriminate on the basis of religion by merely

inventing a post-hoc safety rationale for its refusal to

accommodate its employees’ religious practices. An employer

cannot evade liability for religious discrimination by merely

asserting that it has a legitimate business interest, no matter how

important, for refusing to accommodate an employee’s religious

practice. Rather, the burden is on the employer to show that

accommodating the employee’s religious practice “would

impose more than a de minimis cost on the employer.” Webb,

562 F.3d at 260. As we said in Webb, that cost may be an a noneconomic cost, such as creating a safety risk. Id. However, the

majority has failed even to perform the necessary inquiry into

whether making a religious exception from the general headgear

ban to accommodate khimars would, in fact, impose such an

undue hardship on GEO.

The majority’s approach creates an exception to the

normal burden-shifting rule, which is an established part of our

Title VII analysis when safety is the employer’s asserted

rationale. The majority acknowledges that the District Court did

not made any finding or reach any conclusion about the

existence of an undue hardship. Maj. Op. at 14. By the

majority’s own admission, this is also “a close case.” Id. at 15. 

But the majority concludes nonetheless that “[e]ven assuming

khimars present only a small threat of the asserted dangers, they

do present a threat which is something that GEO is entitled to

attempt to prevent.” Id. at 14. The majority thereby effectively

exempts GEO from Title VII’s requirement that an employer

must prove that its hardship is more than de minimis; instead, it

concludes that this requirement is met merely because GEO has

asserted that its hardship is safety. The majority, in effect,

establishes a per se rule that when an employer asserts that its

rationale for denying a religious accommodation is safety, the

employer need not adduce any evidence to prove the existence
15

of, let alone the magnitude of, the burden it would suffer by

accommodating the religious practice. This is error, especially

in light of plaintiffs’ evidence to the contrary.

I agree with the majority that “‘safety is undoubtedly an

interest of the greatest importance.” Webb, 562 F.3d at 262

(quoting Fraternal Order of Police Newark Lodge No. 12 v. City

of Newark, 170 F.3d 359 (3d. Cir. 1999)). Certainly, “Title VII

does not require that safety be subordinated to the religious

beliefs of an employee.” Draper v. U.S. Pipe & Foundry Co.,

527 F.2d 515, 521 (6th Cir. 1975). The importance of the

employer’s interest, however, does not ipso facto relieve the

employer of its burden of proof. It is established law in this

Circuit that “‘[t]he magnitude as well as the fact of hardship

must be determined by the examination of the facts of each

case.’” Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 134

(3d. Cir. 1986) (quoting Tooley v. Martin-Marietta Corp., 648

F.2d 1239, 1243 (9th Cir. 1981)). On this record, a reasonable

jury could easily find that GEO has proven neither the fact nor

magnitude of its asserted hardship.

Plaintiffs Have Raised Disputed Questions of Material Fact

of GEO’s Asserted Safety Interest

Plaintiffs also have raised a disputed question of fact as to

whether safety was even the reason that GEO changed its policy

about head coverings. The shifting testimony of Nardolillo and

Holm is internally inconsistent. At times, they testified that they

when they decided to ban hats, they were motivated by safety

concerns. On other occasions, they testified that they just did not

like the way it appeared to have employees commonly wearing

various non-uniform hats. A jury could infer that GEO’s

inconsistent and shifting rationale for its change in policy is

“evidence tending to show pretext.” Abrahamson v. William

Patterson Coll. of N.J., 260 F.3d 265, 284 (3d. Cir. 2001).

It would be perfectly reasonable for a jury to find, despite

Nardolillo and Holm’s testimony, that safety concerns did not

actually motivate them to change the hat policy. Such a finding

would be supported by the fact that the changes to the dress code
16

in April 2005 did not actually include any changes to the hat

policy, and that plaintiffs introduced evidence that hats

continued to be commonly worn within the secure perimeter of

the facility after the adoption of the new version of the dress

code in April 2005. One could assume that if concern about the

safety of hats had motivated the adoption of the April 2005 dress

code, the new dress code would include revised language on

hats, hats would have ceased to be issued with uniforms, hats

would have been banned for all employees, and the new policy

would have been implemented immediately.

A finding that the ban on khimars was not motivated by

safety would be further bolstered by the fact that plaintiffs

introduced evidence that GEO did not make any attempt to stop

employees from wearing hats or khimars in the facility until the

very day that Nardolillo became aware of Moss’ request for

permission to wear her khimar, and by the fact that after the

issuance of the October 24, 2005 memorandum, Moss was

singled out for reprimand for wearing her khimar the next day,

while other correctional officers continued to wear their secular

hats without incident. Additionally, kitchen employees who

interact with prisoners on a more frequent basis than either

Sharpe-Allen or King continue to wear hats within the secure

facility. Further, two of the plaintiff-employees do not even

work regularly within the secure areas of the prison.

The testimony of Nardolillo and Holm about their

motivations simply does not match up with the evidence of their

actions. Moss testified that Nardolillo told her that he did not

want her “starting a fad or a fashion statement,” that “[n]o

religion will be honored” in the prison, and that religion was

simply not important to him. JA 159-160. These

contemporaneous statements directly contradict his later-asserted

rationales for the change in policy. A reasonable jury could

conclude that Nardolillo and Holm, were not actually motivated

by any safety concerns about head coverings and, consistent with

that mindset, did not take any actions to limit the wearing of hats

in April 2005. Rather, when they became aware of Moss’

request to wear a khimar in October of 2005, they

discriminatorily decided to deny it, and decided they would
17

rather ban all hats than allow khimars to be worn.

Even assuming that safety was the motivating factor

behind the prohibition on hats within the facility, based on the

record before us, plaintiffs have raised a disputed question of

fact as to whether accommodating the wearing of khimars

actually creates a significant safety risk. It is error for the

majority to conclude, relying solely on the speculative testimony

of Nardolillo and Holm that the wearing of khimars creates a

safety risk, Maj. Op at 14, in the face of all of the evidence in

the record to the contrary. GEO is not entitled to judgment

simply because its officials have conclusorily recited imagined

and hypothetical situations in which khimars could pose

potential safety problems.

In order to succeeded on a motion for summary judgment,

GEO cannot merely recite hypothetical safety concerns. It must

adduce evidence that accommodating the wearing of khimars

would have caused safety risks. As the Sixth Circuit has

observed, the notion that an employer’s mere assertion of

speculative and hypothetical safety concerns can serve as the

basis of an undue hardship is contrary to Title VII’s burden of

proof on the employer. In Draper v. U.S. Pipe & Foundry Co.,

527 F.2d 515, 521 (6th Cir. 1975), the employer asserted that

allowing an employee to take Saturdays off for religious

observances would compromise safety because it would require

some employees to work longer than eight hour shifts, which

would be dangerous because they worked around sophisticated

and potentially dangerous electrical equipment. While

recognizing that safety concerns are “highly relevant” to the

employer’s refusal to offer an accommodation, the court rejected

the employer’s unsupported argument that an accommodation

would create a safety risk because the employer had not actually

proven the fact of the claimed risk. The court found that the

record indicated that employees “not infrequently are required to

work more than eight hours in one day,” so allowing such a

practice would not be an undue hardship. Id.

The safety arguments advanced by GEO suffer from the

same logical flaws and insufficient proof as the safety arguments
GEO’s kitchen is staffed by a mix of outside 2

employees and inmates who work daily side-by-side in the kitchen.

App. at 80. As the majority notes, all of these workers, employees

and inmates a like, wear hats in order to comply with a

Pennsylvania Administrative Code hygienic requirement applying

to food workers. Maj. Op. at 17-18 (quoting 7 Pa. Code §

46.152(a)). Although GEO maintains no written policy against

kitchen employees wearing their hats outside of the kitchen,

Nardolillo testified that it is “just practice” that the hats are worn

only in the kitchen. App. at 80. One could argue that if GEO were

truly interested in safety, it could comply with the regulation by

providing its kitchen workers with hair nets instead of hats, which

would reduce the risk of secreting contraband inside them. That

GEO has chosen, instead, to provide both inmates and employees

who work side-by-side with hats would seemingly indicate that it

does not view every hat as a potential safety threat. I also find it

curious that GEO apparently has little difficulty safely

accommodating headgear required by the Pennsylvania regulation,

while at the same time claiming undue hardship in accommodating

headgear worn by Muslim employees, as required by Title VII.

18

rejected in Draper. GEO argues that all hats and khimars are

unsafe, yet offers no explanation for why it (presumably safely)

allows kitchen workers to continue to wear headcoverings during

daily interactions with prisoners. The number of Muslim women

who seek a religious accommodation to wear khimars is likely

smaller than number of kitchen staff who wear hats around

prisoners daily. Furthermore, the Muslim women employees

perform a variety of jobs, serving as correctional officers, nurses,

and intake specialists. In this wide range of positions, many

have far less prisoner interaction than the kitchen staff.

2

Nardolillo and Holm’s testimony about their safety

concerns becomes much less convincing when it is considered

with the healthy skepticism required on review of summary

judgment. For example, Holm testified that he had difficulty

identifying which prisoners were involved in a riot in a

California prison because they were all wearing hats. But this

case is not about whether all prisoners should be issued hats, or
19

whether all correctional officers should be allowed to wear hats. 

It is only about whether the religious practice of a few Muslim

women employees, most of whom do not work as correctional

officers, can be reasonably accommodated. The potential risk

for obscured identity created by allowing a handful of

correctional officers to wear underscarves does not remotely

compare with the same risk created by issuing to or permitting

the wearing of hats by hundreds of inmates.

On summary judgment, we must draw all inferences

favorably to plaintiffs, because they are the non-moving parties. 

The assertion that khimars are a threat to safety in GEO’s

facilities is a factual one that has been vigorously disputed by

plaintiffs, who presented ample evidence, including expert

evidence, that khimars pose no threat at all. The correctional

facilities in “Connecticut, Delaware, Massachusetts,

Pennsylvania, Rhode Island, New York City, New York State,

the District of Columbia, Indiana, Oklahoma, and the Federal

Bureau of Prisons” allow all staff to wear headgear in their

facilities. One can safely assume that these jurisdictions are not

sacrificing safety for their employees’ freedom of religion or

even of style. Plaintiffs’ expert noted that there had never been

any contraband incidents involving headgear, and that the

amount of contraband found by staff did not decrease after the

dress code change of April 2005, nor did it decrease subsequent

to the October 24, 2005 memorandum. JA 220. He noted that

“[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.” JA 220.

The majority misapplies the summary judgment standard

in taking Nardolillo and Holm at their word that khimars pose

even a “small threat” to prison safety. When the facts are

interpreted in the light most favorable to plaintiffs, as the law

requires on summary judgment, one must conclude that there are

genuine disputed issues of material fact as to whether khimars

pose a safety threat in the prison context.
20

Furthermore, whether that alleged safety risk can be

alleviated by any measure short of banning all khimars worn by

Muslim women employees, performing any job function,

without working an undue hardship on GEO is an additional

disputed question of fact. Moreover, even if the existence of a

safety risk had been conceded by plaintiffs, GEO would not be

entitled to summary judgment without demonstrating that the

safety risk could not be remedied by some other measure short of

banning khimars without imposing an undue burden on GEO. 

The majority does not even proceed to conduct this inquiry.

The majority acknowledges that GEO has argued “that

the costs that it would incur were it to adopt the accommodation

requested by the Muslim employees of allowing them to wear

khimars would ‘cause an undue burden with respect to prison

resources.’” Maj. Op. at 13-14 (quoting Appellee’s Br. at 18).

The majority then admits that GEO “has not entirely convinced

us that adopting the proposed accommodation of allowing

female Muslim employees to wear khimars but removing them at

each checkpoint would require locking down the prisoners in

each such location.” Id. at 14. Id. However, there has not yet

been an opportunity for a finder of fact to determine whether or

not accommodating khimars would cause more than a de

minimis hardship.

Plaintiffs have raised a material question of fact as to the

magnitude of the burden that GEO would bear by

accommodating their khimars. Here, a reasonably jury could

find that it would not impose an undue hardship on GEO to

allow Muslim women employees to wear khimars. In the first

instance, it is unclear why GEO would require Muslim women

employees to remove their khimars at each checkpoint. It cannot

be in order to check them for contraband, as they do not perform

the same checks on socks or jackets – the only items of staff

clothing ever to have been found to secrete contraband. And it is

a disputed question of fact whether it would even be necessary

for identification purposes, given that removal of hats, when

they were in common use, was never required for identification

purposes at these very same checkpoints. The khimars worn by

plaintiffs do not include veils over their faces. GEO does not
It is clear that the majority has unabashedly adopted 3

GEO’s view of the evidence as the “facts” that control this case.

See, e.g., Maj. Op. at 18 (“The Dissent appears to place more

reliance on the testimony of the EEOC’s expert witness than on the

testimony of the experienced prison officials on the site at issue.”).

It does so under the guise of complying with the “direction we have

been given by the Supreme Court.” Id. (quoting Turner v. Safley,

482 U.S. 78, 84-85 (1987) (“federal courts [should] accord

deference to the appropriate prison authorities”)). But Turner does

not even inform, much less control, the issues in this case. It

involved a facial constitutional challenge to a prison regulation.

Turner involved neither the standard of reviewing evidence on the

grant of summary judgment nor the obligations of a private

employer under Title VII.

21

explain why women in khimars cannot be adequately identified

via closed circuit video cameras simply by looking at the camera,

thereby ensuring that the camera has an unobstructed view of

their faces, before they are allowed to pass.

The majority is not persuaded by plaintiff’s evidence that

their suggested accommodation would not cause undue hardship. 

It concludes that “[t]he khimar-switching proposals, either

switching khimars or removing them at checkpoints, are facially

implausible and time consuming.” Maj. Op. at 16. In so

concluding, the majority again engages in improper weighing of

the evidence. See Petruzzi’s IGA Supermarkets, Inc. v. DarlingDelaware Co., Inc., 998 F.2d 1224, 1230 (3d. Cir.1993) (“at the

summary judgment stage, a court is not to weigh the evidence or

make credibility determinations. Instead, these tasks are left for

the fact-finder.”) (citation omitted). Determining the magnitude

of GEO’s burden is a task for the finder of fact, not an appellate

court. Id. To defeat summary judgment, Plaintiffs do not need

to convince the Court that the accommodating khimars would

not impose an undue burden on GEO. They need only produce

enough evidence to create a disputed question of fact as to the

magnitude of the burden that an accommodation would impose. 

Because Plaintiffs have done so, GEO is not entitled to summary

judgment.3
22

Webb Does Not Control This Case

The District Court, in granting summary judgment to

GEO, held that Webb was dispositive, concluding that there was

“no meaningful distinction between prison guards and similar

personnel, on the one hand, and police officers.” EEOC v. GEO

Group, Inc., 2009 WL 1382914 (E.D. Pa. 2008). The majority

elides this issue, see Maj. Op. at 13 (“It is unnecessary for us to

decide whether this interest alone would support summary

judgment, as we decide the case on different grounds.”), but I

must address it because I disagree that this case can be decided

in GEO’s favor “on different grounds.”

Because GEO has not met its burden of proving the fact

or the magnitude of the burden to its safety interest that it would

bear by allowing a religious accommodation for khimars, I now

turn to whether GEO’s asserted interest in the uniform

appearance of it’s employees justifies the ban on khimars under

Webb. We held in Webb that requiring the Philadelphia Police

Department to allow Muslim women police officers to wear

khimars while on duty would work an undue hardship upon it

because it would compromise the police department’s interest in

promoting the essential values of “impartiality, religious

neutrality, uniformity, and the subordination of personal

preference.” Webb, 562 F.3d 256, 261 (2009).

GEO argues that it is entitled to summary judgment as a

matter of law because it has asserted an interest in uniform dress

among a “‘paramilitary law enforcement unit’” similar to the

police. Id. at 262 (quoting Thomas v. Whalen, 51 F.3d 1285,

1291 (6th Cir. 1995)). However, the interest in uniformity that

Nardolillo and Holm actually testified to was not akin to the

interest recognized in Webb. Nardolillo and Holm were

concerned that their employees looked sloppy wearing whatever

they wanted on their heads. The Philadelphia police department

was concerned about “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. (discussing Fraternal Order of

Police, 170 F.3d at 366).
On the factors Webb found dispositive, the record 4

was uncontroverted and consisted largely of the affidavit of the

Police Commissioner. See Webb, 562 F.3d at 261. Here, the

record is highly controverted and the only expert declaration was

submitted by plaintiffs. Moreover, GEO is a private corporation

which runs the prison under contract. One could argue that one

reason which supports the contracting out of prison administration

to a private corporation is that, unlike a metropolitan police

department, a prison need not be run by an official, governmental,

para-military organization.

23

Prison employees, unlike police officers, do not serve as

an impartial symbol of law enforcement authority to the general

public. There is no evidence, for example, that a prisoner would

think a GEO employee wearing a khimar was not a genuine

GEO employee. There is also no evidence that any prisoner has

ever expressed a concern that they are being discriminated

against because of the religious affiliation of a GEO employee,

as indicated by that employee’s wearing of a khimar. There is

no evidence that being a prison guard requires the same level of

cohesiveness and esprit de corps of a paramilitary organization

such as the police.4

There was also no indication in Webb that the

Philadelphia Police Department also sought to prohibit nonuniformed employees who did not regularly interact with the

public from wearing khimars, as GEO does. Prison nurses and

intake officers certainly do not share the same safety or morale

concerns as sworn police officers, because they are not trained or

expected to participate in use of force events. Additionally,

given that neither King nor Sharpe-Allen are classified as

uniformed employees, it is disingenuous, at best, for GEO to

argue that it would work an undue hardship to allow them to

wear non-uniform attire. In fact, they are not uniformed guardemployees with routine access to the prison’s secure areas.

The record before us indicates that GEO’s interest in

uniformity only encompassed an aesthetic disapproval of

employees starting a “fad or fashion statement” by wearing
24

khimars. JA 159. That concern is not equivalent to those we

found to be “‘of the greatest importance’” in Webb. Id. (quoting

Fraternal Order of Police, 170 F.3d at 365). Webb does not

control this case. GEO is free to ban its employees from wearing

Yankees caps backwards and sideways if they just do not like the

way they look. But they are not free to ban khimars for the same

reason.

The Alternative Accommodation Offered by GEO Is

Unreasonable as a Matter of Law

Having concluded that issues of material fact remain with

respect to GEO’s arguments that accommodating khimars would

work an undue burden upon their interests in safety and

uniformity, I next consider whether GEO “made a good-faith

effort to reasonably accommodate the religious beliefs” of

plaintiffs. Id. at 259. GEO argues that it did offer a reasonable

alternative accommodation, allowing them to wear a hairpiece,

presumably a wig, instead of a khimar. An accommodation is

reasonable if it “eliminates the conflict between employment

requirements and religious practices by allowing the individual

to observe fully.” Ansonia Bd. of Educ. v. Philbrook, 479 U.S.

60, 70 (1986). GEO contends that wearing a wig would

eliminate the religious conflict of having uncovered hair for its

Muslim women employees because their natural hair would be

covered by synthetic hair. It further asserts that the fact that one

Muslim woman employee allegedly agreed to wear such a

hairpiece instead of a khimar is evidence that the offered

accommodation would resolve class members’ religious

conflicts.

The offered accommodation is not reasonable and was

rightly rejected by the majority. Maj. Op. at 9. The Koran

teaches that women must “guard their modesty” by wearing a

khimar to cover their hair, heads, neck, and breast. JA 28-29. 

Plaintiffs maintain that covering their hair with natural-looking

synthetic hair would not achieve that goal and eliminate the
Further, under the safety rationale, one could argue 5

that contraband could be more easily hidden under a wig than

under a khimar.

25

religious conflict at issue. GEO has not questioned the sincerity 5

of this religious belief. Therefore, under our religious

accommodation precedents, this assertion is enough to resolve

the question of whether the offer of an alternate hairpiece

accommodation was reasonable.

An employer is not entitled to interpret the employee’s

religion and determine what is and is not religiously acceptable

to them. For example, in EEOC v. Ilona of Hungary, Inc., 108

F.3d 1569, 1576 (7th Cir. 1997), two Jewish employees

requested Yom Kippur off from work so that they could observe

the religious holiday. The employer offered the employees

another day off instead to observe the holiday. The Court held

that this was not a reasonable accommodation. Just as it is not

reasonable to ask a Christian employee to observe Christmas in

July, it is not reasonable to ask a Muslim woman who must hide

her hair to appear in public displaying a full head of hair. GEO’s

assertion that it has found one person who would agree to such a

scheme does not prove that it is a reasonable accommodation. It

is neither the court’s nor the employer’s prerogative to dictate to

an employee how she should comply with the requirements of

her religion. As the majority observes, “[w]e are unwilling to

delve into any matters of theology.” Maj. Op. at 9.

Conclusion

Today the majority ignores the facts in the record and the

well-established standard for reviewing them on summary

judgment. In doing so, it establishes an unwise and unworkable

exception that makes a shambles of our Title VII religious

accommodation jurisprudence. The record in this case is full of

contradictions. It is impossible to tell whether, at what point,

and how the prison’s dress code and uniform were ever officially

changed, or whether the warden simply changed his mind about

allowing hats and khimars in the prison and for what reason.
26

Having demonstrated that there are triable issues of

material fact in this case, plaintiffs deserve their day in court so

that a jury can consider the parties conflicting accounts and

determine what the facts are. Because I would reverse the

district court’s grant of summary judgment to GEO, I

respectfully dissent.