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1. NOTE:Misperceptions Matter: Title VII of the Civil Rights Act of 1964 Protects Employees from Discrimination

Based on Misperceived Religious Status, 2008 Utah L. Rev. 357

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NOTE:Misperceptions Matter: Title VII of the Civil Rights Act of 1964 Protects Employees from Discrimination Based on Misperceived Religious Status

2008

Reporter 2008 Utah L. Rev. 357 *

Length: 10572 words

Author: Charity Williams*

* J.D. candidate 2009, University of Utah, S.J. Quinney College of Law; B.A., Washington State University, 2006; Staff Member, Utah Law Review. The author thanks Professor Leslie P. Francis, Professor William R. Richards, Charles Wentworth, and the members of the Utah Law Review for their guidance and editing assistance. The author also thanks her husband, Rick, for his love, support, and partnership in each new adventure. Lastly, the author thanks her standard poodle, Dante, for being the best study buddy.

Highlight

In the years before and immediately after Title VII was passed, discrimination was blatant and pervasive… . Today, discrimination has become more subtle and thus more difficult to prove. 1

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I. Introduction

During the 2004 commemoration of the 40th anniversary of the Civil Rights Act of 1964 (Title VII), Cari M. Dominguez, the chair of the U.S. Equal Employment Opportunity Commission (EEOC) reflected upon 21st century workplace trends, noting the increase of "backlash discrimination against members of certain ethnic and religious groups in reaction to world events." 2 Backlash based on religion is often caused by an employer's perception about an employee's religious beliefs, regardless of whether that perception is accurate or not. This Note argues that such discrimination based on perceived religious status is prohibited by Title VII.

Prior to September 2004, no state or U.S. District Court had ruled on a Title VII claim that was based solely on an employer's misperception of an employee's ethnicity or religion. 3 As of March 1, 2008, however, four U.S. District

1 EEOC, Performance and Accountability Report FY 2006: A Message from the Chair (2006), http://www.eeoc.gov/abouteeoc/plan/par/2006/chair_message.html.

2 Cari M. Dominguez, Eyes on Equality and Opportunity: Commemorating the 40th Anniversary of the Civil Rights Act, Employment L. Strategist, Aug.-Sept. 2004, at 1, 1.

3 Such claims were typically collapsed into claims for which the employee had an actual basis, such as race, color, or national

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Courts have ruled on disputes where employers' misperception of employees' ethnicity or religion were considered as an independent bases for discrimination claims. 4 The [*358] most common misperception alleged was an employee's status as Middle Eastern. 5 Three of these four district courts determined that, as a matter of law, discrimination based on a misperceived status was not protected under Title VII. 6

Two of the four cases were heard during the past year in the Second Circuit. 7 These cases have created an intra- circuit split on this issue. The Eastern District of New York, in Berrios, allowed a claim of discrimination based on an employer's misperception of an employee's religion. 8 Five months later the Southern District of New York, in Lewis, held that discrimination based on perceived religion is not protected by Title VII because, unlike the Americans with Disabilities Act (ADA), Congress did not intend to protect against discrimination based on perceived status. 9

Due to the potentially unique nature of religion, this Note argues that Title VII prohibits discrimination based on perceived religious status, whether or not the employer perceived the employee's religion accurately. Part II provides a brief background of Title VII's protections and compares the treatment of religion to other prohibited bases. Part III explores the prima facie requirements of establishing a civil action of religious discrimination under Title VII. Part IV reviews the intra-circuit split within the Second Circuit and discusses the first two district court cases in the United States that fully considered claims based on an employer's misperception of an employee's religion. Part V demonstrates that Title VII's plain language is ambiguous regarding protection for actual versus [*359] perceived religion status. Part V then advocates that permitting perceived religion claims is consistent with the purpose and logic of Title VII. Finally, Part VI considers the impact of such allowance on employers, arguing that a new class of employer-liability will not be created.

II. Background of Title VII

A. Employees are Protected from Discrimination Based on Religion

origin. See, e.g., Afshar v. Pinkerton Acad., No. Civ. 03-137- JD, 2004 WL 1969873, at 1,3 (D.N.H. Sept. 7, 2004) (finding claim of perceived religion indistinguishable from claim of national origin discrimination because the employee was actually born in Iran).

4 See Lewis v. N. Gen. Hosp., 502 F. Supp. 2d 390, 401 (S.D.N.Y. 2007) (disallowing claim based on perceived religion); Berrios v. Hampton Bays Union Free Sch. Dist., No. CV 02-3124, 2007 WL 778165, at 1 (E.D.N.Y. Mar. 12, 2007) (allowing claim based on perceived religion); Uddin v. Universal Avionics Sys. Corp., No. 1:05- CV-1115-TWT, 2006 WL 1835291, at 6 (N.D. Ga. June 30, 2006) (disallowing claim based on perceived race, ethnicity, and/or national origin); Butler v. Potter, 345 F. Supp. 2d 844, 850 (E.D. Tenn. 2004) (disallowing claim based on perceived race and/or national origin). At least one additional dispute raising this claim has also been recently made and resolved. See Defendant's Mem. in Supp. of Summ. J. at 21, Kraut v. Mountain View Hosp., No. 2:06CV00505 (C.D. Utah July 31, 2007) (including argument that, as a matter of law, a claim based on perceived religion (polygamy) is not allowed under Title VII); and Order Granting Defendant's Motion for Summ. J. at 1, Kraut v. Mountain View Hosp., No. 2:06CV00505 (D. Utah Sept. 26, 2007) (granting defendant's motion for summary judgment for this and the other reasons argued by defendant).

5 The employees in both Butler and Uddin alleged discrimination based the misperception they were "Middle Eastern." See Butler, 345 F. Supp. 2d at 846, 850; Uddin, 2006 WL 1835291, at 1.

The employee in Berrios, however, raised a discrimination claim based on her employer misperceiving that she was a witch. 2007 WL 778165, at 1 (noting that a person holding "Wiccan" beliefs has a protected status).

6 See supra note 4.

7 See Berrios, 2007 WL 778165, at 1; Lewis, 502 F. Supp. 2d at 401.

8 See Berrios, 2007 WL 778165, at 1.

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Congress enacted Title VII to "eliminate all employment discrimination based on race, color, religion, sex, or national origin." 10 In describing the need for antidiscrimination legislation, President John F. Kennedy described one of the issues as "whether we are going to treat our fellow Americans as we want to be treated." 11 President Kennedy's proposed legislation became the Civil Rights Act of 1964 with Title VII protecting against employment discrimination. 12 In concluding their report on Title VII, the House Judiciary Committee stated,

We in Congress can do much to conquer the forces of hatred and intolerance which have been unleashed in our land and thereby revive and sustain the faith of the American people in the viability and strength of our great Nation. It is a challenge we must not shirk and dare not fail to meet. 13

As an important aspect of this challenge, religion had long been considered a prohibited basis for discrimination. 14 The earliest antidiscrimination actions of the Federal government included religion or creed as a prohibited discriminatory basis. 15 Following this lead, the drafters of Title VII included religion as a prohibited basis for employment discrimination. 16

[*360]

B. Comparing Religion to the Other Protected Bases

1. Immutable Traits are Generally Irrelevant to Employment

Evidence demonstrates that courts are predisposed to consider Title VII claims based on race, color, national origin, and sex differently from claims based on religion. 17 This difference largely occurs because courts generally link the prohibition of discrimination to immutable traits that are considered, "irrelevant for employment purposes." 18 Immutable traits are characteristics of status, whereas mutable traits are considered conduct, and "only discrimination based on status is forbidden." 19 Religion, unlike race, color, national origin, and sex can be both status and conduct. Courts, therefore, must treat religion differently.

9 See Lewis, 502 F. Supp. 2d at 401 ("In the Americans with Disabilities Act, Congress provided for claims based on a "perceived' disability or being "regarded as' having a disability. If Congress had wanted to permit a similar cause of action under Title VII for "perceived religion' discrimination, it could have so provided. It did not." (citation omitted)).

10 The Civil Rights Act of 1964: What it Means to Employers, Businessmen, Unions, Employees, Minority Groups 1 (BNA 1964) [hereinafter The Civil Rights Act of 1964].

11 See Dominguez, supra note 2, at 1.

12 See Civil Rights Act of 1964, 42 U.S.C.§§2000e to 2000e-17 (2006).

13 H.R. Rep. No. 88-914 (1964), reprinted in The Civil Rights Act of 1964, supra note 10, at 287.

14 Russell S. Post, Note, The Serpentine Wall and the Serpent's Tongue: Rethinking the Religious Harassment Debate, 83 Va. L. Rev. 177, 180-81 (1997) (noting that the drafting of Title VII was based on "New Deal employment measures" that prohibited "race, color, or creed" discrimination).

15 Id.

16 Id.; see also 42 U.S.C. § 2000e-2(a)(1) (making it an "unlawful employment practice for an employer" to discriminate because of "race, color, religion, sex or national origin").

17 See Karen Engle, The Persistence of Neutrality: The Failure of the Religious Accommodation Provision To Redeem Title VII, 76 Tex. L. Rev. 317, 323 (1997) (exposing inconsistencies in application of Title VII religious accommodation doctrine).

18 Id. at 323.

19 Id. at 431 (describing the "dominant mode of thinking in American antidiscrimination doctrine" where "status and conduct are separable, and … only discrimination based on status is forbidden").

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Whether a trait is mutable or immutable is relevant for claims other than religious discrimination. For example, employee gender, skin color, facial features, or ancestry are immutable in that one cannot choose their DNA, parents, or their birth location. Courts find these differences "arbitrary" and thus conclude that they "should not be given social significance"; in other words, employers should not discriminate based upon these immutable traits. 20 Indeed, in most contexts, these traits have no bearing on employment. 21 However, employer "restrictions on dress and grooming and English-only rules" are typically upheld as lawful because courts consider these expressions of choice that are relevant to employment. 22 As such, courts allow employers to institute professional appearance standards "because they see conduct in opposition to [societal] norms as both unnatural and volitional." 23 In sum, courts are more likely to prohibit discrimination based on what is determined an irrelevant immutable trait and less likely to protect relevant mutable conduct.

The potentially unique problem of discrimination based on religion arises because an employee's religious identity cannot be categorized as consisting of separable immutable traits that are irrelevant to employment and mutable conduct that is relevant. Consider an employee born to Catholic parents and who then later [*361] converts to Islam. Normatively, the employee's status as a Catholic may be viewed as an immutable trait by birth into a Catholic family. However, a later choice to convert to Islam may be viewed as mutable conduct. Moreover, this same employee's conduct of wearing a cross, and then a hijab, may be viewed as mutable conduct. Thus, religion cannot be easily classified as immutable or mutable. Further, any classification of religious action as mutable, and therefore lacking Title VII protection, would undermine Congress's intent to protect employees from religious discrimination.

Congress resolved this dilemma when it distinguished religion from other bases of discrimination in an amendment to Title VII. 24 The amendment requires employers to protect employee religious beliefs, practices, and conduct, by accommodating the employee unless such accommodation would unduly burden the employer. 25 This amendment removes the distinction between immutable traits and mutable conduct for the basis of religion by instead focusing on balancing employer and employee interests. 26 Thereby, courts have "successfully avoided the question of whether religion is immutable." 27

Employer misperception is a problem unique to religious discrimination because, unlike other bases of discrimination, courts need not determine whether the discriminated trait is mutable or immutable when discrimination is based on religion. As such, whether or not the employee actually holds the trait is irrelevant for discrimination that occurs because of an employer's misperception. Clearly, if an employer misperceives an

20 Id. at 328.

21 See id. at 323. Title VII clearly allows for discrimination based on immutable traits if it is linked to a bona fide employment qualification. 42 U.S.C. § 2000e-2(e) (allowing discrimination on bases of "religion, sex, or national origin," but not race, if there is a "bona fide occupational qualification reasonably necessary to the normal operation of [the] particular business or enterprise").

22 Engle, supra note 17, at 323.

23 Id.

24 42 U.S.C. § 2000e(j).

25 See id. (defining religion 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 or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business").

26 See Engle, supra note 17, at 371-72 (reviewing the amendment of Title VII to include religious accommodation and noting Congressional intent to stop courts from "drawing a line between status and conduct").

27 Id. at 323. While courts are adept at analyzing causes of action based on religious discrimination, exactly what type of religious conduct is protected remains an unsettled area of law. See Susannah P. Mroz, Note, True Believers?: Problems of Definition in Title VII Religious Discrimination Jurisprudence, 39 Ind. L. Rev. 145, 151 (2005) (finding that the confusion about what type of religious conduct should be protected is partly caused by "the lack of legislative history which might indicate exactly what Congress intended to protect when it incorporated religion into its broad policy of antidiscrimination").

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employee's religious beliefs, then the misperceived beliefs cannot be immutable to the employee. Yet, if the trait on which the discrimination is based must be immutable for recovery, such recovery would never be allowed.

While this Note focuses on the prohibited basis of religion, it is important to note that a convincing argument may be made that Title VII protects employees from adverse employment events based on misperceptions linked to any of the other prohibited bases such as color, sex, and national origin. This argument finds [*362] basis in the notion that Title VII can be read to extend protection beyond immutable characteristics for the bases of race, sex, and national origin. 28 Moreover, most courts agree that certain principles of Title VII, such as the key elements in applying a prima facie case, apply to all employment discrimination cases regardless of the basis of discrimination. 29

2. Immutable Traits and Perception

Linking prohibited discrimination to an immutable trait provides the employee with a factual, or actual, basis to access Title VII's protections. For example, courts widely agree that discrimination based on an immutable trait such as skin color violates Title VII, regardless of whether the employer correctly identifies the race or national origin typically associated with the skin color. 30 As discussed above, the key is that the discrimination occurred because of an immutable trait that is irrelevant to employment. 31

In some situations, an employer may misperceive an employee's religion but this misperception may also be linked to an immutable trait. For example, in Afshar v. Pinkerton Academy the court found a claim of discrimination based on perceived religion indistinguishable from a claim of discrimination based on national origin. 32 The employee, a native of Iran who had immigrated to the United States, began working as a Guidance Director at a private academy in 1999. 33 He received positive evaluations in 2000 and 2001 and a promotion in the summer of 2001. 34 In August of 2002, the employee's contract was not renewed. 35 The employee filed suit, alleging discrimination based on national origin and perceived religion. 36 The employee alleged that the performance complaints against him and the administration's negative response were discriminatory because of their timing [*363] relative to September 11, 2001. 37 Even though the employee was a member of the Baha'i faith, he claimed his employer perceived him to be Muslim. 38 The court found sufficient questions of fact to preclude summary judgment in favor

28 Engle, supra note 17, at 329 (citing Peter Brandon Bayer, Mutable Characteristics and the Definition of Discrimination Under Title VII, 20 U.C. Davis L. Rev. 769, 838 (1987)).

29 See, e.g., Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66 (1986) (noting that the same principles have been applied to discrimination based on race, religion, national origin and there was nothing barring them from applying those same principals to discrimination based on sex); Michael Wolf et al., Religion in the Workplace: A Comprehensive Guide to Legal Rights and Responsibilities 53 (1998) ("The same general principles that govern sexual harassment … also apply to religious harassment.").

30 See, e.g., Eriksen v. Allied Waste Sys., Inc., No. 06-13549, 2007 WL 1003851, at 6 (E.D. Mich. Apr. 2, 2007) (citing EEOC guidance with approval because "proof of national origin discrimination is not based on the actual national origin of the plaintiff, but rather on the perceived characteristics of the plaintiff leading the alleged discriminator to treat the plaintiff differently").

31 See supra Part II.B.1.

32 No. Civ. 03-137- JD, 2004 WL 1969873, at 3-4 (D.N.H. Sept. 7, 2004).

33 Id. at 1.

34 Id. at 1-2.

35 Id. at 3.

36 Id. at 1.

37 Id. at 4.

38 Id. at 3 n.2.

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of the employer. 39 However, because the employee actually had an immutable trait linked to a prohibited basis (Iranian ancestry), the court collapsed the claim of discrimination based on perceived religion into the claim of discrimination based on national origin, thereby failing to discuss the merit of a stand-alone misperceived status claim. 40

Pinkerton illustrates that employees may find protection under Title VII for adverse employment events based on an employer's misperceptions of religion when the misperception can be linked to an immutable trait irrelevant to employment. Yet, an employee's religion cannot always be linked to an immutable trait. 41 Part IV discusses this situation in the case of teacher Lauren Berrios who claimed her employer thought she was a witch, not because she had green skin or warts, but because she joked about being in a coven, taught her students about the Salem witch trials, and read from Shakespeare's plays which included tales of witchcraft. 42

By enacting Title VII, Congress deemed adverse employment actions caused by religious discrimination undesirable. The legal issue that emerges is whether or not discrimination based on an employer's misperception of an employee's religion is somehow different from that based on an employee's actually held religious belief.

III. Establishing a Civil Action Under Title VII

A. Causes of Action

Employees may bring three different causes of action for prohibited religious discrimination under Title VII: (1) disparate treatment, (2) harassment or hostile work environment, or (3) failure to accommodate the employee's religious practices. 43

[*364] For each cause of action, an employee has "the initial burden of establishing a prima facie case that his employer discriminated against him on account of his … religion." 44

The Supreme Court has stated that an employee "meets this initial burden by offering evidence adequate to create an inference that he was denied an employment opportunity on the basis of a discriminatory criterion enumerated in Title VII." 45 Because courts struggle with linking religion to an immutable trait, approaches to defining this initial burden vary among religious discrimination claims. Most courts focus on the actual status of the employee, rather than the employer's perception of the employee. 46 The variance between courts in how they view the requirement of linking prohibited discrimination to an immutable trait is exemplified by reviewing the differing requirements for religiously hostile work environment claims.

39 Id. at 3-5.

40 Id. at 3 n.2.

41 See supra note 26 and accompanying text.

42 See Berrios v. Hampton Bays Union Free Sch. Dist., No. CV 02-3124, 2007 WL 778165, at 1 (E.D.N.Y. Mar. 12, 2007); Tamer El-Ghobashy & Bill Hutchinson, "Witchy' Teacher Trial Casts Spell on Court: $ 2M Lawsuit After Firing in '01, N.Y. Daily News, Mar. 8, 2007, at 4.

43 See, e.g., 42 U.S.C. § 2000e(j) (2006) (defining religion to include employer's need to "reasonably accommodate" religious observance or practice unless it causes "undue hardship on the conduct of the employer's business"); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (noting that Title VII prohibits both "disparate treatment" and "discriminatorily hostile or abusive environment" (citing Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64 (1986))); Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977) (holding that it is an "unlawful employment practice … for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of his employees and prospective employees" (citing 42 U.S.C. § 2000e(j))).

44 Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 874 (1984).

45 Id. (emphasis added).

46 See infra Part III.B.

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B. The Varying Requirements of Religious Discrimination Due to a Hostile Work Environment

Commentators and courts typically look for five elements to establish a prima facie case for religious discrimination in the form of a hostile work environment: "(1) the employee[] suffered intentional discrimination because of [religion]; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same [religion] in that position; and (5) the existence of respondeat superior liability." 47 Applying the first element of this test is where courts and commentators vary the greatest.

While the court holdings may be summarized into a requirement that the employee first establish that discrimination occurred because of religion, the actual [*365] holdings of courts and commentators vary. 48 Some courts and commentators phrase the requirement as the need to belong to a protected class, or be a certain religion, thus arguably requiring the employee to actually hold the religious belief on which the discrimination is based. 49 Others view the requirement differently. These courts focus on the employer's actions, requiring the employee to establish that the actions constitute harassment based on religion, regardless of the employee's actual beliefs. 50 Courts requiring the employee actually belong to a protected class, or hold the actual religious beliefs upon which the hostility is based, are simply relying on "the elements of a prima facie case of [prohibited discrimination being] the same, regardless of the discrimination context in which the claim arises." 51 Courts that focus on employer actions, rather than employee beliefs, do so because they interpret Title VII as granting Americans the right to work in surroundings free from discrimination based upon animus towards an employee's race, color, sex or religion. 52

[*366] How a court construes this first step to establishing a prima facie case of religious discrimination is vital to allowing claims resulting solely from misperceptions. As discussed in Part IV, it is this first step where the Second Circuit's split occurred.

IV. Development of Perceived Religion Claims Jurisprudence

47 Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 276-77 (3d Cir. 2001) (alteration in original) (citation omitted). The Abramson court applied the "well-established framework for hostile work environment claims with respect to other protected categories." Id. at 277 n.5; see also Deborah H. Karpatkin & Christopher P. Reynolds, Religious Discrimination in the Workplace, 604 PLI/Lit 189, 223 (1999) (discussing a variation of the five elements); David J. Stephenson, Annotation, What Constitutes Religious Harassment in Employment in Violation of Title VII of Civil Rights Act of 1964 (42 U.S.C.A.§§2000e et seq.), 149 A.L.R. Fed. 405,§§2-3, at 415-21 (1998) (discussing the five elements).

48 See Stephenson, supra note 47, §§3-7, at 462-79 (reviewing the varying treatment of religious harassment disputes).

49 See, e.g., Kelly v. Senior Ctrs., Inc. 169 F. App'x 423, 428 (6th Cir. 2006) (noting that employee must show that employee "was a member of a protected class" and "harassment was based on … religion"); Pelt-Washington v. Fresenius Med. Care AG, No. 1:05- CV-00163-MP-AK, 2007 WL 1488837, at 6 (N.D. Fla. May 17, 2007) (same); Southwick v. Russell Stover Candies, Inc., No. 2:05 CV0050, 2007 WL 776496, at 15 (M.D. Tenn. Mar. 9, 2007) (same); Wilson v. Wal-Mart Stores, Inc., No. 3:04 CV000206-WRW, 2006 WL 318828, at 3 (E.D. Ark. Feb. 9, 2006) (same); Aportela v. Barnhart, No. EP-03-CA-0360-DB, 2005 WL 1958963, at 16-17 (W.D. Tex. Aug. 15, 2005) (same); Gibson v. Finish Line, Inc. of Del., 261 F. Supp. 2d 785, 790 (W.D. Ky. 2003) (same); Karpatkin & Reynolds, supra note 47, at 223 (summarizing element by stating that "employee is a member of a protected religious group") (emphasis added).

50 See, e.g., Sarin v. Raytheon Co., 905 F. Supp. 49, 52 (D. Mass. 1995) (focusing on the character of the employer's actions and requiring the employee to show that "unwelcome comments, jokes, acts, and other verbal or physical conduct of an ethnic and/or religious nature were made in the workplace"); Hampton v. Conso Prods., Inc., 808 F. Supp. 1227, 1235-36 (D.S.C. 1992) (commenting on the "conglomeration of standards" available and determining to follow the analytical framework favored by some courts in which the employee has to establish that he or she "was subject to unwelcome harassment in a work related setting" and that the harassment "was based on race, sex, religion, or national origin"); Turner v. Barr, 806 F. Supp. 1025, 1027 (D.D.C. 1992) (reviewing development of hostile work environment jurisprudence, holding that the basis of the claim was not key, rather "all that needs to be established is that the alleged conduct be unreasonably abusive or offensive in the workplace environment or adversely affected the reasonable employee's ability to function in his or her job");

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Fair is foul, and foul is fair: Hover through the fog and filthy air. 53

As of publication, only two courts have ruled on discrimination claims based on employers' misperceptions of employees' religious beliefs, both of which occurred during the past year in the Second Circuit. 54 The Berrios court permitted the claim, 55 but the Lewis court dismissed the claim as a matter of law. 56

A. Berrios v. Hampton Bays Union Free School District

In Berrios, the employee claimed discrimination based on "perceived and actual religious beliefs." 57 This appears to be the first case heard before a U.S. District Court where a claim of discrimination based on perceived religion was independently considered. 58 The employee, teacher Lauren Berrios, claimed that she "was perceived to be a witch, that is, a person who practices the Wiccan religion." 59 Berrios denied holding Wiccan beliefs and claimed that she was terminated because of either her employer's perception she was a witch or because of her actual Jewish religion. 60 Berrios claimed she was fired "after [her supervisor] decided she was a witch." 61 As support for her claim, Berrios said her supervisor (a professed born-again Christian) claimed Berrios "was inciting the kids to learn about witchcraft, magic and pornography," by including in her history [*367] lessons the Salem Witch trial and teaching Shakespeare's Macbeth and Romeo and Juliet (both of which contain witchcraft in their plots). 62 The Hampton Bays School District, Berrios' employer, countered that she was fired because she was "a lousy teacher" who told "bizarre stories." 63 The stories included tales of Berrios' husband being involved in an airplane crash and her son losing a finger after inserting it into a VCR. 64

Trying to determine if a perceived status claim was allowable, the Court noted the lack of "precedent in the Supreme Court, this Circuit, or any other Circuit Court of Appeals." 65 The Court then pointed to two district court cases in other circuits, Butler v. Potter 66 and Uddin v. Universal Avionics Systems Corp., 67 where perceived status claims founded upon non-religious bases were not allowed. 68

51 See, e.g., Southwick, 2007 WL 776496, at 15 (referring to Supreme Court and Federal circuit precedence in establishing the elements of a prima facie case of discrimination).

52 See, e.g., Turner, 806 F. Supp. at 1027 (collecting cases describing the purpose of the hostile work environment cause of action and finding that "all Americans have the right to work in an atmosphere and under terms or conditions in employment that are free of discrimination on account of race, color, sex or religion").

53 William Shakespeare, The Tragedy of Macbeth act 1, sc. 1 (the witches' chorus).

54 See Lewis v. N. Gen. Hosp., 502 F. Supp. 2d 390, 408 (S.D.N.Y. 2007); Berrios v. Hampton Bays Union Free Sch. Dist., No. CV 02-3124, 2007 WL 778165, at 1 (E.D.N.Y. Mar. 12, 2007).

55 Berrios, 2007 WL 778165, at 1-2.

56 Lewis, 502 F. Supp. 2d at 401.

57 Berrios, 2007 WL 778165, at 1.

58 Afshar v. Pinkerton Acad., No. Civ. 03-137- JD, 2004 WL 1969873, at 3 n.2 (D.N.H. Sept. 7, 2004) (hearing the employee's claim of perceived religion was "indistinguishable from his claim of [actual] national origin discrimination"); see supra Part II.B.

59 Berrios, 2007 WL 778165, at 1.

60 Id.

61 El-Ghobashy & Hutchinson, supra note 42 (emphasis added).

62 Id.

63 Id.

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In Butler, a claim based on an employer's misperceptions of the employee's race or national original was not allowed as a matter of law. 69 The employee, a white Caucasian mail carrier, 70 claimed unlawful discrimination, including a hostile work environment, "on the basis of his perceived race and/or national origin." 71 The employee alleged that his supervisor "periodically screamed obscenities at him and accused him of being Indian or Middle Eastern." 72 In responding to his supervisor's questions about his "prominent nose" the plaintiff told his employer he was not of "Arab, Indian or Middle Eastern descent." 73

The court dismissed the plaintiff's claim for discrimination because, "Title VII protects those persons that belong to a protected class … and says nothing about protection of persons who are perceived to belong to a protected class." 74 The court justified its holding by comparing Title VII to the ADA, noting that Congress "knows how to enact legislation that protects persons who are wrongly [*368] perceived to be in a protected class." 75 The Court further stated there was no "controlling authority which would permit a claim for perceived race or national origin discrimination." 76

In Uddin, a discrimination claim based on an employer's misperception of the employee's "perceived race, ethnicity, and/or national origin" was not allowed as matter of law. 77 The Uddin court cited Butler, agreeing that Title VII did not protect perceived class status and finding a lack of any controlling precedent. 78 The employee was a Muslim U.S. Citizen born in India. 79 Following the terrorist attacks of September 11, 2001, the employee continued working for the employer for two and half years until his employment was terminated. 80 The employee alleged that during that time he was "scared for his life" because of incidents that included comments about his "cousin in Afghanistan," comments about "bomb alarms," and problems he would have with airport security because he was a "Middle-Easterner." 81 The Court dismissed the employee's claim of hostile work environment, however it did allow a claim for wrongful termination due to discrimination based on skin color and religion because the employee had the immutable trait of "a dark complexion" and was Muslim. 82

64 Id.; Berrios also generated interesting blog discussions by students and teachers. See, e.g., The Wild Hunt Blog: A Modern Pagan Perspective, http://www.wildhunt.org/2007/03/sorry-we-thought-you-were-witch.html (Mar. 6, 2007, 08:42 CST) (containing blogs from students and colleagues praising Berrios' teaching as well as stories from other teachers who have faced similar situations).

65 Berrios, 2007 WL 778165, at 1.

66 345 F. Supp. 2d 844, 850 (E.D. Tenn. 2004).

67 No. 1:05- CV-1115-TWT, 2006 WL 1835291, at 6 (N.D. Ga. June 30, 2006).

68 Berrios, 2007 WL 778165, at 1.

69 Butler, 345 F. Supp. 2d at 850.

70 Id. at 846.

71 Id. at 850.

72 Id. at 846.

73 Id. at 850. Interestingly, it appears no argument was made that the employee's physical characteristic of a prominent nose was an actual basis for national origin discrimination, even though such characteristics can be used as actual bases for national origin claims. See 29 C.F.R. § 1606.1 (2006) (defining national origin to include "physical, cultural or linguistic characteristics of a national origin group").

74 Butler, 345 F. Supp. 2d at 850.

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The Berrios court did not expressly disagree with Butler or Uddin. However, rather than dismissing the claim based on perceived religion, it crafted a jury instruction that would allow the parties to delay the fight regarding the validity of the claim. 83 The court instructed the jury on two possible bases for the claim of discrimination: (1) the plaintiff being "perceived [as] Wiccan," and (2) the "plaintiff's actual Jewish religion." 84 The court provided no explanation as to why the perceived religion claim should be allowed (especially in the face of Uddin and Butler). Instead, it simply justified its decision by stating that the jury's finding "will be clear and can be the subject of appeal." 85 The jury subsequently found that the plaintiff was not subjected to discrimination by her "born-again [*369] Christian" supervisor "because of her Jewish or rumored pagan beliefs." 86 Rather, "she was fired because of her stories and inability to get along with co-workers." 87

B. Lewis v. North General Hospital

Six months after Berrios was decided in the Eastern District of New York, the Southern District of New York pronounced that, as a matter of law, Title VII did not "extend to persons who are merely "perceived' to belong to a protected class." 88 In Lewis, the employee made several claims of discrimination prohibited by Title VII, including "perceived creed or perceived religion." 89 The employee, a gay African-American man, 90 alleged his employer perceived him to be a Muslim because his last name was "Talmadge" and a coworker "commented to him that someone with the name "Talmadge' had been affiliated with Malcolm X." 91 The court rejected the claim for two reasons. First, the plaintiff failed to "articulate[] a factual basis for any "perceived religion' claim." 92 Second, the court reviewed Uddin, Butler, and Berrios, and found that a claim based on perceived religion failed as "a matter of law." 93 The court expressly followed the reasoning in Uddin and Butler, which compared Title VII to the ADA, stating the plain meaning of the statute did not protect a perceived status because "if Congress had wanted to

75 Id. at 850; see also 42 U.S.C. § 12102(2)(c) (2006) (extending protections of the ADA to individuals "regarded as" having a disability).

76 Butler, 345 F. Supp. 2d at 850.

77 Uddin v. Universal Avionics Sys. Corp., No. 1:05- CV-1115-TWT, 2006 WL 1835291, at 6 (N.D. Ga. June 30, 2006).

78 Id. at 6.

79 Id. at 1.

80 Id. at 2.

81 Id. at 1-2.

82 Id. at 6.

83 Id.

84 Id.

85 Id.

86 Rosamaria Mancini, Jury Rejects Teacher's Claim She Was Fired Due to Witchcraft Tales, 237 New York L. J., March 14, 2007, at 6, available at http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1173776615930.

87 Id.

88 Lewis v. N. Gen. Hosp., 502 F. Supp. 2d 390, 401 (S.D.N.Y. 2007) (citation omitted).

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permit … a similar cause of action under Title VII for "perceived religion' discrimination, it could have so provided. It did not." 94

V. Title VII Permits Claims of Discrimination Based on Perceived Religion

The split within the Second Circuit should be resolved in favor of allowing claims where the discrimination is rooted in an employer's misperception of an employee's religion. As discussed below, the plain language of Title VII is ambiguous regarding perceived status. Yet, prohibiting discrimination based on an [*370] employer's misperception of an employee's religion is consistent with the statute's purpose and logic. Therefore, courts should allow claims of religious discrimination based on misperceptions.

A. Analyzing the Statute

It is well-settled that the "first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case." 95 If the "statutory language is unambiguous," the inquiry ceases. 96 Determining the "plainness or ambiguity" of the statute requires: (1) "reference to the language itself," (2) "the specific context in which the language is used," and (3) "the broader context of the statute as a whole." 97 If the statute is ambiguous, the statute's meaning is determined based on broader arguments of purpose and logic. 98

1. Ambiguous Plain Language

Title VII's language protecting employees from religious discrimination is ambiguous. First, looking only at the language of § 2000e of Title VII does not provide clarity. This section states that discrimination is prohibited when it occurs "because of such individual's … religion." 99 On its face "such individual's … religion" 100 does not indicate if the prohibition occurs simply because the discrimination is based on religion or if the prohibition occurs because the discrimination is based on the employee's actual religion. As discussed in Part III, some courts interpret this phrase to mean that the discrimination simply must be rooted in a religious bias. 101 Yet other courts interpret this

89 Id. (internal quotation marks omitted).

90 Id. at 392.

91 Id. at 393-400. At the time, the employee's legal name was "Serh Talmadge Farid Efe." Id. at 393. The employee subsequently "legally reverted to his birth name, Darren Lewis." Id.

92 Id. at 401. The court found that one "stray remark" implying he was Muslim was insufficient. Id.

93 Id.

94 Id.

95 Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997).

96 Id.

97 Id. at 341.

98 See id. at 345-46 (determining a section of Title VII to be ambiguous and finding resolution in the "purpose" of the statute).

99 42 U.S.C. § 2000e-2(a)(1) (2006).

100 Id.

101 See supra Part III.B.

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phrase to mean that the employee must be a member of a protected class or group, which is defined by the employee's actual religious beliefs. 102

The second and third prongs of the textual analysis also provide little clarity. The use of religion in the "specific context" 103 and the "broader context" 104 of the statute do not reveal any special characteristics of religion as a prohibited basis other than it has been singled out for accommodation. 105 As discussed in Part II, [*371] religion has long been included in the list of prohibited bases. 106 Yet, the broader statute does not differentiate between actual or perceived status of any of the prohibited bases. The result is a statute that clearly prohibits discrimination when it is based on religion, but that is ambiguous as to whether the discrimination is permitted when it is based on an employer's misperception of the employee's actual religious beliefs. Because the statute is ambiguous, proper application relies on the broader arguments of the statute's purpose and logic. 107

2. Title VII's Purpose and Logic

Allowing claims of discrimination rooted in an employer's misperception is consistent with both the purpose and the logic of Title VII. In considering the ambiguity of Title VII protections extending to former employees, the Supreme Court broadly interpreted Title VII by allowing former employee claims as consistent with the context and purpose of the statute. 108 Illuminating the purpose and logic of Title VII's protection against religious discrimination are: (a) EEOC guidance, (b) Congressional intent, and (c) application of analogous state antidiscrimination statutes.

(a) EEOC Guidance

The EEOC has provided clear guidance that employment discrimination based on the misperceptions of an employee's race, national origin, or religion violates Title VII. 109 An EEOC training manual includes the hypothetical of an employer "harassing a Sikh man wearing a turban because the harasser thought he was Muslim" as an example of prohibited discrimination based on a misperception of religion. 110 The EEOC Compliance Manual also provides the following example: [*372]

102 See supra Part III.B.

103 Robinson, 519 U.S. at 341.

104 Id.

105 See supra Part II.A.

106 See supra Part II.A.

107 Robinson, 519 U.S. at 345-46 (determining a section of Title VII to be ambiguous and finding resolution in the "purpose" of the statute).

108 Id. at 346.

109 EEOC Training and Technical Assistance Program, Religious Discrimination 64 (2002) [hereinafter Religious Discrimination]; EEOC Training and Technical Assistance Program, National Origin Discrimination 48 (2002) [hereinafter National Origin Discrimination]; EEOC Comp. Man. 15-II (2006) [hereinafter Comp. Man.], available at http://www.eeoc.gov/policy/docs/race- color.html ("Discrimination against an individual based on a perception of his or her race violates Title VII even if that perception is wrong."); Comp. Man., supra, at 13-I (stating it is unlawful to "discriminate against someone perceived as being Arab based on his speech, mannerisms, and appearance, regardless of how he identifies himself or whether he is, in fact, of Arab ethnicity")

110 Religious Discrimination, supra note 109, at 64; National Origin Discrimination, supra note 109 at 48.

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Thomas, who is Egyptian, alleges that he has been harassed by his coworkers about his Arab ethnicity. He also has been subjected to derogatory comments about Islam even though he has told his coworkers that he is Christian. Thomas's charge should assert both national origin and religious discrimination. 111

The EEOC's position is very clear, yet the courts who have heard claims based on perceived religion have never referenced such guidance. 112 The EEOC's position is described in agency manuals, 113 and the Supreme Court instructs that some deference is due to such agency guidelines. 114 According to the Supreme Court, agency manuals are "entitled to respect … but only to the extent that those interpretations have the "power to persuade.'" 115 Moreover, the Supreme Court has recognized that the EEOC has a "body of experience and informed judgment to which courts and litigants may properly resort for guidance." 116 There is danger in assuming that the Uddin, Butler, Lewis, and Berrios courts considered the EEOC's guidance unpersuasive where the courts remain utterly silent in that regard. 117

EEOC's interpretation has the power to persuade as it is in accord with Congressional intent to allow perceived status claims. Furthermore, analogous state antidiscrimination statutes have been applied to clearly allow recovery for discrimination based on misperception.

(b) Congressional Intent

The legislative history of Title VII provides little guidance as to whether Congress intended to allow perceived status claims. The inclusion of religion as a prohibited basis was likely the result of using prior antidiscrimination actions as drafting templates. 118 For example, Congressional debate about religion in Title [*373] VII is limited to bona fide exceptions for religious institutions 119 with no debate about what constituted religion. 120 Because the legislative history of the enactment of Title VII does not speak directly to perceived-status claims, courts have compared the language of the ADA to Title VII as a method of demonstrating Congressional intent. 121

111 Comp. Man., supra note 109, at 13-VI.

112 See, e.g., Lewis v. N. Gen. Hosp., 502 F. Supp. 2d 390, 401 (S.D.N.Y. 2007) (reviewing cases from other jurisdictions, and finding that the legislative did not intend to cover perceived status claims, without any mention of EEOC); Berrios v. Hampton Bays Union Free Sch. Dist., No. CV 02-3124, 2007 WL 778165, at 1 (E.D.N.Y. Mar. 12, 2007) (reviewing cases from other jurisdictions dealing with perceived status claims without discussing the EEOC); Uddin v. Universal Avionics Sys. Corp., 1:05- CV-1115-TWT, 2006 WL 1835291, at 6 (N.D. Ga. June 30, 2006) (same); Butler v. Potter, 345 F. Supp. 2d 844, 850 (E.D. Tenn. 2004) (comparing Title VII to the ADA with no reference to EEOC guidance). It is important to note that the lack of discussion of this guidance may have occurred because counsel failed to reference EEOC guidance.

113 See supra notes 108-110 and accompanying text.

114 Christensen v. Harris County, 529 U.S. 576, 586-87 (2000) (holding that because agency manuals do not undergo a "formal adjudication or notice-and-comment" process they are not entitled to the same deference as an agency regulation).

115 Id. at 587 (quoting Skidmore v. Swift, 323 U.S. 134, 140 (1944)).

116 Skidmore, 323 U.S. 134, 140 (1944).

117 See supra note 112.

118 See supra Part II.A.

119 EEOC, Legislative History of Titles VII and XI of Civil Rights Act of 1964, at 3101, 3197-3212 (1968) (debating the merits of amending Title VII to exempt religious organizations and religiously affiliated educational entities, id. at 3197-212, and allowing employers "to refuse to hire atheists," id. at 3101).

120 Id.; see Francis J. Vaas, Title VII: Legislative History, 7 B.C. Indus. & Commercial L. Rev. 431 passim (1966); Post, supra note 14 at 180-81.

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Courts have compared the language of the ADA, which expressly provides for claims based on being perceived, or "regarded as" having a disability 122 to Title VII in support of the proposition that Title VII does not protect discrimination based on employer misperceptions. 123 Most recently, the Lewis court emphatically stated, "if Congress had wanted to permit a similar cause of action under Title VII for "perceived religion' discrimination, it could have so provided. It did not." 124

While the Lewis court accurately described the holdings of other courts that have weighed-in on the claim of a perceived religion, it did not accurately describe Congressional intent to protect against religious discrimination based on an employer's misperception of an employee's religion.

Congressional intent is best determined by reviewing Congressional Committee Reports. 125 When determining whether to include "regarded as" having a disability as a protected basis under the ADA, the Senate committee directly compared the ADA misperception basis with the Civil Rights Act of 1964:

The new definition clarifies the intention to include those persons who are discriminated against on the basis of handicap, whether or not they are in fact handicapped, just as title VI of the Civil Rights Act of 1964 prohibits discrimination on the ground of race, whether or not the person discriminated against is in fact a member of a racial minority. This subsection [protects] … those persons who do not in fact have the condition which they are perceived as having … [because they] may be [*374] subjected to discrimination on the basis of their being regarded as handicapped. 126

The report goes on to state that the ADA, "was patterned after, and is almost identical to, the antidiscrimination language of § 601 of the Civil Rights Act of 1964." 127 Not surprisingly, the antidiscrimination language throughout the Civil Rights Act of 1964 is nearly identical. 128 As such, this report evidences that Congress interpreted the intent of the antidiscrimination language in Title VII to prohibit religious discrimination based on misperceptions. When comparing Title VII to protecting against discrimination based on disabilities, Congress did not believe that Title VII required an employee to "in fact" hold the characteristic upon which the discrimination was based. 129

Investigating Congressional intent for protecting misperceptions of disabilities leads to the conclusion that the difference the Lewis, Uddin, and Butler courts found between the ADA and Title VII is almost certainly incorrect and should not simply be attributed to legislative drafting skill.

(c) State Antidiscrimination Statutes

121 See, e.g., Lewis v. N. Gen. Hosp., 502 F. Supp. 2d 390, 401 (S.D.N.Y. 2007); Butler v. Potter, 345 F. Supp. 2d 844, 850 (E.D. Tenn. 2004).

122 42 U.S.C. § 12102(2)(c) (2006) (extending protections of the ADA to individuals "regarded as" having a disability).

123 See, e.g., Lewis, 502 F. Supp.2d at 401(comparing Title VII to ADA and finding Title VII does not allow perceived status claims); Butler, 345 F. Supp. 2d at 850 (same).

124 Lewis, 502 F. Supp. 2d at 401.

125 See Thornburg v. Gingles, 478 U.S. 30, 44 n.7 (1986).

126 S. Rep. No. 93-1297, at 17-18 (1974) (emphasis added), reprinted in 1974 U.S.C.C.A.N. 6373, 6389-90.

127 S. Rep. No. 93-1297, at 18, reprinted in 1974 U.S.C.C.A.N. at 6390.

128 See Civil Rights Act of 1964, 42 U.S.C. § 2000d (2006) (prohibiting discrimination "under any program or activity receiving Federal financial assistance" when it is based "on the ground of race, color, or national origin"); Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (prohibiting discrimination in employment when based on an "individual's race, color, religion, sex, or national origin").

129 S. Rep. No. 93-1297, at 17-18, reprinted in 1974 U.S.C.C.A.N. at 6389-90.

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Most state laws include anti-discrimination statutes similar to Title VII. 130 Noteworthy are the statutes of the District of Columbia and New Jersey. The District of Columbia expressly prohibits employment discrimination "based upon the actual or perceived: race, color, religion, national origin … of any individual." 131 New Jersey's Law Against Discrimination (NJLAD) prohibits employment discrimination "because of the race, creed, color, national origin … of any individual." 132 On its face, the NJLAD appears to prohibit discrimination in the same manner as Title VII. 133 Moreover, in interpreting the NJLAD, New Jersey [*375] courts have specified that Title VII standards apply, collapsing their analysis of the NJLAD and Title VII claims into one discussion. 134

However, even with nearly identical statutes and the same analytical framework as Title VII, New Jersey courts allow claims of prohibited discrimination based on an employer's misperception of an employee's religion. 135 In supporting their view, New Jersey courts instruct that "prejudice in the sense of a judgment or opinion formed before the facts are known is the fountainhead of discrimination." 136

Allowing discrimination claims based on employers' misperceptions of employees' religion is clearly consistent with the purpose and logic of Title VII. Moreover, EEOC's position is persuasive because it is supported by Congressional intent and interpretation of analogous state antidiscrimination statutes.

VI. Impact of Allowing Perceived Status Claims

Allowing employees who have experienced discrimination rooted in their employer's misperception of their religion should not flood the courts with frivolous claims nor burden employers beyond their existing duties because of the employee's initial burden of proof. This Note reviewed the elements required to establish a prima face case for a religiously hostile work environment, 137 yet all causes of action under religious discrimination require the employee to establish that he or she has suffered an "adverse employment action." 138 As such, employers will continue to be protected from liability unless their discrimination has resulted in demonstrable adverse employment action.

Further, recognizing claims based on misperceived religious status will not result in employers being required to accommodate religious beliefs that are not actually held. Unlike the ADA, employers are protected from this liability by the requirements necessary to establish a claim of failure to accommodate. 139 The prima facie case of failure to

130 See Thomson West, 50 State Statutory Surveys, Employment, Private Employment, Unlawful Discrimination, 1-11 (2006) (indicating only Alabama and Mississippi lack state protection against private employer discrimination).

131 D.C. Code § 2-1402.11 (2001) (emphasis added).

132 N.J. Stat. Ann.§§10:5-12 (West 2007).

133 42 U.S.C. § 2000e-2(a)(1) (prohibiting employment discrimination "because of such individual's race, color, religion, sex, or national origin").

134 See Bray v. Marriott Hotels, 110 F.3d 986, 998 (3d Cir. 1997) (citation omitted).

135 See, e.g., Heitzman v. Monmouth County, 728 A.2d 297, 302 (N.J. 1999) (holding that employee "could pursue a claim under the NJLAD because there is evidence [the employer] perceived [the employee] to be Jewish") (citation omitted) (emphasis added); Poff v. Caro, 549 A.2d 900, 903 (N.J. 1987) (describing that the NJLAD "cannot reasonably be read" to prohibit discrimination based actual religious group members but allow discrimination based on perceived religious group membership).

136 Poff, 549 A.2d at 903 (quoting Andersen v. Exxon, 446 A.2d 486, 495 n.2 (N.J. 1982) (citations omitted)).

137 See supra Part B.

138 Mroz, supra note 27, at 150-151 (reviewing the agreed upon elements of the prima facie cases of disparate treatment, hostile work environment and failure to accommodate).

139 See Wolf et al., supra note 29, at 67 (noting the consistency among circuits is using the "same three-pronged test" for failure to accommodate claims).

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accommodate a religious practice requires: (1) the employee proves holding "a sincere religious belief that conflicts with an [*376] employment requirement," (2) the employee informed the employer of the conflict, and (3) the employee was subjected to or threatened with an adverse employment action because of "failure to comply with the employment requirement." 140 The requirement for communication between the employee and the employer provides a vehicle for an employer to cure any adverse actions possibly stemming from a misperception.

VII. Conclusion: Misperceptions Matter

In conclusion, foul is not fair. If discrimination is based on religious animus, it is prohibited by Title VII, regardless of whether the employer is acting on misperception or the truth. Backlash discrimination based on religion may not always be linked to an immutable trait that is irrelevant to employment. As such, the perception of an employee's religious status may be the basis upon which the discrimination is founded. While the language of Title VII is ambiguous regarding perceived status, the purpose and logic of Title VII almost certainly prohibits religious discrimination based upon traits that are irrelevant to employment, whether or not the employer's perception of that trait is accurate. Moreover, courts may recognize this distinction when faced with claims based on perceived religion without fear of creating a new class of employer liabilities.

Utah Law Review Copyright (c) 2008 Utah Law Review Society Utah Law Review

End of Document

140 Id. at 68; see also Berry v. Dep't of Soc. Servs., 447 F.3d 642, 655 (9th Cir. 2006) (illustrating the three-prong test for a prima facie showing of a failure to accommodate claim).

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