EEOC v. Abercrombie & Fitch ( 2013 )


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  •                                                                    FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
    
                                                                 October 1, 2013
                                      PUBLISH                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                      UNITED STATES COURT OF APPEALS
    
                                  TENTH CIRCUIT
    
    
     EQUAL EMPLOYMENT
     OPPORTUNITY COMMISSION,
    
           Plaintiff-Appellee,
    
     v.
                                                         No. 11-5110
     ABERCROMBIE & FITCH STORES,
     INC., an Ohio corporation, d/b/a
     Abercrombie Kids,
    
           Defendant-Appellant.
    
    
                     Appeal from the United States District Court
                       for the Northern District of Oklahoma
                        (D.C. No. 4:09-CV-00602-GKF-FHM)
    
    
    Mark A. Knueve of Vorys, Sater, Seymour and Pease LLP, Columbus, Ohio
    (Daniel J. Clark and Joseph C. Fungsang of Vorys, Sater, Seymour and Pease
    LLP, Columbus, Ohio, and Jon E. Brightmire of Doerner, Saunders, Daniel &
    Anderson LLP, Tulsa, Oklahoma, with him on the briefs) for Defendant-
    Appellant.
    
    James M. Tucker (P. David Lopez, General Counsel, Carolyn L. Wheeler, Acting
    Associate General Counsel, Daniel T. Vail, Acting Assistant General Counsel,
    with him on the brief), of U.S. Equal Employment Opportunity Commission,
    Washington, D.C., for Plaintiff-Appellee.
    
    
    Before KELLY, EBEL, and HOLMES, Circuit Judges.
    
    
    HOLMES, Circuit Judge.
          Abercrombie & Fitch (“Abercrombie”) appeals from the district court’s
    
    grant of summary judgment in favor of the Equal Employment Opportunity
    
    Commission (“EEOC”) and the court’s denial of summary judgment in favor of
    
    Abercrombie, on the EEOC’s claim that Abercrombie failed to provide a
    
    reasonable religious accommodation for a prospective employee, Samantha Elauf,
    
    in contravention of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
    
    to 2000e-17. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the
    
    district court’s grant of summary judgment to the EEOC. Abercrombie is entitled
    
    to summary judgment as a matter of law because there is no genuine dispute of
    
    material fact that Ms. Elauf never informed Abercrombie prior to its hiring
    
    decision that she wore her headscarf or “hijab” 1 for religious reasons and that she
    
    needed an accommodation for that practice, due to a conflict between the practice
    
    and Abercrombie’s clothing policy. Accordingly, we remand the case to the
    
    district court with instructions to vacate its judgment and enter judgment in favor
    
    of Abercrombie, and for further proceedings consistent with this opinion.
    
    
    
    
          1
                 A leading scholar of Islam, who was the EEOC’s expert in this case,
    John L. Esposito, Ph.D., has defined a “hijab” as the “veil or head covering worn
    by Muslim women in public.” John L. Esposito, Islam: The Straight Path 310
    (4th ed. 2011). In their briefing, the parties use the terms “headscarf” and “hijab”
    interchangeably, and so do we.
    
                                             2
                                              I
    
                                             A
    
          Abercrombie is a retail clothing company that operates stores across the
    
    United States under a variety of brand names, including Abercrombie & Fitch,
    
    abercrombie (“Abercrombie Kids”), and Hollister. Abercrombie requires
    
    employees in its stores to comply with a “Look Policy.” 2 That policy is intended
    
    to promote and showcase the Abercrombie brand, which “exemplifies a classic
    
    East Coast collegiate style of clothing.” Aplt. Opening Br. at 5. The Look Policy
    
    applies to every Abercrombie employee. Under the circumstances of this case,
    
    however, our central concern is the policy’s application to sales-floor employees,
    
    whom Abercrombie referred to as “Model[s].” Aplt. App. at 372 (Dep. of Chad
    
    Moorefield, taken Mar. 16, 2011). Employees must dress in clothing that is
    
    consistent with the kinds of clothing that Abercrombie sells in its stores.
    
    Notably, the policy prohibits employees from wearing black clothing and “caps,”
    
    although the policy does not explicate the meaning of the term “cap.” Aplee.
    
    Supp. App. at 69 (Abercrombie Store Associate Handbook, dated Sept. 2006). An
    
    employee is subject to “disciplinary action . . . up to and including termination”
    
    for failure to comply with the Look Policy. Id.
    
    
          2
                Our inquiry is focused on the Look Policy as it was set forth in the
    Store Associate Handbook (revised Sept. 2006). This was the policy applicable in
    2008 when the events relevant here took place. Consequently, we do not consider
    any changes that Abercrombie may have made to the Look Policy since then.
    
                                              3
          Abercrombie contends that its Look Policy is critical to the health and
    
    vitality of its “preppy” and “casual” brand. See Aplt. Opening Br. at 5 (quoting
    
    Aplt. App. at 375; id. at 63 (Dep. of Kalen McJilton, taken Jan. 20, 2011))
    
    (internal quotation marks omitted). This is so, Abercrombie maintains, because it
    
    does very little advertising through traditional media outlets (e.g., print
    
    publications or television); instead, it relies on its in-store experience to promote
    
    its products. Consequently, Abercrombie expends a great deal of effort to ensure
    
    that its target customers receive a holistically brand-based, sensory experience.
    
    See, e.g., Aplt. App. at 70 (Dep. of Deon Riley, taken Mar. 17, 2011)
    
    (“Abercrombie has made a name because of the brand. It’s a fact that you walk
    
    into an environment, and it’s not just the smell or the sound, it’s the way the
    
    merchandise is set up. It’s the lighting. Most of all, it’s the stylish clothing
    
    . . . .”). The “main part” of a Model’s job is to “represent [Abercrombie’s]
    
    clothing[,] first and foremost.” Id. at 376. To Abercrombie, a Model who
    
    violates the Look Policy by wearing inconsistent clothing “inaccurately represents
    
    the brand, causes consumer confusion, fails to perform an essential function of
    
    the position, and ultimately damages the brand.” Aplt. Opening Br. at 8.
    
          The interviewing process plays an important role in furthering
    
    Abercrombie’s objective of ensuring that employees adhere to its Look Policy.
    
    Managers assess applicants on appearance and style during the interview. They
    
    are supposed to inform applicants of various aspects of the job, including the
    
                                               4
    Look Policy. New Models typically receive a copy of the policy in an employee
    
    handbook and sign an acknowledgment that they have received it, when they start
    
    work.
    
            Abercrombie instructs its store managers not to assume facts about
    
    prospective employees in job interviews and, significantly, not to ask applicants
    
    about their religion. If a question arises during the interview regarding
    
    application of the Look Policy, or if a prospective employee requests a deviation
    
    from the policy (for example, based on an inflexible religious practice), the store
    
    manager is instructed to contact Abercrombie’s corporate human resources
    
    department (“HR”), or his or her direct supervisor. HR managers may grant
    
    accommodations if doing so would not harm the brand.
    
                                              B
    
            Samantha Elauf claims to be a practicing Muslim. 3 In mid-2008, Ms. Elauf,
    
    then seventeen-years old, applied for a Model position at the Abercrombie Kids
    
    store in the Woodland Hills Mall in Tulsa, Oklahoma. She had previously
    
    purchased and worn Abercrombie clothes.
    
            Prior to her interview, Ms. Elauf discussed with a friend who worked at
    
    Abercrombie’s Woodland Hills location, Farisa Sepahvand, whether wearing a
    
    
    
            3
                 The parties dispute whether Ms. Elauf possesses a bona fide,
    sincerely held religious belief in Islam. This dispute, however, is not material to
    our resolution of this case; therefore, we need not (and do not) address it.
    
                                              5
    hijab to work would be permissible. Ms. Elauf has worn a hijab since she was
    
    thirteen and testified that she does so for religious reasons. The Quran—the
    
    “sacred scripture” of the Islamic faith, Aplee. Supp. App. at 5 (Dep. of John L.
    
    Esposito, taken Feb. 22, 2011)—counsels women to protect their modesty, and
    
    some religious scholars “believe that the Qu[]ran does require an hijab” to be
    
    worn by Muslim women, “but there are many who disagree with that
    
    interpretation,” id. at 2. As the EEOC’s expert, Dr. Esposito, testified, although
    
    some Muslim women wear hijabs for religious reasons, those are not the only
    
    reasons that Muslim women wear hijabs; for example, some do so for cultural
    
    reasons or in order to demonstrate a personal rejection of certain aspects of
    
    Western-style dress. 4 Dr. Esposito testified that, in understanding the reasons
    
    why people maintain certain styles of dress, “it really is, the question is, what is
    
    
          4
                 Relevant to this point, in his scholarly writing, Dr. Esposito
    observes:
    
                 The religious situation of American Muslims can be especially
                 difficult for the younger generation. Many have parents, raised
                 in overseas Muslim societies, who equate cultural practices and
                 norms with the principles of Islam. Their children face the
                 challenge of both fitting into American societies and retaining
                 their Islamic identity, of distinguishing between what is
                 mandated by religion and the “foreign” cultural baggage of their
                 parents.
    
    Esposito, supra, at 291 (emphases added); cf. id. at 74 (“Yet [Muslims] continue to
    face issues of identity and faith as a religious minority. . . . As with many other
    religious and ethnic groups that preceded them, Muslim communities face issues of
    assimilation or integration, diversity, and pluralism.”).
    
                                              6
    their motivation.” Aplt. App. at 292; see id. at 472 (noting, as to why a hijab is
    
    worn, “it really depends on the woman”).
    
          In responding to Ms. Elauf’s inquiry about wearing a headscarf, Ms.
    
    Sepahvand testified that she had raised the issue with assistant manager Kalen
    
    McJilton, who knew Ms. Elauf from her prior visits to the store. Noting that he
    
    had previously worked at Abercrombie with someone who wore a white yarmulke,
    
    Mr. McJilton suggested that he did not see any problem with Ms. Elauf wearing a
    
    headscarf, “especially if she didn’t wear a headscarf that was black.” Aplee.
    
    Supp. App. at 181 (Dep. of Farisa Sepahvand, taken Mar. 31, 2011) (internal
    
    quotation marks omitted). Ms. Sepahvand then communicated to Ms. Elauf that,
    
    although a headscarf would be permitted, because of Abercrombie’s no-black-
    
    clothing policy, she would not be able to wear a black one. Ms. Elauf seemed
    
    agreeable to that restriction.
    
          Ms. Elauf met with assistant manager Heather Cooke to interview for the
    
    Model position. Ms. Cooke was already familiar with Ms. Elauf, having observed
    
    her in the Abercrombie store chatting with Ms. Sepahvand and working elsewhere
    
    in the Woodland Hills Mall. Ms. Cooke had seen Ms. Elauf wearing a headscarf
    
    prior to the interview. Ms. Cooke “did not know” Ms. Elauf’s religion, but she
    
    “assumed that she was Muslim,” Aplt. App. at 365 (Dep. of Heather Cooke, taken
    
    Jan. 19, 2011), and “figured that was the religious reason why she wore her head
    
    scarf,” Aplee. Supp. App. at 48. In the interview, Ms. Cooke did not ask Ms.
    
                                              7
    Elauf if she was a Muslim.
    
          Ms. Elauf was familiar with the type of clothing Abercrombie sold and
    
    knew that Models were required to wear similar clothing. During the interview,
    
    Ms. Elauf wore an Abercrombie-like T-shirt and jeans. She also wore a headscarf
    
    (i.e., hijab); it was black. According to Ms. Elauf, Ms. Cooke never mentioned
    
    the Look Policy by name but she did describe some of the dress requirements for
    
    Abercrombie employees, and informed Ms. Elauf that she would have to wear
    
    clothing similar to that sold by Abercrombie and, specifically, that she could not
    
    wear heavy makeup or nail polish.
    
          During the course of the interview, Ms. Elauf never informed Ms. Cooke
    
    that she was Muslim, never brought up the subject of her headscarf, and never
    
    indicated that she wore the headscarf for religious reasons and that she felt
    
    obliged to do so, and thus would need an accommodation to address the conflict
    
    between her religious practice and Abercrombie’s clothing policy. Indeed, the
    
    topic of her headscarf never came up one way or the other. For example, Ms.
    
    Cooke did not tell Ms. Elauf that she “wouldn’t be able to wear [her headscarf] or
    
    anything like that.” Aplt. App. at 55 (Dep. of Samantha Elauf, taken Jan. 4,
    
    2011). After offering a description of the dress requirements, Ms. Cooke asked
    
    Ms. Elauf at the end of the interview if she had any questions. Ms. Elauf did not
    
    ask any.
    
          Ms. Cooke assessed Ms. Elauf’s candidacy using Abercrombie’s official
    
                                              8
    interview guide. The guide requires the interviewer to consider the applicant’s
    
    “appearance & sense of style,” whether the applicant is “outgoing & promotes
    
    diversity,” and whether he or she has “sophistication & aspiration.” Aplee. Supp.
    
    App. at 61 (Model Group Interview Guide, dated June 26, 2008). Each category
    
    is assessed on a three-point scale, and an applicant with a score in “appearance”
    
    of less than two, or a total combined score of five or less, is not recommended for
    
    hire. Ms. Cooke initially scored Ms. Elauf at a two in each category, for a total of
    
    six, which is a score that “meets expectations” and amounts to a
    
    “recommend[ation]” that Abercrombie hire her. See id. at 64.
    
          Although Ms. Cooke believed Ms. Elauf was a good candidate for the job,
    
    she was unsure whether it would be a problem for her to wear a headscarf as an
    
    Abercrombie Model, and whether the headscarf could be black in color. Ms.
    
    Cooke ordinarily did not seek approval from a senior manager in evaluating or
    
    hiring new Models, but in this case she did.
    
          Ms. Cooke’s direct supervisor was unable to answer her question about Ms.
    
    Elauf’s headscarf, so Ms. Cooke consulted with Randall Johnson, her district
    
    manager. Mr. Johnson said that Ms. Elauf should not be hired because she wore a
    
    headscarf—a clothing item that was inconsistent with the Look Policy.
    
    Notwithstanding Ms. Cooke’s contrary deposition testimony, Mr. Johnson denied
    
    being told by Ms. Cooke that Ms. Elauf was a Muslim and that she wore her
    
    headscarf for religious reasons.
    
                                              9
          Ms. Cooke testified that Mr. Johnson told her to change Ms. Elauf’s
    
    interview score on the appearance section from a two to a one, thereby bringing
    
    her overall score down to a five and ensuring that she would not be recommended
    
    for hire. With this understanding, Ms. Cooke threw away the original interview
    
    sheet and changed Ms. Elauf’s score, thus implementing Mr. Johnson’s alleged
    
    instructions. Ms. Cooke did not extend a job offer to Ms. Elauf. A few days after
    
    the interview, Ms. Elauf learned from Ms. Sepahvand that she had not been hired
    
    because of her headscarf.
    
                                             C
    
          The EEOC filed the instant action against Abercrombie on September 17,
    
    2009, alleging violations of Title VII, on the grounds that Abercrombie “refused
    
    to hire Ms. Elauf because she wears a hijab” and “failed to accommodate her
    
    religious beliefs by making an exception to the Look Policy.” Dist. Ct. Doc. No.
    
    2, at 2 (EEOC Compl., filed Sept. 17, 2009). It sought injunctive relief, back pay,
    
    and damages.
    
          Abercrombie disputed the EEOC’s allegations and argued that Ms. Elauf
    
    failed to inform it of a conflict between the Look Policy and her religious
    
    practices. It further argued that the proposed accommodation—allowing Ms.
    
    Elauf to wear the headscarf—would have imposed an undue hardship on the
    
    company. Furthermore, it challenged Ms. Elauf’s assertion that she possessed a
    
    bona fide, sincerely held religious belief, forming the basis for her purported
    
                                             10
    conflict with the Look Policy.
    
          The parties filed cross-motions for summary judgment on issues concerning
    
    liability. In addressing the motions and the religion-accommodation claim, the
    
    district court applied the burden-shifting framework of McDonnell Douglas Corp.
    
    v. Green, 
    411 U.S. 792
     (1973). Under that framework, the court concluded that
    
    the EEOC had established a prima facie case through evidence that Ms. Elauf had
    
    a bona fide, sincerely held religious belief and a related practice that conflicts
    
    with the Look Policy. Specifically, the court found that Ms. Elauf wore her “head
    
    scarf based on her belief that the Quran requires her to do so” and “this belief
    
    conflicts with Abercrombie’s prohibition against headwear.” Aplt. App. at 575
    
    (Op. & Order, filed July 13, 2011). Further, it reasoned that “Abercrombie had
    
    notice [that] she wore a head scarf because of her religious belief[,] and that it
    
    refused to hire her because the head scarf conflicted with its Look Policy.” Id.
    
          The district court rejected Abercrombie’s argument that the notice element
    
    of the EEOC’s prima facie case was not satisfied because Ms. Elauf did not
    
    personally inform Abercrombie that she wore her hijab for religious reasons and
    
    would need an accommodation for it, because she was obliged to do so. The
    
    court reasoned that, while the Tenth Circuit had not directly addressed this issue,
    
    “[c]ourts in other circuits have held that the notice requirement is met when an
    
    employer has enough information to make it aware [that] there exists a conflict
    
    between the individual’s religious practice or belief and a requirement for
    
                                              11
    applying for or performing the job.” Id. at 580. It further stated that, “faced with
    
    the issue of whether the employee must explicitly request an accommodation or
    
    whether it is enough that the employer has notice [that] an accommodation is
    
    needed[,] the Tenth Circuit would likely opt for the latter choice.” Id. at 581
    
    (footnote omitted).
    
          Applying its formulation of the notice requirement, the district court
    
    observed that “it is undisputed that Elauf wore her head scarf at the interview
    
    with assistant store manager Heather Cooke, and Cooke knew she wore the head
    
    scarf based on her religious belief.” Id. (emphasis added). It added that, while a
    
    fact question may yet exist as to whether Ms. Cooke told Mr. Johnson that Ms.
    
    Elauf wore her headscarf because of her religion, that question was immaterial
    
    “because the knowledge of Cooke—who had responsibility for hiring decisions at
    
    the Abercrombie Kids store—is attributable to Abercrombie.” Id. at 581 n.11.
    
    The district court stated that “there could be no bilateral, interactive process of
    
    accommodation because, although Abercrombie was on notice that Elauf wore a
    
    head scarf for religious reasons, it denied [her] application for employment
    
    without informing her [that] she was not being hired or telling her why.” Id. at
    
    582 n.12.
    
          The district court also rejected Abercrombie’s contention that, even if the
    
    EEOC had established its prima facie case, Abercrombie had demonstrated that it
    
    would suffer undue hardship. The court observed that, despite speculative
    
                                              12
    testimony to the contrary, Abercrombie had provided no “studies or . . . specific
    
    examples” to support its opinion that granting Ms. Elauf an exception “would
    
    negatively impact the brand, sales[,] and compliance [with the Look Policy].” Id.
    
    at 582. In that vein, it emphasized that Abercrombie had made numerous
    
    exceptions to the Look Policy over the past ten or so years—most significantly,
    
    “[e]ight or nine head scarf exceptions.” Id. at 583.
    
          The parties went to trial on damages. The jury awarded the EEOC $20,000
    
    in compensatory damages. The EEOC’s request for prospective injunctive relief
    
    was denied. This timely appeal followed.
    
                                              II
    
          In summary, we conclude that the district court erred in denying summary
    
    judgment to Abercrombie. 5 More specifically, we hold that, under the governing
    
    
          5
                 While “the denial of a summary-judgment motion is ordinarily not an
    appealable order [in itself], it can be reviewed when ‘it is coupled with a grant of
    summary judgment to the opposing party.’” Quik Payday, Inc. v. Stork, 
    549 F.3d 1302
    , 1306 n.1 (10th Cir. 2008) (emphasis added) (quoting Yaffe Cos. v. Great
    Am. Ins. Co., 
    499 F.3d 1182
    , 1184 (10th Cir. 2007)); see Thom v. Am. Standard,
    Inc., 
    666 F.3d 968
    , 972–73 (6th Cir. 2012). Abercrombie moved for summary
    judgment before the district court on the same grounds as it raises now on appeal
    and the parties engaged in an exhaustive round of briefing before the district
    court. The record is fully developed and the issues are amenable to dispositive
    resolution. See, e.g., Santaella v. Metro. Life Ins. Co., 
    123 F.3d 456
    , 465 (7th
    Cir. 1997) (“The reason that appellate courts, when reversing a grant of summary
    judgment, typically do not direct the district court to enter summary judgment in
    favor of the appellant is because a genuine issue of material fact remains. But, in
    instances in which the facts and law establish that the appellant is entitled to
    judgment as a matter of law, we are free to direct the district court to enter
                                                                            (continued...)
    
                                             13
    substantive law, Abercrombie is entitled to summary judgement because there is
    
    no genuine dispute of material fact regarding this key point: Ms. Elauf never
    
    informed Abercrombie prior to its hiring decision that her practice of wearing a
    
    hijab was based on her religious beliefs and (because she felt religiously obliged
    
    to wear it) that she would need an accommodation for the practice, because of a
    
    conflict between it and Abercrombie’s clothing policy. Furthermore, it follows
    
    ineluctably from the logic and reasoning of our decision that, in granting partial
    
    summary judgment to the EEOC, the district court erred.
    
                                              A
    
          Our review of a district court’s summary judgment ruling is de novo; we
    
    “apply[] the same standard as the district court.” Helm v. Kansas, 
    656 F.3d 1277
    ,
    
    1284 (10th Cir. 2011). “[S]ummary judgment is appropriate ‘if the movant shows
    
    that there is no genuine dispute as to any material fact and the movant is entitled
    
    to judgment as a matter of law.’” Morris v. City of Colo. Springs, 
    666 F.3d 654
    ,
    
    660 (10th Cir. 2012) (quoting Fed. R. Civ. P. 56(a)). In assessing a motion for
    
    summary judgment, “[w]e view the facts, and all reasonable inferences those facts
    
    
          5
           (...continued)
    judgment in appellant’s favor.” (quoting Swaback v. Am. Info. Techs. Corp., 
    103 F.3d 535
    , 544 (7th Cir. 1996)) (internal quotation marks omitted)); see also
    McIntosh v. Scottsdale Ins. Co., 
    992 F.2d 251
    , 253 (10th Cir. 1993) (“Where we
    reverse a summary judgment order in favor of one party, . . . we will review the
    denial of the other party’s cross-motion for summary judgment under the same
    standards applied by the district court so long as it is clear that the party opposing
    the cross-motion had an opportunity to dispute the material facts.”).
    
                                             14
    support, in the light most favorable to the nonmoving party.” Simmons v. Sykes
    
    Enters., Inc., 
    647 F.3d 943
    , 947 (10th Cir. 2011).
    
          Succinctly put, we must “examine the record to determine whether any
    
    genuine issue of material fact [i]s in dispute; if not, we determine . . . [the correct
    
    application of the] substantive law . . . , and in so doing we examine the factual
    
    record and reasonable inferences therefrom in the light most favorable to the
    
    party opposing the motion.” Oldenkamp v. United Am. Ins. Co., 
    619 F.3d 1243
    ,
    
    1246 (10th Cir. 2010) (quoting McKnight v. Kimberly Clark Corp., 
    149 F.3d 1125
    , 1128 (10th Cir. 1998)) (internal quotation marks omitted); see Morris, 666
    
    F.3d at 660; City of Herriman v. Bell, 
    590 F.3d 1176
    , 1180–81 (10th Cir. 2010).
    
    As pertinent here, we construe the facts in the light most favorable to the EEOC.
    
                                               B
    
                                                1
    
          To properly assess Ms. Elauf’s Title VII religion-accommodation claim, we
    
    must first understand the meaning that the term “religion” takes on in the Title
    
    VII context. Under Title VII it is “an unlawful employment practice for an
    
    employer . . . to discriminate against any individual with respect to his
    
    compensation, terms, conditions, or privileges of employment, because of such
    
    individual’s . . . religion.” Thomas v. Nat’l Ass’n of Letter Carriers, 
    225 F.3d 1149
    , 1154 (10th Cir. 2000) (second omission in original) (quoting 42 U.S.C.
    
    § 2000e-2(a)(1)) (internal quotation marks omitted). “The term ‘religion’
    
                                               15
    includes all aspects of religious observance and practice, as well as belief . . . .”
    
    42 U.S.C. § 2000e(j).
    
          As the EEOC has recognized, “[r]eligion is very broadly defined under
    
    Title VII.” EEOC Compliance Manual § 12-I(A) (emphasis omitted), available at
    
    http://www.eeoc.gov/policy/docs/religion.html; see also Bushouse v. Local Union
    
    2209, United Auto., Aerospace, & Agric. Implement Workers, 
    164 F. Supp. 2d 1066
    , 1076 n.15 (N.D. Ind. 2001) (noting that Title VII has a “broad definition of
    
    ‘religious belief’”). “Religion includes not only traditional, organized religions
    
    such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious
    
    beliefs that are new, uncommon, not part of a formal church or sect, only
    
    subscribed to by a small number of people, or that seem illogical or unreasonable
    
    to others.” EEOC Compliance Manual § 12-I(A)(1). However, while recognizing
    
    a broad concept of religion, the EEOC acknowledges that the substantive content
    
    of religious beliefs is distinctive:
    
                 Religious beliefs include theistic beliefs as well as non-theistic
                 moral or ethical beliefs as to what is right and wrong which are
                 sincerely held with the strength of traditional religious views.
                 Although courts generally resolve doubts about particular beliefs
                 in favor of finding that they are religious, beliefs are not
                 protected merely because they are strongly held. Rather, religion
                 typically concerns ultimate ideas about life, purpose, and death.
    
    
    Id. (footnotes omitted) (emphasis added) (quoting 29 C.F.R. § 1605.1 (internal
    
    quotation marks omitted); United States v. Meyers, 
    906 F. Supp. 1494
    , 1502 (D.
    
    
                                               
    16 Wyo. 1995
    ) (internal quotation marks omitted), aff’d, 
    95 F.3d 1475
     (10th Cir.
    
    1996)); see also 3 Lex K. Larson, Employment Discrimination § 54.05[4], at 54-
    
    13 (2d ed. 2013) (“[A] definition of religion often invoked by the courts is a
    
    belief based on a theory of ‘man’s nature or his place in the Universe’ or a belief
    
    that ‘relates to a Supreme Being.’”). Consequently, “[s]ocial, political, or
    
    economic philosophies, as well as mere personal preferences, are not ‘religious’
    
    beliefs protected by Title VII.” EEOC Compliance Manual § 12-I(A)(1).
    
            In the EEOC’s view, religion is a uniquely personal and individual matter.
    
    This view was shaped in no small part by how courts have defined religion for
    
    purposes of the First Amendment and other related contexts. See id. at § 12-I(A)
    
    nn.18–28 and accompanying text (relying heavily on case law from the First
    
    Amendment and other contexts to define “religion” for Title VII’s purposes); see
    
    also 29 C.F.R. § 1605.1 (setting forth the EEOC’s definition of “religious
    
    practices” and noting that it is in accordance with the standard developed by the
    
    Supreme Court in United States v. Seeger, 
    380 U.S. 163
     (1965), and Welsh v.
    
    United States, 
    398 U.S. 333
     (1970)); cf. EEOC v. Union Independiente de la
    
    Autoridad de Acueductos y Alcantarillados de P.R., 
    279 F.3d 49
    , 56 (1st Cir.
    
    2002) (relying on First Amendment jurisprudence to define “religion” for
    
    purposes of Title VII); Redmond v. GAF Corp., 
    574 F.2d 897
    , 901 n.12 (7th Cir.
    
    1978) (relying on Seeger and Welsh to interpret “religious” for purposes of Title
    
    VII).
    
                                             17
          In these First Amendment-related contexts, courts consistently focus on the
    
    individual’s belief system rather than the beliefs of a religious group with which
    
    the individual may (or may not) be associated. See Frazee v. Ill. Dep’t of Emp’t
    
    Sec., 
    489 U.S. 829
    , 834 (1989) (“[W]e reject the notion that to claim the
    
    protection of the Free Exercise Clause, one must be responding to the commands
    
    of a particular religious organization.”); [Eddie] Thomas v. Review Bd. of the Ind.
    
    Emp’t Sec. Div., 
    450 U.S. 707
    , 715–16 (1981) (“[T]he guarantee of free exercise
    
    is not limited to beliefs which are shared by all of the members of a religious sect.
    
    Particularly in this sensitive area, it is not within the judicial function and judicial
    
    competence to inquire whether the petitioner or his fellow worker more correctly
    
    perceived the commands of their common faith. Courts are not arbiters of
    
    scriptural interpretation.”); Seeger, 380 U.S. at 173, 185 (interpreting the phrase
    
    “religious training and belief” in a conscientious-objection statute to require
    
    courts “to decide whether the beliefs professed by a registrant . . . are, in his own
    
    scheme of things, religious” (emphasis added)); LaFevers v. Saffle, 
    936 F.2d 1117
    , 1119 (10th Cir. 1991) (holding that a Seventh Day Adventist prisoner’s
    
    religious belief that he must adhere to a vegetarian diet, if sincerely held, was
    
    entitled to protection under the First Amendment even though the district court
    
    found that not all Seventh Day Adventists are vegetarian and that the “faith does
    
    not require” such a diet); see also Erwin Chemerinsky, Constitutional Law:
    
    Principles and Policies 1235 (4th ed. 2011) (“[R]eligion is inherently personal
    
                                               18
    . . . and an individual might have a sincere religious belief that departs from the
    
    dogma of his or her religion. In fact, for this reason, the [Supreme] Court has
    
    said [in the First Amendment context] that the dominant views in a faith are not
    
    determinative in assessing whether a particular belief is religious.”).
    
             Apparently guided by such authorities, the EEOC’s Compliance Manual
    
    notes:
    
                  [A] person’s religious beliefs need not be confined in either
                  source or content to traditional or parochial concepts of religion.
                  A belief is religious for Title VII purposes if it is religious in the
                  person’s own scheme of things, i.e., it is a sincere and meaningful
                  belief that occupies in the life of its possessor a place parallel to
                  that filled by . . . God. An employee’s belief or practice can be
                  religious under Title VII even if the employee is affiliated with
                  a religious group that does not espouse or recognize that
                  individual’s belief or practice, or if few – or no – other people
                  adhere to it.
    
    
    EEOC Compliance Manual § 12-I(A)(1) (omission in original) (emphases added)
    
    (footnotes omitted) (quoting [Eddie] Thomas, 450 U.S. at 716 (internal quotation
    
    marks omitted); Redmond, 574 F.2d at 901 n.12 (internal quotation marks
    
    omitted); Seeger, 380 U.S. at 176 (internal quotation marks omitted)); see also
    
    EEOC, Questions and Answers: Religious Discrimination in the Workplace
    
    [hereinafter EEOC Q & A], available at
    
    http://www.eeoc.gov/policy/docs/qanda_religion.html (“An employer also should
    
    not assume that an employee is insincere simply because some of his or her
    
    practices deviate from the commonly followed tenets of his or her religion.”).
    
                                                19
    Therefore, determining “[w]hether a practice is religious depends on the
    
    employee’s motivation. The same practice might be engaged in by one person for
    
    religious reasons and by another person for purely secular reasons.” 6 EEOC
    
    Compliance Manual § 12-I(A)(1) (emphasis added). Indeed, the EEOC
    
    recognizes that the motivation of employees may change over time; they may
    
    engage in a practice for religious reasons during one phase of their lives and for
    
    secular reasons during another. See EEOC Q & A, supra (“[A]n individual’s
    
    beliefs – or degree of adherence – may change over time, and therefore an
    
    employee’s newly adopted or inconsistently observed religious practice may
    
    nevertheless be sincerely held.”).
    
          These general principles have significant implications for the enforcement
    
    of Title VII’s proscription against religious discrimination. A couple of points
    
    are worth underscoring. First, an applicant or employee may engage in practices
    
    that are associated with a particular religion, but do so for cultural or other
    
    reasons that are not grounded in that religion. Cf. Larson, supra, § 54.04, at 54-7
    
    (noting that “one person’s political view may well be another’s religious
    
    
          6
                  The EEOC Compliance Manual, citing our decision in LaFevers,
    provides the following example: “[O]ne employee might observe certain dietary
    restrictions for religious reasons while another employee adheres to the very same
    dietary restrictions but for secular (e.g., health or environmental) reasons.”
    EEOC Compliance Manual § 12-I(A)(1); cf. LaFevers, 936 F.2d at 1119
    (recognizing that a Seventh Day Adventist can have a sincere religious belief that
    he must adhere to a vegetarian diet even though other Seventh Day Adventists do
    not feel similarly obligated).
    
                                              20
    conviction”). If so, an employer’s discrimination against that individual for
    
    engaging in that practice—though possibly reprehensible and worthy of
    
    condemnation—would not contravene Title VII’s religion-discrimination
    
    provisions. That is true of course because, despite the practice’s customary
    
    association with religion, the applicant’s or employee’s motivation for engaging
    
    in the practice would not be religious.
    
          Second, because religious beliefs have a distinctive content related to
    
    ultimate ideas about life, purpose, and death, logically, even if an applicant or
    
    employee claims to be acting for “religious” reasons, if those reasons actually do
    
    not pertain to such ultimate ideas, then that person’s conduct would fall outside
    
    the protective ambit of Title VII—viz., the conduct would not truly relate to
    
    religious matters. See EEOC Compliance Manual § 12-I(A)(1), Ex. 6. (“Personal
    
    Preference That is Not a Religious Belief”); 7 see also Reed v. Great Lakes Cos.,
    
    
          7
                 The EEOC has offered the following relevant example:
    
                 Sylvia wears several tattoos and has recently had her nose and
                 eyebrows pierced. A newly hired manager implements a dress
                 code that requires that employees have no visible piercings or
                 tattoos. Sylvia says that her tattoos and piercings are religious
                 because they reflect her belief in body art as self-expression and
                 should be accommodated. However, the evidence demonstrates
                 that her tattoos and piercings are not related to any religious
                 belief system. For example, they do not function as a symbol of
                 any religious belief, and do not relate to any “ultimate concerns”
                 such as life, purpose, death, humanity’s place in the universe, or
                 right and wrong, and they are not part of a moral or ethical belief
                                                                            (continued...)
    
                                              21
    
    330 F.3d 931
    , 935 (7th Cir. 2003) (“[A]n employee is not permitted to redefine a
    
    purely personal preference or aversion as a religious belief.”); Vetter v. Farmland
    
    Indus., Inc., 
    120 F.3d 749
    , 751 (8th Cir. 1997) (“An employer need not
    
    accommodate a purely personal preference . . . .” (internal quotation marks
    
    omitted)); cf. Wisconsin v. Yoder, 
    406 U.S. 205
    , 216 (1972) (discussing in the free
    
    exercise context the necessity of distinguishing between choices that are
    
    “philosophical and personal rather than [ones that are] religious”); United States
    
    v. Meyers, 
    95 F.3d 1475
    , 1483–84 (10th Cir. 1996) (determining, for purposes of
    
    the Religious Freedom Restoration Act, whether a belief qualifies as a “religious
    
    belief” by assessing, inter alia, whether the belief “address[es] fundamental
    
    questions about life, purpose, and death”); id. at 1484 (agreeing with the district
    
    court’s conclusion that the defendant’s beliefs were not religious in nature despite
    
    their being “deeply [held]” and “sincere[]” because they were “derived entirely
    
    from his secular beliefs,” and collecting cases).
    
                                                 2
    
          The EEOC has presented a religion-discrimination claim based upon
    
    Abercrombie’s alleged failure to accommodate Ms. Elauf’s conflicting religious
    
    
          7
              (...continued)
                    system. Therefore, her belief is a personal preference that is not
                    religious in nature.
    
    
    EEOC Compliance Manual § 12-I(A)(1), Ex. 6.
    
                                                22
    practice of wearing a hijab. Title VII’s implementing regulations “impose[] an
    
    obligation on the employer ‘to reasonably accommodate the religious practices of
    
    an employee or prospective employee, unless the employer demonstrates that
    
    accommodation would result in undue hardship on the conduct of its business.’”
    
    Thomas, 225 F.3d at 1155 (quoting 29 C.F.R. § 1605.2(b)(1), (2)); accord 42
    
    U.S.C. § 2000e(j); 29 C.F.R. § 1605.2(b)(1); see Trans World Airlines v.
    
    Hardison, 
    432 U.S. 63
    , 74 (1977) (“The intent and effect of [Title VII’s]
    
    definition [of ‘religion’] was to make it 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.”); see
    
    also Sanchez-Rodriguez v. AT&T Mobility P.R., Inc., 
    673 F.3d 1
    , 8 (1st Cir.
    
    2012); Walden v. Ctrs. for Disease Control and Prevention, 
    669 F.3d 1277
    ,
    
    1292–93 (11th Cir. 2012) (Seymour, J., sitting by designation).
    
          Religion-accommodation claims are a subset of the types of religion-
    
    discrimination claims that an applicant or employee may present under Title VII.
    
    See Peterson v. Hewlett-Packard Co., 
    358 F.3d 599
    , 603 (9th Cir. 2004) (“A
    
    claim for religious discrimination under Title VII can be asserted under several
    
    different theories, including disparate treatment and failure to accommodate.”);
    
    Chalmers v. Tulon Co., 
    101 F.3d 1012
    , 1018 (4th Cir. 1996) (“[A]n employee is
    
    not limited to the disparate treatment theory to establish a discrimination claim.
    
    An employee can also bring suit based on the theory that the employer
    
                                             23
    discriminated against her by failing to accommodate her religious conduct.”
    
    (emphasis omitted)); see also EEOC Q & A, supra (describing the kinds of
    
    religious discrimination that “Title VII prohibits”). The EEOC has described the
    
    specific nature of the claim as follows:
    
                 A religious accommodation claim is distinct from a disparate
                 treatment claim, in which the question is whether employees are
                 treated equally. An individual alleging denial of religious
                 accommodation is seeking an adjustment to a neutral work rule
                 that infringes on the employee’s ability to practice his religion.
                 The accommodation requirement is “plainly intended to relieve
                 individuals of the burden of choosing between their jobs and
                 their religious convictions . . . .”
    
    
    EEOC Compliance Manual § 12-IV (quoting Protos v. Volkswagen of Am., Inc.,
    
    
    797 F.2d 129
    , 136 (3d Cir. 1986)).
    
          The reasonable-accommodation principle is implicated only when there is a
    
    conflict between an employee’s religious practice and the employer’s neutral
    
    policy; only then does a need to accommodate arise. See id. § 12-IV(A)(1)
    
    (noting the need for the employer to be on notice “both of the need for
    
    accommodation and that [the accommodation] is being requested due to a conflict
    
    between religion and work” (emphasis added)). For there actually to be a
    
    conflict, logic dictates that an applicant or employee must consider the religious
    
    practice to be an inflexible one—that is, a practice that is required by his or her
    
    religious belief system.
    
    
    
                                               24
          It is only in such a situation that applicants or employees would be placed
    
    in the position that Title VII was designed to protect them from—the spot where
    
    they must choose between their religious convictions and their job. See Tiano v.
    
    Dillard Dep’t Stores, Inc., 
    139 F.3d 679
    , 682–83 (9th Cir. 1998) (granting
    
    summary judgment to the employer on the employee’s Title VII religion-
    
    accommodation claim because there was no “conflict between [the employee’s]
    
    religious belief and employment duties” since her religious belief, as she
    
    described it, only required her to go on a pilgrimage “at some time” rather than at
    
    the specific time she preferred to go); cf. Reed, 330 F.3d at 935 (holding that the
    
    employee failed to make a prima facie showing on his Title VII religion-
    
    accommodation claim because, inter alia, he “refuse[d] to indicate at what points
    
    [his] faith intersect[ed] the requirements of his job”). In other words, even if
    
    applicants or employees engage in a practice for religious reasons, so long as they
    
    do not feel obliged to adhere to the practice (that is, do not consider the practice
    
    to be inflexible), then there is no actual conflict, nor a consequent need for the
    
    employer to provide a reasonable accommodation. Cf. Turner v. Boy Scouts of
    
    Am., Inc., No. CIV-09-180-C, 
    2009 WL 2567962
    , at *2 (W.D. Okla. Aug. 17,
    
    2009) (“[A]lthough Plaintiff informed [his employer] he was meeting with his
    
    pastor, there is no evidence in the record suggesting that Plaintiff informed [his
    
    employer] that his religious beliefs required a meeting with his pastor at that time
    
    or that the meeting was anything other than a personal preference.” (emphasis
    
                                              25
    added)).
    
          Notably, however, the EEOC discourages employers from making inquiries
    
    in the first instance regarding the religious beliefs or practices of applicants (and
    
    presumably employees) because “an applicant’s religious affiliation or beliefs . . .
    
    are generally viewed as non job-related and problematic under federal law.”
    
    EEOC, Pre-Employment Inquiries and Religious Affiliation or Beliefs [hereinafter
    
    EEOC Pre-Employment Inquiries], available at
    
    http://www.eeoc.gov/laws/practices/inquiries_religious.cfm; see also Prise v.
    
    Alderwoods Grp., Inc., 
    657 F. Supp. 2d 564
    , 597 (W.D. Pa. 2009) (noting that
    
    questioning applicants concerning their religious beliefs could, “under some
    
    circumstances, permit an inference to be drawn that an employer engaged in
    
    improper religion-based discrimination”); EEOC, Best Practices for Eradicating
    
    Religious Discrimination in the Workplace [hereinafter EEOC Best Practices],
    
    available at http://www.eeoc.gov/policy/docs/best_practices_religion.html (“In
    
    conducting job interviews, employers can ensure nondiscriminatory treatment by
    
    . . . inquiring about matters directly related to the position in question.”).
    
    Furthermore, in the religion-accommodation context, the EEOC has specifically
    
    cautioned employers to “avoid assumptions or stereotypes about what constitutes
    
    a religious belief or practice or what type of accommodation is appropriate.”
    
    EEOC Best Practices, supra; see id. (noting that “[m]anagers and employees
    
    should be trained not to engage in stereotyping based on religious dress and
    
                                               26
    grooming practices”).
    
          Thus, it is only after an employer is put on notice of the need for a
    
    religious accommodation that the EEOC’s policy materials encourage it to
    
    actively engage in a dialogue with applicants or employees concerning their
    
    conflicting religious practice and possible accommodations that the employer
    
    might provide for it. Cf. Larson, supra, § 56.05, at 56-21 (“Indeed, it would seem
    
    unreasonable to require an employer to accommodate the religious practices of an
    
    employee when the employer is unaware of the need to do so.” (emphases
    
    added)). In this regard, the EEOC has counseled: “Once the employer becomes
    
    aware of the employee’s religious conflict, the employer should obtain promptly
    
    whatever additional information is needed to determine whether an
    
    accommodation is available that would eliminate the religious conflict without
    
    posing an undue hardship on the operation of the employer’s business.” EEOC
    
    Compliance Manual § 12-IV(A)(2); see Thomas, 225 F.3d at 1155 (noting that
    
    religious accommodation “involves an interactive process that requires
    
    participation by both the employer and the employee”); EEOC Q & A, supra
    
    (commenting that “once on notice that a religious accommodation is needed” an
    
    employer is obliged under Title VII “to reasonably accommodate an employee”);
    
    EEOC Best Practices, supra (noting among “[e]mployer [b]est [p]ractices” that
    
    “[m]anagers and supervisors should be trained to consider alternative[,] available
    
    accommodations if the particular accommodation requested would pose an undue
    
                                             27
    hardship” (emphasis added)); see also EEOC Q & A, supra (“[I]f the employer
    
    has a bona fide doubt about the basis for the accommodation request, it is entitled
    
    to make a limited inquiry into the facts and circumstances of the employee’s
    
    claim that the belief or practice at issue is religious and sincerely held, and gives
    
    rise to the need for the accommodation.”).
    
                                              3
    
           In religion-accommodation cases, we apply a version of McDonnell
    
    Douglas’s burden-shifting approach. See Thomas, 225 F.3d at 1155; see also
    
    Dixon v. Hallmark Cos., 
    627 F.3d 849
    , 855 (11th Cir. 2010). Specifically, to
    
    survive summary judgment on such a claim, “the employee initially bears the
    
    burden of production with respect to a prima facie case.” Thomas, 225 F.3d at
    
    1155. The prima facie case requires the employee to “show that (1) he or she had
    
    a bona fide religious belief that conflicts with an employment requirement; (2) he
    
    or she informed his or her employer of this belief; and (3) he or she was fired [or
    
    not hired] for failure to comply with the conflicting employment requirement.”
    
    Id. (emphasis added); accord Dixon, 627 F.3d at 855.
    
          If the employee makes out a prima facie case, “[t]he burden then shifts to
    
    the employer to (1) conclusively rebut one or more elements of the . . . prima
    
    facie case, (2) show that it offered a reasonable accommodation, or (3) show that
    
    it was unable reasonably to accommodate the employee’s religious needs without
    
    
                                              28
    undue hardship.” Thomas, 225 F.3d at 1156 (footnote omitted). An
    
    accommodation is not reasonable if it would require the employer “to bear more
    
    than a de minimis cost.” Trans World Airlines, 432 U.S. at 84; see Bruff v. N.
    
    Miss. Health Servs., Inc., 
    244 F.3d 495
    , 500 (5th Cir. 2001); Lee v. ABF Freight
    
    Sys., Inc., 
    22 F.3d 1019
    , 1023 (10th Cir. 1994); Toledo v. Nobel-Sysco, Inc., 
    892 F.2d 1481
    , 1492 (10th Cir. 1989). And, “if an employer has provided a
    
    reasonable accommodation, we need not examine whether alternative
    
    accommodations not offered would have resulted in undue hardship.” EEOC v.
    
    Firestone Fibers & Textiles Co., 
    515 F.3d 307
    , 312 (4th Cir. 2008); see Thomas,
    
    225 F.3d at 1156 n.7 (“The employer does not have to demonstrate that the
    
    particular accommodation requested by the employee would result in an undue
    
    hardship.”).
    
          We conclude that Abercrombie is entitled to summary judgment because
    
    the EEOC cannot establish the second element of its prima facie case. As
    
    discussed below, under the controlling law, the EEOC cannot establish this
    
    element because there is no genuine dispute of material fact that Ms. Elauf never
    
    informed Abercrombie before its hiring decision that her practice of wearing a
    
    hijab was based upon her religious beliefs and that she needed an accommodation
    
    for that practice, due to a conflict between it and Abercrombie’s clothing policy.
    
    
    
    
                                             29
                                              C
    
          In reaching our conclusion that Abercrombie is entitled to summary
    
    judgment, we resolve a question vigorously contested by the parties: specifically,
    
    whether, in order to establish a prima facie case under Title VII’s religion-
    
    accommodation theory, a plaintiff ordinarily must establish that he or she initially
    
    informed the employer that the plaintiff adheres to a particular practice for
    
    religious reasons and that he or she needs an accommodation for that practice, due
    
    to a conflict between the practice and the employer’s neutral work rule. We
    
    answer that question in the affirmative. Consequently, because Ms. Elauf did not
    
    inform Abercrombie prior to its hiring decision that she engaged in the conflicting
    
    practice of wearing a hijab for religious reasons and that she needed an
    
    accommodation for it, the EEOC cannot establish its prima facie case.
    
          Our conclusion naturally rests, first, on our own express articulation of the
    
    plaintiff’s prima facie burden, which is bolstered by a similar linguistic
    
    formulation of that burden found in rulings of several of our sister circuits.
    
    Second, we are fortified in our conclusion because the concepts of religion and
    
    interactive accommodation—as they are given substance in the Title VII
    
    context—virtually oblige us, as a logical matter, to insist that ordinarily the
    
    applicant or employee must initially provide the employer with explicit notice of
    
    the conflicting religious practice and the need for an accommodation for it, in
    
    
    
                                             30
    order to have an actionable claim for denial of such an accommodation. Third,
    
    we discern support for our conclusion in the plain terms of the EEOC’s own
    
    regulatory pronouncements on the notice obligations of applicants or employees
    
    in the religion-accommodation setting. Lastly, we are bolstered in our position by
    
    the fact that our reading of the statute’s notice requirement is entirely consistent
    
    with the approach toward notice that the courts have taken, for purposes of
    
    assessing an employer’s duty to accommodate, in the undisputedly analogous
    
    context of disability discrimination under the Americans with Disabilities Act
    
    (“ADA”), 42 U.S.C. §§ 12101–12213.
    
          The EEOC has vigorously contested this possible outcome. As the district
    
    court put it, “The EEOC urges a less restrictive approach, asserting that although
    
    Abercrombie is required to have had notice that Elauf needed an accommodation,
    
    the notice need not have been strictly in the form of Elauf verbally requesting
    
    such an accommodation.” Aplt. App. at 580. More specifically, the EEOC has
    
    succinctly made the point before us: “The employer’s obligation is to attempt
    
    reasonable accommodation (where no undue hardship would result) when it has
    
    notice—be it from an affirmative statement by the individual, or some other
    
    source—of an individual’s religious belief that conflicts with a work
    
    requirement.” Aplee. Br. at 41 (emphasis added); see also id. at 32–33 (“[W]hen
    
    the facts indicate that notice of an individual’s religious belief was provided by
    
    some means other than the individual affirmatively ‘informing’ the employer of
    
                                              31
    the belief, the prima facie notice requirement should be flexibly interpreted to
    
    conform to such factual situations.”). For the reasons discussed below, we are
    
    unpersuaded by the EEOC’s position.
    
                                              1
    
                                              a
    
          First of all, we construe our precedent (by its plain terms) as placing the
    
    burden on applicants or employees to initially inform employers of the religious
    
    nature of their conflicting practice and of the need for an accommodation. See,
    
    e.g., Thomas, 225 F.3d at 1155 (noting that the employee (or prospective
    
    employee) must establish that “he or she informed his or her employer of this
    
    [religious] belief” that conflicts with the employer’s work requirement); accord
    
    Toledo, 892 F.2d at 1486.
    
          Insofar as the plain language of our precedent leaves room for doubt on the
    
    question, construing it to require the applicant or employee to initially inform the
    
    employer of the conflicting religious practice and the need for an accommodation
    
    aligns our court with a substantial body of circuit precedent that we find
    
    persuasive. See, e.g., Wilkerson v. New Media Tech. Charter Sch. Inc., 
    522 F.3d 315
    , 319 (3d Cir. 2008) (outlining a prima facie showing that obliges the
    
    employee to demonstrate that “she told the employer about the conflict” between
    
    her religious belief and the employer’s work rule); Reed, 330 F.3d at 935 (“Title
    
    
                                             32
    VII imposes a duty on the employer but also a reciprocal duty on the employee to
    
    give fair warning of the employment practices that will interfere with his religion
    
    and that he therefore wants waived or adjusted.”); Chalmers, 101 F.3d at 1019
    
    (“As [the plaintiff] recognizes, a prima facie case under the accommodation
    
    theory requires evidence that she informed her employer that her religious needs
    
    conflicted with an employment requirement and asked the employer to
    
    accommodate her religious needs.”); Johnson v. Angelica Uniform Grp., Inc., 
    762 F.2d 671
    , 673 (8th Cir. 1985) (noting that under the second element of the
    
    religion-accommodation prima facie case, the plaintiff must establish that “he has
    
    informed his employer about the conflict” between his religious belief and the
    
    employer’s work requirement); cf. Xodus v. Wackenhut Corp., 
    619 F.3d 683
    , 685
    
    (7th Cir. 2010) (noting that the plaintiff “had to prove” during a bench trial “that
    
    he brought his religious practice to the company’s attention”). And our view of
    
    the notice requirement also has been endorsed by respected secondary authority.
    
    See Larson, supra, § 55.01, at 55-3 (“One must begin with the well-known
    
    McDonnell Douglas description of the plaintiff’s prima facie case, though, with
    
    religious discrimination, an important addition to the prima facie case is the
    
    requirement that the plaintiff communicate his or her bona fide religious belief to
    
    the employer.” (emphasis added) (footnote omitted)); id. § 56.05, at 56-21 (“Note
    
    that in establishing a prima facie case an employee is required to notify an
    
    employer of the need for accommodation.”).
    
                                              33
                                             b
    
          The EEOC seeks to escape the effect of our decisions in Toledo and
    
    Thomas—which, on their face, seem to require an employee (or prospective
    
    employee) to establish that “he or she informed his or her employer of this
    
    [religious] belief” that conflicts with the employer’s work requirement. Thomas,
    
    225 F.3d at 1155; accord Toledo, 892 F.2d at 1486. The EEOC maintains that
    
    these cases “did not address whether the only permissible source of the
    
    employer’s awareness of the subject religious belief was the employee or
    
    applicant herself.” Aplee. Br. at 36–37; see id. at 36 (“In Thomas this Court was
    
    not faced with the question of whether to establish a prima facie case, the plaintiff
    
    had to produce evidence that the employer’s awareness of her religious belief
    
    came from her and not some other source.”). The district court agreed that our
    
    precedent, and notably Thomas, did not resolve this notice question. See Aplt.
    
    App. at 580 (citing Thomas and noting that “the Tenth Circuit has not addressed
    
    the question of whether notice must be explicitly requested by the employee”).
    
    Even under the linguistic formulation of the second element of the prima facie
    
    case found in Toledo and Thomas, reasons the EEOC, “the critical fact is the
    
    existence of the notice itself, not how the employer came to have such notice.”
    
    Aplee. Br. at 31.
    
          As support for its broader view of the notice requirement, the EEOC relies
    
    
    
                                             34
    on the Eleventh Circuit’s decision in Dixon, 
    627 F.3d 849
    , and the district court’s
    
    decision in Hellinger v. Eckerd Corp., 
    67 F. Supp. 2d 1359
     (S.D. Fla. 1999). See
    
    Aplee. Br. at 30–31. The district court in the instant case reached a similar
    
    conclusion regarding the notice requirement. See Aplt. App. at 581 (“[F]aced
    
    with the issue of whether the employee must explicitly request an accommodation
    
    or whether it is enough that the employer has notice [that] an accommodation is
    
    needed[,] the Tenth Circuit would likely opt for the latter choice.” (footnote
    
    omitted)). In doing so, it cited the same authorities as the EEOC, and additional
    
    ones. See id. at 580–81 (citing, in addition, Brown v. Polk Cnty., 
    61 F.3d 650
    ,
    
    654 (8th Cir. 1995) (en banc)); Heller v. Ebb Auto Co., 
    8 F.3d 1433
    , 1439 (9th
    
    Cir. 1993)). However, as a general matter, we are not persuaded by the EEOC’s
    
    position.
    
          To begin, we are not convinced that we are at liberty to disregard the plain
    
    terms of our Toledo and Thomas decisions, which place the prima facie burden on
    
    the plaintiff to establish that the applicant or employee has initially informed the
    
    employer of the conflicting religious practice and the need for an accommodation.
    
    Moreover, even if the plain language of our precedent left the resolution of the
    
    question unclear, construing that language to require the applicant or employee to
    
    initially inform the employer of the conflicting religious practice and the need for
    
    accommodation aligns our court with a substantial body of circuit precedent.
    
    And, for the reasons that we explicate in Part II.C.2–4, infra, we believe that
    
                                              35
    these authorities embody the sounder legal view.
    
          Furthermore, even were we to assume that Toledo and Thomas would
    
    permit a plaintiff to establish a prima facie case without demonstrating that the
    
    applicant or employee was the source of the employer’s notice of the need for a
    
    religious accommodation, the EEOC could not prevail here. That is because such
    
    notice would need to be based on an employer’s particularized, actual knowledge
    
    of the key facts that trigger its duty to accommodate. And, as explicated below,
    
    there is no genuine dispute of material fact that no Abercrombie agent responsible
    
    for, or involved in, the hiring process had such actual knowledge—from any
    
    source—that Ms. Elauf’s practice of wearing a hijab stemmed from her religious
    
    beliefs and that she needed an accommodation for it. 8
    
    
          8
                  Under Title VII, an employer is defined to include “any agent,” 42
    U.S.C. § 2000e(b), and, in varying degrees, an employer may be held responsible
    for the conduct of its agents. See, e.g., Meritor Sav. Bank, FSB v. Vinson, 
    477 U.S. 57
    , 72 (1986) (“We therefore decline the parties’ invitation to issue a
    definitive rule on employer liability, but we do agree with the EEOC that
    Congress wanted courts to look to agency principles for guidance in this area.”).
    In the Title VII disparate-treatment context, ordinarily the identity of the person
    acting as the employer’s decision-maker in the particular employment decision is
    a significant fact—although not necessarily a determinative one. See Zamora v.
    Elite Logistics, Inc., 
    478 F.3d 1160
    , 1166 (10th Cir. 2007) (en banc) (“In
    determining whether the proffered reason for a decision was pretextual, we
    examine the facts as they appear to the person making the decision.” (quoting
    Watts v. City of Norman, 
    270 F.3d 1288
    , 1295 (10th Cir. 2001)) (internal
    quotation marks omitted)); EEOC v. BCI Coca-Cola Bottling Co., 
    450 F.3d 476
    ,
    484 (10th Cir. 2006) (“In the employment discrimination context, ‘cat’s paw’
    refers to a situation in which a biased subordinate, who lacks decisionmaking
    power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger
                                                                            (continued...)
    
                                             36
          The authorities that the EEOC and the district court have relied upon
    
    clearly have predicated their notice holdings on the employer’s particularized,
    
    
          8
            (...continued)
    a discriminatory employment action.” (emphasis added)); cf. Conroy v. Vilsack,
    
    707 F.3d 1163
    , 1173 n.3 (10th Cir. 2013) (noting that the plaintiff “does not
    articulate a cat’s paw theory of liability”). The district court determined that Ms.
    Cooke “had responsibility for hiring decisions at the Abercrombie” store where
    Ms. Elauf sought employment. Aplt. App. at 581 n.11. Abercrombie argues to
    the contrary; it asserts that the decision-maker was Mr. Johnson, noting that “both
    Cooke and Johnson identified Johnson as the decision-maker.” Aplt. Opening Br.
    at 16 n.7. In Thomas, we recognized that, although we employ the McDonnell
    Douglas framework in the religion-accommodation context—as we do in the
    disparate-treatment context—the nature of the inquiry is distinct. See 225 F.3d at
    1155 n.6 (noting that “the burden-shifting mechanism” of McDonnell Douglas is
    employed “not to probe the subjective intent of the employer” but rather to permit
    courts in the summary judgment context to “determine whether the various parties
    have advanced sufficient evidence to meet their respective traditional burdens to
    prove or disprove the reasonableness of the accommodations offered or not
    offered” (quoting Smith v. Midland Brake, Inc., 
    180 F.3d 1154
    , 1178 n.12 (10th
    Cir. 1999) (en banc)) (internal quotation marks omitted)). Whether the identity of
    the decision-maker is also a significant fact in the religion-accommodation
    context is a question that we need not endeavor to answer here. Cf. Kimbro v. Atl.
    Richfield Co., 
    889 F.2d 869
    , 874 (9th Cir. 1989) (analyzing a Washington State
    disability statute requiring employers “to make a reasonable accommodation” and
    noting “we believe that the district court erred in finding that [the employer’s]
    management’s lack of personal knowledge of [the employee’s] migraine condition
    insulates the company from liability; [the employer] was in fact on notice of [the
    employee’s] condition as a result of [the employee’s] supervisor’s full awareness
    of his condition and thus must be held responsible for any failure to attempt a
    reasonable accommodation”). It is undisputed that Ms. Cooke and Mr. Johnson
    were agents of Abercrombie; that fact suffices for our purposes. If, as we
    demonstrate infra, there is no genuine dispute of material fact that no
    Abercrombie agent responsible for, or involved in, the hiring process—that is,
    Ms. Cooke and Mr. Johnson—possessed particularized, actual knowledge, from
    any source, that Ms. Elauf’s practice of wearing a hijab stemmed from her
    religious beliefs and that she needed an accommodation for it, it ineluctably
    follows that no Abercrombie decision-maker (whether Ms. Cooke or Mr. Johnson,
    or both) possessed this requisite knowledge.
    
                                            37
    actual knowledge. We need not (and do not) endorse their specific holdings and,
    
    in particular, their conclusions about how much actual knowledge is sufficient to
    
    put an employer on notice of the need to accommodate; yet, there is no doubt that
    
    these cases settled for nothing less than some significant measure of
    
    particularized, actual knowledge.
    
          In Dixon, for example, the plaintiffs “presented evidence that they are
    
    sincere, committed Christians who oppose efforts to remove God from public
    
    places.” 627 F.3d at 855. In rejecting the employer’s contention that the
    
    plaintiffs had never advised them of their need for a religious accommodation, the
    
    Eleventh Circuit stated:
    
                 [The employer] knew that the [plaintiffs] were dedicated
                 Christians who had previously opposed policies prohibiting the
                 public display of religious items. . . . [The employer] argues that
                 the [plaintiffs] never expressly told [their supervisor] that they
                 did not want to take down their artwork because they opposed
                 efforts to remove God from public places. However, we
                 conclude that if [the supervisor] was aware of the tension
                 between her order and the [plaintiffs’] religious beliefs—and
                 there is ample evidence that she was—her awareness would
                 satisfy the second prong.
    
    
    Id. at 855–56. In other words, in concluding that the plaintiffs had satisfied the
    
    second element of their prima facie case related to notice, the Eleventh Circuit
    
    determined that the employer had actual knowledge of the religious beliefs of the
    
    particular plaintiffs and of the actual conflict between those beliefs and the
    
    employer’s work rules. As to the latter point, based upon the plaintiffs’ prior
    
                                              38
    affirmative and open opposition to the employer’s policies regarding the display
    
    of religious items, the employer had actual knowledge that the plaintiffs’ beliefs
    
    about the removal of God from public places were inflexible and not simply a
    
    personal preference.
    
          The district court in Hellinger (the other case upon which the EEOC relies)
    
    put an even finer point on the actual-knowledge issue. The plaintiff there was “an
    
    Orthodox Jew” who “applied for a part-time position with [the employer] as a
    
    pharmacist.” 67 F. Supp. 2d at 1361. “Although Plaintiff cannot sell condoms
    
    due to his religious beliefs, he did not list any religious restrictions on his
    
    application or make any request for an accommodation. Nor did he inform [the
    
    employer’s hiring agent] about his religious beliefs or restrictions at the time he
    
    dropped off his application.” Id.
    
          It was undisputed that the employer’s hiring agent was “informed” by
    
    another of its employees, who was listed as “one of the Plaintiff’s references,”
    
    “that the Plaintiff refused to sell condoms due to his religious beliefs” and that
    
    the hiring agent, consequently, “decided not to pursue the Plaintiff’s application
    
    for employment.” Id. Nevertheless, the employer “argue[d] that the Plaintiff
    
    cannot establish a prima facie case of religious discrimination because the
    
    Plaintiff did not inform the Defendant of his religious restriction or his need for
    
    accommodation.” Id. at 1360. The district court would have none of that
    
    
    
                                               39
    argument. Although the district court cautioned that it was “not plac[ing] the
    
    burden of inquiry on the employer,” id. at 1364, it held “that the Plaintiff sets
    
    forth a prima facie case of religious discrimination because [the employer] had
    
    actual knowledge of the Plaintiff’s religious beliefs and decided not to pursue the
    
    Plaintiff’s employment application based on that information,” id. at 1360.
    
          Furthermore, the additional authorities that the district court relied upon in
    
    the instant case are of the same or similar effect in that they insist on nothing less
    
    than the employer’s particularized, actual knowledge to satisfy the second
    
    element of the prima facie case. See Brown, 61 F.3d at 654 (“[W]e reject the
    
    defendants’ argument that because [the plaintiff] never explicitly asked for
    
    accommodation for his religious activities, he may not claim the protections of
    
    Title VII. . . . Because the first reprimand related directly to religious activities
    
    by [the plaintiff], we agree with the district court that the defendants were well
    
    aware of the potential for conflict between their expectations and [the plaintiff’s]
    
    religious activities.”); Heller, 8 F.3d at 1436, 1439 (holding that the plaintiff
    
    established the second element of his prima facie case for failure to accommodate
    
    his “religious practice of attending the ceremony in which his wife and children
    
    were converted to Judaism,” where the plaintiff’s supervisor “knew” that he was
    
    Jewish, “knew” that his “wife was studying for conversion,” and “when [the
    
    plaintiff] requested the time off, he informed the [supervisor] why he needed to
    
    miss work”).
    
                                               40
          In other words, even were we to assume that an employer may be put on
    
    notice from a source other than applicants or employees, that source would need
    
    to provide the employer with sufficient information such that the employer would
    
    have actual knowledge that the conflicting practice of the particular applicants or
    
    employees is based upon their religious beliefs and that they need an
    
    accommodation for it. Thus, even under this broader view of the notice
    
    requirement, a plaintiff—that is, an applicant or employee—should not be able to
    
    impose liability on an employer for failing to accommodate his or her religious
    
    practice on the ground that the employer should have guessed, surmised, or
    
    figured out from the surrounding circumstances, that the practice was based upon
    
    his or her religion and that the plaintiff needed an accommodation for it.
    
    Accordingly, even were we to adopt the EEOC’s position, as supported by its
    
    authorities, the employer’s notice would need to be based upon its particularized,
    
    actual knowledge of the key facts that trigger its duty to provide a reasonable
    
    religious accommodation—that is, based upon actual knowledge that the
    
    conflicting practice of the particular applicant or employee stems from his or her
    
    religion and that the applicant or employee needs an accommodation for it
    
    (because the practice is an inflexible one).
    
          The EEOC cannot make this showing here: there is no genuine dispute of
    
    material fact that no Abercrombie agent responsible for, or involved in, the hiring
    
    process had particularized, actual knowledge—from any source—that Ms. Elauf’s
    
                                              41
    practice of wearing a hijab stemmed from her religious beliefs and that she
    
    needed an accommodation for it. Therefore, the EEOC cannot prevail.
    
          In particular, we conclude that the record offers absolutely no support for
    
    the district court’s determination that Ms. “Cooke knew [that Ms. Elauf] wore the
    
    head scarf based on her religious belief.” Aplt. App. at 581 (emphasis added).
    
    The EEOC also is clearly mistaken on this point. See Aplee. Br. at 46 (“It is
    
    uncontested that Cooke was aware of Elauf’s religious belief and its conflict with
    
    the Look Policy . . . .”). At best, when viewed in the light most favorable to the
    
    EEOC, the record indicates that Ms. Cooke assumed that Ms. Elauf wore her hijab
    
    for religious reasons and felt religiously obliged to so—thus creating a conflict
    
    with Abercrombie’s clothing policy.
    
          More specifically, Ms. Cooke testified as follows: that she had seen Ms.
    
    Elauf wearing a headscarf prior to the interview, but “did not know” Ms. Elauf’s
    
    religion, Aplt. App. at 365; that she “assumed that she was Muslim,” id.
    
    (emphasis added), and “figured that was the religious reason why she wore her
    
    head scarf,” Aplee. Supp. App. at 48 (emphasis added), and she assumed that, if
    
    Ms Elauf were hired by Abercrombie as a Model, she would continue to wear her
    
    headscarf, see id. at 46 (answering “Yes, I did.” to the question, “And you
    
    assumed if [Ms. Elauf] worked at Abercrombie, she would still be wearing [a
    
    headscarf]?”).
    
    
    
                                             42
          In the interview, Ms. Cooke did not ask Ms. Elauf if she was a Muslim.
    
    And for reasons that we have explored at length, see Part II.B.1, supra, given
    
    Title VII’s conception of religion as a uniquely personal and individual matter,
    
    Ms. Cooke’s knowledge that Ms. Elauf elected to wear a hijab would be far from
    
    sufficient information to provide her with the requisite notice that would trigger
    
    an employer’s duty to accommodate. See Wilkerson, 522 F.3d at 319 (“[S]imply
    
    announcing one’s belief in a certain religion, or even wearing a symbol of that
    
    religion (i.e., a cross or Star of David) does not notify the employer of the
    
    particular beliefs and observances that the employee holds in connection with her
    
    religious affiliation.” (emphasis added)); Reed, 330 F.3d at 935–36 (“A person’s
    
    religion is not like his sex or race—something obvious at a glance. Even if he
    
    wears a religious symbol, such as a cross or a yarmulka, this may not pinpoint his
    
    particular beliefs and observances . . . .” (emphasis added)); see also Aplt. App.
    
    at 292 (indicating that the EEOC’s expert offered, as an explanation for why
    
    people maintain certain styles of dress, “it really is, the question is, what is their
    
    motivation”). In sum, Ms. Cooke’s testimony does not even come close to
    
    establishing that Ms. Cooke possessed particularized, actual knowledge that Ms.
    
    Elauf (and not some hypothetical Muslim female) wore a hijab because of her
    
    Islamic faith and felt religiously obliged to do so, and thus would require a
    
    religious accommodation in order to address the conflict with Abercrombie’s
    
    
    
    
                                               43
    clothing policy. 9
    
           Moreover, even construing the facts (as we must) in the light most
    
    favorable to the EEOC, the fact that Ms. Cooke called Mr. Johnson to discuss the
    
    possibility of an accommodation does nothing to rectify this fundamental
    
    evidentiary deficiency in the EEOC’s case. Ms. Cooke’s conduct following the
    
    interview was all based on her admitted assumption regarding Ms. Elauf’s
    
    religious beliefs and required practices. See Aplt. App. at 76–77 (“I was unsure
    
    
           9
                  The EEOC suggests that, even if Ms. Cooke’s understanding of Ms.
    Elauf’s religious beliefs and her need for an accommodation was solely
    predicated on her assumption, her assumption was actually correct, so
    Abercrombie was put on adequate notice. See Aplee. Br. at 45 (“It is uncontested
    that Cooke correctly interpreted Elauf’s wearing a headscarf as indicating that she
    is Muslim and wore the headscarf for a religious purpose. As such, . . . the court
    would still be correct that it was uncontested that Abercrombie was on sufficient
    notice of Elauf’s religious belief.”). There is no foundation in the law for the
    view that the requisite notice for purposes of a Title VII religion-accommodation
    claim could ever conceivably rest on anything less than an employer’s
    particularized, actual knowledge; that an employer was able to make a correct
    guess or assumption would not mean that the employer possessed such actual
    knowledge. Simply put, a correct assumption does not equal actual knowledge.
    And this basic truth takes on considerable significance in the religion-
    accommodation context because once the employer is found to have received
    sufficient notice, the employer must actively engage in the interactive
    accommodation process. But an employer would not know whether its guess or
    assumption was correct until after the fact, so there would be instances in which
    the employer would begin participating in the interactive process based upon a
    guess or assumption—and invariably discuss or explore the purported religious
    beliefs and needs of an applicant or employee—when there actually was no need
    to do so (i.e., because the employer’s assumption or guess was wrong). This
    approach would run afoul of the EEOC’s own express policy guidance, which
    discourages employers from initiating discussions about the religious beliefs of
    applicants (or employees) and from operating in the accommodation process
    based upon stereotypes, speculation, and conjecture. See Part II.B.2, supra.
    
                                            44
    about the head scarf . . . . I told [Mr. Johnson] that I believed that [Ms. Elauf]
    
    was Muslim, and that was a recognized religion. And that she was wearing it for
    
    religious reasons.” (emphasis added)). She did not possess the requisite actual
    
    knowledge concerning these matters. And any awareness that Mr. Johnson had of
    
    Ms. Elauf’s religious beliefs and required practices would have been derived
    
    solely from Ms. Cooke’s assumption; so, Mr. Johnson, too, possessed no
    
    particularized, actual knowledge.
    
          Yet, the only two Abercrombie agents who could conceivably be deemed to
    
    have had any responsibility for, or involvement in, the hiring process regarding
    
    Ms. Elauf, were Ms. Cooke and Mr. Johnson. 10 Therefore, even if the EEOC were
    
    permitted as a matter of law to establish the second element of its prima facie
    
    case by showing that the employer possessed particularized, actual knowledge
    
    from a source other than the applicant or employee of the key facts that trigger its
    
    duty to provide a reasonable religious accommodation, the EEOC could not do so
    
    here because neither Ms. Cooke nor Mr. Johnson (i.e., the relevant agents of the
    
    
          10
                 It is true that, in responding to Ms. Elauf’s inquiry about wearing a
    headscarf, Ms. Sepahvand (her friend and an Abercrombie employee) testified
    that she had raised the issue with assistant manager Kalen McJilton, who knew
    Ms. Elauf from her prior visits to the store. Noting that he had previously worked
    at Abercrombie with someone who wore a white yarmulke, Mr. McJilton
    suggested that he did not see any problem with Ms. Elauf wearing a headscarf,
    “especially if she didn’t wear a headscarf that was black.” Aplee. Supp. App. at
    181 (internal quotation marks omitted). However, there is no evidence that Mr.
    McJilton had any responsibility for, or involvement in, the hiring process
    regarding Ms. Elauf.
    
                                              45
    employer) possessed such knowledge. Accordingly, even under the broader view
    
    of the notice requirement that the EEOC principally espouses here, it cannot
    
    prevail. 11
    
    
           11
                  We note that the EEOC also takes a different tack to defeat this
    outcome. Recall that, following her discussion with Mr. McJilton, Ms.
    Sepahvand communicated to Ms. Elauf that a headscarf would be permitted, but
    because of Abercrombie’s no-black-clothing policy, she would not be able to
    wear a black one. Based upon this relaying of information, the EEOC argues that
    “there is no evidence suggesting that Elauf had any reason to believe that her
    headscarf had not already been approved by Abercrombie, or that Elauf had any
    reason to ask any questions about her headscarf at the interview.” Aplee. Br. at
    45. The EEOC’s argument, however, is wholly unpersuasive. Ms. Elauf could
    not possibly have formed a reasonable judgment in these circumstances based
    upon second-hand information delivered by her friend, Ms. Sepahvand—who was
    not herself a member of Abercrombie management, nor involved in Ms. Elauf’s
    hiring process—that Abercrombie had agreed to accommodate her practice of
    wearing a hijab and, as a consequence, that she was free to remain silent about
    that practice in the interview. This is especially true because, prior to the
    interview, Ms. Elauf was well aware that employee attire was a significant matter
    to Abercrombie—that is, a matter of considerable consequence—and the person
    who Ms. Elauf reasonably could have concluded had some responsibility in her
    hiring process, Ms. Cooke, expressly raised the topic of employee attire in the
    interview without indicating that Abercrombie would accommodate Ms. Elauf’s
    practice of wearing a hijab. Contrary to the EEOC’s contention, then, we
    conclude that there was no evidence to reasonably support the notion that
    Abercrombie’s conduct led Ms. Elauf to believe she had no need to speak up to
    secure an accommodation for her claimed religious practice of wearing a
    headscarf.
    
           Moreover, lest there be any doubt, an employer is not legally obligated
    under Title VII to prompt applicants or employees to deliver notice of the need
    for a religious accommodation, by initially recounting a laundry list of all of the
    practices that employees cannot do in the workplace. The burden rests with
    applicants or employees to ensure that the workplace will be a suitable work
    environment for them, in light of their required religious practices. See
    Chalmers, 101 F.3d at 1019 (“Initially, [the plaintiff] asserts that [the employer]
                                                                             (continued...)
    
                                              46
          We do recognize that in its briefing, the EEOC intimates that something
    
    less than an employer’s particularized, actual knowledge would suffice. See
    
    Aplee. Br. at 34 (“[T]his is not to say that employers are required to inquire of
    
    applicants or employees as to whether there are any religious beliefs that need to
    
    be accommodated, absent some reasonable indication to the employer that an
    
    accommodation may be needed.” (emphases added)). However, it cites no
    
    authorities to support this proposition, and we are not aware of any. See Aplt.
    
    Reply Br. at 2 (“Had courts intended that ‘reasonable indication’ (or some other
    
    sort of constructive notice) be sufficient to satisfy the prima facie case, they
    
    would have said so.”).
    
          In sum, we hold that, in order to establish the second element of their prima
    
    facie case under Title VII’s religion-accommodation theory, ordinarily plaintiffs
    
    must establish that they initially informed the employer that they engage in a
    
    
          11
            (...continued)
    never explicitly informed her of a company policy against writing religious letters
    to fellow employees at their homes and so she had no reason to request an
    accommodation. However, companies cannot be expected to notify employees
    explicitly of all types of conduct that might annoy co-workers, damage working
    relationships, and thereby provide grounds for discharge.” (citation omitted)
    (internal quotation marks omitted)). Thus, the EEOC’s suggestion to the contrary
    is misguided. See EEOC Response to Abercrombie’s Rule 28(j) Letter, No. 11-
    5110, at 1 (10th Cir., filed May 11, 2012) (“[I]t is uncontested that Elauf was not
    informed at any time by Abercrombie that it has an unwritten prohibition on
    Models wearing headscarves. Therefore, there was no reason for Elauf to believe
    there was any conflict requiring accommodation.” (citation omitted)); see also
    Aplt. App. at 55 (testifying that Ms. Cooke did not tell her (Ms. Elauf) that she
    “wouldn’t be able to wear [her headscarf] or anything like that”).
    
                                              47
    particular practice for religious reasons and that they need an accommodation for
    
    the practice, due to a conflict between the practice and the employer’s work rules.
    
    As noted, we recognize that some courts have taken a different path on this
    
    question. However, we are confident that our approach is the sounder one.
    
                                             2
    
          Given Title VII’s conception of religion and the interactive nature of the
    
    religion-accommodation process, we are hard-pressed to see how we could
    
    logically reach another conclusion regarding the notice element of the prima facie
    
    case. This is because the answers to the key questions that determine whether an
    
    employer has an obligation under Title VII to provide a reasonable religious
    
    accommodation ordinarily are only within the ken of the applicant or employee;
    
    because an employer’s obligation to engage in the interactive religion-
    
    accommodation process is only triggered when the employer has answers to those
    
    questions; and because, in implementing Title VII’s anti-discrimination mandate,
    
    the EEOC has expressly disapproved of employers inquiring in the first instance
    
    or speculating about the answers to such questions.
    
          For example, recall that Title VII only obliges employers to provide a
    
    reasonable accommodation for practices that applicants or employees engage in
    
    because of bona fide, sincerely held religious beliefs. See, e.g., EEOC Q & A,
    
    supra (“Title VII requires employers to accommodate only those religious beliefs
    
    
                                             48
    that are religious and sincerely held . . . .” (internal quotation marks omitted)).
    
    As noted, those beliefs are defined broadly, but “typically concern[] ultimate
    
    ideas about life, purpose, and death.” EEOC Compliance Manual § 12-I(A)(1)
    
    (internal quotation marks omitted). Title VII does not extend its protections to
    
    practices that are engaged in as a matter of personal preference or for cultural
    
    reasons, see, e.g., Reed, 330 F.3d at 935 (“[A]n employee is not permitted to
    
    redefine a purely personal preference or aversion as a religious belief.”), and no
    
    matter how strongly an applicant or employee believes in certain political,
    
    economic, or social ideas, if those ideas do not otherwise relate to the stuff of
    
    religion (e.g., ultimate notions about life, purpose, or death), then practices based
    
    upon them do not fall within Title VII’s protective ambit, see, e.g., EEOC
    
    Compliance Manual § 12-I(A)(1).
    
          But how is an employer to know that applicants or employees are engaged
    
    in a practice for religious reasons, unless they inform the employer? Cf. id.
    
    (“Determining whether a practice is religious turns not on the nature of the
    
    activity, but on the employee’s motivation. The same practice might be engaged
    
    in by one person for religious reasons and by another person for purely secular
    
    reasons.”). To be sure, in certain instances, applicants or employees may engage
    
    in practices that are traditionally associated with a particular religion. However,
    
    Title VII does not require employers to become knowledgeable about the customs
    
    and observances of religions. See, e.g., Wilkerson, 522 F.3d at 319 (“[W]e do not
    
                                              49
    impute to the employer the duty to possess knowledge of particularized beliefs of
    
    religious sects.”); Reed, 330 F.3d at 936 (noting that “employers are not charged
    
    with detailed knowledge of the beliefs and observances associated with particular
    
    sects”); EEOC Compliance Manual § 12-IV(A)(1) (noting that an employee
    
    “cannot assume that the employer will already know or understand” “the religious
    
    nature of the belief or practice at issue”).
    
          Furthermore, even if an employer was generally aware of the beliefs and
    
    observances that are traditionally associated with a particular religious group, and
    
    also knew that the applicant or employee displayed symbols associated with that
    
    group—or even that the applicant or employee specifically claimed to be a
    
    member of that group—ordinarily, the employer would still not know whether the
    
    conflicting practice in question actually stemmed from religious beliefs unless the
    
    particular applicant or employee informed the employer, because under Title VII,
    
    as we have discussed, religion is a uniquely personal and individual matter. See,
    
    e.g., EEOC Compliance Manual § 12-I(A)(1) (“An employee’s belief or practice
    
    can be ‘religious’ under Title VII even if the employee is affiliated with a
    
    religious group that does not espouse or recognize that individual’s belief or
    
    practice, or if few – or no – other people adhere to it.” (emphasis added)); see
    
    also id. (“[A] person’s religious beliefs need not be confined in either source or
    
    content to traditional or parochial concepts of religion. A belief is religious for
    
    Title VII purposes if it is religious in the person’s own scheme of things . . . .”
    
                                               50
    (emphasis added) (footnotes omitted) (internal quotation marks omitted)). In
    
    holding that Title VII places a “duty on the employee to give fair warning of the
    
    employment practices that will interfere with his religion,” Reed, 330 F.3d at 935,
    
    the Seventh Circuit succinctly and cogently touched on a like point. Specifically,
    
    the court in Reed stated: “A person’s religion is not like his sex or
    
    race—something obvious at a glance. Even if he wears a religious symbol, such
    
    as a cross or a yarmulka, this may not pinpoint his particular beliefs and
    
    observances . . . .” Id. at 935–36 (emphasis added).
    
          Similarly, in upholding the dismissal of the plaintiff’s religion-
    
    accommodation claim because she failed to inform her employer of her need for
    
    an accommodation due to a conflict between her Christian beliefs and the
    
    employer’s “libation” or alcohol-drinking ceremony, the Third Circuit in
    
    Wilkerson rejected the plaintiff’s suggestion that the employer’s knowledge that
    
    she was a Christian was enough to trigger its accommodation obligation.
    
    Specifically, the Third Circuit stated, “that [the employer] knew she was a
    
    Christian does not sufficiently satisfy [the plaintiff’s] duty to provide ‘fair
    
    warning’ to [the employer] that she possessed a religious belief that specifically
    
    prevented her from participating in the libations ceremony.” Wilkerson, 522 F.3d
    
    at 319 (emphasis added). Indeed, the Third Circuit went further and concluded
    
    that even if the employer “suspected” that the libations ceremony would be
    
    specifically offensive to the plaintiff, that would not relieve the plaintiff of the
    
                                               51
    obligation to “inform the defendants that the libation ceremony would offend her
    
    religious beliefs.” Id. at 319–20 (emphasis added). In the same vein, in
    
    upholding the denial of the plaintiff’s religion-accommodation claim, the Fourth
    
    Circuit rejected the plaintiff’s argument that the employer’s knowledge of the
    
    plaintiff’s strongly held religious beliefs was enough to “put it on notice” that
    
    those beliefs would—in the plaintiff’s view—oblige her to “write, and send,
    
    personal, accusatory letters to co-workers at their homes.” Chalmers, 101 F.3d at
    
    1020 n.3. Therefore, even if an employer were on notice that an applicant or
    
    employee subscribed to a particular religious belief system, because religion
    
    under Title VII is a uniquely personal matter, that information would not be
    
    enough to tell the employer what practices are religious in “the person’s own
    
    scheme of things.” EEOC Compliance Manual § 12-I(A)(1) (internal quotation
    
    marks omitted). Ordinarily, the only way the employer would know such
    
    information is if the applicant or employee informed the employer.
    
          Knowing this much demonstrates why the most natural reading of Title
    
    VII’s religion-accommodation provision is one that ordinarily places the burden
    
    on the applicant or employee to inform the employer of the conflicting religious
    
    practice and the need for an accommodation, and why a contrary reading of the
    
    statute would be patently unfair to employers. Reed provides a hypothetical that
    
    powerfully underscores this point:
    
    
    
                                              52
                 Suppose the employee is an Orthodox Jew and believes that it is
                 deeply sinful to work past sundown on Friday. He does not tell
                 his employer, the owner of a hardware store that is open from 9
                 a.m. to 6 p.m. on Fridays, who leaves the employee in sole
                 charge of the store one Friday afternoon in mid-winter, and at 4
                 p.m. the employee leaves the store. The employer could fire him
                 without being thought guilty of failing to accommodate his
                 religious needs.
    
    
    330 F.3d at 936. A contrary reading of the statute would be, we think, misguided
    
    and quite unfair because “at that time” when the employer fired the employee
    
    “there was nothing to accommodate.” Wilkerson, 522 F.3d at 319. As in Reed,
    
    “[t]his case is similar” to the hypothetical: Ms. Elauf undisputedly did not inform
    
    Abercrombie that her conflicting practice of wearing a hijab stemmed from her
    
    religious beliefs and that she needed an accommodation; consequently, as with the
    
    hypothetical employer, Abercrombie could elect not to hire Ms. Elauf “without
    
    being thought guilty of failing to accommodate [her] religious needs.” 330 F.3d
    
    at 936. Nothing was present to accommodate.
    
          Moreover, contrary to the EEOC’s suggestion at oral argument, see Oral
    
    Arg. at 26:40–27:10, the fact that an applicant’s headscarf (like Ms. Elauf’s) was
    
    visible would not materially distinguish her circumstances from those of the
    
    person whose religious beliefs did not allow for work on the Sabbath. Even
    
    though that person’s religious beliefs regarding the Sabbath would be invisible to
    
    the naked eye, so would the religious significance that the applicant attached to
    
    wearing the headscarf. As noted, Muslim women (and certainly non-Muslim
    
                                             53
    women) wear headscarfs for reasons other than religion, and whether they are
    
    doing so for religious reasons depends on their (invisible) “motivation.” EEOC
    
    Compliance Manual § 12-I(A)(1); see Aplt. App. at 292 (indicating that the
    
    EEOC’s expert opined, regarding the reasons why people maintain certain dress,
    
    “it really is, the question is, what is their motivation”). Therefore, employers
    
    confronted with the Sabbath-adherent and the headscarf-wearer would be
    
    similarly situated—that is, they would not reasonably be put on notice of the need
    
    for a religious accommodation unless they were informed of it by the applicant.
    
          Lastly, even if an employer has particularized, actual knowledge of the
    
    religious nature of the practice—that is, knowledge that the practice of a
    
    particular applicant or employee stems from his or her religious beliefs—that still
    
    would not be sufficient information to trigger the employer’s duty to offer a
    
    reasonable accommodation. That is because the applicant or employee may not
    
    actually need an accommodation. In other words, an applicant or employee may
    
    not consider his or her religious practice to be inflexible; that is, he or she may
    
    not feel obliged by religion to adhere to the practice. If that is the situation, then
    
    there actually is no conflict, nor a consequent need for the employer to provide a
    
    reasonable accommodation. Given that “[a] belief is religious for Title VII
    
    purposes if it is religious in the person’s own scheme of things,” EEOC
    
    Compliance Manual § 12-I(A)(1) (emphasis added) (internal quotation marks
    
    omitted), whether a particular practice is religiously required is ultimately a
    
                                               54
    question that only a particular individual can answer—even if the same practice is
    
    customarily required in the religion that the person claims to follow. Cf. Turner,
    
    
    2009 WL 2567962
    , at *2 (noting that the record did not indicate that the plaintiff
    
    ever told his employer “that his religious beliefs required a meeting with his
    
    pastor at that time or that the meeting was anything other than a personal
    
    preference” (emphasis added)).
    
          As we suggested in Thomas, Title VII’s “interactive process . . . requires
    
    participation by both the employer and the employee.” 225 F.3d at 1155
    
    (emphasis added). Yet, how can an employer meaningfully participate in the
    
    accommodation process, when it lacks concrete information from which to discern
    
    a need to do so? See Wilkerson, 522 F.3d at 319 (“Because [the plaintiff] did not
    
    inform [her employer] that the [libation] ceremony presented a [religious]
    
    conflict, it did not have a duty to accommodate her. Although [the plaintiff] told
    
    [her employer] after the fact, at that time there was nothing to accommodate.”
    
    (emphasis added)); Larson, supra, § 56.05, at 56-21 (“Indeed, it would seem
    
    unreasonable to require an employer to accommodate the religious practices of an
    
    employee when the employer is unaware of the need to do so.” (emphases
    
    added)).
    
          It is true that logic does not perforce dictate that just because the foregoing
    
    critical questions ordinarily must be answered by the particular applicant or
    
    
    
                                             55
    employee, before the employer’s duty to offer a reasonable accommodation is
    
    triggered, that the applicant or employee must initiate the communication: it is
    
    conceivable that one could fashion a regulatory regime in which the employer was
    
    obliged to inquire in the first instance concerning the religious beliefs and needs
    
    of applicants or employees. Yet, under Title VII’s interactive accommodation
    
    scheme, it is clear that, not only is the employer not obliged to make such
    
    religious inquiries, the employer is affirmatively discouraged from doing so
    
    because “an applicant’s religious affiliation or beliefs . . . are generally viewed as
    
    non job-related and problematic under federal law.” EEOC Pre-Employment
    
    Inquiries, supra; see, e.g., Prise, 657 F. Supp. 2d at 597 (noting that questioning
    
    applicants concerning their religious beliefs could, “under some circumstances,
    
    permit an inference to be drawn that an employer engaged in improper religion-
    
    based discrimination”); EEOC Best Practices, supra (“In conducting job
    
    interviews, employers can ensure nondiscriminatory treatment by . . . inquiring
    
    about matters directly related to the position in question.”). Furthermore, as we
    
    have discussed, in the religion-accommodation context, the EEOC has specifically
    
    cautioned employers to “avoid assumptions or stereotypes about what constitutes
    
    a religious belief or practice or what type of accommodation is appropriate.”
    
    EEOC Best Practices, supra; see id. (noting that “[m]anagers and employees
    
    should be trained not to engage in stereotyping based on religious dress and
    
    grooming practices”). Thus, if under Title VII an employer is affirmatively
    
                                              56
    discouraged from asking applicants or employees whether their seemingly
    
    conflicting practice is based on religious beliefs, and, if so, whether they actually
    
    will need an accommodation for the practice, because it is inflexible (i.e., truly
    
    conflicting), and the employer also is discouraged by the EEOC from speculating
    
    about such matters, then the interactive accommodation process ordinarily only
    
    can be triggered when applicants or employees first provide the requisite
    
    information to the employer.
    
          In sum, in light of Title VII’s conception of religion and the interactive
    
    nature of the religion-accommodation process, we have difficulty seeing how we
    
    could logically reach a conclusion other than the one that we explicate here
    
    regarding the notice element of the prima facie case.
    
                                              3
    
                                              a
    
          We also find further support for our view of the notice requirement—which
    
    places the onus on the applicant or employee to initially provide explicit notice to
    
    the employer of the conflicting religious practice and the need for an
    
    accommodation—in references found in the EEOC’s own regulations and policy
    
    documents regarding the source of the employer’s notice. These
    
    authorities—repeatedly, expressly, and unequivocally—assign the notice
    
    responsibility to the applicant or employee. Beginning with its substantive
    
    
                                              57
    regulation, the EEOC states, “After an employee or prospective employee notifies
    
    the employer . . . of his or her need for a religious accommodation, the employer
    
    . . . has an obligation to reasonably accommodate the individual’s religious
    
    practices.” 29 C.F.R. § 1605.2(c)(1) (emphasis added). In other words, by its
    
    plain terms, the regulation contemplates that the employer’s duty to provide a
    
    reasonable religious accommodation comes after it receives notice from the
    
    prospective employee or employee. If no such notice is provided, it would seem
    
    to ineluctably follow under the regulation that the employer has no duty to
    
    provide a reasonable religious accommodation and cannot (as a matter of law) be
    
    held liable for failing to do so.
    
          The agency’s compliance manual follows suit and, notably, underscores
    
    that the notice provided by the applicant or employee cannot consist of “vague
    
    reference[s],” Johnson, 762 F.2d at 673, but instead must be specific:
    
                 An applicant or employee who seeks religious accommodation
                 must make the employer aware both of the need for
                 accommodation and that it is being requested due to a conflict
                 between religion and work. The employee is obligated to explain
                 the religious nature of the belief or practice at issue, and cannot
                 assume that the employer will already know or understand it.
    
    
    EEOC Compliance Manual § 12-IV(A)(1).
    
          To be sure, there is not any particular talismanic litany that the applicant or
    
    employee must recite to effectively put the employer on notice. In this regard,
    
    
    
                                             58
    the EEOC states, “No ‘magic words’ are required to place an employer on notice
    
    of an applicant’s or employee’s conflict between religious needs and a work
    
    requirement. To request an accommodation, an individual may use plain language
    
    and need not mention any particular terms such as ‘Title VII’ or ‘religious
    
    accommodation.’” Id. But the EEOC does insist that the applicant or employee
    
    “provide enough information to make the employer aware that there exists a
    
    conflict between the individual’s religious practice or belief and a requirement for
    
    applying for or performing the job.” 12 Id.
    
    
          12
                 Indeed, the EEOC effectively underscores by a hypothetical that an
    applicant or employee cannot remain silent before the employer regarding the
    religious nature of his or her conflicting practice and need for an accommodation
    and still hope to prevail in a religion-accommodation case:
    
                                        EXAMPLE 29
                      Failure to Advise Employer That Request Is Due to
                                   Religious Practice or Belief
    
                 Jim agreed to take his employer’s drug test but was terminated
                 because he refused to sign the accompanying consent form.
                 After his termination, Jim filed a charge alleging that the
                 employer failed to accommodate his religious objection to
                 swearing an oath. Until it received notice of the charge, the
                 employer did not know that Jim’s refusal to sign the form was
                 based on his religious beliefs. Because the employer was not
                 notified of the conflict at the time Jim refused to sign the form,
                 or at any time prior to Jim’s termination, it did not have an
                 opportunity to offer to accommodate him. The employer has not
                 violated Title VII.
    
    EEOC Compliance Manual § 12-IV(A)(1) (emphasis added). In our view, the
    facts of this hypothetical are closely akin to the facts present here: at no point
                                                                             (continued...)
    
                                              59
          And other policy documents of the EEOC are of similar import, placing the
    
    burden on the applicant or the employee to provide notice to the employer of the
    
    conflicting religious practice and the need for an accommodation. See, e.g.,
    
    EEOC Best Practices, supra (noting that “[e]mployees should advise their
    
    supervisors or managers of the nature of the conflict between their religious needs
    
    and the work rules” and they “should provide enough information to enable the
    
    employer to understand what accommodation is needed, and why it is necessitated
    
    by a religious practice or belief”); EEOC Q & A, supra (responding to the
    
    question, “[h]ow does an employer learn that accommodation may be needed?” by
    
    stating, “[a]n applicant or employee who seeks religious accommodation must
    
    make the employer aware both of the need for accommodation and that it is being
    
    requested due to a conflict between religion and work” (emphasis added)). In
    
    sum, the clear, unequivocal guidance reflected in the EEOC’s own regulation and
    
    policy documents supports our view that the onus is upon the applicant or
    
    employee to initially provide explicit notice to the employer of the conflicting
    
    religious practice and the need for an accommodation.
    
    
    
    
          12
            (...continued)
    during her interview with Ms. Cooke (Abercrombie’s agent) did Ms. Elauf
    expressly inform her—directly or indirectly—that she wore her hijab for religious
    reasons and felt obliged to do so, and, therefore, would need an accommodation.
    Like the hypothetical employer, Abercrombie did not have a chance to
    accommodate Ms. Elauf’s allegedly religious practice.
    
                                             60
                                              b
    
          The EEOC intimates that this reading of its regulation and policy
    
    documents is too facile. See Aplee. Br. at 39 (“These policy documents and
    
    regulations do not elevate form over substance and require this Court to take a
    
    nonsensical approach to the notice requirement.”). In effect, the EEOC contends
    
    that the plain language of these materials do not tell the complete story because
    
    they do not take into account the circumstances of the instant case—where, in the
    
    EEOC’s view, the employer had notice from a source other than an explicit
    
    communication from the applicant of the need to provide a religious
    
    accommodation. See id. at 38–39 (“[T]he Commission’s policy documents do not
    
    address the situation where there is evidence that the employer was aware of the
    
    applicant’s religious belief without the applicant herself so ‘informing’ it. . . . As
    
    such, none of these policy documents indicates that an employer is excused from
    
    its obligation to provide reasonable accommodation for an applicant’s religious
    
    belief that conflicts with a work requirement simply because someone other than
    
    the applicant herself informed the employer of the belief.” (quoting EEOC
    
    Compliance Manual § 12-IV(A))); id. at 39 (“[A]s with the aforementioned policy
    
    documents, the regulations do not address the situation where the employer is
    
    otherwise aware of the individual’s religious belief, and accordingly do not
    
    preclude a plaintiff from satisfying the notice requirement under such
    
    circumstances.” (emphasis added)). The EEOC asserts that its reading of the
    
                                              61
    scope of its regulation, 29 C.F.R. § 1605.2(c), is entitled to Auer deference. See
    
    Auer v. Robbins, 
    519 U.S. 452
    , 461 (1997).
    
           However, we believe that the EEOC’s views are unpersuasive and cannot
    
    control the outcome here. Notably, we conclude that “there are strong reasons for
    
    withholding the deference that Auer generally requires.” Christopher v.
    
    SmithKline Beecham Corp., --- U.S. ----, 
    132 S. Ct. 2156
    , 2167 (2012). “Auer
    
    ordinarily calls for deference to an agency’s interpretation of its own ambiguous
    
    regulation, even when that interpretation is advanced in a legal brief . . . .” Id. at
    
    2166; see Chase Bank USA, N.A. v. McCoy, --- U.S. ----, 
    131 S. Ct. 871
    , 880
    
    (2011) (“[W]e defer to an agency’s interpretation of its own regulation, advanced
    
    in a legal brief . . . .”); see also Decker v. Nw. Envtl. Def. Ctr., --- U.S. ----, 
    133 S. Ct. 1326
    , 1337 (2013) (“When an agency interprets its own regulation, the
    
    Court, as a general rule, defers to it . . . .”).
    
           However, “this general rule does not apply in all cases.” Christopher, 132
    
    S. Ct. at 2166; see, e.g., Harry T. Edwards et al., Federal Standards of Review,
    
    ch. XIV (Westlaw Database updated Apr. 2013) [hereinafter Federal Standards]
    
    (“[T]he deference afforded an agency’s interpretation of its own regulations is
    
    significant, but it is not without limits.”). As a threshold matter, in order for Auer
    
    deference to be warranted, “the language of the regulation in question must be
    
    ambiguous, lest a substantively new rule be promulgated under the guise of
    
    
    
                                                  62
    interpretation.” Drake v. FAA, 
    291 F.3d 59
    , 68 (D.C. Cir. 2002); see Christensen
    
    v. Harris Cnty., 
    529 U.S. 576
    , 588 (2000) (“Auer deference is warranted only
    
    when the language of the regulation is ambiguous. The regulation in this case,
    
    however, is not ambiguous . . . . To defer to the agency’s position would be to
    
    permit the agency, under the guise of interpreting a regulation, to create de facto a
    
    new regulation.”).
    
          Even if that threshold is crossed, there are other circumstances under which
    
    the application of Auer deference would be unjustified:
    
                 Deference is undoubtedly inappropriate, for example, when the
                 agency’s interpretation is plainly erroneous or inconsistent with
                 the regulation. And deference is likewise unwarranted when
                 there is reason to suspect that the agency’s interpretation does
                 not reflect the agency’s fair and considered judgment on the
                 matter in question. This might occur when the agency’s
                 interpretation conflicts with a prior interpretation, or when it
                 appears that the interpretation is nothing more than a convenient
                 litigating position . . . .
    
    
    Christopher, 132 S. Ct. at 2166 (citations omitted) (quoting Auer, 519 U.S. at
    
    461–62 (internal quotation marks omitted); Bowen v. Georgetown Univ. Hosp.,
    
    
    488 U.S. 204
    , 213 (1988) (internal quotation marks omitted)).
    
          In considering the appropriateness of deferring to an agency’s
    
    interpretation, the Christopher Court also highlighted the importance of
    
    safeguarding “the principle that agencies should provide regulated parties ‘fair
    
    warning of the conduct [a regulation] prohibits or requires.’” 132 S. Ct. at 2167
    
    
                                             63
    (alteration in original) (quoting Gates & Fox Co. v. Occupational Safety & Health
    
    Review Comm’n, 
    790 F.2d 154
    , 156 (D.C. Cir. 1986) (Scalia, J.)); see Drake, 291
    
    F.3d at 68 (listing as one of the “preconditions for applying this socalled Auer
    
    deference” that “the agency’s reading of its regulation must be fairly supported by
    
    the text of the regulation itself, so as to ensure that adequate notice of that
    
    interpretation is contained within the rule itself” (emphasis added)); see Federal
    
    Standards, supra, ch. XIV (noting that “in Christopher . . . , the Court ruled that
    
    no Auer deference would be afforded to an agency interpretation of a disputed
    
    regulation if the statute, published regulations, and the agency’s prior
    
    enforcement regime gave no notice to regulated parties of the interpretation
    
    proposed by the agency during the course of litigation”). As the Christopher
    
    Court elaborated:
    
                 It is one thing to expect regulated parties to conform their
                 conduct to an agency’s interpretations once the agency announces
                 them; it is quite another to require regulated parties to divine the
                 agency’s interpretations in advance or else be held liable when
                 the agency announces its interpretations for the first time in an
                 enforcement proceeding and demands deference.
    
    
    132 S. Ct. at 2168.
    
          We decline to accord Auer deference to the EEOC’s interpretation of its
    
    own regulation, 29 C.F.R. § 1605.2(c)(1). First, it is far from clear that the
    
    regulation is actually ambiguous concerning the central question before us:
    
    whether applicants or employees initially must provide express notice to the
    
                                               64
    employer of their conflicting religious practice and their need for an
    
    accommodation, in order to trigger the employer’s legal duty to provide a
    
    reasonable religious accommodation. The regulation’s language seems to
    
    “plainly” answer yes to that question. Christensen, 529 U.S. at 588; see id.
    
    (“Nothing in the regulation even arguably requires that an employer’s compelled
    
    use policy must be included in an agreement. The text of the regulation itself
    
    indicates that its command is permissive, not mandatory.”); cf. Chase Bank, 131
    
    S. Ct. at 879–80 (noting that “the key question” was “whether the [interest-rate]
    
    increase actually changed a ‘term’ of the Agreement that was ‘required to be
    
    disclosed’” within the meaning of the regulation and concluding that the
    
    regulation was “ambiguous as to the question presented, and [the Court] must
    
    therefore look to [the agency’s] own interpretation of the regulation for guidance
    
    in deciding this case”). And “if the text of a regulation is unambiguous,” as
    
    appears to be the situation here, “a conflicting agency interpretation . . . will
    
    necessarily be ‘plainly erroneous or inconsistent with the regulation’ in question.”
    
    Chase Bank, 131 S. Ct. at 882 (quoting Auer, 519 U.S. at 461). Thus, at the
    
    threshold, it is doubtful that Auer deference to the EEOC’s interpretation is
    
    appropriate.
    
          Second, even if the regulation were actually “ambiguous in its reach,”
    
    Drake, 291 F.3d at 68, there would be “reason to suspect that the [EEOC’s]
    
    interpretation does not reflect [its] fair and considered judgment on the matter in
    
                                              65
    question,” Auer, 519 U.S. at 462. As demonstrated above, through its
    
    Compliance Manual and other policy documents, the EEOC has repeatedly,
    
    explicitly, and unequivocally indicated that the notice necessary to trigger an
    
    employer’s duty to provide a reasonable religious accommodation is notice that is
    
    initially provided in express terms by applicants and employees. See, e.g., EEOC
    
    Compliance Manual § 12-IV(A)(1) (“The employee is obligated to explain the
    
    religious nature of the belief or practice at issue . . . .” (emphasis added)); EEOC
    
    Best Practices, supra (noting that “[e]mployees should advise their supervisors or
    
    managers of the nature of the conflict between their religious needs and the work
    
    rules” and “should provide enough information to enable the employer to
    
    understand what accommodation is needed, and why it is necessitated by a
    
    religious practice or belief”). In other words, on prior occasions, the EEOC has
    
    repeatedly taken a position on the notice question that is inconsistent, and
    
    conflicts with, the interpretation of that question that it now seeks to engraft onto
    
    its regulation.
    
          In such a circumstance, Auer deference is “unwarranted.” Christopher, 132
    
    S. Ct. at 2166; see id. (noting that the situation “might occur” where Auer
    
    deference is unjustified because “the agency’s interpretation conflicts with a prior
    
    interpretation”); see Thomas Jefferson Univ. v. Shalala, 
    512 U.S. 504
    , 515 (1994)
    
    (noting that “an agency’s interpretation of a statute or regulation that conflicts
    
    with a prior interpretation is ‘entitled to considerably less deference’ than a
    
                                              66
    consistently held agency view” (quoting INS v. Cardoza-Fonseca, 
    480 U.S. 421
    ,
    
    446 n.30 (1987))); cf. Bowen, 488 U.S. at 212–13 (noting that “[f]ar from being a
    
    reasoned and consistent view of the scope of [the statutory] clause,” the agency’s
    
    “current interpretation . . . is contrary to the narrow view of that provision
    
    advocated in past cases”); Drake, 291 F.3d at 69 (“Where the agency’s litigation
    
    position is consistent with its past statements and actions, there is good reason for
    
    the court to defer, for then the position seems ‘simply to articulate an explanation
    
    of longstanding agency practice.’” (quoting Akzo Nobel Salt, Inc. v. Fed. Mine
    
    Safety & Health Review Comm’n, 
    212 F.3d 1301
    , 1304 (D.C. Cir. 2000))).
    
          Furthermore, the EEOC does not identify any prior instance where it has
    
    taken the stance regarding notice that it does here, and its position does not
    
    appear to be anything other than a creature of this proceeding—where it is “a
    
    party to this case.” Chase Bank, 131 S. Ct. at 881. At least coupled with its prior
    
    inconsistent conduct, this circumstance gives us some reason to suspect that the
    
    EEOC’s view regarding notice is “nothing more than an agency’s convenient
    
    litigating position”; as such, giving it Auer deference “would be entirely
    
    inappropriate.” Bowen, 488 U.S. at 213; accord Christopher, 132 S. Ct. at 2166.
    
          Moreover, we have difficulty concluding that the EEOC has provided
    
    “adequate notice” (Drake, 291 F.3d at 68) or “fair warning” (Christopher, 132 S.
    
    Ct. at 2167 (quoting Gates & Fox Co., 790 F.2d at 156) (internal quotation marks
    
    
    
                                              67
    omitted)) to employers that their obligation to provide a reasonable religious
    
    accommodation may be triggered by something other than an explicit
    
    communication from applicants or employees regarding their conflicting religious
    
    practice and need for an accommodation. 13 Nothing in the text of the EEOC’s
    
    regulation, 29 C.F.R. § 1605.2(c)(1), would “provide clear notice of this.”
    
    Christopher, 132 S. Ct. at 2167. In describing the circumstances under which the
    
    employer’s obligation to offer a reasonable religious accommodation is triggered,
    
    the regulation speaks solely of “an employee or prospective employee notif[ying]
    
    the employer [of the need for such an accommodation].” 29 C.F.R.
    
    § 1605.2(c)(1). And, as commonly understood, the term “notify” means to “make
    
    a usu[ally] formal communication generally about something requiring or worthy
    
    of attention.” Webster’s Third New Int’l Dictionary 1160 (2002); see id. at 1545
    
    (defining the word “notify” to mean, among other things, to “make known”).
    
    
          13
                  This would be especially true to the extent that the EEOC’s
    interpretation of its regulation would permit plaintiffs to establish their prima
    facie case regarding notice by showing the employer possessed something less
    than actual knowledge of the conflicting religious practice and need for an
    accommodation—viz., would allow plaintiffs to demonstrate notice by showing
    some form of employer constructive knowledge, or a “reasonable indication to
    the employer that an accommodation may be needed.” Aplee. Br. at 34 (emphases
    added). This is because (as noted supra) the EEOC has not identified any judicial
    decisions supportive of such a position, nor have we uncovered any. Cf. Aplt.
    Reply Br. at 3 n.1 (“[T]he EEOC’s regulations nowhere state that a ‘reasonable
    indication’ is sufficient to make a prima facie case. Employers should be able to
    rely upon the EEOC’s clear pronouncements without having to fear that the EEOC
    will suddenly ‘change its mind’ to support whatever argument most benefits its
    then-current litigation.”).
    
                                             68
          In other words, under a natural reading of the regulation, the employer’s
    
    obligation to provide a reasonable religious accommodation would be triggered
    
    only when applicants or employees explicitly inform the employer of their
    
    conflicting religious practice and need for an accommodation. Indeed, this
    
    natural reading of the regulation is bolstered by the construction canon expressio
    
    unius est exlcusio alterius—the so-called “negative-implication canon,” Antonin
    
    Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 107
    
    (2012); see Black’s Law Dictionary 661 (9th ed. 2009) (noting that it is “[a]
    
    canon of construction holding that to express or include one thing implies the
    
    exclusion of the other”). Specifically, by expressly providing only one means by
    
    which an employer’s obligation to provide a reasonable religious accommodation
    
    may be triggered—explicit notice from an applicant or employee—the regulation
    
    may be read to exclude other means by which the “thing to be done,” Christensen,
    
    529 U.S. at 1660 (quoting Raleigh & Gaston R.R. v. Reid, 
    13 Wall. 269
    , 270
    
    (1872)) (internal quotation marks omitted), may be accomplished. Accordingly,
    
    because the EEOC’s broader view of the notice requirement is divorced from the
    
    regulation’s text and is not congruent with the natural reading of that text,
    
    subjecting Abercrombie to it “would result in precisely the kind of ‘unfair
    
    surprise’ against which [the Supreme Court’s] cases have long warned.”
    
    Christopher, 132 S. Ct. at 2167 (quoting Long Island Care at Home, Ltd. v. Coke,
    
    
    551 U.S. 158
    , 170–71 (2007)) (internal quotation marks omitted). This is yet
    
                                              69
    another reason why according the EEOC’s broader view Auer deference would be
    
    inappropriate.
    
          Therefore, to the extent that we provide deference at all to the EEOC’s
    
    broader view, the boundaries of that deference would be defined, not by Auer, but
    
    rather by the Supreme Court’s decision in Skidmore v. Swift & Co., 
    323 U.S. 134
    
    (1944). See, e.g., Christopher, 132 S. Ct. at 2168–69 (turning to the Skidmore
    
    standard after concluding that “whatever the general merits of Auer deference, it
    
    is unwarranted here”). Under that decision, to give deference “would be proper
    
    only if the [EEOC’s view] has the power to persuade, which ‘depend[s] upon the
    
    thoroughness evident in its consideration, the validity of its reasoning, [and] its
    
    consistency with earlier and later pronouncements.’” Vance v. Ball State Univ.,
    
    --- U.S. ----, 
    133 S. Ct. 2434
    , 2443 n.4 (2013) (second and third alterations in
    
    original) (emphasis added) (quoting Skidmore, 323 U.S. at 140); see Christopher,
    
    132 S. Ct. at 2168–69 (giving the agency’s “interpretation a measure of deference
    
    proportional to” its satisfaction of Skidmore’s criteria). For the reasons that we
    
    have noted thus far—including in this subsection and supra in Parts
    
    II.C.1–3.a—and that we explicate below in Part II.C.4, we conclude that the
    
    EEOC’s broader view of the notice requirement is “quite unpersuasive.”
    
    Christopher, 132 S. Ct. at 2169; see Univ. of Tex. Sw. Med. Ctr. v. Nassar, ---
    
    U.S. ----, 
    133 S. Ct. 2517
    , 2533 (2013) (noting that the EEOC’s “explanations
    
    lack the persuasive force that is a necessary precondition to deference under
    
                                              70
    Skidmore”); Vance, 133 S. Ct. at 2443 n.4 (“For the reasons explained below, we
    
    do not find the EEOC Guidance persuasive.”). 14
    
          In sum, notwithstanding the EEOC’s objections, we find support in the
    
    EEOC’s own regulations and policy documents for our view of the notice
    
    requirement—which places the onus on the applicant or employee to initially
    
    provide explicit notice to the employer of the conflicting religious practice and
    
    the need for an accommodation.
    
                                             4
    
          Finally, as both parties have expressly recognized, the requirement of
    
    employers to provide reasonable accommodations for disabled employees under
    
    the ADA is analogous to Title VII’s requirement that employers provide
    
    reasonable religious accommodations; thus, jurisprudence under the ADA can
    
    provide guidance as to when an employer’s duty to provide a reasonable religious
    
    
          14
                  It bears mentioning that insofar as the EEOC’s broader view of the
    notice requirement does not involve concepts akin to constructive notice, but
    rather is limited to the position that the EEOC’s regulation permits plaintiffs to
    establish their prima facie case regarding notice by showing that the employer
    possessed actual knowledge of the conflicting religious practice and need for an
    accommodation from a source other than the applicant or employee, then even if
    we were obliged to accord some measure of deference to the EEOC’s view, this
    would not materially alter the outcome that we reach here. That is because (as
    noted supra) there is no genuine dispute of material fact that no Abercrombie
    agent responsible for, or involved in, the hiring process had actual
    knowledge—from any source—that Ms. Elauf’s practice of wearing a hijab
    stemmed from her religious beliefs and that she needed an accommodation for it.
    
    
                                             71
    accommodation is triggered under Title VII. See Thomas, 225 F.3d at 1155 &
    
    nn.5 & 6 (recognizing the similarities between reasonable accommodation
    
    requirements in the ADA and Title VII contexts). The ADA’s analogous
    
    reasonable-accommodation scheme fortifies in at least two ways our belief that
    
    our interpretation of the notice requirement in the Title VII religion-
    
    accommodation setting is correct.
    
          First, under the ADA, an employer ordinarily has no obligation to engage in
    
    the interactive process or provide a reasonable accommodation unless the
    
    “employee provid[es] notice to the employer of the employee’s disability and any
    
    resulting limitations.” Smith, 180 F.3d at 1171. To provide the employer with
    
    notice, the employee “must make an adequate request” for an accommodation.
    
    EEOC v. C.R. England, Inc., 
    644 F.3d 1028
    , 1049 (10th Cir. 2011). This request
    
    must be “sufficiently direct and specific,” id. (quoting Calero-Cerezo v. U.S.
    
    Dep’t of Justice, 
    355 F.3d 6
    , 23 (1st Cir. 2004)) (internal quotation marks
    
    omitted), and “make clear that the [employee] wants assistance for his or her
    
    disability,” id. (quoting Colwell v. Rite Aid Corp., 
    602 F.3d 495
    , 506 (3d Cir.
    
    2010)) (internal quotation marks omitted).
    
          In short, under the ADA, an employer does not have a duty to provide a
    
    reasonable accommodation unless one is specifically requested by an employee.
    
    See Koessel v. Sublette Cnty. Sheriff’s Dep’t, 
    717 F.3d 736
    , 745 (10th Cir. 2013)
    
    
    
                                              72
    (“It is not the employer’s responsibility to anticipate the employee’s needs and
    
    affirmatively offer accommodation if the employer is otherwise open to such
    
    requests.”). Our reading of the notice requirement under Title VII is entirely
    
    consistent with this: an employer is only obliged to provide a reasonable religious
    
    accommodation to applicants or employees after they have explicitly informed the
    
    employer of their conflicting religious practice and need for an accommodation
    
    for it.
    
              Second, the requirement of specific employee notice under the ADA is
    
    logically compatible with the nature of the data necessary to trigger the
    
    employer’s reasonable-accommodation obligations. “[T]he employer must know
    
    of both the disability and the employee’s desire for accommodations for that
    
    disability.” C.R. England, 644 F.3d at 1049 (emphasis added) (quoting Taylor v.
    
    Phoenixville Sch. Dist., 
    184 F.3d 296
    , 313 (3d Cir. 1999)) (internal quotation
    
    marks omitted). Mere awareness of the disability is insufficient because the
    
    employer remains unaware that the employee desires an accommodation for his or
    
    her disability. See Woodman v. Runyon, 
    132 F.3d 1330
    , 1345 (10th Cir. 1997)
    
    (“The ‘employee’s initial request for an accommodation . . . triggers the
    
    employer’s obligation to participate in the interactive process.’” (omission in
    
    original) (quoting Taylor v. Principal Fin. Grp., Inc., 
    93 F.3d 155
    , 165 (5th Cir.
    
    1996))). Therefore, in order for the employer to gain knowledge of both of these
    
    facts, ordinarily the employee will need to tell the employer. See Mole v.
    
                                              73
    Buckhorn Rubber Prods., 
    165 F.3d 1212
    , 1218 (8th Cir. 1999) (“[An employee]
    
    cannot ‘expect the employer to read [her] mind and know [she] secretly wanted a
    
    particular accommodation and [then] sue the employer for not providing it.’”
    
    (second, third, and fourth alterations in original) (quoting Ferry v. Roosevelt
    
    Bank, 
    883 F. Supp. 435
    , 441 (E.D. Mo. 1995))).
    
          Similarly, our view of the notice requirement is likewise compatible with
    
    the nature of the data necessary to trigger an employer’s duty to provide a
    
    reasonable religious accommodation. Specifically, not only must an employer
    
    know that the practice stems from the religious beliefs of the applicant or
    
    employee, it must also know that he or she actually needs an accommodation for
    
    the practice. As suggested by our discussion in Part II.C.2, supra, Title VII’s
    
    conception of the personal and individualized nature of religion and of the
    
    interactive accommodation process—under which the employer is affirmatively
    
    discouraged from making religious inquiries of applicants or employees in the
    
    first instance, or engaging in guess-work or assumptions about their religious
    
    beliefs—virtually dictates that applicants or employees must initially
    
    communicate the religious nature of the conflicting practice and their need for an
    
    accommodation to the employer, in order to trigger the employer’s
    
    accommodation duty.
    
          In sum, the ADA’s reasonable-accommodation jurisprudence supports our
    
    
    
                                             74
    interpretation of Title VII. The ADA places the burden on the employee to make
    
    the employer aware both of his or her disability and the employee’s need for an
    
    accommodation for that disability, by adequately communicating this information
    
    to the employer in the first instance. See C.R. England, 644 F.3d at 1049. Our
    
    interpretation of Title VII’s notice requirement in the religion-accommodation
    
    context is essentially the same. Applicants or employees must initially inform
    
    employers of their religious practices that conflict with a work requirement and
    
    their need for a reasonable accommodation for them. See Thomas, 225 F.3d at
    
    1155; EEOC Compliance Manual § 12-IV(A)(1).
    
                                            III
    
          For the foregoing reasons, we hold that district court should have entered
    
    summary judgment in favor of Abercrombie because the EEOC did not satisfy the
    
    second element of its prima facie case, as there is no genuine dispute of material
    
    fact that Ms. Elauf never informed Abercrombie prior to its hiring decision that
    
    her practice of wearing her hijab stemmed from her religious beliefs and that she
    
    needed an accommodation for this (inflexible) practice. Accordingly, we
    
    REVERSE the district court’s denial of summary judgment in favor of
    
    Abercrombie and likewise, necessarily, REVERSE the district court’s grant of
    
    summary judgment to the EEOC. We REMAND the case to the district court
    
    with instructions to VACATE its judgment and enter judgment in favor of
    
    
    
                                            75
    Abercrombie, and for further proceedings consistent with this opinion.
    
    
    
    
                                            76
    Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc.,
    No. 11-5110
    
    EBEL, J., concurring in part and dissenting in part
    
           I concur in the majority opinion’s ruling that it was error for the district court to
    
    grant summary judgment for Plaintiff-Appellee Equal Employment Opportunity
    
    Commission (“EEOC”) in this case. However, I dissent in part from the majority’s
    
    opinion, to the extent that it enters summary judgment for Defendant-Appellant
    
    Abercrombie & Fitch Stores, Inc. (“Abercrombie”), because I conclude on this record
    
    that a jury should decide whether Abercrombie is liable for religious discrimination.
    
           Title VII prohibits religious discrimination in employment, including an
    
    employer’s refusal to hire a job applicant because of her religion. 42 U.S.C. § 2000e-
    
    2(a)(1). Title VII defines religious discrimination to include an employer’s failure to
    
    accommodate a job applicant’s religious practices, if the employer can reasonably do so
    
    without incurring undue hardship to the conduct of its business. Id. § 2000e(j); see
    
    Thomas v. Nat’l Ass’n of Letter Carriers, 
    225 F.3d 1149
    , 1154-55 (10th Cir. 2000). Title
    
    VII imposes on the employer the duty to reasonably accommodate the religious practices
    
    of a job applicant through “an interactive process that requires participation” by both the
    
    employer and the applicant. Thomas, 225 F.3d at 1155.
    
           The EEOC, on behalf of Samantha Elauf, established a triable claim that
    
    Abercrombie discriminated against Elauf on the basis of her religion when Abercrombie
    
    refused to hire her because of her religious practice of wearing a hijab, or head covering.
    
    Specifically, the EEOC set forth evidence from which a jury could find that Abercrombie
    refused to hire Elauf, without ever informing her that wearing a hijab conflicted with
    
    Abercrombie’s Look Policy, in order to avoid having to discuss the possibility of
    
    reasonably accommodating Elauf’s religious practice. If true, that would be religious
    
    discrimination proscribed by Title VII. Thus, I would remand this claim for a jury trial.
    
    I. The majority’s inflexible requirement that the EEOC must first establish, as part
    of its prima facie claim, that Elauf informed Abercrombie that its Look Policy
    conflicted with her religious practice of wearing a hijab makes no sense under the
    law or the circumstances presented by this case
    
           The majority concludes that an employer’s obligation to engage in an interactive
    
    dialogue with a job applicant regarding the need for a reasonable accommodation of her
    
    religious practice is triggered only when the job applicant herself informs the employer
    
    that her religious practice conflicts with a requirement of the job for which she is
    
    applying. The majority reaches this conclusion after applying the modified McDonnell
    
    Douglas burden-shifting framework applicable to failure-to-accommodate claims and
    
    holding, at the first step of that analysis, that the EEOC failed to establish a prima facie
    
    claim.1
    
    
    1
      Generally courts addressing a discrimination claim under Title VII apply the burden-
    shifting analysis set forth in McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    , 800-05
    (1973). Under that analysis, the plaintiff employee or job applicant must first set forth a
    prima facie claim of discrimination. Id. at 802. If the plaintiff is able to do so, the
    employer must then articulate a legitimate, nondiscriminatory reason for taking the
    challenged employment action. Id. Thereafter, the burden shifts back to the plaintiff to
    show that the employer’s proffered reason was really a pretext for discrimination. Id. at
    804. In addressing a claim of religious discrimination based upon a failure-to-
    accommodate theory, however, we apply a modified, two-step McDonnell Douglas
    analysis, asking first whether the plaintiff employee or job applicant established a prima
    facie failure-to-accommodate claim. See Thomas, 225 F.3d at 1155. If so, then the
    burden shifts to the employer to do one of three things: (1) rebut one or more of the
    elements of the plaintiff’s prima facie case; (2) show it offered the plaintiff a reasonable
                                                  2
           In several previous cases where the existence of a prima facie claim was not
    
    disputed, this court stated the elements of a prima facie failure-to-accommodate claim to
    
    be that the plaintiff “(1) . . . had a bona fide religious belief that conflicts with an
    
    employment requirement; (2) he or she informed his or her employer of this belief; and
    
    (3) he or she was [not hired] for failure to comply with the conflicting employment
    
    requirement.” Thomas, 225 F.3d at 1155 (addressing termination claim); see also Toledo
    
    v. Nobel-Sysco, Inc., 
    892 F.2d 1481
    , 1486 (10th Cir. 1989). Applying these elements to
    
    this case, the majority rejects the EEOC’s failure-to-accommodate claim as a matter of
    
    law because Elauf never informed Abercrombie that her religious practice of wearing a
    
    hijab conflicted with Abercrombie’s Look Policy.
    
           Of course, the reason Elauf never informed Abercrombie of this conflict is that,
    
    accepting her evidence as true as we must, Elauf did not know that there was a conflict
    
    between her religious practice of wearing a hijab and Abercrombie’s Look Policy.
    
    However, critically, Abercrombie did know there might be a conflict, because it knew
    
    that Elauf wore a headscarf, assumed she was Muslim and that she wore the headscarf for
    
    religious reasons, and knew its Look Policy, as ultimately determined by Randall
    
    Johnson, the person who made the decision not to hire Elauf, prohibited its sales models
    
    from donning headwear. Based on these assumptions, and without ever informing Elauf
    
    that Johnson ultimately determined that the hijab would not be allowed, Abercrombie
    
    refused to hire her because she wore a hijab. In this way, Abercrombie was able to avoid
    
    
    accommodation; or (3) show it was unable to reasonably accommodate the plaintiff’s
    religious practice without undue hardship. Id. at 1156.
                                                    3
    any interactive dialogue with Elauf about whether Abercrombie could reasonably
    
    accommodate Elauf’s religious practice.
    
           Under these circumstances, it makes no sense to apply, reflexively and inflexibly,
    
    the second element of the ordinary prima facie failure-to-accommodate claim to require
    
    Elauf to show first that she informed Abercrombie that her religious practice conflicted
    
    with Abercrombie’s Look Policy, when that policy’s proscription against wearing a
    
    headscarf at work had never been disclosed to her. Nor are we bound, as the majority
    
    suggests, to apply the elements of a prima facie failure-to-accommodate claim as set forth
    
    in prior, factually distinct cases that did not raise or resolve the issue before us of whether
    
    it is the applicant’s burden in the first instance to request a religious accommodation to an
    
    undisclosed employer’s policy.
    
           I conclude we are not bound here to apply this court’s prior rendition of the
    
    elements of a prima facie failure-to-accommodate claim, for several reasons. First and
    
    foremost, the specific elements of a prima facie claim must be flexible, in order to
    
    address the specific circumstances presented by a given case. The Supreme Court
    
    stressed this when it first set forth the McDonnell Douglas analytical framework.
    
    McDonnell Douglas, 411 U.S. at 802 n.13 (noting that “[t]he facts necessarily will vary
    
    in Title VII cases, and the specification [in McDonnell Douglas] of the prima facie proof
    
    required from [the plaintiff] is not necessarily applicable in every respect to differing
    
    factual situations”). This court has, on numerous occasions, recognized the need to
    
    modify the elements of a prima facie discrimination claim to fit the facts of a given case.
    
    See Stover v. Martinez, 
    382 F.3d 1064
    , 1077 (10th Cir. 2004) (noting McDonnell
    
                                                  4
    Douglas framework, as “modified to reflect the particular factual situation at hand,”
    
    applied to Title VII religious discrimination claims); Shapolia v. Los Alamos Nat’l Lab.,
    
    
    992 F.2d 1033
    , 1036-38 (10th Cir. 1993) (declining to apply prima facie elements of a
    
    failure-to-accommodate claim to a cause of action alleging that the employer fired the
    
    plaintiff employee because the employee did not share his supervisors’ religious beliefs;
    
    applying, instead, a modified version of the elements of a straightforward prima facie
    
    discrimination claim).2 “The prima facie case method established in McDonnell Douglas
    
    was ‘never intended to be rigid, mechanized, or ritualistic.’” U.S. Postal Serv. Bd. of
    
    Governors v. Aikens, 
    460 U.S. 711
    , 715 (1983) (quoting Furnco Constr. Co. v. Waters,
    
    
    438 U.S. 567
    , 577 (1978)).
    
           The importance of McDonnell Douglas lies, not in its specification of the
           discrete elements of proof there required, but in its recognition of the
           general principle that any Title VII plaintiff must carry the initial burden of
           offering evidence adequate to create an inference that an employment
           decision was based on a discriminatory criterion illegal under the Act.
    
    Int’l Bhd. of Teamsters v. United States, 
    431 U.S. 324
    , 358 (1977) (rejecting, in pattern-
    
    or-practice case, argument that “the McDonnell Douglas pattern [w]as the only means of
    
    establishing a prima facie case of individual discrimination”).
    
           Second, the plaintiff’s burden of presenting a prima facie discrimination claim
    
    under Title VII is not meant to be onerous. See Tex. Dep’t of Cmty. Affairs v. Burdine,
    
    2
     See also, e.g., Garrison v. Gambro, Inc., 
    428 F.3d 933
    , 937 (10th Cir. 2005); Plotke v.
    White, 
    405 F.3d 1092
    , 1099-1100 (10th Cir. 2005); Mattioda v. White, 
    323 F.3d 1288
    ,
    1291-93 (10th Cir. 2003); Rakity v. Dillon Cos., 
    302 F.3d 1152
    , 1164 (10th Cir. 2002);
    Morgan v. Hilti, Inc., 
    108 F.3d 1319
    , 1323 (10th Cir. 1997); Greene v. Safeway Stores,
    Inc., 
    98 F.3d 554
    , 559-60 (10th Cir. 1996); Randle v. City of Aurora, 
    69 F.3d 441
    , 451
    n.13 (10th Cir. 1995); Lucas v. Dover Corp., 
    857 F.2d 1397
    , 1400-01 (10th Cir. 1988);
    Crawford v. Ne. Okla. State Univ., 
    713 F.2d 586
    , 588 (10th Cir. 1983).
                                                 5
    
    450 U.S. 248
    , 253 (1981) (“The burden of establishing a prima facie case of disparate
    
    treatment is not onerous.); see also Shapolia, 992 F.2d at 1038 (noting burden of
    
    establishing prima facie religious discrimination claim is not onerous). Here, the
    
    majority not only made this initial burden onerous, but also made it preclusive of a claim
    
    for relief.
    
            Third, the purpose of the McDonnell Douglas burden-shifting framework, of
    
    which the prima facie claim is a part, is different in the context of a failure-to-
    
    accommodate claim than it is for a Title VII claim alleging discrimination generally. See
    
    Thomas, 225 F.3d at 1155 n.6. In a straight discrimination claim, the prima facie claim
    
    serves the purpose of probing whether the employer intended to discriminate. See id.;
    
    Smith v. Midland Brake, Inc., 
    180 F.3d 1154
    , 1178 n.12 (10th Cir. 1999) (reh’g en banc).
    
    The purpose of applying a modified version of the McDonnell Douglas burden-shifting
    
    analysis in the context of an accommodation case, on the other hand, is “simply to
    
    provide a useful structure by which the district court, when considering a motion for
    
    summary judgment, can determine whether the various parties have advanced sufficient
    
    evidence to meet their respective traditional burdens to prove or disprove the
    
    reasonableness of the accommodations offered or not offered.” Thomas, 225 F.3d at
    
    1155 n.6 (quoting Smith, 180 F.3d at 1178 n.12). So, if the plaintiff asserts evidence
    
    which, if believed, would establish the employer’s liability for failing to accommodate a
    
    job applicant’s religious practices, then the plaintiff has established a prima facie failure-
    
    to-accommodate claim. As explained below, the EEOC has met that less-than-onerous
    
    burden here.
    
                                                   6
           Before addressing how the EEOC has established a prima facie failure-to-
    
    accommodate claim in this case, however, I would stop to note that I agree with the
    
    majority that, in the ordinary case, it is the job applicant who must inform the employer
    
    that she has a religious belief that conflicts with the requirements of the job for which she
    
    is applying. This makes sense, of course, because generally it will be the job applicant
    
    who will have superior knowledge of that conflict. It is the job applicant who knows of
    
    her religious beliefs and practices. When she becomes aware that a requirement of the
    
    job for which she is applying conflicts with her beliefs, the onus is on the job applicant to
    
    inform the employer of this conflict and the need for any accommodation. Under such
    
    circumstances, the employer has no obligation to participate in the interactive process of
    
    exploring the possibility of a reasonable accommodation until the employer knows of the
    
    conflict.3 See E.E.O.C. v. C.R. England, Inc., 
    644 F.3d 1028
    , 1049 (10th Cir. 2011)
    
    (Americans with Disabilities Act case).4 Therefore, I do not doubt that our generalized
    
    
    3
       It may also be the case in some situations that neither the employer nor the job
    applicant will know that there is a conflict between the job’s requirements and the
    applicant’s religious practices, because the employer will be aware of its work rules and
    the applicant will know her religious beliefs, but neither side will inform the other of
    these matters during the course of a job interview. Under such circumstances, no
    dialogue will occur between the job applicant and the employer as to this unidentified
    conflict, through no fault of either party. In that scenario, the employer would not be
    liable for failure to accommodate. However, here the facts are sufficient to permit
    (though not compel) a jury to find that Abercrombie did know, or thought it knew, of
    Elauf’s religious beliefs and subverted the interactive process by declining to pursue her
    employment application without discussing the possibility of an accommodation with
    her. Thus, it is error, in my opinion, to grant summary judgment to Abercrombie on this
    record.
    4
      Because both the Americans with Disabilities Act and Title VII’s proscription against
    religious discrimination impose an affirmative obligation on employers to make
                                                  7
    rendition of the elements of a prima facie failure-to-accommodate claim, which require
    
    the plaintiff to show that she informed the employer of a conflict between her religious
    
    practices and the job requirements, will still apply to most failure-to-accommodate
    
    claims. But that does not mean that we must force all failure-to-accommodate claims
    
    into this prima facie mold when it makes no sense to do so under the particular facts of a
    
    given case. And that is the situation here, where, based on the EEOC’s evidence, it was
    
    Abercrombie with superior knowledge of the conflict between its Look Policy and
    
    Elauf’s apparent religious practice, a conflict of which Elauf was unaware.
    
           For the reasons that follow, then, I disagree with the majority’s approach in this
    
    case of requiring the EEOC, in order to state a prima facie claim, to show that Elauf
    
    informed Abercrombie that her religious practice of wearing a hijab conflicted with
    
    Abercrombie’s Look Policy, the relevant provisions of which Elauf was unaware.
    
    II. The EEOC established a prima facie claim that Abercrombie failed to
    accommodate Elauf’s religious practice of wearing a hijab
    
           In order to survive summary judgment, the EEOC had to establish a prima facie
    
    claim by asserting evidence that, if believed, would support Abercrombie’s liability for
    
    failing to accommodate Elauf’s religious practice of wearing a hijab. See Thomas, 225
    
    F.3d at 1155 n.6. I conclude the EEOC met that less-than-onerous burden by showing
    
    four things: (1) Elauf had a bona fide religious belief that conflicts with Abercrombie’s
    
    Look Policy; (2) she was not aware of Abercrombie’s conflicting policy; (3) but
    
    reasonable accommodation, the Tenth Circuit applies case law addressing both statutes
    when considering issues surrounding reasonable accommodation. See Thomas, 225 F.3d
    at 1155 & n.5; see also Maj. Op. at 30-31, 71-75.
    
                                                 8
    Abercrombie had knowledge that Elauf might hold religious beliefs that conflicted with
    
    its Look Policy; and (4) without informing Elauf of the provisions of its Look Policy that
    
    might conflict with her religious beliefs, Abercrombie instead refused to hire Elauf
    
    because of that possible conflict.
    
           As to the first element, the district court held that the EEOC established, as a
    
    matter of law, that Elauf held a bona fide religious belief that she must wear a hijab in
    
    public. Although Abercrombie challenged that determination on appeal, I would affirm
    
    the district court’s decision in that regard.
    
           As to the second element, that Elauf was not aware that Abercrombie’s Look
    
    Policy conflicted with her religious practice of wearing a hijab, it is undisputed that
    
    Abercrombie’s managers never informed Elauf that the Look Policy prohibited
    
    headscarves.5 (Aplt. App. at 299; Aple. Supp. App. at 49.) Further, there was evidence
    
    that, before she applied for a job with Abercrombie, Elauf, through a friend, inquired of
    
    one of Abercrombie’s store managers whether there was a problem with her wearing a
    
    hijab while working in an Abercrombie store and was told that it would be no problem so
    
    long as the hijab was not black.6 (Aplt. App. at 50-52, 393.)
    
    
    5
     Three of the four Abercrombie managers involved here interpreted the Look Policy to
    permit headscarves, so long as they were not black in color. (Aplt. App. at 393; Aple.
    Supp. App. at 49, 51; Maj. op. at 9.) There is evidence that this would have been an
    acceptable accommodation of Elauf’s religious beliefs. (Aplt. App. at 52.)
    6
      The majority contends that this evidence does not establish that Elauf expressly
    informed Abercrombie of her religious practice of wearing a hijab and expressly sought
    an accommodation for that practice. I agree. But this evidence is relevant to show
    Elauf’s state of mind, that when she interviewed for a position with Abercrombie, she did
    not think that the Look Policy prevented her from wearing a hijab at work. Moreover, it
                                                    9
           As to the third element of the EEOC’s prima facie claim, that Abercrombie had
    
    knowledge that Elauf might hold religious beliefs that conflicted with its Look Policy, it
    
    is undisputed that Heather Cooke, the Abercrombie assistant store manager who
    
    interviewed Elauf, “assumed that [Elauf] was Muslim,” (id. at 307), assumed that Elauf
    
    wore a hijab for “religious reasons,” (id.), and assumed that Elauf would wear a hijab
    
    while working in an Abercrombie store. (Id. at 306-07; Aple. Supp. App. at 48.)
    
           The EEOC’s showing of the second and third elements—that Elauf was unaware
    
    that her religious practice of wearing a hijab conflicted with the Look Policy, but that
    
    Abercrombie was aware there might be such a conflict—establishes circumstances that
    
    justify applying here a common sense exception to the usual rule that, in order to trigger
    
    an employer’s duty to participate in the interactive dialogue regarding reasonable
    
    accommodation, the job applicant must first inform the employer that she holds religious
    
    beliefs that conflict with the job’s requirements. Recognizing such a common sense
    
    exception under these circumstances is consistent with cases generally recognizing
    
    similar exceptions. For example, in the context of an employer’s reasonable
    
    accommodation of disabilities under the Americans with Disabilities Act (“ADA”), we
    
    require, as a precondition to suit, that the employee have requested an accommodation
    
    “unless the employer has foreclosed the interactive process through its policies or explicit
    
    seems reasonable for a job applicant to check with an employer (here, the employer’s
    representative, an assistant store manager) as to the requirements for the job and to rely
    upon that information unless told differently in her interview. Further, this evidence
    arguably suggests that Abercrombie affirmatively misled Elauf into believing that there
    was no problem with her wearing a hijab while working in one of Abercrombie’s stores,
    which may explain why she did not raise the issue during her job interview.
    
                                                 10
    actions.” Koessel v. Sublette Cnty. Sheriff’s Dep’t, 
    717 F.3d 736
    , 744 (10th Cir. 2013)
    
    (emphasis added) (internal quotation marks omitted). And the Ninth Circuit, again under
    
    the ADA, has recognized an exception to the requirement that the employee request an
    
    accommodation for his disability, under circumstances where the employer knows that
    
    the employee has a disability, knows that the employee is having trouble at work due to
    
    his disability, and knows, or has reason to know, that the disability prevents the employee
    
    from requesting an accommodation. See Brown v. Lucky Stores, Inc., 
    246 F.3d 1182
    ,
    
    1188 (9th Cir. 2001). There are, then, exceptions to the general rule that an employer’s
    
    obligation to consider a reasonable accommodation is not triggered unless and until an
    
    employee or job applicant informs the employer of the need for an accommodation.
    
           Even more directly analogous to the situation here, other circuits have held that a
    
    job applicant or employee can establish a prima facie religious failure-to-accommodate
    
    claim if she can show that the employer knew of a conflict between the plaintiff’s
    
    religious beliefs and a job requirement, regardless of how the employer acquired
    
    knowledge of that conflict.7 These cases conclude that “[a]n employer need have ‘only
    
    
    7
      See Dixon v. Hallmark Cos., 
    627 F.3d 849
    , 855-56 (11th Cir. 2010) (rejecting argument
    that plaintiff employees who operated a property management office had failed to assert a
    prima facie failure-to-accommodate claim because they did not inform the employer of
    their specific belief that God should not be removed from public places, where there was
    ample evidence that their supervisor was already aware that there was a tension between
    the plaintiffs’ religious beliefs and the employer’s policy against displaying religious
    artwork in the employer’s property management offices); Brown v. Polk Cnty, 
    61 F.3d 650
    , 652-53 (8th Cir. 1995) (rejecting employer’s argument that employee never
    explicitly requested an accommodation of his religious activities because employer was
    already aware of “the potential for conflict” between the employee’s religious activities
    and the employer’s work rules because the employee had previously been reprimanded
    for his religious activities at work); Hellinger v. Eckerd Corp., 
    67 F. Supp. 2d 1359
    ,
                                                11
    enough information about an employee’s religious needs to permit the employer to
    
    understand the existence of a conflict between the employee’s religious practices and the
    
    employer’s job requirements.’” Brown, 61 F.3d at 654 (8th Cir.) (quoting Heller, 8 F.3d
    
    at 1439 (9th Cir.)). I would rely on this principle here. To my mind, once the employer
    
    knows of, or should know of, a conflict, or the likelihood of a conflict, the employer is
    
    then obligated to interact with the job applicant about the likely conflict in order to
    
    determine if there is a reasonable accommodation for the job applicant’s religious
    
    practices. At that point, the need for accommodation has been put on the table for
    
    discussion and the employer, with superior knowledge of its ability to accommodate, can
    
    no longer ignore the need to initiate dialogue with the employee regarding reasonable
    
    accommodations.
    
    
    
    
    1361-63 (S.D. Fla. 1999) (holding orthodox Jew who applied for pharmacist position and
    whose religious beliefs precluded his selling condoms, stated at least a prima facie
    failure-to-accommodate claim even though the employer discovered this conflict between
    the applicant’s religious beliefs and the job requirements, not from the applicant, but
    from one of the applicant’s job references; noting that “[i]t would be hyper-technical,
    based on the facts of this case, to require notice of the Plaintiff’s religious beliefs to come
    only from the Plaintiff. The notice requirement is meant in part to allow the company an
    opportunity to attempt to reasonably accommodate the Plaintiff’s beliefs. The [employer]
    was not deprived of the opportunity to attempt to accommodate the Plaintiff’s beliefs
    merely because the notice did not come from the Plaintiff.”) ; see also Heller v. EBB
    Auto Co., 
    8 F.3d 1433
    , 1436-37, 1439 (9th Cir. 1993) (in addressing claim that car
    dealership fired one of its salesmen for missing work to attend a ceremony for his wife’s
    conversion to Judaism, rejecting argument that the salesman failed to state a prima facie
    failure-to-accommodate claim because he did not explain the ceremony sufficiently to his
    employer; concluding that “[a] sensible approach would require only enough information
    about an employee’s religious needs to permit the employer to understand the existence
    of a conflict between the employee’s religious needs and the employer’s job
    requirements”).
                                                  12
           Thus, where, as here, the employer has knowledge of a credible potential conflict
    
    between its policies and the job applicant’s religious practices, the employer has a duty to
    
    inquire into this potential conflict. This duty does not, however, obligate the employer to
    
    inquire, open-endedly, about the applicant’s religious beliefs and practices. Under the
    
    circumstances presented here, Abercrombie only had a duty to disclose to Elauf that its
    
    Look Policy prohibited Elauf from wearing any headwear while working in one of
    
    Abercrombie’s stores, when it had notice of facts that suggested to it the possibility of
    
    such a conflict. This inquiry would have been sufficient to initiate any needed dialogue
    
    between the job applicant, Elauf, and the employer, Abercrombie, as to whether Elauf
    
    had religious beliefs that conflicted with Abercrombie’s dress code, beliefs which
    
    perhaps would be addressed by an accommodation.8
    
           The majority disagrees with the cases from these other circuits (thereby creating a
    
    conflict among the circuits) which permit a plaintiff to establish a prima facie failure-to-
    
    accommodate claim by establishing that the employer knew, by any means, of a conflict
    
    between the plaintiff’s religious practices and the employer’s work rules. I would follow
    
    the holdings in those case but, even without relying on those cases here, the EEOC has
    
    still put forth evidence establishing the fourth element of her prima facie claim, that
    
    Abercrombie assumed that Elauf was Muslim, that she wore a hijab for religious reasons,
    
    8
      This duty is not unlike the duties of inquiry recognized by the law in other contexts,
    when facts are sufficient to put a party on notice he needs to make inquiry or be held to
    know the facts which such inquiry would have uncovered. See TRW Inc. v. Andrews,
    
    534 U.S. 19
    , 30 (2001) (in parenthetical to citation for Stone v. Williams, 
    970 F.2d 1043
    ,
    1049 (2d Cir. 1992); addressing when statute of limitations begins to run)); see also
    Sterlin v. Biomune Sys., 
    154 F.3d 1191
    , 1201-02 (10th Cir. 1998) (addressing when
    statute of limitations for private securities fraud action began to run).
                                                 13
    and that she would insist on wearing a hijab while working in an Abercrombie store, and
    
    then, based on those assumptions and without first initiating any dialogue with Elauf to
    
    verify its assumptions, Abercrombie refused to hire Elauf because she wore a hijab.
    
    (Aplt. App. at 306-07; Aple. Supp. App. at 48, 51.)
    
           Those facts, if found by a jury, smack of exactly the religious discrimination that
    
    Title VII prohibits. And a jury could further find, from such facts, that Abercrombie,
    
    based on its superior knowledge of a possible conflict between Elauf’s religious practice
    
    and Abercrombie’s Look Policy, was able affirmatively to avoid its obligation to engage
    
    in an interactive dialogue with Elauf about a reasonable accommodation of Elauf’s
    
    religious practice by not mentioning the possible conflict and then not hiring her because
    
    of it. See Bartee v. Michelin N. Am., Inc., 
    374 F.3d 906
    , 916 (10th Cir. 2004) (noting, in
    
    ADA case, that employer’s refusal to participate in an interactive process could result in
    
    liability); Albert v. Smith’s Food & Drug Ctrs., Inc., 
    356 F.3d 1242
    , 1253 (10th Cir.
    
    2004) (noting, in an ADA case, that “[n]either party may create or destroy liability by
    
    causing a breakdown of the interactive process”).9 On the record in this particular case, a
    
    
    9
      Other circuits have noted, in addressing this interactive process in the context of
    reasonable accommodation under the ADA, that an employer can be liable for refusing to
    participate in good faith in that process:
    
           [C]ourts should look for signs of failure to participate in good faith or
           failure by one of the parties to help the other party determine what specific
           accommodations are necessary. A party that obstructs or delays the
           interactive process is not acting in good faith. A party that fails to
           communicate, by way of initiation or response, may also be acting in bad
           faith. In essence, courts should attempt to isolate the cause of the
           breakdown and then assign responsibility.
    
                                                14
    jury could find Abercrombie liable for violating Title VII’s proscription against religious
    
    discrimination in employment on this basis. The EEOC, therefore, has established a
    
    prima facie failure-to-accommodate claim.
    
           In conclusion, let me be very clear. I am not suggesting that the employer has a
    
    general duty, during a job interview, to give the applicant a comprehensive “laundry list”
    
    of all of the employer’s work policies in order to determine if those job requirements
    
    might possibly conflict with an applicant’s unstated religious beliefs or practices. I agree
    
    that the burden ordinarily remains with the job applicant to inform the employer of any
    
    conflict between the job’s requirements and her religious beliefs and practices, because it
    
    will usually be the applicant, and not the employer, who knows of such a conflict.
    
    However, I am also not suggesting, as the majority appears to be, that a job applicant
    
    must initiate a general discussion of her religious beliefs during the job interview just in
    
    case her religious beliefs and practices might conflict with some unstated policy or work
    
    rule of the employer. The EEOC has shown here that it was the employer, Abercrombie,
    
    which had superior knowledge of a possible conflict between its Look Policy and Elauf’s
    
    apparent religious practice of wearing a hijab. Under those facts, established after
    
    viewing the evidence in light most favorable to the EEOC,10 Abercrombie had a duty to
    
    
    
    Taylor v. Phoenixville Sch. Dist., 
    184 F.3d 296
    , 312 (3d Cir. 1999) (emphasis added)
    (quoting Bultemeyer v. Fort Wayne Cmty. Sch., 
    100 F.3d 1281
    , 1285 (7th Cir. 1996)).
    10
      The facts presented here include the fact that Elauf wore a black hijab to her interview
    (Aplt. App. at 368), exhibiting the very practice that Abercrombie’s Look Policy was
    ultimately determined to forbid. Further, Abercrombie assumed that Elauf was Muslim,
    wore the hijab for religious reasons, and would insist on wearing a hijab while working in
    one of Abercrombie’s stores. (Id. at 306-07; Aple. Supp. App. at 48.) Abercrombie then
                                                 15
    initiate a dialogue with Elauf by informing her that Abercrombie’s Look Policy
    
    prohibited its sales models from wearing headwear and then inquiring whether she could
    
    comply with that policy, or whether Abercrombie could accommodate her belief in some
    
    reasonable way. Said another way, a jury could find Abercrombie liable under Title VII
    
    for assuming that Elauf was a Muslim who wore a hijab for religious reasons and that she
    
    would insist on wearing a hijab while working in one of Abercrombie’s stores, and then,
    
    without initiating a dialogue with Elauf to verify those assumptions, refused to hire Elauf
    
    based upon the company’s assumptions.11
    
    III. Because Abercrombie’s evidence contradicted the EEOC’s prima facie
    evidence, that created a triable issue of fact as to whether Abercrombie failed to
    accommodate Elauf’s religious practice of wearing a hijab; therefore, a jury trial is
    required
    
           The district court entered summary judgment for the EEOC. The majority
    
    reverses that determination and concludes that summary judgment should enter, instead,
    
    for Abercrombie. I agree that the EEOC is not entitled to summary judgment because
    
    there is conflicting evidence on both sides. However, for the same reason, I dissent from
    
    the entry of summary judgment on behalf of Abercrombie. I would, instead, remand for a
    
    jury trial because there are factual disputes as to whether the circumstances presented
    
    here triggered Abercrombie’s duty to initiate an interactive dialogue with Elauf in order
    
    acted on those assumptions, without first verifying them with Elauf, when it decided not
    to hire her. (Aple. Supp. App. at 48, 51.) So this is not a case where the employer can
    claim to have been blindsided by some objectionable practice of the job applicant that the
    employer did not realize was religiously based.
    11
       All of the above could reasonably be inferred from the record in this case, read in the
    light most favorable to the EEOC on behalf of Elauf.
    
                                                 16
    to determine whether she had a religious practice that conflicted with Abercrombie’s
    
    Look Policy. In light of these factual disputes, a jury must decide the EEOC’s failure-to-
    
    accommodate claim asserted on Elauf’s behalf. Therefore, I would remand that claim for
    
    trial.12
    
    
    
    
    12
       The district court granted the EEOC summary judgment on an alternative basis,
    holding as a matter of law that Abercrombie had failed to establish that it could not
    accommodate Elauf’s religious practice of wearing a hijab without suffering undue
    hardship to the conduct of its business. Abercrombie challenges that determination on
    appeal. Because I conclude there is conflicting evidence as to that issue, as well, I would
    not affirm the district court’s decision to grant summary judgment for the EEOC on that
    basis.
                                                17