The United States Supreme Court began its October 2014 term two weeks ago. Many of you may be thinking, “That’s nice, but why do I need to know that? Should I care?” If you are an employer, manager or H.R. practitioner,the answer is a resounding “yes”. Why? The High Court has agreed to hear appeals of six employment law cases, at least some of which could have an impact on you and your company. This week, The Emplawyerologist will focus on two employment discrimination cases–after the jump, of course!
Sometime in the first half of 2015 Abercrombie & Fitch will have to justify to the Supreme Court of the United States (aka “SCOTUS”) the manner in which it applied its dress code to a practicing Muslim applicant in 2008. The case is EEOC v. Abercrombie & Fitch Stores (Case No. 14-86). Here are the most relevant facts: 17-year old Samantha Elauf applied for a sales job at an Abercrombie Kids store in Tulsa, Oklahoma. In adherence to her Muslim faith, Ms. Elauf wears a hijab (head scarf). She had been told by a friend who worked there that doing so was not a problem. Ms. Elauf wore her hijab to the job interview. The interviewer noticed the headscarf and, allegedly, assumed that Ms. Elauf was Muslim. While Ms. Elauf and the interviewer discussed Abercrombie’s dress code (which includes a mandate that employees not wear black, and prohibits the wearing of caps and hats) neither one of them brought up the issue of Ms. Elauf wearing a black hijab. During the evaluation process, the interviewer contacted the district manager and they discussed the hijab. Here is where Abercrombie & Fitch ultimately bought itself an employment discrimination suit: The district manager told the interviewer to reject Ms. Elauf’s application because the hijab would violate the dress code. Ms. Elauf learned from her friend that her hijab was the reason she did not get the job and filed a discrimination charge with the Equal Employment Opportunity Commission (E.E.O.C.).
Since the E.E.O.C. was unable to reach a settlement with Abercrombie & Fitch, it sued on Ms. Elauf’s behalf. What is the basis of Ms. Elauf’s discrimination claim? Title VII of the Civil Rights Act of 1964 prohibits employers with at least 15 employees from discriminating on the basis of race, color, religion, sex or national origin, and from retaliating against those who either complain of or participate in an investigation of discrimination allegations. Title VII also requires such employers to make exceptions to their usual rules or preferences to permit applicants and employees to a) observe religious and grooming practices; b) observe religious prohibitions against wearing certain garments; or c) adhering to shaving or hair length observances, when doing so is a reasonable accommodation to such practices and does not cause the employer an undue hardship. Abercrombie failed to take these measures and that is why it is in this particular situation. (Click here to read an article I wrote for the June 2014 Staffing Industry Review on this issue.)
Abercrombie’s argument? Since Ms. Elauf never gave them actual notice that she would need accommodations for her religious practices, Abercrombie wasn’t obligated to accommodate her. While the District Court disagreed, the 10th Circuit Court of Appeals reversed the District Court’s ruling and sided with Abercrombie. The issue now before the Supreme Court: What constitutes actual knowledge of an employee’s need for an accommodation based on religious practices? Must an employee explicitly say the magic words, to trigger the employer’s obligation, or, if there is enough objective indications to put an employer on notice will that be sufficient?
Courts have interpreted other federal statutes such as the ADA and the FMLA in such a way that holds the employer responsible when it has enough objective indication of the need for an accommodation, even when the employee doesn’t say the magic words–and there, in my humble opinion, lies the problem with Abercrombie’s position: The fact that the interviewer: a)saw the hijab: b)consequently assumed Ms. Elauf was a practicing Muslim; c) raised the issue with a district manager, who d) advised the interviewer not to hire her because the hijab would violate the dress code, shows, implicitly, that Abercrombie & Fitch was already aware of and assumed that Ms. Elauf would seek such an accommodation. On the other hand, if the Court sides with Ms. Elauf, are we headed down a slippery slope? Short of an employee request, what factual indications will be sufficient to put an employer on notice? While no date has yet been set for oral argument, a decision is expected sometime in June 2015. (Item: Abercrombie has settled similar cases to this one and has since revised its dress code to address the very issue of exceptions for religious accommodations.While I assume they have their reasons, it is interesting that it has nonetheless decided not to settle this one.)
Young v. UPS, is a Pregnancy Discrimination case that I wrote about here , so I will not weigh you down by repeating the facts. The Court will hear oral arguments on December 3, 2014. The issue before the court is whether a “pregnancy-blind policy” that limits physical accommodations to employees either a) injured on the job; b) legally defined as “disabled” under the ADA (this case arose before the ADAAA went into effect); or c) stripped of their federal Department of Transportation certification is lawful or a violation of the Pregnancy Discrimination Act (PDA). Ms. Young argues that the PDA requires reasonable accommodations(in this case light duty assignments) for pregnant workers if it provides similar accommodations to other employees in other circumstances. UPS argues that it does not provide such accommodations to other non-pregnant employees who do not meet the above criteria and therefore its policy does not violate the PDA. However the court rules, be aware that many states’ requirements of reasonable accommodations to pregnant workers exceed those of the federal PDA. In those states, the outcome of this case may, as a practical matter, be less pressing.
Stay tuned! The Emplawyerologist will discuss these cases after the Supreme Court decides them!
That still leaves four other employment law cases before the US Supreme Court. One of them is about whether time spent passing through security clearance at each end of the work day is compensable time. We’ll look at that case next week!
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
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