Supreme Court rules on Abercrombie's refusal to hire woman who wore headscarf

In EEOC v. Abercrombie & Fitch Stores, Inc., Case No. 14-86 (June 1, 2015), the United States Supreme Court ruled that Abercrombie was not entitled to summary judgment on a disparate treatment claim by a Muslim woman who was not hired because the headscarf she wore pursuant her religious obligations conflicted with the employer's dress code. The decision exposed a rare split between Justice Scalia (who wrote the 8-1 majority decision) and Justice Thomas (who dissented). The New York Times has reported that Scalia and Thomas agreed 91 percent of the time in decisions handed down through end of the 2013-14 term of the Court. (Comprehensive data on Supreme Court decisions is available from The Supreme Court Database.)

Abercrombie has a dress code (termed a "Look Policy") that prohibits the wearing of "caps" at work, because that is too informal for its desired image. When Samantha Elauf (a practicing Muslim who wears a headscarf) applied for a job at an Abercrombie store, an interviewer concluded that she was qualified for the job, but worried that her headscarf might conflict with the dress code. The district manager eventually directed the interviewer not to hire Elauf because her headscarf would violate the dress code.

The EEOC brought suit on Elauf's behalf in the District Court for the Northern District of Oklahoma, which granted summary judgment to the EEOC on liability, denied summary judgment to Abercrombie, and awarded $20,000 in damages after a trial. EEOC v. Abercrombie & Fitch Stores, Inc., 798 F.Supp.2d 1272 (N.D. Okla. 2011). The District Court rejected Abercrombie's claim of undue hardship if it had to accommodate the wearing of a headscarf, noting that it granted numerous exceptions to the Look Policy, and had recently granted eight or nine head scarf exceptions.

The Tenth Circuit reversed, and ordered the District Court to grant summary judgment to Abercrombie. EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106 (10th Cir. 2013). It arrived at that conclusion, because Elauf never specifically informed Abercrombie that wearing a headscarf was based on her religious beliefs, or that she would need an accommodation for that practice.

In reversing the Tenth Circuit's decision, the Supreme Court stated that Title VII's ban on religious discrimination focuses on the employer's motivation, not its knowledge. As Justice Scalia explained for the, "an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed." Justice Thomas disagreed, arguing that the refusal to hire Elauf was a mere application of the "neutral" Look Policy, which did not rest on intentional discrimination: "Abercrombie refused to create an exception to its neutral Look Policy for Samantha Elauf ’s religious practice of wearing a headscarf. Ante, at 2. In doing so, it did not treat religious practices less favorably than similar secular practices, but instead remained neutral with regard to religious practices."

The Court's decision was not a complete vindication for the EEOC. The case was sent back to the Tenth Circuit to determine whether the District Court's summary judgment for the EEOC was supported by the evidence. "On remand, the Tenth Circuit can consider whether there is sufficient evidence to support summary judgment in favor of the EEOC on the question of Abercrombie’s knowledge. The Tenth Circuit will also be required to address Abercrombie’s claim that it could not have accommodated Elauf ’s wearing the headscarf on the job without undue hardship."

California Employment Law Changes for 2013

California State Capitol, Sacramento

The Legislature and Governor Brown have completed their law-making activities for the 2011-2012 regular legislative session. The following laws that affect employers will become effective January 1, 2013:

Social media: AB 1844 bars employers from requiring or requesting an employee or applicant for employment to disclose a user name or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any personal social media. It also prohibits retaliation for not complying with a request or demand by the employer that violates the statute. There are exceptions for requests to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, and for requiring or requesting an employee to disclose a user name, password, or other method for the purpose of accessing an employer-issued electronic device. The provisions are codified in new Labor Code section 980.

Elimination of the Fair Employment and Housing Commission: SB 1038 eliminates the Fair Employment and Housing Commission as part of a broad effort to eliminate duplication in state government. It transfers the duties of the Commission to the existing Department of Fair Employment and Housing and to a newly created Fair Employment and Housing Council. It also expands specified powers of the DFEH related to complaints, mediations, and prosecutions, and provides mandatory dispute resolution at no cost.

Accommodation of religious dress and grooming practices: AB 1964 amends the Fair Employment and Housing Act's definition of religious practices that employers are required to reasonably accommodate to include religious dress and grooming practices. "Religious dress practice" shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed. "Religious grooming practice" shall be construed broadly to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed. An accommodation that would require that person to be segregated from the public or other employees is not a reasonable accommodation. No accommodation is required if it would violate the FEHA or other laws prohibiting discrimination or protecting civil rights.

Further workers compensation system reform: SB 863 amends various provisions of the Workers Compensation Act in the hopes of eliminating waste and improving efficiency. A press release from the Governor's Office described the changes and hoped for savings.

Breastfeeding: AB 2386 amends the FEHA's definition of "sex" to include breastfeeding or medical conditions related to breastfeeding. The effect is to make it unlawful for an employer to discriminate or harass an employee because she is breastfeeding or has medical conditions related to breastfeeding.

Inspecting employment records: AB 2674 requires an employer to maintain personnel records relating to the employee's performance or to any grievance concerning the employee for at least three years, and to provide a current or former employee, or his or her representative, an opportunity to inspect and receive a copy of those records within 30 days of receipt of a written request, except during the pendency of a lawsuit filed by the employee or former employer relating to a personnel matter. An employer need not comply with more than 50 requests for a copy of employee personnel records from an employee representative in one calendar month. The new requirements do apply to an employee covered by a valid collective bargaining agreement if the agreement provides, among other things, for a procedure for inspection and copying of personnel records. In the event of a violation a current or former employee may recover a penalty of $750, and obtain injunctive relief and attorney's fees.

False Claims Act: AB 2492 strengthens the California False Claims Act, which is a tool for fighting fraud and abuse by government contractors, and will enable the state to continue receiving millions of dollars in federal incentive awards for recovering Medi-Cal false billings.

Religion in the Workplace

Employees do not leave their religious beliefs behind when they go to work. But, those beliefs seldom matter to employers or fellow employees. Where religious beliefs affect dress or appearance, there may be an impact in the workplace. There may be conflicts with the employer's practices and policies or with other employees. Religious beliefs may also have an effect when employees practice their religious beliefs at work. Both Title VII and the California Fair Employment and Housing Act forbid discrimination based on religion, and require employers to accommodate their employees' religious beliefs.

This is what happened in one workplace. A female former software developer sued the defendant temporary employment agency claiming religion discrimination in violation of Title VII. The plaintiff alleged that the defendant denied her promotions because she was not a member of a religious group that the other employees belong to. The plaintiff further alleged that in a period of four years there were five management positions for which she was qualified and that four of those positions went to members of that religious affiliation. The defendant denied the allegations and claimed that the fellowship was not a religion, but a philosophical group and that the plaintiff was not a good choice to boost morale within the software group. The jury awarded the employee $647,174 in emotional distress damages, and $5,900,000 in punitive damages. Noyes v. Kelly Services, Case No. 2:02-cv-02685 (E.D. Cal. April 2008). Read the Ninth Circuit Court of Appeals decision that ordered the case to go to trial here.

Another case illustrates the circumstances under which an employer may limit an employee's practice of her religion at work. A student intern at at the Department of Children and Family Services handed out religious literature during her internship hours at the Department and shared her religious views with colleagues. After becoming concerned that the employee would not be able to separate her religious beliefs about homosexuality and abortion from her work with clients, the Department had the University to place plaintiff in a different internship at another agency. The jury agreed that the employer was right to have the intern placed in a different agency. Escobar v. Los Angeles County Department of Children and Family Services, Case No. CV060917 (C.D. Cal. April 10, 2007).

For further information on employer obligations with respect to religion, consult these sources:

1. Questions and Answers: Religious Discrimination in the Workplace (EEOC)
2. Best Practices for Eradicating Religious Discrimination in the Workplace (EEOC)
3. "Religion" portion of Case Analysis Manual (DFEH)