EMPLOYERS NEED TO BALANCE MOTIVE, KNOWLEDGE, AND RELIGION IN DRESS CODES TO AVOID CHARGES OF RELIGIOUS DISCRIMINATION

On June 1, 2015 the United States Supreme Court issued its opinion in the much publicized case, EEOC v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028 (2015).  In this case, Samantha Elauf, a 17 year old Muslim girl, wore a hijab, a religious headscarf, when interviewing for a sales associate position at an Abercrombie & Fitch location in 2008.  Abercrombie’s “Look Policy” at the time, which was essentially its dress code, prohibited sales associates from wearing “caps”, a loosely defined term which Abercrombie apparently construed to include all headwear.  Using Abercrombie’s ordinary system for evaluating applicants, Heather Cooke, the assistant manager who interviewed Elauf, rated Elauf highly enough to qualify her to be hired.  However, Cooke was concerned that Elauf’s hijab violated the Look Policy.  After the store manager that she worked under was not able to provide her with guidance on the subject, she turned to Randall Johnson, the district manager.  Cooke told Johnson that she believed that Elauf wore her hijab for religious reasons although Elauf had not explicitly communicated that to her.  Johnson told Cooke that Elauf’s hijab violated the Look Policy regardless of whether it was worn for religious reasons.  Elauf was subsequently rejected for the sales associate position and filed a charge with the EEOC.  The EEOC brought suit on behalf of Elauf, and the United States District Court for the Northern District of Oklahoma granted the EEOC’s motion for summary judgment on liability.  A trial was held on damages, and Elauf was awarded $20,000.

The Tenth Circuit reversed and granted summary judgment for Abercrombie on the basis that no evidence was presented showing that Abercrombie had been provided with explicit notice that Elauf was religiously obliged to wear the hijab.  The assistant manager interviewing Elauf assumed that she wore the hijab because she was Muslim, but Elauf never explicitly stated as such.  The EEOC argued that Elauf was not legally required to do so because the requisite notice is established when the employer has actual knowledge of an employee’s religious practice even if there was no explicit accommodation request, a stance which was adopted by the Seventh, Eighth, Ninth, and Eleventh Circuits.  Thus, the EEOC appealed to the Supreme Court to resolve this issue once and for all.

In an 8-1 decision, the Supreme Court ruled in favor of the EEOC, holding that for a plaintiff to prevail in a disparate treatment claim under Title VII of the Civil Rights Act, a job applicant need not show that her employer knew of her need for an accommodation.  Rather, she need only show that her need for an accommodation was a motivating factor in the employer’s decision, whether or not it could be proven that the employer actually knew of the need.  Justice Thomas was the lone dissenter.  The majority opinion, written by Justice Scalia, began its analysis by reviewing 42 U.S.C. § 2000e-2(a)(1), which makes it unlawful for an employer to “fail or refuse to hire or to discharge any individual…because of such individual’s race, color, religion, sex, or national origin.”  The Court then notes that under Title VII “because of” means that a protected characteristic cannot be a motivating factor in an employment decision.  The Court deemed it “significant” that § 2000e-2(a)(1) makes no mention of a knowledge requirement, while other antidiscrimination statutes, such as the Americans with Disabilities Act do in certain situations.  Rather, Title VII is focused on the employer’s motives, not its knowledge or lack thereof.  Thus, as the Court says, “the rule for disparate treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

Furthermore, the Court rejected Abercrombie’s argument that its prohibition on the wearing of “caps” was lawful because it was religiously neutral.  In other words, it was not in any way based on religion or intentionally discriminating against or favoring one religion over another.  However, the Court considered that irrelevant as Title VII does not demand mere neutrality with regard to religious practices but rather gives them favored treatment that affirmatively obligates employers to ensure that employment decisions are not being made on the basis of religion.  As a result, “Title VII requires otherwise-neutral policies to give way to the need for an accommodation.”  This is extremely important for employers to keep in mind when designing and enforcing dress codes, particularly when using them as factors in employment decisions.

In Justice Alito’s concurring opinion, he stated that while he agreed with the majority’s decision to reverse the Tenth Circuit’s decision granting summary judgment for Abercrombie, he did not agree with the majority’s determination that an employer’s knowledge of an applicant or employee’s potential need for a religious accommodation was not required.  After all, how could it be determined that an employer used religion as a motivation in an employment decision without showing that the employer actually knew about the applicant or employee’s religion?  It seems that the disagreement between the majority and Justice Alito on this issue comes down to what one defines as “knowledge”.  When the majority spoke of “knowledge”, it seemed to be referring to the type of knowledge that Abercrombie was arguing was required: explicit knowledge of the need for a religious accommodation provided directly from the employee.  Alito, on the other hand, seemed to be referring to “knowledge” as any such knowledge in general, even if nothing more than an unsubstantiated suspicion of the need for a religious accommodation.  It seems that Alito’s fear was that by simply stating that knowledge was not required, the majority was broadening the pool of potential liability to employers who did not even have any suspicion of an employee’s religion and potential need for a religious accommodation.  In a footnote, the majority conceded that it is arguable that the motive requirement itself cannot be met unless the employer at least suspects that the practice in question, such as the wearing of a headscarf, is a religious practice.  However, it refrained from elaborating on that issue any further as it was not presented in this matter since it was clear that Abercrombie at least suspected, if not knew, that Elauf’s headscarf was worn for religious reasons.  This could very well be an issue that comes before the Court in a future case.

Following the Supreme Court’s decision to remand the case, the EEOC and Abercrombie reached a settlement where Abercrombie agreed to pay Elauf $25,670.53 in damages and $18,983.03 in court costs.

While this decision is understandably frightening to some employers who fear that they may be held liable for religious discrimination when they did not suspect that an applicant or employee wore an item of clothing as a religious practice, that may not be the case.  The bottom line for employers is to be vigilant about the potential need for a religious accommodation and remember that any potential conflict between an applicant or employee’s religion and dress code or any other company policies should be attempted to be resolved through accommodations if at all possible.  An earnest effort to engage in good faith dialogue regarding potential accommodations will typically reflect very well on an employer in the unfortunate event that such a conflict ends up in litigation.  Furthermore, employers should make it clear to applicants from the beginning of the application process that it will try to accommodate all religious practices and beliefs to the fullest extent that is feasible.

While the law allows employers to enforce their policies without accommodating an applicant or an employee’s religious beliefs or practices in the occasional circumstance when it can be shown that doing so would impose an “undue hardship” on the employer, for the vast majority of the time, simple and open communication between the employer and applicant or employee will resolve the conflict without resorting to the unforgiving world of costly, protracted litigation.

Here is an article by Faye Riva Cohen, Esquire and Shan R. Shah, Esquire of my firm.  This article was originally published in Upon Further Review as its featured article on August 25, 2015.

McCutcheon v. FEC: The Effect on Campaign Finance

The Federal Election Campaign Act of 1971 (FECA), as amended by the Bipartisan Campaign Reform Act of 2002 (BCRA) imposes two types of limits on campaign contributions: (1) base limits, which restrict how much money a donor may contribute to a particular candidate or committee, and (2) aggregate limits, which limit the total amount of money a donor may contribute to all candidates and/or committees.  For the 2013-2014 election cycle, BCRA capped individual contributions to candidates at $2,600 in each the primary and general election. Individuals were additionally prevented from donating more than $32,400 to a national party committee, $10,000 to a local party committee, and $5,000 to a political action committee.   For the 2013-2014 election cycle, the law further capped aggregate contributions to federal candidates and political committees at $123,200.  Specifically, individuals could not contribute more than $48,600 to federal candidates and $74,600 to other political committees.

During the 2011-2012 election cycle, Sean McCutcheon, a businessman from Alabama, contributed to sixteen different federal candidates.  He would have preferred to keep donating to additional candidates and political action committees, but BCRA prevented him from doing so.  As a result, he challenged the constitutionality of the Act’s aggregate limits.  McCutcheon, et al v. Federal Election Commission eventually made its way to the Supreme Court, resulting in its most recent headline-grabbing ruling.

Campaign finance law is generally dependent on the distinction between expenditure limitations and contribution limitations. Independent expenditures consist of money spent by an individual on a political cause, independent of a candidate or party.  A contribution, however, is money that an individual specifically gives to a candidate or committee.  Since both implicate First Amendment interests, a reviewing court is to afford each a heightened level of scrutiny.  In Buckley v. Valeo, the Supreme Court ruled that limits on expenditures would be subjected to “the exacting scrutiny applicable to limitations on core First Amendment rights of political expression.”  Limits on contributions would, similarly, be sustained only if the government “demonstrates a sufficiently important interest” that is “closely drawn to avoid unnecessary abridgement of associational freedoms”.

However, in McCutcheon, the Court reasoned that there was no need to determine which level of scrutiny applied, as the prohibition on aggregate limits was unconstitutional even under the “closely drawn” test.  In reaching its determination, the Court recognized that it “has identified only one legitimate governmental interest for restricting campaign finances: preventing corruption or the appearance of corruption.”  Congress may further only target “quid pro quo” corruption, which is the spending of large amounts of money “in connection with an effort to control the exercise of an officeholder’s official duties.”

The Court concluded that limits on aggregate spending do not serve to further the government’s lone interest.  Once the aggregate amount is reached, BCRA effectively “ban[s] all contributions of any amount.”  The Court found this to be especially problematic because Congress’s enactment of a $5,200 base limit shows that it believes “contributions of that amount or less do not create a cognizable risk of corruption.” Thus, the government could only defend the constitutionality of the aggregate limitations “by demonstrating that they prevent circumvention of the base limits”.   For this to be the case, individuals would have to contribute large sums of money to specific candidates through donations to different entities who are likely to support that candidate.  The Court determined that this fear was “far too speculative” and therefore failed First Amendment scrutiny.

The Court further concluded that the aggregate limits violate the First Amendment “because they are not ‘closely drawn to avoid unnecessary abridgment of associational freedoms.’”  The potential harmful effects of a blanket ban on every contribution above the aggregate limit outweigh the benefits of the government’s stated legitimate interest in preventing circumvention.  The majority of contributions made in excess of the aggregate limits are not likely to be rerouted to candidates, the Court reasoned, but rather used by their recipients. To that end, the Court suggested numerous alternative methods that Congress could enact, which would both serve the Government’s interest in preventing circumvention and avoid the “unnecessary abridgment” of First Amendment freedoms.

 Therefore, the Court concluded that the “aggregate limits on contributions do not further” the government’s interest but instead unjustifiably “intrude on a citizen’s ability to exercise” his fundamental First Amendment rights.  Thus, while individual donors are still limited in the amount of money they can donate to a specific candidate or committee, they can now contribute to as many candidates and committees as they choose.

By Lane J. Schiff, Esquire who is a former associate at my firm.  This article was originally published in Upon Further Review on April 16, 2014.

Employers Need to Balance Motive, Knowledge and Religion in Dress Codes to Avoid Charges of Religious Discrimination

Here is an article by Faye Riva Cohen, Esquire and Shan R. Shah, Esquire of my firm.  This article was originally published in Upon Further Review as its featured article on August 25, 2015, and can be seen here.

McCutcheon v. FEC: The Effect on Campaign Finance

Here is an article by Lane J. Schiff, Esquire who is a former associate at my firm.  This article was originally published in Upon Further Review on April 16, 2014, and can be seen here.