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More about EEOC v. Abercrombie & Fitch Stores

Cato has now posted the video of its annual Constitution Day conference including the civil rights panel, on which I spoke. My talk on EEOC v. Abercrombie & Fitch, the hijab religious-accommodation case, begins at 40:30, after presentations by William Eskridge of Yale Law School on the Obergefell (same-sex marriage) case, and Roger Clegg of the Center for Equal Opportunity on disparate impact in fair housing. Roger Pilon of Cato introduces us and moderates.

You can read my article on the Abercrombie case here, part of the newly published 2014-2015 Cato Supreme Court Review. I’m also quoted in the ABA Journal’s coverage of the case. Earlier here.

EEOC v. Abercrombie & Fitch: employers as mind-readers

The Supreme Court is considering the case of a woman who sued torrid-youth retailer Abercrombie & Fitch, saying it discriminated against her based on religious belief when it failed to waive its “Look Policy,” in which sales personnel are expected to wear only clothes sold by the store, to accommodate her modesty headscarf. Never mind whether this demand would be a reasonable one in itself; the case has gone up to the U.S. Supreme Court in large part because of a second issue, whether the store was legally obliged to grasp the situation intuitively as based on religion and pre-emptively accommodate Samantha Elauf “even though Elauf never informed them that she would need a religious accommodation.” A district court ruled that it was so obliged, the Tenth Circuit reversed, and now the Supreme Court is hearing the case at the EEOC’s request.

Requiring employers to offer a religious accommodation before they are on notice that one is sought requires them to act on “crude stereotypes or pry into employees’ personal lives,” write Ilya Shapiro and Julio Colomba. Not all employee requests on subjects such as modesty, diet, or weekend attendance are associated with religious affiliation and observance, while conversely many persons with genuine or sincere religious affiliation or belief do not conform to stereotypical expectations about what their religion might require of them in the workplace. Individual employees are thus “in a significantly better position to identify conflicts than employers.” The Cato Institute has filed an amicus brief on Abercrombie’s side arguing that the Court should reject the EEOC’s position as unworkable, unfair, and not required by the statute.

Related: Eugene Volokh has been posting on religious-exemption and religious-accommodation law at Volokh Conspiracy. For those who imagine, reading the Hobby Lobby and state-RFRA coverage, that religious exemptions have mostly been favored by conservatives over liberal opposition, he reminds us that the actual history is nearer the opposite. And he explains why his own view is that an optimal approach would include a mix of legislatively and judicially crafted (consistent with legislative wishes) religious exemptions and accommodations, but not necessarily a constitutional entitlement to accommodation.

Supreme Court rules for Abercrombie hijab claimant

I’ve got a new post up at Cato about the Supreme Court’s decision in EEOC v. Abercrombie & Fitch Stores Inc. The Court’s 8-1 ruling on fairly narrow grounds in favor of the headscarf-wearing claimant isn’t very surprising, for reasons I explain in the piece. The ruling could expose employers to more liability, particularly of the sued-if-you-do, sued-in-you-don’t variety, since it encourages employers to pry into employees’ religious views or adopt stereotyped views about what their religious scruples should be presumed to be. Still, eight Justices were content to resolve the dispute on relatively dry statutory interpretation grounds, with only Justice Clarence Thomas interested in interrogating the law at a more fundamental level. (Why, he wonders, is equal treatment based on non-religious considerations now considered “intentional discrimination” based on religion?)

P.S. More coverage: Daniel Fisher, Daniel Schwartz, Philip Miles. (More: Marci Hamilton.) And when might a National Review author favor limiting private employers’ liberty? When it’s a religious discrimination case.

Claim: Abercrombie wouldn’t hire hijab wearer

The apparel chain, famed for the immodesty of its catalogues and advertising, has an “Abercrombie Kids” division; the allegation is that one of its Oklahoma store managers didn’t think an Islamic religious headscarf would fit the desired employee image. The local chapter of the Council on American-Islamic Relations says it has filed an EEOC complaint on her behalf. (PRNewswire/Breitbart, Jul. 31).

P.S. For another suit involving traditional Middle Eastern garb, see Jun. 17 (claim of right to wear loose-fitting garments around food machinery).

Labor and employment roundup

  • Just another day on the one-way-attorney’s-fee beat: after $87K cop-discrimination verdict, lawyer wants $2.2M award [NJ.com]
  • U.S. Chamber white paper on needed fixes in labor law [Jon Hyman and report, “Restoring Common Sense to Labor Law: 10 Policies to Fix at the National Labor Relations Board”]
  • California employee-seating class actions begin paying off, $700,000 against Abercrombie & Fitch [Ford Harrison, earlier]
  • And good riddance: Trump signs CRA bill repealing labor blacklisting rule for federal contractors [Kathy Hoekstra/Watchdog, Trey Kovacs/CEI, Ford Harrison, earlier, background via PLF]
  • Trend worth resisting, if true: transnational norms emanating from International Labour Organization etc. said to be increasingly shaping U.S. labor law [James Brudney via Employment Law Prof]
  • To protect free speech and jobs, cut the EEOC’s budget [Hans Bader]

Workplace religious accommodation, cont’d

A Muslim flight attendant has filed an EEOC complaint against ExpressJet; among her allegations are that the company has not adequately accommodated her desire not to serve alcohol to patrons, even though she says an arrangement under which she handed off that task to colleagues had previously proved workable [CBS Detroit] Eugene Volokh has a lengthy explainer on workplace religious accommodation, and argues that Kim Davis would have had a more colorable legal case had her lawyers filed under Kentucky’s state Religious Freedom Restoration Act (RFRA). And at Cato’s Constitution Day on September 17 I’ll be discussing my forthcoming piece on EEOC v. Abercrombie & Fitch, the hijab-accommodation case.

Supreme Court and constitutional law roundup

  • Supreme Court grants certiorari (as Cato had urged) in Friedrichs v. California Teachers Association, on First Amendment rights of individual public employees against unions, potentially major sequel to Harris v. Quinn (our coverage) and Knox v. SEIU (our coverage). More: Jason Bedrick, Cato;
  • More First Amendment: On same day, high court says Texas can turn down Confederate-flag license plates but that town of Gilbert, Ariz. impermissibly took content into account in regulating roadside signs [Lyle Denniston; Eugene Volokh on Gilbert and earlier, and on license plates] Ilya Shapiro has a wrap-up of other end-of-term cases;
  • Paging judicial-independence buffs: study finds Obama stands out for aggressive comments on pending SCOTUS cases [W$J via Jonathan Adler]
  • Abercrombie v. EEOC followup (earlier): If Thomas’s dissent has the courage of its convictions, maybe it’s because he was longest-serving chairman in EEOC history [Tamara Tabo] “SCOTUS requires employers to stereotype in ruling for EEOC in hijab-accommodation case” [Jon Hyman] Yes, employers can still have dress codes, but read on for the caveat [Daniel Schwartz]
  • “Illinois Uses Racial Preferences for No Good Reason,” Seventh Circuit take note [Ilya Shapiro and Julio Colomba, Cato]
  • Feds can refuse to register a “disparaging” trademark. Consistent with the First Amendment? [Shapiro, Cato]
  • More from Ilya Somin on anniversary of eminent domain Kelo v. New London decision [one, two, more]

Post-trial maneuvering in a discrimination verdict

In March a San Francisco jury returned a defense verdict in Ellen Pao’s widely publicized sex discrimination suit against Kleiner Perkins. As so often when a lawsuit story sounds over, however, that’s been just the prelude to further wrangling over a possible settlement: Kleiner says Pao has demanded $2.7 million in exchange for not pursuing an appeal, while Kleiner, citing a spurned pre-trial offer that it says triggers the operation of California’s offer-of-settlement law, has asked a court to order Pao to pay nearly $1 million in expert witness fees and other costs. Davey Alba at Wired reports and quotes me on several aspects.

Last week CBS radio quoted me on another high-profile discrimination suit, EEOC v. Abercrombie & Fitch Stores LLC, the headscarf accommodation case:

Supreme Court roundup

Very Cato-centric this time:

  • Perez v. Mortgage Bankers: yes, agencies can dodge notice and comment requirements of Administrative Procedures Act by couching action as other than making new rule [SCOTUSBlog and more links, earlier; Michael Greve and followup; Daniel Fisher on concurrence by Justices Scalia, Thomas, and Alito and related on Thomas, Alito concurrences in Amtrak case]
  • New Jersey high court is unreasonably hostile to arbitration clauses, which raises issues worthy of review [Shapiro on Cato cert petition]
  • “When Wisconsin Officials Badger Their Political Opponents, It’s a Federal Case” [Ilya Shapiro, earlier here, here, etc.]
  • Richard Epstein on King v. Burwell oral argument [Hoover, earlier]
  • With Profs. Bill Eskridge and Steve Calabresi, Cato files probably its last same-sex marriage brief before SCOTUS [Shapiro; Timothy Kincaid, Box Turtle Bulletin]
  • On Abercrombie (religious headscarf) case, Jon Hyman sees an edge for plaintiff at supposedly pro-business Court [Ohio Employer Law Blog, earlier]
  • A different view on Fourth Amendment challenge to cops’ warrantless access to hotel guest registries [James Copland on Nicholas Quinn Rosenkranz brief; earlier Cato amicus]
  • “Why the Court Should Strike Down the Armed Career Criminal Act as Unconstitutionally Vague” [Trevor Burrus]