Search results for: Abercrombie

I’m the type of person who reads the ends of books first (which drives my book club friends crazy).  I always want to know how things turn out, which can be a little frustrating in my area of practice.  I provide advice and counsel to clients on how to deal with sticky employment situations, but I don’t always hear what happens afterwards. ( I assume things go as planned, since my clients don’t have to ask for further advice, but who knows?)

I also wonder what happens in important and interesting cases after an appeals court weighs in and reverses a lower court.  In those cases, the matter is sent back to the lower courts for further proceedings consistent with the appellate court decision, but you don’t always hear what actually happens there.  One such recent important and interesting case was EEOC v. Abercrombie & Fitch , in which the U.S. Supreme Court reversed the U.S. Court of Appeals for the 10th Circuit.  In this case, the applicant for employment did not state that her headscarf was worn for religious reasons, but the company believed that it was and it chose not to hire her because she did not fit its East Coast Preppy “Look” policy.

The 10th Circuit had held that an employer must have actual knowledge of an individual’s religious need in order to be liable for failing to accommodate that need under Title VII.  The Supreme Court reversed the 10th Circuit, however, and held that if an employer refuses to hire an individual based on its belief that she will require a religious accommodation, and she actually would need one if hired, Title VII is violated. Proof of actual knowledge is not required.

So, for those of you, like me, who wondered what happened after the Supreme Court’s ruling, the Equal Employment Opportunity Commission issued a press release, announcing that Abercrombie & Fitch had settled the case by paying $25,670 in damages to the applicant (who apparently now works at Urban Outfitters) and $18,983 in court costs.

Although it wasn’t included in the press release, I’m sure that Abercrombie & Fitch is also reworking its interview and hiring policies, and training its managers, with regard to possible religious dress accommodations – a step that other employers should also consider.  If an applicant dresses in a manner that is not compliant with the company’s dress code, it may be wise for the employer to explain the dress code and ask if the applicant can comply with it – this would likely trigger the applicant to explain any religious dress needs, enabling the employer to engage in the obligatory reasonable accommodation interactive discussion.  In fact, employers may wish to make this a generally applicable question to all applicants, so as to not target individuals based on a “perceived” religious dress requirement.

And they all lived happily ever after.  The end.

As I mentioned in a previous post, I am always curious as to how things turn out. But often as an employment lawyer, I am left in a state of ignorance. I give advice to employers on what to do in tricky situations, but don’t always hear whether my advice was implemented (I certainly hope so!) or what resulted (good things, hopefully!). And often I wonder what happens to the parties in high-profile cases – like Bostock v. Clayton County, one of a trio of cases in which the U.S. Supreme Court ruled that Title VII’s prohibition on “sex discrimination” in employment encompasses sexual orientation and gender identity.

Continue Reading Bostock v. Clayton County: The Epilogue… and What It Means for Employers (for Now)

Last Friday afternoon, I was listening to NPR. I am a loyal NPR listener and have been for many years. Sure, I know it has a liberal bias, but I always thought – in fact, trusted – that it at least got the basic facts right. Thus, I was unbelievably dismayed by a story on religious accommodations, in which NPR described the recent EEOC v. Abercrombie & Fitch case as the Supreme Court “upholding the right of a Muslim woman to wear a headscarf at work” (or words to that effect). The online version of that story, “Why Are Only Three Observant Sikh Men Serving In The Military?”, starts off with, “If a Muslim woman may wear a headscarf at work, as the U.S. Supreme Court has now affirmed, perhaps a Sikh man should be able to wear a turban while serving in the U.S. military.”

WHAT?!!! That is just wrong. Wholly and completely wrong. Under Title VII, an employer must provide reasonable accommodation for an employee’s (or applicant’s) religious needs, unless the accommodation would pose an undue hardship on the employer. This reasonable accommodation obligation includes exemptions from otherwise-applicable dress code policies to permit religious garb, including headscarves and turbans. That is the law, has been the law, and the Supreme Court’s ruling did not change this.

As we discussed in our May E-Update, the issue before the Supreme Court in the Abercrombie & Fitch case was whether an employer must have actual knowledge of an employee’s religious need in order to be liable for a violation of Title VII. In this case, the applicant did not state that her headscarf was worn for religious reasons, but the company believed that it was and it chose not to hire her because she did not fit its East Coast Preppy “Look” policy. The Court held that if an employer refuses to hire an individual based on its belief that she will require a religious accommodation, and she actually would need one if hired, Title VII is violated. Proof of actual knowledge is not required. This is very different than “affirming” the right to wear a headscarf at work.

I was so upset, I nearly hit the car in front. Yes, I know that’s a bit of an overreaction, but let me explain: NPR’s mischaracterization of Title VII and the Supreme Court’s ruling fosters a fundamental misunderstanding in NPR listeners about the law and the rights and obligations of employers and employees under that law.

This NPR story reminded me of another media moment that caused me distress. I enjoy watching “The Good Wife.” But there was an episode in which the show stated that employees are only protected under the National Labor Relations Act if they are actually seeking to unionize. THAT WAS WRONG TOO! The NLRA protects the rights of employees to engage in concerted activity regarding the terms and conditions of employment – which can include, but is not limited to, unionization. Group discussions about wages or working conditions, even where the employees are not interested in unionization, are protected!

Although I was dismayed by the error, I wrote it off as a television show, and we all know that’s fiction and that shows take liberties with accuracy. But in retrospect, and in combination with NPR’s error, I see a grave problem – the public doesn’t know any better, and they believe what they are seeing, reading, hearing is correct. They may make decisions based on this faulty understanding of the law. And that is not OK. I believe the media, whether entertainment or the news, owe it to us, their listeners, to get it right!