Eight of Nine Justices Agree: Religious Discrimination Claim against Abercrombie Lives On

In an almost unanimous decision, the United States Supreme Court issued an opinion yesterday allowing the former 17 year-old Abercrombie & Fitch applicant who attend her interview wearing a hijab to continue her religious discrimination claim against the company.

Samantha Elauf, the job-seeker and hijab-wearer, applied for a sales an Abercrombie & Fitch store in 2008. While she nailed the interview, Abercrombie refused to hire Elauf because she wore a hijab. According to Abercrombie & Fitch at the time, Elauf’s religious headscarf did not meet the “look policy,” which bans hats, required to work as a sales person at the company.

Elauf did not take this rejection letter sitting down. With the help of the U.S. Equal Employment Opportunity Commission, Elauf sued the retailer for religious discrimination. Title VII of the Civil Rights Act of 1964, among other matters, prohibits employers from refusing to hire an applicant because of that applicant’s religious beliefs. Title VII also requires employers to reasonably accommodate employees’ religious beliefs.

So what possible defense could Abercrombie offer at this point, keeping in mind that scantily dressed models do not provide a legal defense to religious discrimination?

Answer: knowledge. Or, more accurately, lack thereof.

Abercrombie argued that it could not have known to make a religious accommodation to its “look policy” because Elauf never requested one. Eight of the nine judges did not buy this argument, finding that the only relevant question was whether Elauf’s headscarf was a “motivating factor” in Abercrombie’s decision not to hire the applicant.

Writing for the majority, Justice Antonin Scalia stated that “[m]otive and knowledge are separate concepts.” Justice Scalia further wrote that “an employer who acts with the motive of avoiding accommodation may violate [the law] even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”

Fellow member of the conservative group of the Supremes (a.k.a. the Supreme Court justices), Justice Samuel Alito posed a question during the February 2015 oral arguments that made Abercrombie’s “lack of knowledge” defense sound like a joke.

“So the first is a Sikh man wearing a turban. The second is a Hasidic man wearing a hat. The third is a Muslim woman wearing a niqab. The fourth is a Catholic nun in a habit. Now, do you think…that those people have to say, ‘We just want to tell you, we’re dressed this way for a religious reason. We’re not just trying to make a fashion statement’?” Justice Alito asked.

The bottom line for business owners is this: “the applicant did not ask for a religious accommodation” is not necessarily a defense to a religious discrimination case. The Supreme Court appears to be sending a message that, when it is obvious that an applicant may request a religious accommodation, the employer cannot refuse to hire an applicant because of that potential accommodation, then avoid liability because of a technicality.

The Hobby Lobby Decision: What does it really say?

Besides the United States’ unexpected, and truly awesome, performance in the World Cup, the topic that has attracted the most attention and commentary this week is the already infamous US Supreme Court Hobby Lobby decision.

Unfortunately, much of the information being disseminated does not accurately report what actually happened in the case or what the Supreme Court actually decided.

So what does the Hobby Lobby decision really say?

Let me break it down for you.

The laws at play:

The Religious Freedom Restoration Act of 1993 (the “RFRA”) prohibits the government from substantially burdening an individual’s exercise of religion, even if the burden arises from a general rule (as opposed to a rule specifically targeting religion or the exercise of religious beliefs). As of 2000, when it was amended by the Religious Land Use and Institutionalized Persons Act of 2000, the RFRA also includes “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”

The lawsuit:

The owners of three (3) closely held, for-profit corporations sued the federal Department of Health and Human Services (among other agencies).

The lawsuits claimed that the requirement under the Patent Protection and Affordable Care Act of 2010 (the “ACA”) that a corporation must provide employees access to contraceptives designed to prevent the development of an already fertilized egg violates the sincerely held religious belief of the owners (not of the corporation) that life begins at conception. Thus, the owners argued, this portion of the ACA violates their rights under the RFRA and the Free Exercise Clause.

Points to know:

  • The Decision Only Applies to Contraceptives that Prevent an Already Fertilized Egg from Further Development.

The ACA generally requires non-exempt employers to provide twenty (20) separate types of contraceptives approved by the federal Food and Drug Administration. Only four (4) of the twenty (20) contraceptives are designed to prevent an egg that has already been fertilized from attaching to the uterus wall and developing further (i.e., the “morning after pill” and IUDs).

The three (3) lawsuits only objected to those four (4) contraceptives designed to prevent a previously fertilized egg from further development.

The Hobby Lobby decision does not affect the remaining sixteen (16) contraceptives designed to prevent the fertilization of an egg. The Supreme Court’s decision thus does not prevent Hobby Lobby employees from access to those forms of contraceptives, nor does it release Hobby Lobby (and other qualifying corporations) from the responsibility to provide insurance coverage for those remaining sixteen (16) contraceptives.

  •  The Decision Only Applies to For-Profit, Closely Held Corporations.

The Hobby Lobby decision does not exempt all employers from the contraceptive requirements of the ACA; rather, it only applies to closely held corporations. Generally, a “closely held corporation” is one owned by a small number of individuals. The Internal Revenue Service defines “closely held corporation” as a corporation where (i) five (5) or fewer people own more than fifty percent (50%) of the company’s outstanding stock at any time during the last half of the tax year, and (ii) the company is not a personal service corporation. Thus, the employees of publicly traded companies (like Coca-Cola) are not affected by the Hobby Lobby decision.

The Future of Hobby Lobby

The Supreme Court’s majority opinion in Hobby Lobby clearly limits the scope of its decision to closely held, for-profit corporations. Justice Ginsberg’s dissent, however, hints at a potential broader application of the Hobby Lobby decision by identifying other cases from courts across the nation where “commercial enterprises [have sought] exemptions from generally applicable laws on the basis of their religious beliefs.”

Justice Ginsberg questions whether this particular decision will also apply to other religious-based objections to the ACA’s requirements, such as blood transfusions, antidepressants, medications derived from pigs (such as anesthesia, intravenous fluids, or pills coated with gelatin), and vaccinations.

Of course, it is impossible to predict exactly how the Hobby Lobby decision will be applied by state legislatures and courts, or whether publicly traded companies will challenge the ACA under the same arguments as the three (3) closely held corporations. A savvy business owner, however, will remain cognizant of any new developments stemming from the Hobby Lobby decision or other objections to the ACA.

If you are ever in any doubt about how a state or federal law or recent court decision may impact your business, speak to a business attorney at Briskin, Cross & Sanford.  Our business is to know.

Water, Water, Everywhere – Or Is it Firearms? What Georgia businesses need to know about the Safe Carry Protection Act

Samuel Taylor Coleridge wrote the line “Water, water everywhere/and all the boards did shrink…” in his epic poem “The Rime of the Ancient Mariner,” but is “firearms, firearms, everywhere/and all the businesses did shirk” now more applicable for Georgia businesses?

The Georgia Safe Carry Protection Act (a.k.a., the “Guns Everywhere” law) goes into effect today, July 1, 2014. These new laws substantially expand the rights of licensed gun owners to carry their guns into myriad locations previously barred to those carrying firearms. Some of the new gun-friendly places may surprise you, as they include bars, public housing, government buildings without screening checkpoints, and churches (with the permission of the church’s governing body).

Most importantly for private businesses, the Safe Carry Protection Act reinforces the rights of both licensed and unlicensed gun owners to carry guns in their private (non-company owned) cars and trucks. Practically, both the Act and the 2010 Business Security and Employee Privacy Act not only allow employees to bring firearms onto a private employer’s parking lot but also bar employers from prohibiting concealed guns on their property.

Georgia law also limits the ability of private employers to search locked, privately owned vehicles owned by both employees and their invited guests.

So what is an employer to do?

  1. First, business owners with should determine whether or not their businesses are subject to the new Safe Carry Protection Act and/or the Business Security and Employee Privacy Act, as these laws do not apply to all types of businesses.
  2. Next, companies subject to one or both of these laws then should reevaluate any firearm policies to make sure they comply with Georgia law.
  3. Finally, business owners should contact their commercial insurance representative to ensure that the current policy covers any potential liability created by the Safe Carry Protection Act or the Business Security and Employee Privacy Act.

If, as a business owner, you are ever unsure how a new (or existing) state or federal law, or perhaps a new court decision you may have read or heard about in the news, applies to your business, that would be a great time to pick up the phone and talk to a business attorney at Briskin Cross and Sanford.

The End of the “Pomegranate Blueberry Flavored Blend of 5 Juices”

Imagine this…

You are sitting poolside, enjoying a bottle of Minute Maid’s “Pomegranate Blueberry Flavored Blend of 5 Juices” when you happen to look at the ingredients.

It slowly dawns on you the the self-described “Pomegranate Blueberry Flavored Blend of 5 Juices” only in fact contains about 0.3% pomegranate juice and 0.2% blueberry juice.

You are outraged!

How can Minute Maid and its owner, Coca-Cola, get away with such misleading labels?

The good news is that they no longer can, thanks to POM Wonderful, LLC and a unanimous U.S. Supreme Court.

It begins (as it always does) with a lawsuit. POM Wonderful sued Coca-Cola, alleging that Coke’s label for its “Pomegranate Blueberry” juice deceives buyers into believing that the juice primarily contains both pomegranate and blueberry, thus violating Section 43(a) of the Lanham Act (which addresses situations where one company’s false advertising is causing harm to another competing business).

Coke’s response to the lawsuit was simple: its “Pomegranate Blueberry Flavored Blend of 5 Juices” label complied with the Food, Drug and Cosmetic Act (the “FDCA”) regulations, which trump the Lanham Act. Thus, Coke argued, if its label complies with the FDCA, it cannot be liable under the Lanham Act.

In a rare, and, dare we say, juicy unanimous decision, the U.S. Supreme Court sided with POM Wonderful (interestingly, it has been reported that Justice Kennedy stated during oral arguments that he was also misled by Minute Maid’s “Pomegranate Blueberry” label).

Now, a company harmed by a competitor’s false or misleading marketing of a food or beverage product can file a lawsuit under the Lanham Act, even if the marketing labels are regulated by the Food and Drug Administration and comply with the Food, Drug and Cosmetic Act.

The U.S. Supreme Court’s recent decision will have companies in the food and beverage industry scrambling to review, and possibly revise, their labels and marketing materials. Of course, this decision has farther reaching implications than just for Minute Maid and its competitors since the Supreme Court’s decision could conceivably apply to other businesses regulated by federal laws… like alcoholic beverages, transportation, even pharmaceuticals.

If you are concerned that your product label does not properly describe your product, or perhaps a competitor’s label falsely describes your competitor’s product and puts you and other honest businesses at a disadvantage, consult a trademark attorney at Briskin Cross and Sanford… before, not after, someone squeezes your juciebox for you.

Unemployment benefits and domestic violence victims: an unlikely duo

Pay attention, Georgia employers. In an unexpected turn of events, the Georgia Court of Appeals in Scott vs. Butler, et. al. (June 4, 2014) recently decided that Georgia employees who are also domestic violence victims may receive unemployment benefits if the employee quits because the attacker contacts or seeks the employee at work.

This is true even if the employer did not create or contribute to the dangers affecting the employee.

Employees in Georgia are generally denied unemployment compensation if the employee, without good cause, voluntarily quits or leaves employment. Georgia law does allow unemployment benefits when the former employee becomes unemployed through no fault of their own.

This new basis for unemployment benefits started with a claim filed by Latresha Scott against Variety Stores, Inc. Ms. Scott had a violent history with her ex-boyfriend, who had been arrested on multiple occasions for physically attacking Ms. Scott (including kicking her in the stomach during her pregnancy) and even attempting to strangle Ms. Scott with a belt shortly after she delivered their younger child.

Despite myriad restraining orders, the ex-boyfriend found Ms. Scott’s place of employment with Variety Stores, Inc. and began contacting her there. Ms. Scott ultimately resigned from Variety Stores, Inc. because she did not feel safe coming to work, and filed for unemployment compensation.

Scott’s employer opposed the claim, citing the fact that Scott had resigned voluntarily from her position at no fault of the employer.  A hearing officer found in favor of the employer and denied Scott’s application, ruling that, while Scott “may have considered the work environment to have been difficult,” she had “the burden to do whatever a reasonable person would do to retain her employment.”  Hence, since her resignation was based upon “personal reasons” and not a good, work-connected cause, she was not entitled to unemployment compensation.  The Board affirmed the ruling, and the Superior Court of Fulton County subsequently affirmed the Board’s decision.

The Georgia Court of Appeals, however, reversed the Board’s finding on the basis that, even though the employer did not create or contribute to the dangers Scott faced, to deny someone benefits in such circumstances as Scott’s would effectively be to force her to work in a dangerous environment and would place her and others at risk of violence due to circumstances that beyond their control.

The bottom line for employers is this: if a domestic violence victim quits because her or his attacker seeks out the victim at work, the employer will most likely be on the hook for unemployment benefits.

If you are ever in doubt as to whether or not you are liable for unemployment benefits when one of your employees leaves, take the time to speak with an employment lawyer at Briskin, Cross & Sanford to see what both your rights and your obligations may be under this ever changing area of law.

New Facebook Message: You’ve Been Sued!

Does service of a civil lawsuit count if the defendant is personally handed the legal papers? Absolutely, as long as the person serving the papers is permitted to do so (different courts have different rules).

Does service count if the legal papers are handed to the defendant’s 27 year-old brother who lives with the defendant? Maybe.

But what about legal papers served on the defendant through the defendant’s personal Facebook account?

The answer is some countries is yes, a defendant can be served through a personal Facebook page.

Until quite recently, courts in the United States have refused to allow service through Facebook, citing concerns that doing so would deny defendants due process and actual notice of the lawsuit, which is required by the Constitution and related federal and state laws.

But in March 2013, a court in the Southern District of New York addressed the Federal Trade Commission’s request to serve non-U.S. defendants through email and Facebook after struggling to serve the foreign defendants personally. The judge ultimately granted the request, noting that while service through email alone satisfied the due process and notice requirements, service only through Facebook may not.

The U.S. is not the first country to tiptoe into the land of service via social media. In 2008, Australia allowed service on defendant debtors through Facebook when the attorneys were able to match the defendants’ birth dates, friends, and email addresses on the Facebook pages to their loan applications.

A year later a Canadian court allowed service on the defendant through the HR department of the defendant’s former employer and through the defendant’s private Facebook page. A New Zealand court also approved this method. The United Kingdom’s High Court has allowed service of an injunction on an anonymous blogger through a Twitter account, and Australia has allowed service through text message. All of these countries have similar due process and notice requirements as the United States.

Service of process can be tricky.  It can vary not only from country to country, but from state to state, county to county, and even court to court.  However, just because some courts have shown a willingness to move the law in new directions with the proliferation of social media, this does not mean that they have yet come to anything like a clear consensus.  Since service of process is one of the initial steps in asserting your rights in court, be sure you get it right.  Talk to a litigation attorney at Briskin, Cross and Sanford if you are in any doubt.

The neverending cycle: bankruptcy and homeowner/condominium association dues

When the economy took a dive in 2007 taking the housing market with it, hundreds of thousands of Americans, walked away from homes and condominiums and declared bankruptcy to get out from under unmanageable debt.

But what about those homeowner association and condominium dues? Who is responsible for those? Common sense might lead you to think that the bank that holds the mortgage would be on the hook for association dues, too.  After all, the home was “given back” to the bank… wasn’t it?

Well… Not so fast. Under bankruptcy law, the owner of the house or condo remains personally liable for all homeowner association and condominium dues that accrue after the bankruptcy was filed and before legal title passes from the owner to the bank.  Due to a glut in inventory, many banks have been slow to actually take title to the property from the former borrower, and until they do, condominium association dues and fees owed continue to tick up.

To make matters worse, the homeowner or condominium association has four years to file a lawsuit against the owner under Georgia law, O.C.G.A. §9-3-29. If the association files the lawsuit before the expiration of those four years, the dues and fees continue to accrue during the lawsuit, assuming the bank does not successfully foreclose on or sell the property, causing legal title to transfer from the owner.

The result can be a perfect storm for a property owner, who, after discharge from bankruptcy, may once more be facing a judge with thousands of dollars in past-due association fees and dues and very limited options for relief, if any, from a potentially unbearable debt.