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.

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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.

DSM-5: What it Means and Why Employers Need to Pay Attention

The American Psychiatric Association published a new edition of the Diagnostic and Statistical Manual of Mental Disorders (aka “DSM-5”) in May 2013, which serves as guidelines to diagnose mental disorders.

The 2013 DSM-5 identifies a myriad of new mental diagnoses, including binge eating, premenstrual dysphoric disorder, and “mild neurocognitive disorder,” which rather vaguely refers to a person who may struggle a bit to learn, remain attentive, or remember things, but does not have any other mental disorder and is able to live without assistance.

So how does DSM-5 affect businesses and, more specifically, employers?  Right now, it does not. But it may soon.

The Americans with Disabilities Act and the ADA Amendments Act prevent employers from discriminating against employees because of the employee’s disability and require the employer to reasonably accommodate an employee’s disability. While DSM-5 does not directly affect the laws that comprise the ADA, it is anticipated that courts will use the expansive diagnoses identified in DSM-5 to broaden the definition of “disability” under the ADA and the ADA Amendments Act, although it will probably take several cases before it is clear how DSM-5 will affect the ADA and the ADA Amendments Act. The inevitable result will most likely be be an increase in lawsuits because of an employer’s failure to accommodate an employee’s disability.

Practically, this means that employers need to make sure that they have written guidelines and policies identifying how to apply for and accommodate employee’s requests for accommodation. Employers also need to make sure the employees handling the applications and accommodations and properly trained on how to do so.

For more information about the DSM-5 and its diagnoses, you can read the Diagnostic and Statistical Manual of Mental Disorders yourself at http://www.dsm5.org.  For assistance in protecting your business and ensuring that your employment policies comply with the law, talk to an employment lawyer at Briskin, Cross and Sanford.

Behind closed doors: good intentions or good old boys’ club?

The story goes that the Texas law firm of Scheef & Stone at one point enforced a policy that prohibited males and females from being alone together both in the workplace and outside the workplace.

While it is certainly conceivable that such a policy might have represented the firm’s (albeit misguided) attempt to avoid situations where sexual harassment might arise, according to the complaint filed against the firm by one of its female partners, the unwanted effect of this policy was actually to build a segregated workplace that harmed the firm’s female employees rather than protected them.

The complaint filed against Scheef & Stone alleges that this policy effectively created a workplace culture where male attorneys worked, and even socialized, primarily if not exclusively, with other male attorneys, shutting out female lawyers and hindering their ability to develop professional relationships within the firm.  The result, it was alleged, was greater opportunity for male rather than female attorneys and ultimately lower pay for the the women lawyers in the firm.  Scheef & Stone denied the allegations, including implementing a “closed doors” policy, claiming that the plaintiff simply disagreed with the firm’s business decisions, which it said were not based on gender.

While Georgia employers with similar (formal or informal) policies may think that they can breathe a small sigh of relief in that the complaint against Scheef & Stone was filed under the Texas Commission on Human Rights Act and not a state or federal law available to Georgia plaintiffs, the issues raised by the case are certainly relevant to business in all states, including Georgia. Any employer with fifteen (15) or more employees is subject to Title VII of the Civil Rights Act of 1964, which prohibits any form of discrimination based on an employee’s sex, and it is hardly a stretch of the imagination to see the potential of a Title VII lawsuit arising out of a policy similar to the one allegedly used by Scheef & Stone.

The bottom line is that any policy–from an official firm rule to an informal management policy–that seeks to treat one employee differently from another because of her or his race, sex, age, religion, national origin, or disability, even those policies that a company or manager may allegedly seek to put in place for the protection of the employee, should be examined very carefully with an employment lawyer, as there is a good chance that such actions will not only be perceived differently by the employee receiving the “protection,” but they may well also be illegal under a range of state and federal employment laws.  The employment lawyers at Briskin, Cross & Sanford are always happy to discuss your employment practices and help you develop policies and procedures that comply with both state and federal law.

The end of the unpaid internship?

Unpaid internships: many of us done them. In fact, the unpaid internship seems increasingly to be a rite of passage in many industries (law included!).

But what happens when unpaid internships intersect with the national Fair Labor Standards Act, which governs minimum wage and overtime requirements?  The results may not be good for the business.

Just ask Fox Searchlight Pictures. A New York federal judge recently found that Fox Searchlight Pictures violated minimum wage and overtime laws by failing to pay two interns who worked on the 2010 movie “Black Swan.” According to the judge, Fox Searchlight Pictures should have paid the interns because they did the same non-industry related tasks as regular, paid employees, such as organizing filing cabinets, tracking purchase orders, making copies, drafting cover letters, and running errands.

In reaching his decision, the judge followed the United States Department of Labor’s six-part test for determining whether an internship can be unpaid. Under the test, the internship must be similar to training given in an educational environment, created for the benefit of the intern, and should not replace the work of regular employees. Further, the intern should work under close supervision of existing employees, and the employer should not receive any immediate benefit from the intern.

How many internships that you know can truly pass that test?

The district court’s ruling against Fox Searchlight is not necessarily the end of the unpaid internship, but It should clearly serve as a warning to businesses everywhere to run its unpaid internship program past its legal counsel. Companies with questions should feel free to call an employment lawyer at Briskin, Cross & Sanford for more information.

The Misclassification Initiative (part 2)

As I noted earlier this week, The Misclassification Initiative is, in fact, not an action movie, but a collaborative effort among federal agencies and state governments seeking to work closely together to address the problem of employee misclassification, including, among others, employees who have been misclassified as independent contractors or non-exempt employees misclassified as exempt employees.  In simple terms, federal agencies and certain state agencies have ramped up their collaboration and and information-sharing practices to encourage employers to comply with employment laws (including IRS rules, Fair Labors Standards Act, and others) and to punish them when they don’t.

Misclassifying an employee can be can be a costly decision for all parties involved.  Individuals classified as independent contractors by their employer do not have access to important benefits and other protections afforded employees under the law, such as family and medical leave, overtime for work in excess of 40 hours per week, minimum wage, and unemployment insurance.  Some of these protections–particularly the so-called “wage and hour” provisions–are also denied to employees when they are classified as exempt rather than non-exempt.   Meanwhile, employers who may believe they can trim as much as 30% from their payroll by hiring an independent contractor and avoiding payroll taxes or by classifying a non-exempt employee as exempt to avoid paying overtime are invariably faced with fines and forced to pay back-wages when the US Department of Labor discovers their attempt to skirt the law.

Fayetteville-based This Is It! BBQ & Seafood discovered this the hard way when DOL required the restaurant chain to pay $104,089 in back wages for 230 restaurant workers misclassified as exempt at five Georgia restaurants and fined the company an additional amount for child labor violations.  During its investigation, DOL discovered that workers younger than age 16 were allowed to work later than 9 p.m. between June 1 and Labor Day and later than 7 p.m. at other times of the year (in violation of the FLSA’s restrictions for young workers) and that the employer failed to maintain an accurate record of tips earned and hours worked (in violation of the Act’s record-keeping provisions).  Finally, DOL discovered that the restaurant company practice of deducting employee uniform expenses and lunch breaks that the employees did not take resulted in tipped employees making less than minimum wage.  (Read the DOL Press Release here).

There is an argument that misclassification of employees chills competition and gives an unfair advantage to companies that are willing to flout the law at the expense of their workers when such a company hires an independent contractor or classifies an employee as exempt rather than paying a non-exempt employee the legal wage.  Moreover, when independent contractors fail to pay as self-employment taxes those taxes that, for an employee, would be split between employee and employer and paid by the employer directly to the government, Social Security and Medicare funds as well as state unemployment insurance and workers compensation funds lose out, resulting in higher costs for everyone else.

Every state and federal law has different requirements for whether an individual qualifies as an “employee.”  If you are insecure about whether an independent contractor truly is an independent contractor or an employee you have classified as exempt is truly exempt, an employment lawyer at Briskin, Cross & Sanford would be happy to speak with you.

“No African American Nurse to Take Care of Baby”: the controversial request for a white nurse

On Halloween 2012, Registered Nurse Tonya L. Battle reported to work in the NICU at Hurley Medical Center in Flint, Michigan, as she had done since 1988. During her shift, Ms. Battle received notice that the hospital re-assigned one of her assigned infants to another nurse because the baby’s father did not want Ms. Battle to care for the infant. The baby’s father had a swastika tattoo on his arm. Ms. Battle is African American. The baby’s father told Ms. Battle’s supervisor that he did not want Ms. Battle, or any other African American, to care for his child. According to the complaint filed by Ms. Battle, the hospital granted this request and wrote “No African American Nurse to Take Care of Baby” on the assignment clipboard in the NICU.

The federal government has enacted many laws that protect employees from discrimination based on their race, sex, color, national origin, religion, disability, and age. These are known as “protected classes.” It is clear that employers cannot disadvantage or harm employees, for example by reducing their hours, position, or income, because of one of these protected classes.

But what about a situation like the one encountered by Ms. Battle, where it is not the employer making the decision based on a protected class but where it appears to be the customer making the decision? Does the employer, a private company, have the legal right to accommodate a customer’s request if it does not harm or disadvantage the employee? Does the employee have the legal right to do his or her job without being subject to a customer’s personal (albeit distasteful and hurtful) preference regarding with whom the customer interacts? Does a customer have any right to determine who provides an employer’s services when the customer is the one paying for the services?

Right now, no clear legal answer exists to the questions raised by this now infamous request by the infant’s father. Ms. Battle’s lawsuit, filed in January 2013 against the hospital and her supervisor, contains claims for race discrimination under the United States Constitution, federal law, and related Michigan state law. All employers will want to keep an eye on the outcome of Ms. Battle’s lawsuit, for the Michigan court’s decision may serve as a catalyst for other cases governing an employer’s ability to accommodate a customer’s request as to which of the employer’s employees provides services to the customer.