The Abercrombie Case

photo-7Justice Scalia wrote the majority opinion for the Supreme Court decision issued yesterday in the Abercrombie case. For those who haven’t been following the Supreme Court docket this year (and only stumbled upon this blog post because you were, in fact, looking for a new pair of Abercrombie jeans), this case relates to the EEOC lawsuit that was filed on behalf of a woman who applied to Abercrombie and was denied a position because the headscarf she wears violates Abercrombie’s Look Policy which prohibits “caps” – and I seem to recall from oral argument that it also prohibits clothing that is black.

The crux of the case is that the woman wore the headscarf due to her Muslim faith and, accordingly, needed an accommodation that would permit her to wear the headscarf even though this would directly violate the Look Policy. During the application phase, the decision was made that the headscarf could not be worn and she was not given the job.  The difficult part of this case is that Abercrombie did not necessarily know that she needed to wear the headscarf for a religious reason. Actually, in Abercrombie’s brief in opposition to the petition for writ of certiorari, Abercrombie claimed it did not have any actual knowledge that the need was for a religious practice from any source. So – you might be wondering how Abercrombie would have known it even had to provide a “religious accommodation” under Title VII if it had no idea the accommodation that was needed was for religious reasons. (Stay with me here – I will give you an answer-ish soon….)

Very simply, the issue in this case is whether an employer can be liable under Title VII for refusing to hire an applicant and provide an accommodation of a “religious observance and practice” only if the employer has actual knowledge that a reasonable accommodation was required.

photo-1So, jumping to what I know everyone is interested in… the answer… the Supreme Court found that an employer may be liable for discrimination even if it lacks knowledge of the need for an accommodation.

Abercrombie’s primary argument is that an applicant cannot show disparate treatment without first showing that an employer has “actual knowledge” of the applicant’s need for an accommodation.  We disagree.  Instead, an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.

One interesting distinction is that, while Title VII does not include a knowledge component, other statutes – such as the Americans with Disabilities Act – do include one.  The ADA, for example, requires accommodations for known physical or mental limitations. Therefore, this case may have turned out differently if it were under the ADA and not Title VII.

Under Title VII, an applicant needs to only show that the need for an accommodation was a motivating factor in the employment decision–not that the employer had knowledge of the need. If a religious practice can be accommodated without undue hardship, then the company needs to accommodate such practice. Confusing as this may sound (i.e., the fact that we now have intentional discrimination without knowledge), this decision confirms there is a “motive” and not a “knowledge” standard.

An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive.  Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.

Basically, absent an undue hardship, “otherwise-neutral policies must give way to the need for an accommodation.” At first glance, this sets the bar very low for employees who now arguably do not necessarily have to fully explain why they may be requesting an accommodation or variance from a company’s policies and procedures but can still assert a claim for disparate treatment.  It almost sets the onus on the company to ask an employee if he/she is requesting an accommodation for a religious practice, BUT a footnote in the decision provides an inch of leeway that should be helpful for employers.

While this issue was not presented nor decided in the case, it confirms that:

[I]t is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice—i.e., that he cannot discriminate because of a religious practice” unless he knows or suspects it to be a religious practice.

Therefore, companies need to consider to what extent they need to evaluate requests for accommodations and/or seek additional information regarding applicants or employees who are making such requests–when they cross over the minimum threshold of information and suspect the request may be one for a religious accommodation. Particularly in the application context, less is more–meaning that the less you know about an individual’s protected class the better, because it cannot influence the decision-making process, but now–perhaps there needs to be more inquiry. If an employer can be liable under the disparate treatment theory for discrimination even if it did not have knowledge, then perhaps there is more than needs to happen if an employer suspects that a request is being made as an accommodation.

The last thing to keep in mind is that this case is still on-going. It has been remanded to determine whether Abercrombie violated or didn’t violate Title VII now that the standard is clear.



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A Key Consideration in the New Industrial Revolution: Remaining Competitive and Relevant While Mindful of Employment Laws

This morning I have a thought-provoking article written by my colleague and friend, Manuel Cairo. It provides an interesting op-ed perspective for those with independent contractors or who are thinking of utilizing them.

man jumping on 3d boxesAmerica is experiencing an industrial revolution not unlike that which it went through in the early twentieth century. Then, America’s industrial revolution was characterized by mass consumption that required the likes of Henry Ford’s assembly line to quench the demand of thirsty consumers. A byproduct of that mass consumption was consumer access to products and services previously reserved for a select subset of society. The character and nature of the economy forever changed and it is happening again now.

According to The Economist, technological advances and ingenuity is again delivering consumers access to products and services previously unobtainable. See Workers on Tap, The Economist, Jan. 3rd-9th, 2015, at 9, 17-20. Take for example Uber, which operates a mobile app that allows individuals to effectively and efficiently have a private chauffeur. Stated differently, Uber, like so many other new businesses, is harnessing the power of technology to provide products and services whenever required by the consumer creating what the publication calls an “on-demand economy.” So powerful is this trend, The Economist reports venture-capital investment in the on-demand economy by this country approached nearly $1.5 billion in 2013—an exponential growth compared to total investments from 2009. It appears, then, the “on-demand economy” may very well be here to stay and all businesses will have to adapt to remain competitive and relevant.

As businesses begin adapting to this new business paradigm, they should keep in mind that the marketplace often evolves faster than the regulatory system. Therefore, businesses should remain mindful of employment laws when developing strategies to compete, such as how to classify its employees. Indeed, employers contemplating these strategies often consider classifying workers as independent contractors instead of employees because the former classification can provide greater flexibility in responding to consumer demands while affording substantial savings that in turn allows for the cheap and quick delivery of products or services. The federal government recognizes businesses are tempted by the lure of the independent contractor classification and has long warned that it “presents a serious problem for affected employee, employers, and the entire economy. . . . Misclassified employee are often denied access to critical benefits and protections . . . and [misclassification] generates substantial losses [to local, state, and federal governments].”

This Workplace Word is not intended to discuss any particular case or legal doctrines concerning the independent contractor classification. Surely, much has already been written on the topic. Instead, this Workplace Word is meant to encourage business owners—large and small—to maintain a big-picture view on this issue. Considering the use of independent contractors involves a multidisciplinary analysis. For example, the independent contractor classification is important in determining application of laws concerning traditional labor, tax, employee benefits, wage and hour, anti-discrimination, immigration, worksite enforcement, heath care, worker’s compensation, and unemployment. Moreover, the proper analysis for each of these areas is different. Tests include “right to control,” “economic realities,” and various modified versions of each of them adopted at both the federal and state level.

Suffice it to say, an independent contractor agreement is generally not enough to overcome the presumption that workers are employees, not independent contractors. Business owners must think about this issue more broadly and approach it with greater nuance and care. The breadth of potential consequences from misclassification is merely a corollary of the multidisciplinary nature of this area and should further cause business owners to think carefully about how they classify workers.

The Economist may be right in spotting the beginnings of a twenty-first century industrial revolution. If true, businesses will have to adapt to these new trends so as to reinvent how they deliver products and services to an ever changing and demanding consumer. In doing so, businesses will undoubtedly turn to the workforce to find solutions for effective evolution. While classifying workers as independent contractors may seem tempting because of the cost savings and flexibility, it could prove expensive if not fatal in the long run for a number of reasons business owners should consider.

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The EEOC’s New Online Charge System

hot topicDon’t be surprised if you start getting more electronic communications from the Equal Employment Opportunity Commission.  The EEOC has initiated a new online pilot program to transmit documents electronically. This move, according to the EEOC, will streamline the submission of documents, notices, and communications. Companies will be able to (among many other things) review and download their charge on the system and– no worries– the EEOC will get notice after ten days if there is some error or spam filter that prevents the notice from being properly delivered.

The program is rolling out first in the Charlotte, Greensboro, Greenville, Norfolk, Raleigh, Richmond and San Francisco offices.  For those of us in Phoenix, we should expect to see the pilot program by the end of May 2015, and it is set to be in all offices by October 1. Companies can opt out of this program if they want to but, just as courts have moved towards electronic filing, it seems only natural that this would follow with administrative matters as well.

The EEOC has provided some answers to FAQ here, and the User Guide is here. I posted a while back about the Charge handling process for those who want the nuts and bolts of the process.

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Title III, Service Animals, and Other Accommodations

It seems like Title III ADA questions are coming up more and more often these days. I wrote about the basics of Title III a while back, and figured it is time to post on it again.

3d person at restaurantTypically when a company has questions relating to its obligations under the ADA, the questions relate to the company’s duties regarding its employees. Those obligations are addressed under Title I of the ADA. Title III, on the other hand, prohibits discrimination by public accommodations (e.g., restaurants, movie theaters, hotels, doctors’ offices, grocery stores, schools, museums) against disabled individuals.

The general rule under Title III is that:

[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.

42 U.S.C. § 12182(a).

This is the law that comes up when the news talks about a store that failed to allow a service animal to enter and, likewise, this law extends to issues with the actual construction of a building that present barriers for a person with a disability (i.e., a doorway not being large enough for a wheelchair to fit through).

ADA Final RegulationsWhile there are so many nuances in the law and topics that can be discussed, let’s start with service animals. The regulations define a “service animal” as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” The work or tasks performed by a service animal must be directly related to the individual’s disability. (There is also a separate provision under the ADA about miniature horses that have been individually trained to do work or perform tasks for people with disabilities. In addition, state law may impose additional obligations, as may other federal laws that apply to certain industries.)

Examples of “work or tasks” include, but are not limited to guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.

Service animals are not considered pets. Accordingly, a public accommodation is not permitted to ask about the nature or extent of a person’s disability, but may make two inquiries to determine whether an animal qualifies as a service animal: (1) if the animal is required because of a disability; and (2) what work or task the animal has been trained to perform. 28 C.F.R. § 36.302(c)(6).

When looking broadly at the obligations under Title III, there are four main categories of prohibitions but, like any law, there are exceptions. If this were a magazine, I would make the next chart one of those cardstock, tear-out sheets that you can put in your back pocket and reference. While this is just the tip of the iceberg of obligations that may exist and legal arguments that can be made under Title III (and doesn’t begin to contemplate individual state laws), it provides a general overview of the various buckets the Title III obligations can fall within.

Prohibition Exception
Imposing eligibility criteria that screen out individuals with disabilities. Unless such criteria can be shown to be necessary for the provision of goods, services, facilities, privileges, advantages, or accommodations being offered.
Failing to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities. Unless the modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or when the individual (or accommodation) poses a direct threat to the health or safety of others.
Failing to take steps necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently because of the absence of auxiliary aids and services (e.g., qualified interpreters, assistive listening systems, real-time captioning, written materials, etc.). Unless the modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations or would result in an undue burden.
Failing to remove architectural barriers and communication barriers that are structural in nature in existing facilities. Unless such removal is not readily achievable.*Note there are different requirements for facilities that are new construction and/or have been altered. In certain instances, if a barrier cannot be removed, then alternative methods must be employed that are readily achievable (e.g., providing curb service or home delivery, retrieving merchandise from inaccessible racks, or relocating activities to accessible locations).


In the near future, I anticipate we will have a lot more guidance on Title III issues that arise with websites. While the DOJ has stated that websites are covered by Title III, the Ninth Circuit (which includes the state in which I practice, Arizona), recently addressed whether web-only businesses (i.e., websites not connected to any brick and mortar physical place) are covered by Title III and came to the opposite conclusion. The Ninth Circuit found on April 1, 2015 that eBay could not be liable under Title III because its services are not tied to an actual, physical place.

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Ten Things Any Business Owner Can Do Today to Protect Their Company

Navigating employment laws can be an overwhelming task, but there are steps all companies can take to address risks and fix problems before they become costly mistakes.

  1. Update your Employee Handbook – Admit it. You have not looked at the thing since 2001. Things have changed. New laws have been passed. Regulations have been updated. The Employee Handbook is the book that guides your organization- covering everything from sick leave to overtime pay- and it is essential that it does not guide people astray.
  2. Develop a social media plan – Social media is everywhere. Your customers are using social media to engage with your company, and your employees are interacting daily on blogs and social networking accounts. Many companies are surprised to learn that federal law permits employees to engage in certain types of activity online and a company can actually violate the law if it terminates an employee in violation of these rights. It is important that clear protocols are established and that the policies are not so sweeping as to interfere with an employee’s legitimate rights. Developing a comprehensive social media policy not only addresses permissible and improper behavior of employees while online, but it clearly establishes privacy and ownership rights over company accounts and devices and contains protocols to respond to a social media “emergency”before it becomes a public nightmare.
  3. Count your employees – Seriously, I mean it. Different laws apply to companies of different sizes. There are some major thresholds that a company crosses when it expands from a seven-person shop to an office of 15 and then to a superpower of 100 employees. If you noticed you are outgrowing your offices, there is a good chance you are in need of a tune up as to which laws apply to your company.
  4. Prepare confidentiality agreements – Your most valuable assets are your employees and your information. Don’t let your employees walk off with your proprietary information. While there are some protections built into the common laws of various states, you can also require employees to sign agreements to protect your confidential and proprietary information. These agreements need to be narrowly tailored to your protectable interest and drafted in accordance with the laws of your state.
  5. Review your data privacy and security protocols – The laws are constantly evolving in this world. There was a time when the mom and pop shop did not have to worry about hackers stealing their information, but now there are legitimate threats out there that may jeopardize- not only the company’s information- but the private information of its employees and customers. Companies need to ensure that they are protected against breaches and cyber-attacks.
  6. Bring on the BYOD policy – No, I am not talking about a BYOB party from your college years, I am referring to “Bring Your Own Device” policies. It is becoming more the norm than the exception to the rule for companies to allow employees to check their work email on their personal phone. A BYOD policy addresses this arrangement and sets the ground rules for what happens in various scenarios- such as if the employee is terminated, if data is compromised, and the process if the company needs to delete data or company emails from the phone.
  7. Revamp your applications– Oftentimes, the first thing prospective employees read when they come to your company is your application. It is the most general of documents, but it is also a minefield for legal issues. Some questions are simply unlawful to ask on a job application- such as questions relating to an employee’s arrests or an employee’s protected class (race, religion, color, national origin, sex, age, disability, veteran status, or any characteristic protected by applicable law).
  8. Train, train, train your employees – And when you think you have trained them enough, train them again. Training involves more than just the run-of-the-mill “this is how you do your job” approach. Supervisors should get sexual harassment training to help avoid any potential issues and so that the company can utilize appropriate defenses if a lawsuit is nonetheless brought by an employee. All employees should take part in safety training as companies have an obligation to provide a safe and healthy work environment. Job-specific training helps boost productivity and morale as employees will further develop their own niche and expertise.
  9. Audit job classifications – Do you have independent contractors working for your company? Do you have salaried employees who are not eligible for overtime pay? These are the types of positions that are prime targets for lawsuits and should be the focus of an audit. An audit is essentially a third party (such as outside counsel) coming in and reviewing the various job classifications and ensuring that everything is compliant with local, state, and federal law. There are a myriad of factors that need to be considered when evaluating compliance and just because a company and a worker agree to a certain arrangement does not mean it is necessarily lawful.
  10. Check the Form I-9s – Make sure they are properly completed by employees and retained by the company. Failing to properly verify an individual’s identity and eligibility to work can have serious consequences for a company.

*Just for clarity, I am not your attorney and this post is not legal advice (nor are any of the posts on this site). If you need legal advice, you should seek the advice of an attorney practicing in your jurisdiction.

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