The Second Circuit has announced that it is scheduling en banc review and has asked the EEOC to weigh in on the controversial question of whether Title VII covers discrimination on sexual orientation.  The court has invited the EEOC to brief and participate in oral argument in the case of Zarda v. Altitude Express, Inc.

We reported on the EEOC’s filing of the first LGBT discrimination suit earlier this month, but that was not the only activity at the agency.

Employers should take note of the following new EEOC developments:

Employers: Be Careful What You File with the EEOC

EEOC now will give the Charging Party the Employer Position Statement

As predicted, the news in the Labor/Employment world continues to center on developments in the area of legal rights for transgender employees.  On January 21, the EEOC announced a $115,000 settlement of a complaint against a company which had been accused of discriminating against a transgender female employee.  According to the EEOC press release,

On January 6, 2016, the EEOC field an amicus brief in Barbara Burrows v. The College of Central Florida arguing, for the first time, that Title VII of the Civil Rights Act of 1964 protects workers against sexual orientation discrimination. The brief begins by acknowledging that the EEOC’s position has evolved over time citing its historic ruling in July that workplace sexual orientation discrimination is illegal under federal law.  The EEOC’s argument can be summarized as follows.

Continue Reading The EEOC continues to recognize sexual orientation discrimination as sex discrimination under Title VII

On November 5, 2015, Kelley Drye will host an afternoon seminar at its New York office, addressing discrimination against LGBT individuals in the workplace. The seminar will be presented by Kelley Drye partners Barbara Hoey and Mark Konkel, joined by partner Anne Clark of Vladeck, Raskin & Clark, P.C, who will provide perspective from

As most lawyers and HR professionals know, on June 1, 2015, Justice Antonin Scalia authored a concise opinion, overturning the Tenth Circuit and holding that Abercrombie & Fitch had intentionally discriminated against Samantha Elauf, a young Muslim job applicant, when it refused to hire her because of concerns about her head scarf.  The company had attempted to defend its hiring decision by arguing that Elauf had never disclosed that she was Muslim, or asked to wear the scarf at work.  Thus, it claimed that it could not have discriminated when it had no knowledge that she needed a religious accommodation.

The Court was unmoved by this argument, and held that Abercrombie’s lack of “specific knowledge” of Ms. Elauf’s need for a religious accommodation was not a defense to the claim.  To the contrary, the Court held that a plaintiff need only show that her need for an accommodation was a “motivating factor” in the employer’s decision in order to prevail. Justice Scalia explained:

An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.  For example, suppose that an employer thinks (but does not know for certain) that a job applicant may be an Orthodox Jew who observes the Sabbath, and thus may be unable to work on Saturday. If the applicant actually requires an accommodation of a religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.

The Court thus found that since there was evidence that Abercrombie had known, “or at least suspected” that plaintiff’s head scarf was a religious practice, and considered that headscarf when it decided not to hire her because it violated its “Look” policy, Elauf had presented sufficient evidence to support her claim that her religion was a motivating factor in the hiring decision.  In this regard, the Court noted that Title VII had defined the term “religion” broadly, “to include all aspects of religious policy and observance.”

The Court concluded by noting that the company could not hide behind its “neutral” policy: “Title VII does not demand mere neutrality with regard to religious practices …Rather, it gives them favored treatment, affirmatively obligating employers not to ‘fail or refuse to hire or discharge any individual because of … such individual’s religious observance and practice..”  SO, an employer can have a dress code, but that ‘neutral’ dress code “must give way to the need for an accommodation.”

I have two observations about this decision, which conflict with some commentaries I have read from other management-side lawyers:

  • First, is this decision a significant change in the law or a sharp turn to the plaintiff’s side for SCOTUS?  I say NO, as it has always been the law that an employer cannot consider religion or religious accommodations when it makes hiring decisions
  • Second, was this the correct result, in light of the specific facts?  Yes.  In fact, when considering these facts, one could see why the Court reached the result it did.

In short, employers should not be in a panic over this decision and may need to just re-affirm existing policies in order to remain compliant with the law.
Continue Reading Supreme Court Abercrombie & Fitch Ruling: It’s the Motive that Matters