Tracking the latest developments in the fight for a fair America
The Supreme Court will hear oral arguments tomorrow in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., a case testing the rights of job applicants who need a religious accommodation from their would-be employer.
The plaintiff is a 17-year-old Muslim woman, Samantha Elauf, whose job offer to work at an Abercrombie & Fitch store in a mall in Tulsa, Oklahoma was revoked when managers discovered that she intended to wear a religious headscarf while at work. Doing so, they said, would violate the corporate “look policy” for employees.
A federal district court ruled in Samantha’s favor, finding that she had been subject to illegal discrimination because of her religion in violation of Title VII of the Civil Rights Act of 1964, the federal statute that bars employment discrimination. The Tenth Circuit Court of Appeals, however, reversed this ruling. It found that, even though she had worn her hijab to the job interview, she had not explicitly told Abercrombie that she wore a headscarf for religious reasons and expressly requested an accommodation under Title VII. The Tenth Circuit’s ruling on this issue differed from other federal appeals courts, which have found that the notice element of a plaintiff’s prima facie claim is met if the employer has actual knowledge of a job applicant’s religious practice even if an express request for an accommodation is not made.
The particular issue raised on appeal in the Supreme Court is not the underlying substantive one of whether Samantha has the right to an exception from Abercrombie’s dress policy for religious reasons under Title VII, though her case is a strong one. Employers are required to “reasonably” accommodate an employee’s religious practices, meaning that they must do so when it does not impose an “undue burden” on them. The expense associated with allowing an employee to wear a headscarf (i.e. the harm created by a slight deviation from its dress code) is minimal, and her practice would not impose on burden on her co-workers.
In this case, however, the Supreme Court is considering the narrower issue of whether “explicit notice” should be required. Samantha did not expressly request an accommodation in part because she had no idea she would need one. After all, it is employers, not job applicants, who know what corporate policies the employer has established governing employees. How was she to know that she would need an exception to a rule that she didn’t know even existed?
For that matter, how can Abercrombie plead ignorance of Samantha’s need for an accommodation that was as plain as the scarf on her head?
As the Supreme Court hears arguments, the justices should focus on the difficult situation that job applicants would be placed in if it adopts the Tenth Circuit’s explicit notice rule. In a job interview, a moment when the employer has the upper hand, an applicant should not be forced to raise the issue of a need for special treatment. Employers would be tempted simply to hire someone without any such needs, leading to increased illegal discrimination against religious minorities.
The Supreme Court should not permit an employer to discriminate against a job applicant on the basis of her religion without legal consequence just because the applicant does not expressly state her need for a religious accommodation and is unaware of employer policies that would require it. When an employer actually knows someone will need an accommodation, the applicant should not be punished for failing to say the right magic words.
William Burgess is the Senior Staff Attorney at the Council on American-Islamic Relations, which filed an amicus brief with the Supreme Court in this case in support of the EEOC. CAIR’s Oklahoma chapter assisted the plaintiff in this case in preparing her complaint to the EEOC.
CAIR is the largest American Muslim civil rights organization in the country, dedicated to protecting the civil rights and liberties of all Americans and fostering a greater understanding of Islam in the U.S.
As part of Alliance for Justice’s ongoing campaign to end forced arbitration in consumer and employment contracts, we’ve worked with a host of grassroots organizers across the country. Students, community members, academics, and attorneys have reached thousands by screening AFJ’s short documentary, Lost in the Fine Print. Long-time friend of AFJ Patti Gorman planned one such screening as part of Conversations on Social Justice Series at Seattle Central College.
We asked Gorman to talk about her experience organizing a screening of Lost in the Fine Print. Responses have been edited for space and clarity.
What interested you about the issue of forced arbitration?
I was totally unaware of it and appalled when I found out about it. How can we be forced to sign away rights that are guaranteed by law? This is a true social justice issue and another indicator of how corporations unduly influence government and our daily lives.
Had those who attended the screening heard of forced arbitration clauses before? Most had not, I believe, probably because they are young students and because many are international students.
Why did you feel students at Seattle Central College needed to see this film? Why did you take on the project of organizing a screening yourself?
The college’s student and staff population is diverse and activist. I just knew this topic would interest them … I took on the organizing because I am an organizer and it comes pretty easily and because I had wonderful support from our librarians, who sponsor these noon time programs.
In addition, I had looked over the online materials created by AFJ, which are excellent, and received lots of support from [AFJ Klagsbrun Fellow] Erik Lampmann. I was a bit nervous at one point about being knowledgeable enough. But once I read the online materials, including links to more detailed court case info, and when I knew I would have a local attorney presenting with me (arranged by Erik), I knew it would be a piece of cake, which it was.
After watching Lost in the Fine Print, how do you hope others will take action to fight forced arbitration?
We need to put pressure on our elected officials to uphold our constitutional rights; hold the Supreme Court accountable, if we can, for upholding the Constitution and not overstepping its bounds into the other branches of government; keep raising hell about this issue, through class actions, when possible; and VOTE!!! I also think that if enough people struck out and initialed the contract clauses that infringe upon their rights when signing contracts, companies would finally get the message that people aren’t going to stand for their outrageous behavior. Of course, I hope many more people will use resources such as Lost in the Fine Print to educate others.
What would you say to others thinking about screening Lost in the Fine Print on their campuses or in their communities?
The whole process from preparation to implementation was fun, intellectually stimulating and very satisfying.
How did you first get involved with Alliance for Justice? What interested you about AFJ’s approach to social change?
I first heard about it from Nan Aron, a friend and former classmate (since 6th grade!). I have always been an activist for social justice. I find AFJ’s approach to helping non-profits be better at what they do [through the Bolder Advocacy initiative]… a compelling strategy—micro to macro. And now, when I see what our Supreme Court is doing that chips away at our Constitutional rights, I believe more than ever that the courts are where we need to put our attention. AFJ works hard and smart.
The librarians of Seattle Central College have graciously uploaded video of the event to their website.
If you would like to organize a screening on your campus or in your community, please contact Erik Lampmann at firstname.lastname@example.org or by phone at 202.464.7388.
In an interview with Iowa Public Radio, shortly after being named chair of the Senate Judiciary Committee, Senator Chuck Grassley, R-Iowa, said, “I have no reason to believe that the future is any different” for the committee.
He was right. Even with Senator Grassley as chair, Republican obstructionism continues in the Senate Judiciary Committee.
In a previous edition of Benched!, we explained how, when Democrats controlled the Senate, Republicans would routinely and needlessly “hold over” judicial and executive nominees rather than allowing the committee to vote at the first opportunity. This procedural tactic, normally reserved as a courtesy to senators who need more time to examine a candidate’s record, allowed Republicans to take an extra week before sending nominees to the Senate floor.
But now it’s the Republicans, not Democrats, who are setting the committee schedule. And while it might be reasonable in some cases for the minority party to need more time on a nominee, it is plainly a pretext for the majority party to claim it needs more time than it has given itself. Paul Gordon at People for the American Way explained this yesterday, writing that today we would find out “whether Republicans will continue one of the indefensible forms of obstruction that they engaged in for six years while in the minority.”
This morning, we got our answer. Without explanation, Senator Grassley held over the nominations of four federal judges and Attorney General nominee Loretta Lynch.
All four of the judicial nominees are uncontroversial. They would fill district court seats in Utah and Texas, and have the support of their home-state Republican senators on the committee. Lynch has the support of many Republicans on the committee, including Senator Lindsey Graham (R-S.C.), who told reporters “I’m ready to vote.”
For no apparent reason, Texans will now have to wait an extra week until two vacancies deemed “judicial emergencies” by the U.S. Courts—seats that have been empty for over 700 days each—will be filled. The country will have to wait an extra week for a new attorney general, whose confirmation has already taken the longest of any attorney general nominee in the past 30 years.
Republican obstructionism stays the same.
It hit me when I saw this gem from Gun Owners of America president Larry Pratt:
“She’s kind of like Eric Holder in a skirt.”
Where have I heard that before?
Ah, yes. In November 2013, Ed Whelan of National Review Online had this to say about then-D.C. Circuit nominee (now D.C. Circuit Judge, thanks to Senate rules reform) Nina Pillard:
“[F]olks who know Pillard well have described her to me as ‘[Ninth Circuit Judge Stephen] Reinhardt in a skirt but less moderate.’”
It’s a safe bet that neither Pratt nor Whelan meant these comparisons as compliments. Pratt’s group calls Holder “a committed anti-gun radical” and Whelan calls Reinhardt an “arch-activist.” Nor can I recall a time when I’ve seen the “in a skirt” construction used with a name the speaker revered. “That talented female debater is like Abe Lincoln in a skirt,” said nobody ever.
But even if you do like Eric Holder and Stephen Reinhardt (and I do), these statements are insulting, not only to Lynch and Pillard, but to all women. They demean women by implying that they do not have thoughts, ideas, or accomplishments of their own, but are merely dressed up versions of men. They focus on women’s appearance and dress rather than their experiences and intellect. In short, they seek to put women in their place.
For those who think I’m being overly sensitive, I challenge you to come up with a single example where a man has similarly been compared to a woman (“Ruth Bader Ginsburg with a beard”?). Until then, please stop skirting the issues and start judging women on their own merits.
The legitimacy of these decisions depends on the public’s belief that justice has been done, that cases are decided by a fair and impartial decision-maker who has applied the law to the facts before her. It is this vital interest—judicial integrity—that is at stake in Williams-Yulee v. The Florida Bar, a case heard by the Supreme Court this past Tuesday.
The impartiality of our courts is under siege. Thirty-nine states select judges in elections that are becoming increasingly expensive and politicized. Between 2000 and 2009, contributions in state supreme court races more than doubled. As pressure on judges to raise campaign funds grows, they will continue turning to their most significant contributors—lawyers and lobbyists. It is therefore no surprise that 95 percent of respondents to a national poll believe that contributions influence judicial decision-making—and that nearly half of surveyed state court judges agree.
Florida, like the vast majority of states that elect judges, has implemented a modest, but important, measure to help insulate its judiciary from the pernicious influence of campaign spending. Under Florida’s ethical code, judicial candidates are prohibited from personally asking for campaign contributions. Instead, they are required to conduct all fundraising through a campaign committee. In Williams-Yulee, the Supreme Court will consider the constitutionality of this provision.
The rationale for Florida’s rule is simple. While states are free to choose their judicial selection methods, they are also obliged to protect the integrity of their courts. Florida, recognizing the unique threat posed by personal solicitation, adopted the rule at issue in Williams-Yulee, among others, in 1973 to protect its courts against rampant scandal and corruption.
Personal solicitation creates the impression that justice is for sale. An attorney who is personally solicited by a judge before whom she regularly appears may perceive the request as an offer for courtroom success in exchange for a financial contribution. At the very least, the attorney will likely feel that her decision whether to contribute will affect her treatment in court. This perception, shared by the public at large, threatens confidence in judicial integrity.
Florida’s regulation, while protecting a vital state interest, poses a narrow restriction on speech. Judicial candidates remain able to raise adequate campaign funds through a committee of their choosing. Indeed, Florida’s rule places no limitation on candidates’ ability to discuss their values, qualifications for office, or views on any issue; its only prohibition is on the direct “ask” for money.
Petitioner Lanell Williams-Yulee has been critical of Florida’s line drawing, arguing that the mass mailer she signed should not have been caught in the rule’s sweep. Several justices, however, appeared concerned at oral argument Tuesday about the inherently coercive effect of judicial requests. Justice Sotomayor, relying on her own judicial experience, observed that “[i]t’s very, very, very rare that either by letter or by personal call that I ask a lawyer to do something, whether it’s serve on a committee, help organize something . . . that that lawyer will say no.” Justice Breyer mirrored this sentiment, explaining that “when a judge says, can you please” then “the answer is yes.”
State supreme court justices, who have had the experience of both making requests of lawyers and raising campaign funds, have been particularly sensitive to the threat posed by direct solicitation. Every state supreme court to consider the question has upheld its state’s personal solicitation prohibition, whereas federal appellate courts have split. The resolution to this divide now lies with the Supreme Court.
Kate Berry works for the Fair Courts Project at the Brennan Center for Justice at New York University School of Law.