EEOC Wins Summary Judgment in Religious Head Scarf Case

Image courtesy of crochetascarf.com

We have written often on the banning of religious garb, whether in the workplace or otherwise.  See, e.g., our article on banning the wearing of burquas (here), our article on the push in France to ban the wearing in public of Muslim veils (here), and our article on the Third Circuit affirming a workplace head scarf ban (here).

In a recent development on this issue, the EEOC recently won a motion for summary judgment, in a religious discrimination case involving the wearing of a religious head scarf. See EEOC v. Abercrombie & Fitch Stores, Inc., No. 11-cv-03162-YGR, 2013 U.S. Dist. LEXIS 125628 (N.D. Cal. Sept. 3, 2013).  The defendant in that case, Abercrombie & Fitch, Inc., operates retail stores across the country under the brand names Abercrombie & Fitch, Hollister Co., Abercrombie Kids, and Gilly Hicks. Id. at 4.  The case revolved around Abercrombie’s “Look Policy”, which sets forth certain rules regarding employee appearance, including a prohibition on wearing any form of headwear. Id. at *6-7.  All in-store Abercrombie employees were required to comply with the Look Policy, are to be informed of the Look Policy during the job interview process, and are required to sign an acknowledgement of the Look Policy when they are hired. Id. at *7.  The Look Policy also appears in Abercrombie’s handbook. Id.

Plaintiff, Ms. Umme-Hani Khan, a Muslim, believes that Islam requires her to wear a head scarf, also known as a hijab, when in public or in the presence of men who are not immediate family members. Id. at *7-8.  For more on the practice of wearing a hijab among Muslim women, see Kim Parker, Women, Islam, and Hijab, Postcolonial Studies @ Emory (May 2012) (available here); Islam’s Women: Jewels of Islam, The Virtues of Hijab (available here); Al-Islam.org, The Qur’an and Hijab (available here).  At the time Ms. Khan was hired, she had fully adopted the practice of wearing a head scarf on the above occasions, and she therefore wore a head scarf when she interviewed for the position. Id. at *8.  She acknowledged the Look Policy, and agreed to abide by it. Id. 

Ms. Khan worked for Abercrombie from October 2009 to February 2010, all the time wearing her head scarf. Id. at *9.  Local supervisors allowed her to wear her head scarf so long as it matched company colors (the Look Policy was a part of Abercrombie’s marketing strategy, aimed at “communicating the spirit of” the store’s brand). Id. at *6-7, *9.  Her store managers never informed her that she was not complying with the Look Policy. Id. at *9.

In February of 2010, a District Manager made a regularly scheduled visit to the store at which Ms. Khan worked, noted that Ms. Khan was not in compliance with the Look Policy, informed Ms. Khan of same a few days later, and asked Ms. Khan if she could take her head scarf off. Id. at *10.  Ms. Khan responded that she could not take the head scarf off because it was part of her religion.  Within weeks, Abercrombie suspended and then fired Ms. Khan, solely due to her non-compliance with the Look Policy. Id. at *10-11.  Eleven days after the termination, Abercrombie offered Ms. Khan an unconditional offer of reinstatement with the accommodation of being allowed to wear her head scarf to work, but Ms. Khan declined the offer of reinstatement. Id. at *11.

At the time that Ms. Khan filed her charge of discrimination with the EEOC, the EEOC was involved in two other cases against Abercrombie in connection with the wearing of headscarves – one case alleging a refusal to hire an applicant for an associate position because she wore a hijab, and the other alleging a refusal to hire a woman as a model because she wore a hijab. Id. at *11-12.  The EEOC found reasonable cause to believe that Abercrombie had discriminated against Ms. Khan in violation of Title VII. Id. at *13.  The EEOC unsuccessfully attempted to jointly settle all three cases with Abercrombie.  Id. at *12-13, *15. The EEOC, as a part of a conciliation effort, attempted to get Abercrombie to agree to modify its policies to allow the wearing of head scarves by all employees, but Abercrombie rejected that proposal, as the EEOC’s proposed policy modification did not allow for a case-by-case consideration of whether employees should be permitted to wear head scarves. Id. at *13-14.  After continued unsuccessful efforts at conciliation and settlement, EEOC filed suit on behalf of Ms. Khan as Plaintiff-Intervenor. Id. at *15-16.

In litigation, Abercrombie raised a number of affirmative defenses, including that the EEOC failed to engage in conciliation in good faith, Id. at *19, that Abercrombie’s Look Policy is protected commercial free speech, Id. at *24, that accommodating Ms. Khan’s religious beliefs would constitute an undue hardship, Id., and that punitive damages and injunctive relief were not warranted, Id. at *46-47, *50.  Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California granted the plaintiffs’ motion for summary judgment (and denied Abercrombie’s cross-motion) as to all of those issues, as well as to the issue of liability. Id. at *23-24, *41, *45, *50, *56.

Abercrombie did not dispute that the plaintiffs had established a prima facie case of unlawful discrimination. Id. at *29.  As to liability, setting aside the procedural issues about good faith conciliation and whether punitive and injunctive relief was available, Abercrombie based its defense solely on its undue hardship and commercial free speech defenses.

Abercrombie’s undue hardship defense was that the Look Policy was “key to Abercrombie’s success and/or that deviations from the policy ‘detract from the in-store experience and negatively affect [the] brand.’” Id. at 32.  Judge Gonzalez Rogers rejected that argument, as it was based only on the testimony of Abercrombie employees as to their “beliefs” based on “personal experience” about the effects of the Look Policy, and not on any hard data.  Id. at *35-37.  The Judge therefore found the employees’ “beliefs” to be “speculative and purely subjective in nature,” and that “[a] reasonable jury could not conclude that Abercrombie would be unduly burdened by allowing Khan to continuing [sic] wearing her hijab as she had been prior to February 2010.”  Id. at *38, *41.

Abercrombie’s commercial free speech defense, which Judge Gonzalez Rogers characterized as a “novel argument,” was that “the store associates should be classified as ‘living advertisements’ for [Abercrombie’s] brand and therefore their appearance is protected as commercial free speech.” Id. at *42.  The standard for a finding of commercial free speech was succinctly summarized by the Court as follows:

Commercial speech is that ‘which does 'no more than propose a commercial transaction.’’ Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 818 (9th Cir. 2013) (quoting Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976)). The test for determining whether commercial speech exists is set forth in Bolger v. Youngs Drug Products Corp. There, the Supreme Court held that commercial speech can be found where the speech: (i) is an advertisement; (ii) refers to a particular product; and (iii) the speaker has an economic motivation for the speech. 463 U.S. 60, 66-67, 103 S. Ct. 2875, 77 L. Ed. 2d 469 (1983) (holding that the ‘combination of all these characteristics’ provided ‘strong support’ that the pamphlets at issue were properly characterized as commercial speech). Commercial speech is entitled to constitutional protection, albeit a lesser degree of protection than is afforded to other forms of speech. See Central Hudson Gas & Elec. Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 562-63, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980).

Id. at *41-42.  The Court concluded that Abercrombie had not provided any authority to support its “novel argument”, and concluded that Abercrombie had failed in any event to satisfy the above standard to establish commercial free speech. Id. at *43. The Court based this decision primarily on the fact that the employees in question did much more than just purportedly “representing the brand,” given that “the employees’ responsibilities consist of ensuring shipments are complete, folding clothing, and placing/replacing clothing on the floor,” duties which were “primarily performed in the stockroom.” Id. at *44.  And, while the Look Policy restricted what employees could and could not wear, it did not require employees to wear only Abercrombie’s products. Id.

After also dispensing with Abercrombie’s argument about good faith conciliation, Judge Gonzalez Rogers granted the plaintiffs’ motion for summary judgment as to liability, “[t]here being no viable defense” thereto. Id. at *45.

As to Abercrombie’s arguments about the plaintiffs’ entitlement to injunctive relief, the Court explained the applicable standard as follows:

‘Generally, a person subjected to employment discrimination is entitled to an injunction against future discrimination, unless the employer proves it is unlikely to repeat the practice.’ E.E.O.C. v. Goodyear Aerospace Corp., 813 F.2d 1539, 1544 (9th Cir. 1987) (citations omitted). ‘[V]oluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.’ County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 59 L. Ed. 2d 642 (1979) (quoting United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S. Ct. 894, 97 L. Ed. 1303 (1953)). However, an injunction may be unnecessary where there is no reasonable expectation that the alleged violation will recur and ‘interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.’ County of Los Angeles, 440 U.S. at 631. To obtain an injunction, the ‘necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.’ W. T. Grant Co., 345 U.S. at 633.

Id. at *46. The plaintiffs sought an “injunction enjoining Abercrombie from engaging in practices which discriminate on the basis of religion, and an order that Abercrombie institute policies, practices, and programs providing employment opportunities for employees of all religions and which ‘eradicate’ effects of past unlawful practices”. Id. at *45.  Abercrombie opposed such an injunction, arguing that (a) Abercrombie had offered Ms. Khan unconditional reinstatement with the accommodation of wearing her hijab; (b) there was no threat of future, recurring violations, as Abercrombie had made “significant policy changes” since the events in question; and (c) the injunction was overbroad. Id. at *46-47.  The Court denied Abercrombie’s summary judgment motion on this issue, finding triable issues as to whether the changes in Abercrombie’s policies “completely and irrevocably eradicated the effects of the alleged violation.” Id. at *49.  The Court pointed to evidence that Abercrombie had changed its policies due to the instant litigation rather than because of the law, and on the fact that several of Abercrombie’s witnesses continued to believe that wearing religious headwear harmed Abercrombie’s image and brand. Id. at *49-50.  As to Abercrombie’s argument as to the breadth of the contemplated injunction, Judge Gonzalez Rogers concluded that the record was not sufficiently developed to determine that issue. Id. at *50.

Finally, the Court rejected Abercrombie’s summary judgment motion regarding the availability of punitive damages, finding that “[r]easonable jurors could determine that by offering Khan one option – to remove her hijab despite her religious beliefs – Abercrombie acted with malice, reckless indifference or in the face of a perceived risk that its actions violated federal law.” Id. at *55.  As to Abercrombie’s anti-discrimination policies, the Court concluded that triable issues existed as to whether those policies were implemented in good faith, and that there was insufficient information in the record to determine whether deterrence or punishment would be necessary. Id. at *56.

 

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James v. Metro Government of Nashville

Someone asked if I would set out the citations that reflect the circuit split on this issue - the issue being whether the judge or the jury decides whether the facts support a claim that the retaliatory act could have deterred protected conduct. In our post of Friday, we provided the Fourth, Sixth and D.C. Circuit authorities on this issue.

The Fifth Circuit has held that judges, not juries determine whether the fact-bound Burlington Northern standard has been met. See DeHart v. Baker Hughes Oilfield Operations, Inc., 214 Fed. Appx. 437 (5th Cir. 2007). The Eleventh Circuit so held in Collins v. Board of Trustees of University of Alabama, 211 Fed. Appx. 848 (11th Cir. 2006). The Eighth Circuit goes with courts, not juries. See Higgins v. Gonzales, 2007 WL 817505 at *8-*9 (8th Cir., March 20, 2007). The Seventh Circuit in at least six cases since Burlington Northern has held that judges are to decide the question. See Roney v. Illinois Dept. of Transportation, 474 F.3d 455, 459 (7th Cir. 2007); Phelan v. Cook County, 463 F.3d 773, 781 n.3 (7th Cir. 2006); Szymanski v. County of Cook, 468 F.3d 1027, 1031 (7th Cir. 2006); Thomas v. Potter, 2002 Fed. Appx. 118 (7th Cir. 2006); Novak v. Nicholson, 2007 WL 1259054 at *5 (7th Cir., Apr. 12, 2007); Schmidt v. Canadian National Railway Corp., 2007 WL 755171 at *4 (7th Cir., Mar. 13, 2007).

In addition to the D.C. Circuit, three other circuits have held that juries, not judges, determine the question. The Third Circuit has so decided in at least three cases. See Hare v. Potter, 2007 WL 841031 at *11 (3d Cir., Mar. 21, 2007); Ridley v. Costco Wholesale Corp., 217 Fed. Appx. 130, 1325 (3d Cir. 2007); Moore v. City of Philadelphia, 461 F.3d 331, 347 (3d Cir. 2006). The Second Circuit has aligned itself in favor of juries. See Kessler v. Westchester County Department of Social Services, 461 F.3d 199, 209-10 (2d Cir. 2006); Wrobel v. County of Erie, 211 Fed. Appx. 71, 73 (2d Cir. 2007); Zelnik v. Fashion Institute of Technology, 464 F.3d 217, 227 (2d Cir. 2006). And, the Tenth Circuit has joined the Second, Third and District of Columbia Circuits in holding that the application of the Burlington Northern standard to the circumstances of a case is a matter for a jury. See Williams v. W.D. Sports, 2007 WL 2254940 at *10 (10th Cir., Aug. 7, 2007).

False Claims Act

On January 22, 2008, the U.S. Supreme Court denied cert in U.S. ex rel. Bly-Magee v. Premo, Case No. 05-55556 (9th Cir. Dec. 13, 2006). The Ninth Circuit's opinion is at 470 F.3d 914. In Bly-Magee, the Ninth Circuit ruled that non-federal reports, audits, and investigations qualify as a source of public disclosure under 31 U.S.C. section 3730(e)(4)(A). This represents yet one more split in the circuits, for the Third Circuit limits this provision to federal reports, audits, investigations. See U. S. ex rel. Dunleavy v. County of Delaware, 123 F.3d 734, 745 (3d Cir. 1997). The Eighth Circuit, on the other hand, agrees with this Ninth Circuit decision. See Hays v. Hoffman, 325 F.3d 982, 988 (8th Cir. 2003).

FLSA Settlements

If you settle an FLSA claim and have it supervised by the US Department of Labor, pursuant to 29 U.S.C. Section 216(c), the settling employee may end up signing off on a government form entitled WH-58 "Receipt for payment for lost or denied wages, employment benefits, or other compensation." In a recent opinion, the Ninth Circuit teaches us that the language contained in that form can either extinguish a claim or merely extinguish some portion of a claim.

In Dent v. Cox Communications Las Vegas, Inc., 502 F.3d 1141 (9th Cir. 2007), Mr. Dent signed a WH-58 which acknowledged receipt of payment of unpaid wages for the period beginning with the workweek ending May 4, 2002 through the workweek ending October 11, 2003. Thereafter Dent claimed unpaid wages for a time period prior to May 4, 2002. The district court dismissed his claim, accepting the employer's argument that the unpaid overtime wage claim had been settled in full. The Ninth Circuit reversed, finding that his claim was released only with regard to the time period specified in the WH-58.

Two New New Jersey Employment Statutes

New Jersey has amended its Law Against Discrimination and expanded it to require that employers reasonably accommodate sincerely held religious beliefs unless to do so would impose an undue burden. The statute now defines "undue hardship" as an accommodation requiring unreasonable expense or difficulty, unreasonable interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system or a violation of any provision of a bona fide collective bargaining agreement. Further, the statute states that, in determining whether an accommodation constitutes an undue hardship, the factors considered shall include:

• The identifiable cost of the accommodation, including the costs of loss of productivity and of retaining or hiring employees or transferring employees from one facility to another, in relation to the size and operating cost of the employer.


• The number of individuals who will need the particular accommodation for a sincerely held religious observance or practice.


• For an employer with multiple facilities, the degree to which the geographic separateness or administrative or fiscal relationship of the facilities will make the accommodation more difficult or expensive.

The other statute concerns employment protections for employees on military leave in time of war or emergency.

Insurance Coverages for Federal Employees

There was an interesting article in one of the newspapers in the last few days about insurance coverages provided to federal employees who might be sued, and presumably not otherwise protected by immunity doctrines. Wright & Company, a Virginia-based insurance company, writes coverages. The article indicated that it provides $200,000 for legal fees incurred in an administrative proceeding, an additional $100,000 in fees for criminal investigations, and up to $1,000,000 for damages incurred in civil litigation. See: http://www.wrightandco.com/wmspage.cfm?parm1=23.

Corporate Social Responsibility

The January 19, 2008 issue of The Economist has a special report on corporate social responsibility. Reprints of the report are available. See www.economist.com/rights. A list of sources can be found at www.economist.com/specialreports and an audio interview with the author can be found at www.economist.com/audio.

For those who are interested, there is an ABA corporate social responsibility committee. If you should be interested in joining, please let me know and I will forward your name to the committee chair.

Hangman's Nooses

In the past week we have observed first Kelly Tilghman making an utter fool of herself on the Golf Channel when she said that the way to defeat Tiger Woods was to take him out and lynch him. That merited only a two week suspension. Then to add fuel to the fire, Golfweek distributes this past week's issue with a cover image of a noose for an article about Ms. Tilghman's idiocy. That thankfully merited the discharge of Dave Seanor, the editor.

Some of the obvious questions raised by these two incidents, other than being dumbfounded that supposedly intelligent people still just don't get it, would be the following:

• How come it took two days to apologize? You would have thought that within seconds after Ms. Tilghman uttered her stupidity, that she or someone associated with the channel, would have realized that what she said was over the top, and an apology should have issued within moments after she said what she said. Makes you wonder whom, in addition to Ms. Tilghman, at the Golf Channel simply doesn't get it.


• Makes you also wonder what the hiring practices are at the Golf Channel. I would assume that if there were African-Americans on the production team, that one of them would have spoken up immediately and demanded that she apologize on the air. I sure would like to see the Golf Channel's hiring statistics.


• That takes me to Golfweek magazine, the cover page, I am told, was vetted by a committee. So, it isn't just Mr. Seanor who doesn't get it, there are many others at the magazine who are simply clueless or worse than that, closet racists who took pleasure in insulting millions of our citizens. So, one wonders why Mr. Seanor is the only person who was disciplined. Yes, "the buck stops here", and the boss takes the fall, but the others ought not to go scot free.


• Finally, the incident, like the Golf Channel incident, has to raise questions about the hiring practices at Golfweek. Again, I sure would like to see some data.
  

The EEOC recently obtained a $2.5 million settlement on behalf of an African-American electrician who claimed he was harassed daily, including the display of nooses, at Lockheed-Martin. This was the largest settlement filed by EEOC on behalf of an individual. See: http://www.diversity.com/public/2919.cfm
http://www.eeoc.gov/press/1-2-08.html

Since Fiscal Year 2001, the EEOC has filed more than 30 lawsuits that involve the displaying of hangman’s nooses on the job. It recently settled for $290,000 such a claim against Helmerich & Payne International Drilling in Jackson, Mississippi, for $390,000 against Pemco Aeroplex in Birmingham Alabama, for $600,000 against AK Steel in Butler, Pennsylvania, and for more than $1,000,000 against Commercial Coating Service of Conroe, Texas. Tresa Baldas, EEOC Targets Workplace ‘Noose” Cases, National Law Journal, November 5, 2007. Available at: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1193735026861. See Stephanie Armour, “Racial Bias Suits Climb in Workplaces,” Asbury Park Press, Oct. 29, 2007, available at http://www.app.com/apps/pbcs.dll/article?AID=/20071029/BUSINESS/710290307/1003.

For additional coverage of the Golf week debacle see:

http://www.washingtonpost.com/wp-dyn/content/article/2008/01/19/AR2008011902439.html?sub=AR

http://www.nytimes.com/2008/01/19/sports/golf/19magazine.html?_r=1&scp=1&sq=golfweek+fires+editor&st=nyt&oref=slogin

For some startling discussion of the use of nooses as a form of racial discrimination in the workplace see:

http://query.nytimes.com/gst/fullpage.html?res=9804E3DF1238F933A25754C0A9669C8B63&scp=1&sq=nooses%2C+symbols+of+race+hatred&st=nyt

http://www.cnn.com/2007/US/11/01/nooses/index.html

http://www.washingtonpost.com/wp-dyn/content/article/2007/11/07/AR2007110702700.html

http://www.businessweek.com/magazine/content/01_31/b3743084.htm?chan=search

Sunrise Senior Living Sued by Former CFO

The former CFO of Sunrise Senior Living filed suit back in September in Fairfax County Circuit Court in Virginia, claiming that he was fired in retaliation for uncovering improper accounting practices. Sounds like a snooze, but, trust me it has gotten real interesting. In recent court filings, Sunrise disclosed that it had discovered "more than 25,000 unique pornographic images" on a company-owned computer used by the former CFO. That disclosure raises interesting issues regarding the former CFO's attempt to delete material from laptops provided to him by Sunrise. Sunrise alleges that the former CFO returned one of two laptops after deleting all active electronic files, and that only after a forensic examination did it find the evidence of pornography on parts of the hard drive that had not been wiped clean. The former CFO's attorney has asked the court to strike all references to the pornography, arguing that Sunrise's instructions regarding retention of materials related to accounting activities under investigation and did not require the retention of the "adult materials". We hope to obtain more information about this interesting case and report further in the future.

Baseball

General Sherman supposedly once said: "If I owned Texas and Hell, I would rent Texas and live in Hell." Quite obviously, Roger Clemens is betting that the good citizens of Harris County, Texas will prove the good general wrong. In what, in retrospect, may well be viewed as a serious blunder, Brian McNamee's lawyers threatened to sue Clemens if he went on 60 Minutes. Presumably, that lawsuit would have been filed in a more favorable venue than Harris County, Texas. But Rusty Hardin beat McNamee's lawyers to the punch, and filed a fourteen page complaint for defamation in Harris County before McNamee could file elsewhere. The complaint can be found at http://i.cnn.net/si/2008_images/2008.01.06_Clemens_Original_Petition.pdf.

I am beginning to get that itch that starts about this time every year - the itch to go south for spring training. Many players that I would love to go observe. Will Elijah Dukes get through spring training before he gets arrested yet again? How will D Train (Dontrelle Willis) do in the American League? And who is this latest deportee from Japan, Yosuke Kukudome, who will play right field for the Cubbies?

Damages

Put this under the category of crass commercialism. I co-chair a two day CLE conference sponsored by ALI-ABA on damage issues in employment cases which will be held February 7-8 at Georgetown Law School in Washington, D.C. If you are interested in registering, just contact ALI-ABA at 1-800-CLE-NEWS.