Abercrombie, the hijab, and religious discrimination in US employment law

The US Supreme Court recently heard oral arguments in a case in which clothing company Abercrombie & Fitch had refused to hire a candidate for a store sales position because of a hijab headscarf that she wore for religious reasons.


It’s clear that American law, specifically Title VII of the Civil Rights Act of 1964, doesn’t let an employer refuse to hire an individual on account of her religious observance or practice, unless it can’t accommodate the religious practice without undue hardship in the conduct of its business.

What isn’t clear, and what the US Supreme Court will soon decide, is whether an employer can be liable under Title VII for refusing to hire an applicant on account of her religious practice where the candidate didn’t provide the employer with direct, explicit notice of her need for a religious accommodation.

In the recent case, the candidate had applied for a job in a children’s clothing store owned by Abercrombie; she wore a black headscarf to the interview but didn’t say why; and Abercrombie refused to hire her because the headscarf was inconsistent with the company’s “Look Policy” that forbids black clothing and caps. As it turns out, the candidate is Muslim, and wears the black hijab headscarf as part of her religious practice.

The Equal Employment Opportunity Commission, a federal government agency, sued Abercrombie on the candidate’s behalf in federal court. The EEOC argued that the refusal to hire her because of her headscarf was a violation of Title VII. Abercrombie responded, in part, that the candidate should have informed the interviewer that she required an accommodation from the Look Policy.

The district court granted summary judgment for the EEOC. (Summary judgment is a ruling on the law where the facts aren’t in dispute.) The Court of Appeals for the Tenth Circuit reversed, holding that summary judgment should have been granted in favor of Abercrombie. And just 2 weeks ago, the Supreme Court heard oral arguments in a case that’s very narrowly framed: can an employer be liable under Title VII for refusing to hire an applicant based on a religious practice where she didn’t provide the employer with direct, explicit notice of her need for a religious accommodation?

Another way of framing the issue is “Who has the burden of raising the issue during the interview?” The EEOC’s position is that a candidate shouldn’t be required to make a specific request for a religious accommodation to wear a hijab. Abercrombie’s position is that an employer shouldn’t have to guess whether a head scarf is worn for religious reasons or fashion reasons.

Justice Samuel Alito colorfully illustrated the issue during oral argument, in the following question to Shay Dvoretzky, Abercrombie’s lawyer:

All right. Let’s say four — four people show up for a job interview at Abercrombie. And half — this is going to sound like a joke, but, you know, it’s not. (Laughter.) 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 hijab, the fourth is a Catholic nun in a habit. Now, do you think the employer has to — 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.

You can listen to the oral arguments, and read the oral argument transcript, by clicking on the link near the bottom of this page of the Oyez website.

A decision is expected within the next few months.

(The New York Times illustrated an article on the oral argument with a photo of rejected candidate Samantha Elauf, her mother, and the EEOC General Counsel on the Supreme Court steps.)

Maternity leave in the US: a representative demonstration of federalism

President Obama recently mentioned paid maternity leave as a priority goal in his State of the Union message to Congress. Maternity and parental leave laws vary from state to state in the United States, in a representative demonstration of American federalism.  Today’s Law Talk blog article will help the reader understand both American federalism and American parental leave policies.

First, though, an observation: the US doesn’t seem very generous when its national paid parental leave policy–there is none–is compared with that of other countries (16 weeks in France, for instance, or 50 in Canada).

A fundamental characteristic of American government is that the country consists of 50 sovereign states in a federal system where the national government has limited power.  The roots of this federalism go back to 1776: through their famous Declaration of Independence from Great Britain, the 13 colonies became 13 “states” joined in a battle for independence. They organized themselves under a document, finalized in late 1777 and ratified over the next few years, known as the Articles of Confederation.  After their independence was confirmed through the 1783 Treaty of Paris, these new states—countries—remained bound together for limited purposes under the pre-existing Articles of Confederation.  The many flaws with the Articles of Confederation led to the drafting of a proposed replacement constitution at a 1787 convention, and this new document, the US Constitution, went into effect in 1789.  Between its initial text and the 10th amendment ratified a few years later, the US Constitution confirmed three categories of government authority:

-the national government has exclusive authority in some areas (such as defense and interstate commerce);

-the national and state governments have concurrent authority for other areas; and

-the state governments have exclusive authority for areas where the Constitution doesn’t grant authority to the national government.

This division of authority across levels of government often leads to disagreement.  The disagreement once rose to the level of war—the Civil War of 1861-1865—and was quite heated during the civil rights battles of the 1950’s and 60’s, such as when President Eisenhower called upon the military to ensure Arkansas compliance with federal court desegregation orders in the face of resistance in the name of “states’ rights.”  The tension is usually less violent, but still ever-present.

As a result of this division of authority, some areas of policy will be developed through laws at the national level alone; others will be developed through laws at both the national and state levels; and still others will be developed through laws at only the state level.

Where does parental leave policy fit into this framework?  It’s pretty clear that the Constitution is silent on whether the national government has the authority to compel employers to allow parent employees to take time off in connection with the birth of a child.  If that were the end of the analysis, then it would be clear, given the limited authority of the national government, that there’s no authority to enact a federal parental leave policy.

However, there are at least two constitutional grants of authority to the national government that might permit a national parental leave policy: the Commerce Clause’s grant to the national government of authority to regulate interstate commerce; and the Fourteenth Amendment’s grant of authority to the national government to enforce the “Equal Protection” clause of the Fourteenth Amendment, including that clause’s judicially-identified freedom from gender-based discrimination in the workplace.

This was the constitutional framework when President Clinton signed into law, very early in his first term, the Family and Medical Leave Act of 1993. The FMLA required (and continues to require) covered employers to provide eligible employees with job-protected but unpaid leave for qualified medical and family reasons, including the birth of a child. Given that not all employers are covered, and not all employees are eligible, not all employees in the US benefit today from the FMLA: according to a 2007 study, two-thirds of American workers worked then for covered employers, and 54% of American workers were then eligible for FMLA leave.

What does the FMLA guarantee to eligible workers?  The right to take up to 12 work weeks of unpaid leave during any 12-month period to attend to the serious health condition of the employee, parent, spouse or child, or for pregnancy or care of a newborn child, or for adoption or foster care of a child.

The constitutionality of the FMLA was reviewed by the US Supreme Court in a case that arose because the law applied to state government employers . In 1997, the State of Nevada fired a worker for failure to show up to work after having exhausted his FMLA leave.  The fired worker sued the State of Nevada for alleged violations of the FMLA, and in its defense the State of Nevada challenged the FMLA’s constitutionality, arguing that the national government didn’t have the authority to impose a family leave policy on a state government employer under the Eleventh Amendment (which addresses a state’s sovereign immunity). The lawsuit made its way up to the US Supreme Court, and in 2003, a divided Court upheld the constitutionality of the FMLA: first, the Court found that the FMLA was a valid exercise of authority under the Fourteenth Amendment; and then the Court found that the FMLA validly impinged on state sovereign immunity, notwithstanding the Eleventh Amendment.  (One justice, in a concurring opinion that agreed with the conclusion but not the reasoning, would have upheld the constitutionality of the FMLA under the Commerce Clause but not under the Fourth Amendment.)

It’s still the case that the US has no national law providing for paid time off for new parents. However, some of the 50 states do.

States can also enact FMLA-like laws with their own rules that impose a job-protected leave requirement on a broader range of employers than under the FMLA, or expand eligibility to a broader range of employees than under the FMLA.

The culture of federalism is such that a national lawmaker (a representative or senator) might support the expansion of paid leave as good policy, yet oppose a national law to get there (such policies best being left to the states).

This is the context today for President Obama’s recent State of the Union message.  (The State of the Union message is itself a feature of the US Constitution, which requires the President to periodically give Congress information on the state of the union and recommend measures believed to be necessary and expedient.)  In January’s State of the Union message, President Obama announced a plan to expand paid leave for workers, starting with the federal government.  The plan has three components:

  1. Calling on Congress to pass legislation that would guarantee paid leave for employees throughout the United States.
  1. Proposing the appropriation of funds to encourage states to develop their own paid leave programs.
  1. Using presidential authority over the federal workforce to provide paid leave for federal employees. (The President has already signed an order to this effect.)

You now know enough about federalism and family leave policies in the US to delve further.  Here are a few resources to get started:

A recent news article on President Obama’s plan to expand paid leave

The majority, concurring, and dissenting opinions in Nevada vs Hibbs

The US Department of Labor page on the FMLA

A Wikipedia article on the FMLA

The US Constitution

Class action lawsuits: up close and personal

One of the unusual features of American civil litigation is the “class action” lawsuit. In a class action lawsuit, one or several persons sue on behalf of a larger group of persons (a “class”). The rules of civil procedure allow this only when the issues in dispute are common to all members of the class, and the members of the class are so numerous as to make it impracticable to bring them all into court.  The decision in a class action lawsuit can bind all members of the class.

In the federal court system, the Federal Rules of Civil Procedure apply. Class action lawsuits are addressed in Rule 23.

Situations involving class action lawsuits vary widely: from employees alleging a pattern of discrimination, to victims of a toxic spill, from consumers who purchased the same defective product, to patients who took the same unsafe medicine.

A class action lawsuit can also be filed on behalf of shareholders against a publicly traded company. For instance, Fannie Mae, more formally known as Federal National Mortgage Association, recently reached a $170 million settlement of a class action lawsuit accusing it of misleading shareholders before it was seized by the U.S. government during the 2008 financial crisis.  The lead plaintiffs in this class action lawsuit are the Massachusetts Pension Reserves Investment Management Board, the State-Boston Retirement Board and the Tennessee Consolidated Retirement System.  And among the many thousands of class members: Law Talk founder Drew Shagrin!

That’s right, I’m a member of the plaintiff class in this class action lawsuit.  And I recently received in the mail a set of complex documents that would give me the right to receive a tiny portion of the settlement amount, surely less than the cost of postage from France to the US. I don’t intend to submit a proof of claim, but I’d like to share with you, dear reader, the documents.

For those of you interested in delving more, the case is In re: Fannie Mae 2008 Securities Litigation, U.S. District Court, Southern District of New York, No. 08-07831.

One of the documents that I received is a 24-page notice called NOTICE OF (1) PROPOSED CLASS ACTION SETTLEMENT AND PLAN OF ALLOCATION; (II) SETTLEMENT HEARINGS; AND (III) REQUESTS FOR AWARDS OF ATTORNEYS’ FEES AND LITIGATION EXPENSES. You can read the entire document for yourself here.   Or you can just admire its layout in the image below:


Class action notice

The second document that I received, called PROOF OF CLAIM AND RELEASE FORM, is only 12 pages long.  You can read the entire document for yourself here.  Or you can just admire its layout in the image below:


Class action notice, proof of claim

In the Fannie Mae case, it’s easy to criticize an approach that awards tens of millions of dollars in fees and reimbursed expenses to the lawyers representing the class, while I, a class member, can recover less than the postage cost in seeking a payment.  So let’s look at a defense of class action lawsuits.  This comes from the website of a well-known plaintiffs’ law firm, Lieff Cabraser:

Class action lawsuits are designed to advance several important public policy goals. A class action is often the sole means of enabling persons, even those with serious injuries, to remedy injustices committed by powerful, multi-million dollar corporations and institutions. As stated by former United States Supreme Court Justice William O. Douglas, “The class action is one of the few legal remedies the small claimant has against those who command the status quo.”

In other situations, each person within a large group may have suffered only limited damages and the cost of individual lawsuits would be far greater than the value of each claim. The total damages, however, to the class could be quite large. The wrongdoer would have the incentive to continue its fraudulent conduct but for a class action.

“In the age of mass production and mass marketing, class actions are necessary to allow individuals to take on multi-national corporations, where expenses of litigating would be otherwise prohibitive. The class becomes a de facto corporation for the purposes of suit, allowing individuals to band together and be equally matched against corporate defendants,” Lieff Cabraser partner and class action attorney Elizabeth Cabraser has observed.

Finally, where the defendant has engaged in a pattern of wrongdoing, a class action can provide an effective remedy for the group without incurring the costs of thousands of separate lawsuits and risking inconsistent decisions by the courts.

These are persuasive justifications.  Now lets look at some criticisms.  First, a class action can bind class members with a low award when they might have had a higher award in their own independent actions.  Second, class members sometimes receive little or no benefit  because of large fees for the attorneys.  Alternately, some plaintiffs benefit at the expense of other class members.  Furthermore, class action communications are confusing and can prevent class members from being able to fully understand and effectively exercise their rights.  (See the Fannie Mae case notices above for proof of this!)  Finally, class action lawsuits can undermine public respect for the country’s judicial system–they give the appearance, often based in reality, that the biggest winners are the plaintiffs’ attorneys, while increasing the cost of doing business.

Law Talk isn’t going to convince anybody that class action lawsuits are good or bad. (In fact, they’re both good AND bad.)  The goal here was simply to introduce the reader to the concept.

May the law be with you!



Magna Carta

It’s now been 800 years since the original Magna Carta was issued. You surely know that “Magna Carta” is Latin for “Great Charter,” and you probably also know that Magna Carta is a big deal in the annals of law and history. Beyond that, you might have forgotten (or never learned) what Magna Carta was and why we should care.

Law Talk to the rescue!

Magna Carta was drafted in June of 1215 by Stephen Langton, Archibishop of Canterbury, and issued by King John of England as a quasi-treaty to appease rebel barons in a meeting at Runnymede, about 15 miles east of London.

Magna carta

The charter’s 3,500 words in Latin, written on a calfskin parchment, didn’t succeed in preventing war : both king and barons violated it, Pope Innoncent III annulled it 9 weeks later, and the First Barons’ War followed, leading to the occupation of England by France.  Yet this unsuccessful treaty succeeded in establishing an important and enduring principle: everybody, even the king, is subject to the law, which means that everybody, even the lowly commoner, is protected by the law.

The principle took a long time to take hold—for centuries, it was important more for its symbolism and its inspiration than for its practical effect on limiting royal powers and ensuring the rights of commoners. But eight hundred years later, the following clause is still a fundamental part of English law:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.
To no one will we sell, to no one deny or delay right or justice.

You can see that clause’s influence on the first 10 amendments to the US Constitution (the “Bill of Rights”), the Universal Declaration of Human Rights, and the European Convention on Human Rights.  They all lead back to 1215.

For more information, see the British Library website.

Finally, enjoy the following video, in which Prime Minister David Cameron, in a 2012 interview with American late-night interviewer Dave Letterman, succeeds in making Magna Carta history funny.


The illustration above showing King John issuing Magna Carta at Runnymede is a 19th-century woodcarving.  Photograph: Universal History Archive/Un/REX

Free speech in America

One consequence of this month’s terrorist attack on the Charlie Hebdo office in Paris is a renewal of the age-old debate over appropriate limits on speech. For the benefit of those not well-versed in American law, this blog article explains how government infringement of speech gets analyzed in the United States.

First, what is speech?  Most people think of it as the expression of ideas using words, whether spoken or written. However, speech can also consist of symbolic non-verbal means to communicate a message or idea.

The analysis of a limit on speech begins with the “free speech clause” of the First Amendment to the US Constitution.

us-constitution-pdf-logoDuring the colonial period, England had censored the press and punished people who dared to criticize the British Crown. The Constitution didn’t initially address freedom of speech, but the very first amendment, effective as of late 1791, stated:

Congress shall make no law . . . abridging the freedom of speech.

On its face, this applies only to acts of Congress. For a good part of American history, this limitation was strictly interpreted. However, it’s now settled law that the First Amendment’s protection of speech applies also to the other branches of the federal government, as well as to all branches of state governments.

Who are the parties protected by the First Amendment’s free speech clause? There are two categories: speakers, who can speak or otherwise express ideas freely; and people in general, who get to decide for themselves what to read, see, and hear.

Whenever a court is asked to review a government abridgment of speech, the challenge might be facial, contesting the constitutionality of the abridgment of speech in all cases; or it might challenge the government rule or action only as applied to specific facts.

For analyzing limits on speech, American courts have identified various categories. First comes political speech. It’s often said that participation in the democratic political process is most effective when the participant can (a) hear all points of view to make decisions for himself or herself, and (b) share his or her own point of view with others.

Next comes commercial speech, such as advertising or public relations statements. Commercial speech can overlap with political speech when speakers with commercial motivations and goals participate in the political process.

Third comes artistic speech: novels, poems, plays, songs, choreography, painting, performance art, and so forth.

The next two types of speech are related but definitely not identical: indecent speech and obscenity. Speech is indecent if offensive as defined by community standards: certain profane 4-letter words provide an example. On the other hand, speech is obscene if it appeals to the average person’s shameful interest in sex, depicting sexual conduct in a patently offensive way as defined by community standards, and lacking serious literary, artistic, political, or scientific value. (This vague definition is sometimes called the “I know it when I see it” test).

Another category is “fighting words” expressed to incite hatred or violence from their target.

The final category of speech is a catch-all, miscellaneous speech. Basically, it’s everything else.

Where the government seeks to regulate the content of speech, it typically must provide an extremely strong justification. The test is like the one used for race-based discrimination, called “strict scrutiny.” In general, the government must have a compelling interest to advance, and the challenged action must be the least restrictive means to achieve that compelling interest.

Nonetheless, the courts have made adjustments for the regulation of special types of content: for commercial speech, a weaker justification is sufficient, although there’s more protection now for commercial speech than there was in the past. Indecent speech can be regulated in broadcast and cable media. Obscene speech is not at all constitutionally protected. Fighting words can be punished if their utterance alone inflicts injury or tends to incite an immediate breach of the peace)

Where the government seeks to regulate not the content of speech, but rather its place, time, and manner while remaining neutral with respect to content, the government’s justification can be less strong. The test is called “intermediate scrutiny,” not as severe as strict scrutiny, but still stricter than the “rational basis” test that sets the floor for the constitutionality of government action.

From these tests, we can derive the following two overarching principles. First, the government in the US cannot generally limit expression simply because a listener (or even most listeners) would be offended by the expression’s content. Second, expression can be restricted only if it will clearly cause direct and imminent harm to an important societal interest. (The classic example is shouting, “Fire!” in a crowded theater.)

There are all sorts of interesting applications of these rules. What happens when these rules bump into other rules regarding libel and defamation? How does symbolic speech such as burning the national flag fit into these rules? Can a convicted felon profit from the sale of a published memoir? Can a musical group record and distribute a song about a toy protected by trademark? These are just a few examples of the kind of cases that have kept the courts busy with First Amendment challenges.

Back to the recent events in France and the way that they’ve prompted a renewal of the age-old debate over appropriate limits on speech. As Kenan Malik framed the issue in a recent Op-Ed piece in The New York Times,

France’s attitude to free speech is fraught. On one hand, the republic prides itself as the nation of Voltaire, with a tradition of trenchant social satire — to which Charlie Hebdo clearly saw itself as heir. On the other hand, France has restrictive privacy laws, some of the toughest hate speech laws in the European Union and a ban on Holocaust denial. This combination of Voltairean bravado and restrictive measures has created a deeply contradictory attitude toward free speech.

Law Talk isn’t likely to convince any reader to change his or her view of the appropriate limits on speech in France, but Law Talk supports the notion most eloquently articulated by US Supreme Court Justice Louis Brandeis in 1927 :

If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.

Law Talk: the basics

What do we talk about when we talk about law?  It could be any of a thousand different things, given how many ways there are to define the term “law.”  The meaning depends on the context.

This lack of clarity is a frequent feature of language, whether written or oral.  Clarity is very difficult to achieve.  Vagueness and ambiguity are the general rule, not the exception.

The name Law Talk proves the point.  The name itself admits interpretation: what kind of law?  What kind of talk?

What’s more, the name applies to two different concepts: Law Talk the blog (which you’re reading), and Law Talk the consulting firm (home of the Law Talk blog).

In other words, the name Law Talk is both vague and ambiguous!   Yet it works well, according to the feedback that we’ve received, because it’s so evocative and easy-to-remember.  Lawyers, take note: language doesn’t always need to be clear to be effective.  Sometimes it’s useful to “vague it up” a little bit, and rich ambiguity is a cornerstone of good fiction and poetry.

But this isn’t fiction or poetry.  What, then, is Law Talk?

The Law Talk consulting firm provides four service areas. First, Law Talk helps lawyers and other legal professionals impove their Legal English.  Law Talk’s approach is inspired by the Rassias Method: theatrical, fun, and above all, effective.

Second, Law Talk helps non-US lawyers understand and work with American legal concepts.  Whether the need is occasional or frequent, non-US lawyers sometimes need to know more than simple Legal English vocabulary: they need a higher-level understanding of American legal doctrine. Law Talk delivers that understanding quickly, freeing up lawyer time for higher-value activities. Training topics literally span the range from A to Z (from administrative law to zoning law).

Third, Law Talk the consulting firm helps professionals of all types negotiate more effectively.  Law Talk embraces the principle-based negotiating approach developed at the Harvard Project On Negotiations.  Through group workshops and one-on-one coaching, Law Talk guides professionals in skills and strategy.  And through negotiation consultation, Law Talk prepares professionals for upcoming negotiations (developing situation-specific strategy and tactics).

Finally, Law Talk the consulting firm helps disputing parties resolve their business dispute through mediation, a process under which a neutral mediator helps the disputing parties arrive at a negotiated agreement.

As for the Law Talk blog, it will talk about the law, of course, but with an emphasis on the service areas of Law Talk the consulting firm.  You’ll find anecdotes and war stories; reviews of articles, books, and movies; commentaries on relevant developments; interviews with guests of interest; and the occasional joke (with the choice guided by good taste and respect for others).

Please don’t hesitate to suggest ideas for new articles, or to leave comments on what you find here at the Law Talk blog.

Drew Shagrin