Tuesday, October 15, 2013

Federal court says unpaid intern cannot sue for discrimination

In a case of apparent first impression, a federal court in New York ruled last week that an unpaid intern could not sue for workplace sexual harassment because she did not qualify as an employee under the state's employment discrimination law.  The court reasoned that because the intern did not recent compensation, a fundamental aspect of the employee-employer relationship was missing. The ruling leaves open the question of what protection an unpaid intern has against workplace discrimination if not under employment discrimination laws. If other courts adopt the same reasoning, particularly in a case under Title VII, the federal employment discrimination law under the Civil Rights Act of 1964, the ruling will have a far reaching effect.

Saturday, October 5, 2013

Federal court OKs refusal to hire based on headscarf

On October 1, 2013, the U.S. Court of Appeals for the Tenth Circuit ruled that Abercrombie & Fitch did not violate anti-discrimination laws when it refused to hire a female Muslim applicant because her religious headscarf violated its "Look Policy" on employee dress. The Court based its decision, which both reversed a lower court's ruling in favor of the Equal Employment Opportunity Commission ("EEOC") on the applicant's behalf and ordered the lower court to issue a decision in the company's favor, on the fact that the applicant did not expressly notify the store that she wore the headscarf ("hijab") for religious reasons and needed an accommodation of its dress policy. Therefore, the Court reasoned, the company did not know of its need to accommodate her religious beliefs and the EEOC could not, as a matter of law, prove its case.

The decision, in this writer's opinion, is a catastrophic failure to apply Title VII law to effect its remedial purpose. The intent of anti-discrimination laws is to prohibit, or prevent as much as possible, discrimination based on certain statuses, one of which is an individual's religious beliefs and practices. In this case, Abercrombie had every reason to know that this applicant wore the headscarf for religious reasons. The decision itself states that the company officials who interviewed the applicant and reviewed her candidacy assumed that she was Muslim and wore the scarf for religious reasons. To allow a company who has that knowledge to nonetheless refuse to hire someone simply because the candidate did not affirmatively announce her need for an accommodation undermines the entire purpose of the statute. It epitomizes form over substance. It encourages companies not to accommodate and to act before a prospective employee has the opportunity to request an accommodation.  I hope that the decision gets appealed to the full appeals court en banc and is reversed.