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. 

Associational disability discrimination ruling broadens scope of Chapter 151B

In July, the Massachusetts Supreme Judicial Court issued a landmark ruling in which it decided that an employee may sue his employer for discrimination on the basis of his wife's disability. The decision in Flagg v. Alimed is the first decision recognizing a claim of associational discrimination based on disability – where the employee's claim is based on his association with a disabled person.  These claims have been recognized for association with other protected classes – such as race or gender – but never before with disability. The ruling, as commentators have said, significantly broadens the scope of Chapter 151B, the state's anti-discrimination statute. In fact, although Justice Ralph Gants issued a concurring opinion in which he asserted that the decision was limited to the situation where an employer does not want to bear the higher medical costs for an employee's family member, the full court's opinion does not include such a limitation, and appears to significantly expand the scope of the statute's protection.

Tufts health plan settles discrimination suit

Tufts Health Plan has agreed to pay 12 former employees over $370,000 after the United States Department of Justice found that it unlawfully discriminated against the employees by holding them to stricter standards than other employees. The 12 employees were hired as a result of a minority hiring plan that Tufts initiated after the Department of Justice found in 2009 that it was discriminating in its hiring. Tufts reportedly retaliated against these employees by segregating them from other employees during training and causing them not to be placed in permanent customer service positions.

The case is a reminder that employers must be careful not to treat employees any differently when they initiate or participate in a case involving discrininaton at work. Similarly, employees who have filed a claim of discrimination or participated - such as by testifying - in another employee's discrimination case should look out for any negative treatment at work that occurs after the participation. It is equally unlawful to retaliate against an employee for such participation as it is to discriminate against an employee because of his or her protected status.

Supreme Court rules for employers in two significant employment cases.

Yesterday, the Supreme Court issued sharply-divided opinions in two employment discrimination cases, both times coming out 5 to 4 in favor of the employer. In one case, University of Texas Southwestern Medical Center v. Nassar, the Court ruled that employees seeking to prove unlawful retaliation under federal discrimination law must prove that the protected conduct was the "but for" cause of the employment decision, a more employer-friendly standard than courts had been applying. And in Vance v. Ball State University, the Court narrowed the definition of a "supervisor" for purposes of evaluating a claim of sexual harassment against an employer, holding that a supervisor for purposes of sexual harassment liability must have actual authority to make changes to the employee's status, rather than merely direct the employee's work.

More to come on these decisions. 

Does release of football player due to diabetes equal discrimination?

Last week, news came out that the New England Patriots released defensive lineman Kyle Love, who had recently been diagnosed with Type 2 diabetes. There is no indication that the release was related to the diagnoses other than the timing, and this writer is not alleging that the release was due to Love's diabetes. Still, it is an interesting question whether employment discrimination laws are implicated when a sports team make personnel decisions based on a diabetes diagnoses.

Certainly, diabetes is considered a "disability" under federal and Massachusetts discrimination laws. An employer normally must offer reasonable accommodations to an employee who has a disability, such as diabetes, if doing so would allow the employee to perform the essential duties and functions of the position. For most employers, diabetes is easy to accommodate as the employee simply needs to be able to check his or her blood sugar periodically, administer insulin shots if necessary, and have access to food.

For a football team, however, it is not hard to see how such an accommodation could create significant disadvantages. A coach needs to know that a player can enter a game at a moment's notice, and remain in the game for long periods of time. (New England's coach certainly knows the importance of the latter, as its offense regularly plays a hurry-up style that does not allow for the defense to substitute its players.)

Supreme Court to hear arguments this week that could result in significant limitations on federal retaliation claims

On Wednesday, the Supreme Court is scheduled to hear arguments in University of Texas Southwestern Medical Center v. Nassar, No. 12-484, a case that could result in significant limitations on the ability of employees to prove retaliation under federal discrimination law. The case turns on the interpretation of amendments to Title VII of the Civil Rights of 1964 enacted in 1991 that established the ability of employees to prove discrimination even if the employer had a "mixed-motive" in its adverse action. Under this framework, once an employee proves that discrimination was a motivating factor in an adverse employment action, the burden shifts to the employer to show that it would have taken the same action even without the unlawful factor (i.e. that the unlawful factor was not the "but-for" cause of its decision). If the employer meets that burden, the employee can still receive a judgment if he or she shows that the discrimination was one of the motivating factors of the adverse decision. This is called a mixed-motives case. In 1989, the Supreme Court had decided that a mixed-motives case was available under Title VII.  The 1991 amendments codified this decision, but limited the available recovery for employees in such cases to his or her attorneys' fees.


In 2008, the Supreme Court decided that a mixed-motives case is not available under the Age Discrimination in Employment Act in Gross v. FBL Financial Services Inc, and that the burden of proof never shifts to the employer. This means that the employee must prove that the employer's discrimination was the "but-for" cause of the adverse action. The University of Texas Southwestern Medical Centers asserts that the Gross decision also applies to a retaliation claim under Title VII, because the 1991 amendments did not expressly refer to retaliation claims. The employee, Naiel Nassert, argues that even if this argument is true, the result would be to apply Title VII as it existed under the Supreme Court's 1989 decision, when the law did not allow an employee to win a judgment in a mixed-motives case but it still shifted the burden to the employer (once the employee established discrimination as a motivating factor) to prove that it would have been the same decision even without its discrimination. 

Doctor receives $7 million gender discrimination settlement

The former chief of anesthesia at Beth Israel Deaconess Medical Center will receive one of the largest gender discrimination settlement payments in Massachusetts history. According to the Boston Globe, Carol Warfield, M.D., who became chief of anesthesia in 2000, alleged that Dr. Josef Fischer, former surgery chief, discriminated against her because she is a woman by ignoring her in meetings and lobbying for her ­removal from her job. She also alleged that she she complained to Beth Israel Chief Executive Paul Levy, both men retaliated against her and forced her out. 

The settlement is unusual for several reasons, not the least of which is the size of the payment. Unlike most employers who settle such cases, Beth Israel agreed to make certain facts of the settlement public. While it did not admit any wrongdoing, it allowed Dr. Warfield to publicize the amount of the settlement and agreed to name the hospital's new pain clinic after her. The hospital reportedly also agreed to sponsor an annual lecture series on women's health and the academic contributions of women in surgery. 

It is not possible to say with any accuracy how large this settlement is compared to most employment discrimination settlements, since the large majority remain confidential. It is likely that a major factor contributing to the size of the award was the plaintiff's income. As a physician and chair at a major city hospital, she likely earned a sizable salary which contributed to her settlement amount.