Supreme Court upholds right to wear a hijab at work
June 1, 2015 1:22 PM Subscribe
Clothing retailer Abercrombie & Fitch discriminated against a Muslim teenager when it refused to hire her, in part, because she wore a religious headscarf, the US Supreme Court ruled on Monday.
During oral arguments, Supreme Court Justice Sonia Sotomayor pointed out that the case is unlike most employment discrimination cases in that the hiring manager at Abercrombie has openly admitted lowering Elauf’s score upon learning from another manager that the hijab violated company policy.
I'm delighted to see the Supreme Court rule not once, but twice today in favor of the first amendment. How refreshing.
posted by bearwife at 1:33 PM on June 1, 2015 [1 favorite]
posted by bearwife at 1:33 PM on June 1, 2015 [1 favorite]
Breaking: Clarence Thomas is still an *ssh*le.
posted by General Malaise at 1:34 PM on June 1, 2015 [6 favorites]
posted by General Malaise at 1:34 PM on June 1, 2015 [6 favorites]
SCOTUS Blog page, which includes the link to the opinion, below decision, etc.
posted by jpe at 1:35 PM on June 1, 2015 [1 favorite]
posted by jpe at 1:35 PM on June 1, 2015 [1 favorite]
Abercrombie & Fitch: Discriminating so egregiously that even Antonin Scalia thinks they're bastards.
posted by the christopher hundreds at 1:36 PM on June 1, 2015 [65 favorites]
posted by the christopher hundreds at 1:36 PM on June 1, 2015 [65 favorites]
Why did Abercrombie pursue this once they had lost the original case? It seems such an obvious thing to allow accommodation for religious practice (well, one which doesn't effect the ability to work, which a headscarf definitely doesn't in retail).
posted by Thing at 1:37 PM on June 1, 2015 [1 favorite]
posted by Thing at 1:37 PM on June 1, 2015 [1 favorite]
This is one of those cases that more or less preserves the status quo but could have gone totally pear-shaped if they'd voted the other way. Imagine if all a business had to do to discriminate against applicants with religious/ADA/other accommodation issues was to pointedly not ask if they had any such issues...
(A&F was claiming that since Ms. Elauf never explicitly said she was wearing the headscarf because of her faith, they should be free to reject her application under the no-hats policy.)
posted by Holy Zarquon's Singing Fish at 1:44 PM on June 1, 2015 [2 favorites]
(A&F was claiming that since Ms. Elauf never explicitly said she was wearing the headscarf because of her faith, they should be free to reject her application under the no-hats policy.)
posted by Holy Zarquon's Singing Fish at 1:44 PM on June 1, 2015 [2 favorites]
This whole month should be a good one from SCOTUS junkies. Rulings still ahead: Obamacare, lethal injections, same-sex marriage, and Horne v. United States Department of Agriculture, a test of the 5th amendment takings clause.
posted by beagle at 1:44 PM on June 1, 2015 [3 favorites]
posted by beagle at 1:44 PM on June 1, 2015 [3 favorites]
Why did Abercrombie pursue this once they had lost the original case?
She sued for damages and they had a reasonable argument (they won at the appellate level)
posted by jpe at 1:45 PM on June 1, 2015
She sued for damages and they had a reasonable argument (they won at the appellate level)
posted by jpe at 1:45 PM on June 1, 2015
Why did Abercrombie pursue this once they had lost the original case?
Because they're assholes?
posted by secret about box at 1:45 PM on June 1, 2015 [4 favorites]
Because they're assholes?
posted by secret about box at 1:45 PM on June 1, 2015 [4 favorites]
Why did Abercrombie pursue this
Judging from their arguments, because it just kills the Abercrombie "look" required of all sales associates to wear a headscarf. The more you think about this contention, the more you realize that A&F is just the look you as a human being do not want.
posted by bearwife at 1:45 PM on June 1, 2015 [28 favorites]
Judging from their arguments, because it just kills the Abercrombie "look" required of all sales associates to wear a headscarf. The more you think about this contention, the more you realize that A&F is just the look you as a human being do not want.
posted by bearwife at 1:45 PM on June 1, 2015 [28 favorites]
@Thing Because Abercrombie are trying to maintain the illusion that they're an Anglo-European high fashion brand to which rules like this don't apply.
posted by subdee at 1:47 PM on June 1, 2015 [2 favorites]
posted by subdee at 1:47 PM on June 1, 2015 [2 favorites]
The first thing I thought of was "I wonder how Disney is going to deal with this." Turns out there is/was a lawsuit in 2012.
posted by RobotVoodooPower at 1:48 PM on June 1, 2015
posted by RobotVoodooPower at 1:48 PM on June 1, 2015
they pursued it because they thought the courts' islamophobia was was more pressing than their adherence to the constitution.
posted by nadawi at 1:49 PM on June 1, 2015
posted by nadawi at 1:49 PM on June 1, 2015
bearwife: I'm delighted to see the Supreme Court rule not once, but twice today in favor of the first amendment. How refreshing.
I'm really not understanding their reasoning in the second case. Guy posted threats against his estranged wife. Said he wanted to kill her. Talked about local elementary schools being ripe for a shooting spree. And:
"Fold up your [protection-from-abuse order] and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order that was improperly granted in the first place
Me thinks the Judge needs an education on true threat jurisprudence
And prison time'll add zeros to my settlement . . .
And if worse comes to worse
I've got enough explosives
to take care of the State Police and the Sheriff 's Department."
Section C of the statute seems pretty clear:
posted by zarq at 1:51 PM on June 1, 2015 [19 favorites]
I'm really not understanding their reasoning in the second case. Guy posted threats against his estranged wife. Said he wanted to kill her. Talked about local elementary schools being ripe for a shooting spree. And:
"Fold up your [protection-from-abuse order] and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order that was improperly granted in the first place
Me thinks the Judge needs an education on true threat jurisprudence
And prison time'll add zeros to my settlement . . .
And if worse comes to worse
I've got enough explosives
to take care of the State Police and the Sheriff 's Department."
Section C of the statute seems pretty clear:
18 U.S. Code § 875 - Interstate communicationsThis seems cut and dried to me. Maintaining anyone's first amendment right to threaten other people is not a win.
(a) Whoever transmits in interstate or foreign commerce any communication containing any demand or request for a ransom or reward for the release of any kidnapped person, shall be fined under this title or imprisoned not more than twenty years, or both.
(b) Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than twenty years, or both.
(c) Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.
(d) Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.
posted by zarq at 1:51 PM on June 1, 2015 [19 favorites]
zarq, as you know I believe in prosecuting domestic violence offenders. But it is a pretty key first amendment protection against locking people up for what they say to require that they intend a threat before they can be punished for making a statement someone else reasonably construes that way. That's what the government wasn't required to prove before this ruling -- intent. So this is actually a sound first amendment ruling and a rather important one too.
posted by bearwife at 1:54 PM on June 1, 2015 [5 favorites]
posted by bearwife at 1:54 PM on June 1, 2015 [5 favorites]
Just wondering: Would Abercrombie & Fitch have the legal right to require her to wear an especially "high-fashion" hijab, one that fits their "look"?
posted by Sir Rinse at 1:55 PM on June 1, 2015 [4 favorites]
posted by Sir Rinse at 1:55 PM on June 1, 2015 [4 favorites]
I'm not sure why intent should matter to statements that a reasonable person would interpret as threats of violence against specific people. Statements with that content are wrong regardless of (purported) lack of intent.
posted by justsomebodythatyouusedtoknow at 1:58 PM on June 1, 2015 [9 favorites]
posted by justsomebodythatyouusedtoknow at 1:58 PM on June 1, 2015 [9 favorites]
Because there are way too many things uttered that other people might reasonably perceive as a threat. Think about it. Do you really want a mere negligence standard before people face jail for what they say and write? Requiring proof of intent doesn't seem too onerous when we are talking criminal consequences.
posted by bearwife at 2:04 PM on June 1, 2015
posted by bearwife at 2:04 PM on June 1, 2015
This seems cut and dried to me.
zarq
Not quite.
The question before the court was about the legal standard used in establishing whether a threat had been made under this law. Was it enough, as the government said, to establish that a reasonable person would understand the speech as a threat, or did the government have to prove intent to threaten? The statute itself does not answer this question.
The Court held the latter to be the case, though it didn't clarify exactly what standard should be used going forward.
posted by Sangermaine at 2:05 PM on June 1, 2015 [1 favorite]
zarq
Not quite.
The question before the court was about the legal standard used in establishing whether a threat had been made under this law. Was it enough, as the government said, to establish that a reasonable person would understand the speech as a threat, or did the government have to prove intent to threaten? The statute itself does not answer this question.
The Court held the latter to be the case, though it didn't clarify exactly what standard should be used going forward.
posted by Sangermaine at 2:05 PM on June 1, 2015 [1 favorite]
@Sir Rinse That's an interesting question. My understanding is that when they first offered her the job it was the hijab itself that was a problem because it wasn't considered "cool" enough for their image. In other words I think they would've had a problem no matter what kind of hijab she wore. But a company probably does have the right to require a more fashionable type of hijab though. I'm pretty sure my boss would have a problem with me wearing the star of david macaroni necklace made by my 5 year old niece at the office and could tell me to go with no necklace at all or replace it with a more professional looking metal version.
posted by manderin at 2:06 PM on June 1, 2015 [3 favorites]
posted by manderin at 2:06 PM on June 1, 2015 [3 favorites]
Importantly, the Supreme Court's decision was based on their interpretation of the statute, not of the First Amendment. They held that the “containing any threat” language requires that the communication be, to some degree, intended as a threat. They took no side on whether an amended statute that says only a reasonable person's reading of the text matters, and not the writer's intent, would violate the Constitution.
(This is important because prior SCOTUS rulings have said that under the First Amendment only “true threats,” rather than hyperbole or obviously unachievable threats, are subject to penalties, but there's no clear test for where a figurative threat becomes a true threat. Many observers were hoping Elonis would provide that test.)
posted by Holy Zarquon's Singing Fish at 2:07 PM on June 1, 2015 [1 favorite]
(This is important because prior SCOTUS rulings have said that under the First Amendment only “true threats,” rather than hyperbole or obviously unachievable threats, are subject to penalties, but there's no clear test for where a figurative threat becomes a true threat. Many observers were hoping Elonis would provide that test.)
posted by Holy Zarquon's Singing Fish at 2:07 PM on June 1, 2015 [1 favorite]
The statute says "...any communication containing any threat to kidnap any person or any threat to injure the person of another." It doesn't place the onus on the federal government to prove the person making the statements really meant it. All they have to do is say, "this a threat" which by definition is a determination of intent.
According to the brief, the guy posted this:
posted by zarq at 2:08 PM on June 1, 2015 [21 favorites]
According to the brief, the guy posted this:
Hi, I’m Tone Elonis.He knew damned well what he was doing.
Did you know that it’s illegal for me to say I want to
kill my wife? . . .
It’s one of the only sentences that I’m not allowed to
say. . . .
Now it was okay for me to say it right then because I
was just telling you that it’s illegal for me to say I
want to kill my wife. . . .
Um, but what’s interesting is that it’s very illegal to
say I really, really think someone out there should kill
my wife. . . .
But not illegal to say with a mortar launcher.
Because that’s its own sentence. . . .
I also found out that it’s incredibly illegal, extremely
illegal to go on Facebook and say something like the
best place to fire a mortar launcher at her house
would be from the cornfield behind it because of easy
access to a getaway road and you’d have a clear line of
sight through the sun room. . . .
Yet even more illegal to show an illustrated diagram.
[diagram of the house]. . . .”
The details about the home were accurate.
posted by zarq at 2:08 PM on June 1, 2015 [21 favorites]
> Breaking: Clarence Thomas is still an *ssh*le.
He concurred in part and dissented in part. Does that make him part *ssh*le? That brings us to the timeless philosophical question: what is part of a h*le?
posted by Sunburnt at 2:15 PM on June 1, 2015 [1 favorite]
He concurred in part and dissented in part. Does that make him part *ssh*le? That brings us to the timeless philosophical question: what is part of a h*le?
posted by Sunburnt at 2:15 PM on June 1, 2015 [1 favorite]
And a jury is perfectly free to come to that conclusion. Most juries would likely do so. But the court is saying that the prosecution has to prove some kind of intent to threaten rather than just rely on the fact that a victim felt threatened. The defense is then free to provide any evidence it may have that the communications weren't intended to be threats or that the defendant wasn't in control of his facilities. The jury may give that evidence any weight it wishes.
In this case, the guy doesn't have much of a defense, and that's fine. The point is that there's a certain legal standard that has to be satisfied before speech can be considered to be a true threat.
posted by zachlipton at 2:19 PM on June 1, 2015 [3 favorites]
In this case, the guy doesn't have much of a defense, and that's fine. The point is that there's a certain legal standard that has to be satisfied before speech can be considered to be a true threat.
posted by zachlipton at 2:19 PM on June 1, 2015 [3 favorites]
He knew damned well what he was doing
Yes, I think this intent requirement is something the government can meet in this kind of domestic violence threat case pretty readily. But thankfully they can no longer sweep lots of other speech that is merely made negligently under this statute.
The thing about good first amendment cases is that they almost always are about disturbing or troublesome speech. (The hajib case will doubtless bother every Islamophobe out there.) That's what the first amendment protects though. Pablum doesn't need a constitutional shield.
posted by bearwife at 2:21 PM on June 1, 2015 [1 favorite]
Yes, I think this intent requirement is something the government can meet in this kind of domestic violence threat case pretty readily. But thankfully they can no longer sweep lots of other speech that is merely made negligently under this statute.
The thing about good first amendment cases is that they almost always are about disturbing or troublesome speech. (The hajib case will doubtless bother every Islamophobe out there.) That's what the first amendment protects though. Pablum doesn't need a constitutional shield.
posted by bearwife at 2:21 PM on June 1, 2015 [1 favorite]
bearwife> But it is a pretty key first amendment protection against locking people up for what they say to require that they intend a threat before they can be punished for making a statement someone else reasonably construes that way. That's what the government wasn't required to prove before this ruling -- intent.
This is good; consider how it applies to Joe "J.R." Lipari, who, after an unpleasant customer service experience over his cellphone, went home, got high, watched "Fight Club," and posted the following status to facebook, a paraphrase of some movie dialogue:
People like Joe could use a little 1st Amendment protection when it comes to splitting the hair of "intent."
posted by Sunburnt at 2:27 PM on June 1, 2015 [4 favorites]
This is good; consider how it applies to Joe "J.R." Lipari, who, after an unpleasant customer service experience over his cellphone, went home, got high, watched "Fight Club," and posted the following status to facebook, a paraphrase of some movie dialogue:
Joe Lipari might walk into it Apple Store on Fifth Avenue with an ArmaLite AR-10 gas-powered semiautomatic weapon and pump round after round into one of those smug, fruity little concierges. This may be someone you've known for years, someone very, very close to you.And he ended up being charged with two felonies, including making a terrorist threat.
People like Joe could use a little 1st Amendment protection when it comes to splitting the hair of "intent."
posted by Sunburnt at 2:27 PM on June 1, 2015 [4 favorites]
Uh, that's a statutory case. Hijab at work is not a constitutional issue.
It would be completely constitutional not to have any anti-religious-discrimination statute on clothing. In fact it's easier to make an argument that it's unconstitutional to prohibit that kind of discrimination than to make an argument that the constitution somehow binds a private employer to accommodate employees' dress preferences, regardless of religious motivation. The Civil Rights Act was not a constitutional slam-dunk.
Personally I think there should be a rule, possibly a constitutional rule, that your mode of dress is your affair, not your employer's. And I wouldn't restrict that to religious garb. But that's not what the US Constitution says.
posted by Hizonner at 2:27 PM on June 1, 2015 [2 favorites]
It would be completely constitutional not to have any anti-religious-discrimination statute on clothing. In fact it's easier to make an argument that it's unconstitutional to prohibit that kind of discrimination than to make an argument that the constitution somehow binds a private employer to accommodate employees' dress preferences, regardless of religious motivation. The Civil Rights Act was not a constitutional slam-dunk.
Personally I think there should be a rule, possibly a constitutional rule, that your mode of dress is your affair, not your employer's. And I wouldn't restrict that to religious garb. But that's not what the US Constitution says.
posted by Hizonner at 2:27 PM on June 1, 2015 [2 favorites]
You know who's cheering that decision? All the GamerGators who have threatened to kill or rape women who have opinions (because none of them have actually DONE it, and if a couple of them did, it'd be 'isolated incidents' so the police don't have to bother with all of them). I haven't gotten many threats in my life, but I have taken every one of them very seriously. And if they DON'T mean to harm me, then they're yelling "FIRE" in the theater of my life. I've said it before and I'll say it again: "Freedom of Speech" is overrated to the point where abuse of the First Amendment causes more harm than abuse of the Second Amendment.
posted by oneswellfoop at 2:28 PM on June 1, 2015 [11 favorites]
posted by oneswellfoop at 2:28 PM on June 1, 2015 [11 favorites]
For more on the issue of "true threats," see Popehat's Lawsplainer: What the Supreme Court Didn't Decide About True Threats in Elonis.
posted by zachlipton at 2:31 PM on June 1, 2015 [2 favorites]
posted by zachlipton at 2:31 PM on June 1, 2015 [2 favorites]
No, they need not intend the act threatened, it is sufficient if the government proves they intended a threat. (Versus negligent speech that could be construed as a threat). So if the GamerGators are cheering, they are going to be sadly surprised.
Also, this statutory construction is a first amendment ruling because requiring the higher level of intent to threaten is based on the requisites of the first amendment.
posted by bearwife at 2:33 PM on June 1, 2015 [1 favorite]
Also, this statutory construction is a first amendment ruling because requiring the higher level of intent to threaten is based on the requisites of the first amendment.
posted by bearwife at 2:33 PM on June 1, 2015 [1 favorite]
The problem with a free society is that you spend a lot of time defending or accommodating people whose ideas and actions you find repugnant.
The benefit of a non-free society is that you don't have to waste your time defending them, because you don't get any say in the matter.
posted by blue_beetle at 2:33 PM on June 1, 2015 [8 favorites]
The benefit of a non-free society is that you don't have to waste your time defending them, because you don't get any say in the matter.
posted by blue_beetle at 2:33 PM on June 1, 2015 [8 favorites]
Also, this statutory construction is a first amendment ruling because requiring the higher level of intent to threaten is based on the requisites of the first amendment.If that's directed at me, I was talking about the original topic, not the threadjack about threats. :-)
But the threats decision didn't reach the constitutional issue either...
posted by Hizonner at 2:35 PM on June 1, 2015
the gameygators haven't been surprised yet as none of them are facing any consequences for the threats they're leveling over and over and over again, not even the ur-gator with a protection order against him. men will keep threatening to murder women and unless a body shows up there's precious little going to be done about it.
posted by nadawi at 2:37 PM on June 1, 2015 [8 favorites]
posted by nadawi at 2:37 PM on June 1, 2015 [8 favorites]
Even Scalia.
I find the 10th Circuit's ruling baffling. It requires obvious discrimination be treated with willful ignorance, creating a fantasy scenario for religious discrimination in hiring where the applicant would never, ever be able to prove discrimination.
This kind of discrimination happens all the time. Companies don't understand or don't care that their little internal policies do not trump federal law. Now if only businesses would stop enforcing no-beard policies against African American men who cannot, for medical reasons, shave their beards.
posted by 1adam12 at 2:38 PM on June 1, 2015 [3 favorites]
I find the 10th Circuit's ruling baffling. It requires obvious discrimination be treated with willful ignorance, creating a fantasy scenario for religious discrimination in hiring where the applicant would never, ever be able to prove discrimination.
This kind of discrimination happens all the time. Companies don't understand or don't care that their little internal policies do not trump federal law. Now if only businesses would stop enforcing no-beard policies against African American men who cannot, for medical reasons, shave their beards.
posted by 1adam12 at 2:38 PM on June 1, 2015 [3 favorites]
"It would be completely constitutional not to have any anti-religious-discrimination statute on clothing. In fact it's easier to make an argument that it's unconstitutional to prohibit that kind of discrimination than to make an argument that the constitution somehow binds a private employer to accommodate employees' dress preferences, regardless of religious motivation. The Civil Rights Act was not a constitutional slam-dunk.
Personally I think there should be a rule, possibly a constitutional rule, that your mode of dress is your affair, not your employer's. And I wouldn't restrict that to religious garb. But that's not what the US Constitution says."
I'm lukewarm about protecting religious expression in general (being pretty anti-religious myself) but given the shift to a presumption of the government's role to protect minority rights (at least through the 14th amendment) it seems pretty hard to argue that anti-discrimination statutes aren't a constitutional exercise of governmental power, and given that religious expression is explicitly mentioned in the 1st amendment, it seems like a stretch to argue that it's unconstitutional to use state power to protect it and easier to argue that the state should prohibit anti-discrimination ordinances.
posted by klangklangston at 2:40 PM on June 1, 2015
Personally I think there should be a rule, possibly a constitutional rule, that your mode of dress is your affair, not your employer's. And I wouldn't restrict that to religious garb. But that's not what the US Constitution says."
I'm lukewarm about protecting religious expression in general (being pretty anti-religious myself) but given the shift to a presumption of the government's role to protect minority rights (at least through the 14th amendment) it seems pretty hard to argue that anti-discrimination statutes aren't a constitutional exercise of governmental power, and given that religious expression is explicitly mentioned in the 1st amendment, it seems like a stretch to argue that it's unconstitutional to use state power to protect it and easier to argue that the state should prohibit anti-discrimination ordinances.
posted by klangklangston at 2:40 PM on June 1, 2015
prove some kind of intent to threaten
I, as a person who knows nothing about this beyond what I've read in these comments, think this is key. Intent to threaten and intent to do the thing are two separate things. Whether this guy intended to harm his wife or not, he DID intend to make her afraid that he would harm her. That's intent to threaten. There's no way you could argue those statements weren't intended to strike fear in her. I'm going to go with "yes, that should be a crime."
posted by If only I had a penguin... at 2:41 PM on June 1, 2015 [6 favorites]
I, as a person who knows nothing about this beyond what I've read in these comments, think this is key. Intent to threaten and intent to do the thing are two separate things. Whether this guy intended to harm his wife or not, he DID intend to make her afraid that he would harm her. That's intent to threaten. There's no way you could argue those statements weren't intended to strike fear in her. I'm going to go with "yes, that should be a crime."
posted by If only I had a penguin... at 2:41 PM on June 1, 2015 [6 favorites]
Whether this guy intended to harm his wife or not, he DID intend to make her afraid that he would harm her.
It certainly looks that way. But the prosecution didn't prove it. They probably could have, but they didn't.
From the PopeHat article zachlipton linked:
It certainly looks that way. But the prosecution didn't prove it. They probably could have, but they didn't.
From the PopeHat article zachlipton linked:
Do you think that the subjective test makes it too difficult to prosecute threateners?posted by A Thousand Baited Hooks at 2:47 PM on June 1, 2015 [3 favorites]
Not in general, no.
The higher intent requirement is probably most significant for the non-neurotypical — for people without a grasp of how their words are interpreted. But in general, jurors tend to believe that people intend the natural consequences of their actions. There's even an instruction courts sometimes give telling jurors that they may, if they want, presume that a defendant intends the natural and probable consequences of their actions. Moreover, jurors have an easier time empathizing with people who make a threat than with people who are engaging in some sort of performance art.
Bear in mind that other than Elonis' lawyers, most of the people arguing that intent is key are not also arguing that he should be found not guilty. He was convicted with no analysis of his intent, which sets a bad precedent. When they go back and do it right, he's still almost certainly going to be found guilty, but now there's a Supreme Court order that says future cases where intent is murkier can't just skip that step.
posted by Holy Zarquon's Singing Fish at 2:48 PM on June 1, 2015 [7 favorites]
posted by Holy Zarquon's Singing Fish at 2:48 PM on June 1, 2015 [7 favorites]
Did I miss the point here or can I, a non-muslim wear a hijab to work or not?
posted by Cosine at 2:49 PM on June 1, 2015 [1 favorite]
posted by Cosine at 2:49 PM on June 1, 2015 [1 favorite]
Threat: A statement of an intention to inflict pain, injury, damage, or other hostile action on someone in retribution for something done or not done.
By definition, a threat is a statement of intent.
posted by zarq at 2:53 PM on June 1, 2015
By definition, a threat is a statement of intent.
posted by zarq at 2:53 PM on June 1, 2015
I'm not sure what you're trying to communicate with that comment, zarq. Not only are legal definitions often different from dictionary definitions, the case turns on the idea that the prosecution did not prove intent, hence no proof of threat. Saying that threat includes intent seems like it's begging the question, which is why I think I may just not be understanding what you're trying to get across.
posted by klangklangston at 2:57 PM on June 1, 2015 [4 favorites]
posted by klangklangston at 2:57 PM on June 1, 2015 [4 favorites]
There's no way you could argue those statements weren't intended to strike fear in her. I'm going to go with "yes, that should be a crime."
And the Court isn't saying that it's not a crime. The Court is saying that one of the elements of a crime is that the prosecution has to prove that the defendant intended to threaten his ex-wife and others. He doesn't have to intend to harm them, as that's a different crime entirely. A jury could well conclude, looking at these statements, that they were made with the intent to threaten. That's fine and nobody thinks that shouldn't be illegal. The point is that you apparently need some modicum of intent to threaten (intent to carry out your threat is not a factor here) before you can be found guilty.
In the vast majority of threats, it won't make much of a difference. The jury is going to look at those words and conclude that nobody could write them without intending to communicate a threat. That's fine too. But in another case, somebody could argue that they are a writer, an artist, a performer and that their statements were intended solely as artistic expression and not as true threats. In that case, a jury is free to decide that argument is utter nonsense and disregard it, but the Court is ensuring that you at least can make that argument and be heard.
Really though, the Court made a general mess out of the situation here, and it's going to take a lot of time and energy over the next few years to sort it out.
posted by zachlipton at 2:57 PM on June 1, 2015 [1 favorite]
And the Court isn't saying that it's not a crime. The Court is saying that one of the elements of a crime is that the prosecution has to prove that the defendant intended to threaten his ex-wife and others. He doesn't have to intend to harm them, as that's a different crime entirely. A jury could well conclude, looking at these statements, that they were made with the intent to threaten. That's fine and nobody thinks that shouldn't be illegal. The point is that you apparently need some modicum of intent to threaten (intent to carry out your threat is not a factor here) before you can be found guilty.
In the vast majority of threats, it won't make much of a difference. The jury is going to look at those words and conclude that nobody could write them without intending to communicate a threat. That's fine too. But in another case, somebody could argue that they are a writer, an artist, a performer and that their statements were intended solely as artistic expression and not as true threats. In that case, a jury is free to decide that argument is utter nonsense and disregard it, but the Court is ensuring that you at least can make that argument and be heard.
Really though, the Court made a general mess out of the situation here, and it's going to take a lot of time and energy over the next few years to sort it out.
posted by zachlipton at 2:57 PM on June 1, 2015 [1 favorite]
"And the Court isn't saying that it's not a crime. The Court is saying that one of the elements of a crime is that the prosecution has to prove that the defendant intended to threaten his ex-wife and others."
Yeah, when the Court overturns a murder conviction, often they're not saying that the person didn't actually commit the murder or that their actions were not a crime, but rather that the state didn't prove legally that they were responsible.
posted by klangklangston at 2:59 PM on June 1, 2015 [3 favorites]
Yeah, when the Court overturns a murder conviction, often they're not saying that the person didn't actually commit the murder or that their actions were not a crime, but rather that the state didn't prove legally that they were responsible.
posted by klangklangston at 2:59 PM on June 1, 2015 [3 favorites]
Really though, the Court made a general mess out of the situation here, and it's going to take a lot of time and energy over the next few years to sort it out.
Congratulations, you've just written the title of the definitive book on the Roberts Court.
posted by Holy Zarquon's Singing Fish at 3:00 PM on June 1, 2015 [6 favorites]
Congratulations, you've just written the title of the definitive book on the Roberts Court.
posted by Holy Zarquon's Singing Fish at 3:00 PM on June 1, 2015 [6 favorites]
Seems like the Court made the right call in both these cases. If they now make marriage equality the universal law of the land and refuse to strike down Obamacare because of a drafting error that will be a clean sweep.
posted by Justinian at 3:07 PM on June 1, 2015 [2 favorites]
posted by Justinian at 3:07 PM on June 1, 2015 [2 favorites]
By definition, a threat is a statement of intent.
To use Ken's example at Popehat, "I'm going to explain the tax code to you until you bleed out the ears" is clearly a threat, but is not a criminal "true threat" unworthy of 1st Amendment protection. Many threats may be hyperbolic or comedic. The legal definition of a true threat is more than that.
posted by zachlipton at 3:10 PM on June 1, 2015 [2 favorites]
To use Ken's example at Popehat, "I'm going to explain the tax code to you until you bleed out the ears" is clearly a threat, but is not a criminal "true threat" unworthy of 1st Amendment protection. Many threats may be hyperbolic or comedic. The legal definition of a true threat is more than that.
posted by zachlipton at 3:10 PM on June 1, 2015 [2 favorites]
Zarq is also begging the question. Even if one grants that a threat is a statement of intent the state actually has to prove it is a threat. You can't just say "it's a threat therefore a statement of intent".
posted by Justinian at 3:13 PM on June 1, 2015 [1 favorite]
posted by Justinian at 3:13 PM on June 1, 2015 [1 favorite]
Did I miss the point here or can I, a non-muslim wear a hijab to work or not?
If it is a needed accommodation for your employment, yes. A hijab has a pretty obvious meaning. When the employer is motivated to not hire, to fire, or to treat you differently at work because of your hijab, they will run afoul of this ruling. On the other hand, if you trumpet to the skies that it is strictly a fashion statement without religious import, maybe they can tell you no.
What the court said was that an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.
posted by bearwife at 3:17 PM on June 1, 2015
If it is a needed accommodation for your employment, yes. A hijab has a pretty obvious meaning. When the employer is motivated to not hire, to fire, or to treat you differently at work because of your hijab, they will run afoul of this ruling. On the other hand, if you trumpet to the skies that it is strictly a fashion statement without religious import, maybe they can tell you no.
What the court said was that an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.
posted by bearwife at 3:17 PM on June 1, 2015
I'm a little disappointed with how quickly a conversation about Samantha's victory before the Supreme Court turned to a conversation about a different case and decision altogether in this thread.
posted by Xavier Xavier at 3:40 PM on June 1, 2015 [11 favorites]
posted by Xavier Xavier at 3:40 PM on June 1, 2015 [11 favorites]
It requires obvious discrimination be treated with willful ignorance
Except they weren't sure she was a muslim. They weren't sure whether she was a muslim or just someone wearing a scarf.
As the lower court noted, the EEOC directs employers *not* to make assumptions about religion based on stereotypes and discourages them from asking about religion.
posted by jpe at 3:43 PM on June 1, 2015 [2 favorites]
Except they weren't sure she was a muslim. They weren't sure whether she was a muslim or just someone wearing a scarf.
As the lower court noted, the EEOC directs employers *not* to make assumptions about religion based on stereotypes and discourages them from asking about religion.
posted by jpe at 3:43 PM on June 1, 2015 [2 favorites]
To fill that, I think the lower court was objecting to the unfairness of the EEOC's position: you can't ask about religion or make assumptions about an applicant's religion, but if they are religious and that religious practice impacts hiring, you're fucked, even if, per the EEOC rules, you're not supposed to know or assume it *was* religious.
If you put on your corporate counsel hat, that kinda sucks.
posted by jpe at 3:49 PM on June 1, 2015 [1 favorite]
If you put on your corporate counsel hat, that kinda sucks.
posted by jpe at 3:49 PM on June 1, 2015 [1 favorite]
"Except they weren't sure she was a muslim. They weren't sure whether she was a muslim or just someone wearing a scarf.
As the lower court noted, the EEOC directs employers *not* to make assumptions about religion based on stereotypes and discourages them from asking about religion."
They had a reasonable suspicion and declined to hire her based on that suspicion. If they didn't have that suspicion — if they had assumed she was wearing a secular scarf — then there would have been no reason not to hire her. They could have hired her and told her that the scarf was not part of the dress code, and then dealt with making a reasonable accommodation to her religion if she informed them otherwise. This is particularly highlighted by the facts of the case: She would have been hired had not another employee informed the hiring manager of her religious garb, at which point her application was docked to be below the threshold of hire.
So while they weren't sure, they had a reasonable suspicion and discriminated against her on that point. The argument that they didn't know does not jibe with the facts of the case.
"To fill that, I think the lower court was objecting to the unfairness of the EEOC's position: you can't ask about religion or make assumptions about an applicant's religion, but if they are religious and that religious practice impacts hiring, you're fucked, even if, per the EEOC rules, you're not supposed to know or assume it *was* religious.
If you put on your corporate counsel hat, that kinda sucks."
Two things: First, the decision itself explicitly deals with the question of knowledge, to whit that the question of knowledge is subordinate to the question of whether the motive for the discrimination is to avoid having to make a reasonable accommodation. Refusing to hire someone who wears a headscarf because they might be Muslim therefore wear it consistently is unlawful.
Second, the question of knowledge is addressed further in a dicta footnote:
posted by klangklangston at 4:12 PM on June 1, 2015 [5 favorites]
As the lower court noted, the EEOC directs employers *not* to make assumptions about religion based on stereotypes and discourages them from asking about religion."
They had a reasonable suspicion and declined to hire her based on that suspicion. If they didn't have that suspicion — if they had assumed she was wearing a secular scarf — then there would have been no reason not to hire her. They could have hired her and told her that the scarf was not part of the dress code, and then dealt with making a reasonable accommodation to her religion if she informed them otherwise. This is particularly highlighted by the facts of the case: She would have been hired had not another employee informed the hiring manager of her religious garb, at which point her application was docked to be below the threshold of hire.
So while they weren't sure, they had a reasonable suspicion and discriminated against her on that point. The argument that they didn't know does not jibe with the facts of the case.
"To fill that, I think the lower court was objecting to the unfairness of the EEOC's position: you can't ask about religion or make assumptions about an applicant's religion, but if they are religious and that religious practice impacts hiring, you're fucked, even if, per the EEOC rules, you're not supposed to know or assume it *was* religious.
If you put on your corporate counsel hat, that kinda sucks."
Two things: First, the decision itself explicitly deals with the question of knowledge, to whit that the question of knowledge is subordinate to the question of whether the motive for the discrimination is to avoid having to make a reasonable accommodation. Refusing to hire someone who wears a headscarf because they might be Muslim therefore wear it consistently is unlawful.
Second, the question of knowledge is addressed further in a dicta footnote:
While a knowledge requirement cannot be added to the motive requirement,The corporate counsel hat (barred at A&F as informal) should seem to lead to the policy of 1) not asking if the headwear is religious, 2) telling the candidate that per policy it should be removed, then 3) allowing the candidate to assert that it is religious, 4) leading to a reasonable accommodation. One does not have to assume religiosity to attempt to enforce policy, per 2, but when one learns of it, one must adhere to the Civil Rights Act plain language of making accommodation.
it is arguable that the motive requirement itself is not met
unless the employer at least suspects that the practice in question is a
religious practice—i.e., that he cannot discriminate “because of” a
“religious practice” unless he knows or suspects it to be a religious
practice. That issue is not presented in this case, since Abercrombie
knew—or at least suspected—that the scarf was worn for religious
reasons. The question has therefore not been discussed by either side,
in brief or oral argument. It seems to us inappropriate to resolve this
unargued point by way of dictum, as the concurrence would do.
posted by klangklangston at 4:12 PM on June 1, 2015 [5 favorites]
jpe, I heard recently about a library's recommendation for handling possibly-but-maybe-not-actually service dogs, vaguely remembered: "Is this dog trained to provide a service in order to assist you?"
One cannot ask about religion, but can't one reasonable ask whether a requested accommodation is religious in nature (and take the answerer at their word)? I'd not be asking about your religion or even whether you're religious, I'm asking about the nature of the accommodation.
posted by TheNewWazoo at 4:13 PM on June 1, 2015
One cannot ask about religion, but can't one reasonable ask whether a requested accommodation is religious in nature (and take the answerer at their word)? I'd not be asking about your religion or even whether you're religious, I'm asking about the nature of the accommodation.
posted by TheNewWazoo at 4:13 PM on June 1, 2015
IANAL, but it would seem reasonable, in dealing with ANY sort of religious accommodation, to state the required duties of the position (for example, strict dress code) and ask if the applicant knows of any reason why they would not be able to fulfill all of these duties? They don't need to state WHY they can't fulfill any particular requirement, just that they could not. Or if they lie about it, then it's their own problem when they are reasonably fired for not doing their job?
posted by Nutri-Matic Drinks Synthesizer at 4:24 PM on June 1, 2015
posted by Nutri-Matic Drinks Synthesizer at 4:24 PM on June 1, 2015
that doesn't seem reasonable, no. if it were, what would be the point of religious accommodations?
posted by nadawi at 4:37 PM on June 1, 2015 [1 favorite]
posted by nadawi at 4:37 PM on June 1, 2015 [1 favorite]
Hi, I’m Tone Elonis.
Did you know that it’s illegal for me to say I want to
kill my wife? . . .
[...]
He knew damned well what he was doing.
For anyone who hasn't seen the original sketch.
posted by jason_steakums at 4:40 PM on June 1, 2015 [1 favorite]
Did you know that it’s illegal for me to say I want to
kill my wife? . . .
[...]
He knew damned well what he was doing.
For anyone who hasn't seen the original sketch.
posted by jason_steakums at 4:40 PM on June 1, 2015 [1 favorite]
I think the implication is that after they say "no, I would not be able to do X because of my religion" the employer has to then work out an accomodation if reasonably possible.
posted by Holy Zarquon's Singing Fish at 4:41 PM on June 1, 2015
posted by Holy Zarquon's Singing Fish at 4:41 PM on June 1, 2015
IANAL, but it would seem reasonable, in dealing with ANY sort of religious accommodation, to state the required duties of the position (for example, strict dress code) and ask if the applicant knows of any reason why they would not be able to fulfill all of these duties?
The reason that would not be reasonable is that it would effectively bar people from some religions from some jobs. Regardless of whether or not it's the employer's purpose in setting that policy in order to avoid employing people of a particular religion, it WOULD have that effect. It's not ok to do something that has that effect, even if that effect is a side-effect rather than your intent. This is called disparate impact:
posted by If only I had a penguin... at 5:47 PM on June 1, 2015 [7 favorites]
The reason that would not be reasonable is that it would effectively bar people from some religions from some jobs. Regardless of whether or not it's the employer's purpose in setting that policy in order to avoid employing people of a particular religion, it WOULD have that effect. It's not ok to do something that has that effect, even if that effect is a side-effect rather than your intent. This is called disparate impact:
Title VII prohibits employers "from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class. A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its application or effect."[2] Where a disparate impact is shown, the plaintiff can prevail without the necessity of showing intentional discrimination unless the defendant employer demonstrates that the practice or policy in question has a demonstrable relationship to the requirements of the job in question.So unless A&F can show that wearing a hijab somehow interferes with the folding of clothes or ringing up of purchases, they have to allow people to wear hijabs if their religious beliefs require it. "We like people to look a certain way" is not a job duty. And given that one could have that preppy look while wearing a hijab, banning it seems to mean that the "certain way" they want people to look includes "not muslim," which is intent to discriminate.
posted by If only I had a penguin... at 5:47 PM on June 1, 2015 [7 favorites]
"We like people to look a certain way" is not a job duty.
Isn't that basically how Hooters has won discrimination cases, though?
posted by Dip Flash at 6:41 PM on June 1, 2015 [1 favorite]
Isn't that basically how Hooters has won discrimination cases, though?
posted by Dip Flash at 6:41 PM on June 1, 2015 [1 favorite]
"We like people to look a certain way" is not a job duty.
Of course it can be. Actors, models.
posted by amorphatist at 7:08 PM on June 1, 2015 [1 favorite]
Of course it can be. Actors, models.
posted by amorphatist at 7:08 PM on June 1, 2015 [1 favorite]
Hooters argued that their waitresses are also performers, for which looking a certain way can be a job duty, as noted by amorphatist. It's not a job duty for sales people and A&F would have a hard time arguing that their employees are performers, I would think.
posted by If only I had a penguin... at 7:10 PM on June 1, 2015 [2 favorites]
posted by If only I had a penguin... at 7:10 PM on June 1, 2015 [2 favorites]
Imagine if all a business had to do to discriminate against applicants with religious/ADA/other accommodation issues was to pointedly not ask if they had any such issues...
It's already well-settled law that it doesn't work that way for disabilities. If an employee requests an accommodation, the employer is required to have a good-faith discussion as to the necessity of and ability to provide for the accommodation. The employee does not have to know the magic words to say. Pretending not to have understood the request doesn't work.
posted by ctmf at 7:14 PM on June 1, 2015 [2 favorites]
It's already well-settled law that it doesn't work that way for disabilities. If an employee requests an accommodation, the employer is required to have a good-faith discussion as to the necessity of and ability to provide for the accommodation. The employee does not have to know the magic words to say. Pretending not to have understood the request doesn't work.
posted by ctmf at 7:14 PM on June 1, 2015 [2 favorites]
What if it could be shown with data that nobody buys anything (exaggeration) from salespeople in headgear, thus hiring her would not benefit the company? Would that make the accommodation an undue hardship on the company?
posted by ctmf at 7:19 PM on June 1, 2015
posted by ctmf at 7:19 PM on June 1, 2015
I heard about this case via a blog post by an employment lawyer. A key quote:
(Should employers be allowed to select employees for the social demographic they project? And if so, which demographics may be selected for? Conventionally attractive, male-only, female-only, geeky ("all employees at our tech support shop must wear glasses and Tux T-shirts"), Jews only (maybe a popular deli wants to "project a certain image"), and so on. I'm sure there have been relevant court decisions to some of these questions, but this one doesn't cover it.)
On preview, ctmf, your question is a good one but wasn't addressed by this decision.
posted by Rangi at 7:20 PM on June 1, 2015 [1 favorite]
If A&F could prove that allowing Ms. Elauf to wear a headscarf at work would unreasonably interfere with its business activities, based on the particular circumstances of this job, then A&F would (or at least could) have an affirmative defense against what would otherwise have been a Title VII violation. But there is no guidance on that point at all from the Court today.Basically employers can discriminate against things that create an "undue burden" on them. For example, if they need to stay open on Saturdays and the interviewee can't work then, they may refuse to hire them even if the reason for not working is because they're Jewish. So if A&F's interviewer had asked Ms. Elauf "Would you be able to remove your scarf at work? (Because we need to project a certain image to our customers)" and she said no, they might have had a case. But then the Supreme Court would have to address whether "your headscarf ruins our look" counts as an "undue burden," and it very well might not.
(Should employers be allowed to select employees for the social demographic they project? And if so, which demographics may be selected for? Conventionally attractive, male-only, female-only, geeky ("all employees at our tech support shop must wear glasses and Tux T-shirts"), Jews only (maybe a popular deli wants to "project a certain image"), and so on. I'm sure there have been relevant court decisions to some of these questions, but this one doesn't cover it.)
On preview, ctmf, your question is a good one but wasn't addressed by this decision.
posted by Rangi at 7:20 PM on June 1, 2015 [1 favorite]
What if it could be shown with data that nobody buys anything (exaggeration) from salespeople in headgear, thus hiring her would not benefit the company? Would that make the accommodation an undue hardship on the company?
I'm not a lawyer and I'm not American, but I remember specifically from my HS law class that under Canadian law this DOESN'T allow the employer to discriminate. The example in the textbook was essentially "what if your customers are racist?" and the answer was that you could not discriminate on the basis of race because your customers are racist. Not existing to accommodate customer prejudice is not a job duty.
posted by If only I had a penguin... at 7:25 PM on June 1, 2015 [4 favorites]
I'm not a lawyer and I'm not American, but I remember specifically from my HS law class that under Canadian law this DOESN'T allow the employer to discriminate. The example in the textbook was essentially "what if your customers are racist?" and the answer was that you could not discriminate on the basis of race because your customers are racist. Not existing to accommodate customer prejudice is not a job duty.
posted by If only I had a penguin... at 7:25 PM on June 1, 2015 [4 favorites]
Just to respond a little late, "undue burden" is similar to what I had in mind, though I realize now I left out the next key part of the simple "can you do these tasks" decision making...
So if the prospective employee claims they cannot fulfill a specific requirement of the job, the hiring decision would THEN depend on whether the duty is a fundamental part of that job. Either it is a fairly core part of it, and it would be an undue burden to accommodate the applicant, or it is more trivial and the employer would have to accommodate this person if they were otherwise the best choice. This seems like it would be sufficient and fair to everyone?
(And while I think it's clear that there would be certain jobs where attire and appearance are not just important but fundamental, to the extent that certain religious attire could be an issue, working retail at Abercrombie and Fitch doesn't seem like one of those to me.)
posted by Nutri-Matic Drinks Synthesizer at 8:57 PM on June 1, 2015
So if the prospective employee claims they cannot fulfill a specific requirement of the job, the hiring decision would THEN depend on whether the duty is a fundamental part of that job. Either it is a fairly core part of it, and it would be an undue burden to accommodate the applicant, or it is more trivial and the employer would have to accommodate this person if they were otherwise the best choice. This seems like it would be sufficient and fair to everyone?
(And while I think it's clear that there would be certain jobs where attire and appearance are not just important but fundamental, to the extent that certain religious attire could be an issue, working retail at Abercrombie and Fitch doesn't seem like one of those to me.)
posted by Nutri-Matic Drinks Synthesizer at 8:57 PM on June 1, 2015
Abercrombie and Fitch adopted the horrific "Look" policy. That's on them. A&F has known for yeeears that its hijab policy excludes persons on the basis of national origin and/or religion. Seriously -- your excuse is ignorance? Um. A&F has a terrible reputation on race discrimination in hiring, and took a terrible disability access position in building and defending inaccessible Hollister Stores.
TLDR: (a) Thank you, co-lawyers, for explaining. (b) This loss could not have come to a more deserving employer.
posted by ClaudiaCenter at 9:31 PM on June 1, 2015
TLDR: (a) Thank you, co-lawyers, for explaining. (b) This loss could not have come to a more deserving employer.
posted by ClaudiaCenter at 9:31 PM on June 1, 2015
So do the remaining abortion providers now have to prove an "undue burden" before they refuse to employ anti-choice Christians? Not that I'm pro-A&F, but there are circumstances where I'm quite happy to have employers discriminate...
posted by alasdair at 12:48 AM on June 2, 2015 [1 favorite]
posted by alasdair at 12:48 AM on June 2, 2015 [1 favorite]
They would have always had to prove such an undue burden, alasdair. This isn't a new concept in law by any means. They can't make assumptions about a potential employee by the Jesus fish on their car & refuse to check about whether or not the person would have problems performing the duties, though.
posted by Lemurrhea at 4:16 AM on June 2, 2015 [3 favorites]
posted by Lemurrhea at 4:16 AM on June 2, 2015 [3 favorites]
Apropos of nothing, high-fashion hijab is totally a thing.
posted by magstheaxe at 6:06 AM on June 2, 2015 [1 favorite]
posted by magstheaxe at 6:06 AM on June 2, 2015 [1 favorite]
My understanding is that when they first offered her the job it was the hijab itself that was a problem because it wasn't considered "cool" enough for their image. In other words I think they would've had a problem no matter what kind of hijab she wore. But a company probably does have the right to require a more fashionable type of hijab though.
There looks like some weirdness where they say her hijab was black and they don't allow black clothing, so it's wibbly...but you know, it's probably also ignorance of fashion hijab. In the picture, she looks like she's actually wearing hijab pretty fashionably, even if it is black - look at how the folds fall. That is a high level hijab right there.
I'm pretty sure it's 'Muslims aren't cool' that they were actually working with though, whatever they say.
posted by corb at 6:45 AM on June 2, 2015
There looks like some weirdness where they say her hijab was black and they don't allow black clothing, so it's wibbly...but you know, it's probably also ignorance of fashion hijab. In the picture, she looks like she's actually wearing hijab pretty fashionably, even if it is black - look at how the folds fall. That is a high level hijab right there.
I'm pretty sure it's 'Muslims aren't cool' that they were actually working with though, whatever they say.
posted by corb at 6:45 AM on June 2, 2015
My understanding is that when they first offered her the job it was the hijab itself that was a problem because it wasn't considered "cool" enough for their image. In other words I think they would've had a problem no matter what kind of hijab she wore. But a company probably does have the right to require a more fashionable type of hijab though.
But this is what's so bizarre. The very act that they say means it's not about religion kind of proves they knew it was about religion. I mean if you're this woman's lawyer you basically say:
Has anyone ever worn black pants to a job interview?
(I"m betting yes -- hell, bring in a sales clerk who wore black pants).
"Were they docked points for wearing black pants?
(I'm guessing no)
Why not, since staff aren't allowed to wear black?
(well because even though they were wearing black pants the interview, they could easily not wear black pants to work).
So why didn't you make that assumption for this employee -- though she was wearing a black scarf to the interview she could not wear a scarf or a black scarf to work?
And at this point the answer is obvious: They knew this situation wasn't the same because they knew the scarf was a hijab, not just any old scarf worn for fashion. If they didn't think it was religion, they wouldn't have docked her points. The arguments "it's just the dress code" and "we didn't know it was religion" aren't even compatible with each other. Their case seems like it's not even internally consistent.
posted by If only I had a penguin... at 7:06 AM on June 2, 2015 [3 favorites]
But this is what's so bizarre. The very act that they say means it's not about religion kind of proves they knew it was about religion. I mean if you're this woman's lawyer you basically say:
Has anyone ever worn black pants to a job interview?
(I"m betting yes -- hell, bring in a sales clerk who wore black pants).
"Were they docked points for wearing black pants?
(I'm guessing no)
Why not, since staff aren't allowed to wear black?
(well because even though they were wearing black pants the interview, they could easily not wear black pants to work).
So why didn't you make that assumption for this employee -- though she was wearing a black scarf to the interview she could not wear a scarf or a black scarf to work?
And at this point the answer is obvious: They knew this situation wasn't the same because they knew the scarf was a hijab, not just any old scarf worn for fashion. If they didn't think it was religion, they wouldn't have docked her points. The arguments "it's just the dress code" and "we didn't know it was religion" aren't even compatible with each other. Their case seems like it's not even internally consistent.
posted by If only I had a penguin... at 7:06 AM on June 2, 2015 [3 favorites]
I think it's cute how some of y'all are spelling *ssh*le with cute little sph*ncters ***
posted by elr at 1:00 PM on June 2, 2015 [1 favorite]
posted by elr at 1:00 PM on June 2, 2015 [1 favorite]
To fill that, I think the lower court was objecting to the unfairness of the EEOC's position: you can't ask about religion or make assumptions about an applicant's religion, but if they are religious and that religious practice impacts hiring, you're fucked, even if, per the EEOC rules, you're not supposed to know or assume it *was* religious.
If you put on your corporate counsel hat, that kinda sucks.
You can easily tell a corporate counsel hat from other kinds of hat, because corporate counsel hats have literal human asses on them. This is why they are sometimes referred to as asshats.
posted by You Can't Tip a Buick at 5:17 PM on June 9, 2015
If you put on your corporate counsel hat, that kinda sucks.
You can easily tell a corporate counsel hat from other kinds of hat, because corporate counsel hats have literal human asses on them. This is why they are sometimes referred to as asshats.
posted by You Can't Tip a Buick at 5:17 PM on June 9, 2015
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posted by roomthreeseventeen at 1:29 PM on June 1, 2015