In a case involving an employer’s alleged failure to reasonably accommodate an applicant’s or an employee’s religious practices, must the applicant or employee explicitly tell the employer of an inflexible conflict between the employee's religious beliefs and the employer's job requirements? Or, is the employer's legal obligation to accommodate triggered by its constructive knowledge of an employee's religious beliefs? The issued had divided the courts of appeals, and the 10th Circuit sided with the first view on Oct. 1 in EEOC v. Abercrombie & Fitch Stores Inc..
The facts were simple: An applicant wore a hijab to a job interview; she allegedly did not get the job because wearing hijab was inconsistent with Abercrombie & Fitch's "Look Policy," which aspired to a preppy, Northeastern look. While the employer knew something about the wearing of the hijab, it was only, according to the court, on the legal hook if the applicant explicitly stated that the religious practice conflicted with the company's rules.
Here is the court: "The reasonable-accommodation principle is implicated only when there is a conflict between an employee's religious practice and the employer's neutral policy; only then does a need to accommodate arise. . . . For there actually to be a conflict, logic dictates that an applicant or employee must consider the religious practice to be an inflexible one — that is, a practice that is required by his or her religious belief system."
Because the applicant did not tell A&F of an inflexible conflict, Abercrombie & Fitch won.
On Sept. 26, the 5th U.S. Circuit Court of Appeals issued an important pro-employee decision in Ion v. Chevron USA, Inc. The decision impacts not just the underlying FMLA claim but all employment law cases.
Here’s how the 5th Circuit describes what happened. Todd Ion worked as a chemist for Chevron. He sought short-term disability leave as well as FMLA leave, which the company granted. But just a short time earlier, he had been placed on a performance-improvement plan and suspended for five days, prompting an email from a manager: "It looks like Mr. Ion is playing games with us after his suspension. . . . What are our options?"
Shortly thereafter, Ion went to the Chevron medical clinic, where he allegedly was disruptive, prompting a Chevron security guard to intervene and perform a "risk assessment" on him, leading to his being banned from Chevron property.
As they say in the 2 a.m. infomercials, that's not all. One of Ion’s co-workers told management that Ion had said he was going to fake an illness to take FMLA leave. That led to yet another management email that Chevron did not "need this type of criminal behavior."
So, Ion got fired. He received a letter regarding the reasons for his termination. The letter mentioned the co-worker’s report, but it omitted the clinic incident, and it said that Ion had not "returned to work since his suspension.”
Ion filed a FMLA retaliation suit. The district court granted summary judgment for the employer, but the 5th Circuit reversed. Here are four keys points to keep in mind.
Look, the 5th Circuit has a reputation as being pro-employer. I think this is an incorrect frame. The 5th Circuit reminds me of my high school physics teacher who, on the first day of class, said, “This is going to be a hard class. There will be no extra credit. So, if you're not up for it, withdraw now.” (I did.)
That's pretty much the 5th Circuit's message to plaintiffs: Bring us the goods or go home. One final thought: Yes, there will be employees who connive and cheat, but change that presumption to one of presuming positive intent on the employee's part. Over a lifetime, that's the smarter bet.
I just finished reading an interesting book about building a business, "Wine Bar Theory" by David Gilbertson. He breaks the book down into 28 easy-to-digest rules of two to three pages each.
Rule No. 3 "Keep Asking,” caught my attention. He writes, "People and businesses stay fresh by questioning assumptions. Especially their own." (Or, as I like to say, it’s not what you don’t know that hurts you; it’s what you think is so that isn’t.)
Gilbertson writes that certain tipoff phrases alert listeners about a speaker’s assumption-protected zones:
By contrast, here are tipoff questions that signal to the listener that he or she is entering an assumption-challenged zone:
Gilberston writes that "I don't know" is a fine answer, but the person employing it must follow it with, “Let's find out." It's a great book, and lawyers can knock it off in an afternoon.