Why Lawyers Need To Conduct All Job Interviews For Everyone From Now On Forever

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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116 Responses

  1. Avatar Francis
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    says:

    Burt: Informative post, but I humbly recommend a re-write to clear up some typos and word drops, such as:

    “Alito suggests (correctly) that the majority rule would impose liability if a religious center were not hired …”

    center? and

    “In such a case, a little believes it would then be appropriate …” maybe Alito instead of a little?

    The real outcome of this case is that small employers are ever more vulnerable to employment claims. Who can afford to hire the lawyers to come to the office to conduct training? Who can afford to have multiple levels of review of an intake interview? (Alternatively, small employers won’t have ‘look’ policies and will instead hire the first qualified person who comes in the door.)Report

  2. Avatar Saul Degraw
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    says:

    Excellent post.

    I suspect that retailers in general and fashion retailers in particular are going to make these kind of hiring decisions and mistakes more often than not. I find it interesting that you are treating A&F as a simple employer and avoiding the more tricky and potentially disturbing questions (which are not necessarily legal questions per se). A&F sells clothing. Specifically they sell clothing with a brand image that is supposed to be all-American but also kind of sexy. Their ads often feature men and women in various stages of semi-undress.

    A&F has frequently been criticized for purposefully only hiring employees who fit a particular type of all-American good looking which tends to look like fit teenagers and 20 somethings from a well-to-do Orange County suburb. There was a case in the UK (I think) where A&F got in trouble for refusing to hire a woman with a prosthetic arm because it did not go with their branding or sexy-image.

    A&F is not the only company with these sort of issues. Super Pervert Dov Charney was known for going into American Apparel stores and firing women he did not find good-looking enough. Or women who were not good-looking enough were segregated back to the stock room.

    There is a clothing brand that makes women’s clothing that was criticized for only making stuff in ultra-petite waist sizes. You rarely see men’s clothing companies (including expensive brands for metrosexuals like myself) reduce their market by only making clothing for men who are very physically fit.

    So the social questions are: Why does A&F think it goes against their wanna be sexy-image to hire a woman who needs to wear a headscarf or a man who wears a yarmulke? Surely an Orthodox Jewish guy can also have a very physically fit body. Do they think it is odd seeing a woman in skinny jeans and a headscarf? Are they worried that her modesty is going to turn away people from buying a bikini?Report

    • Avatar Kim in reply to Saul Degraw
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      says:

      A headscarf is much more concealing (of clothing worn underneath) than a yarmulke.
      (of course, one can easily comply with the religious obligation without covering one’s t-shirt).Report

    • Avatar Don Zeko in reply to Saul Degraw
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      says:

      if my trip to Bahrain a few years back is any indication, there are plenty of late teen/twenty-something women out there working very hard to be sexy and glamorous in headscarves.Report

    • Avatar LeeEsq in reply to Saul Degraw
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      says:

      These clothing retailers are trying to sell the image that their clothing is sexually alluring. A kippah or a hijab is an anti-sex sign because the wearer is presumed to be uninterested in a role in the hay before marriage. A&F want their clothing to conjure up images of sex readiness like you noted. A kippah or hijab does not do this.Report

    • Avatar Richard Hershberger in reply to Saul Degraw
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      says:

      “You rarely see men’s clothing companies (including expensive brands for metrosexuals like myself) reduce their market by only making clothing for men who are very physically fit.”

      I am at the upper end (both vertically and horizontally) of the “normal” sizes. If I try to buy pants in a brick and mortar store, I am only able to do so if I happen to hit the store soon after they put a new shipment out. Otherwise, some other guy blessed with my build will have already gotten the one or two pairs my size. Yet there will always be any number of duplicates in the smaller sizes. The kicker is that my build is not actually particularly unusual, except for this purpose.

      On the one hand, presumably the store has done its market research and knows how many of each size to stock. On the other hand, personal experience does not bear out this presumption. It looks for all the world like they are using a bell curve distribution, but with wacky numbers plugged into it.

      The upshot is that I don’t bother with bricks and mortar stores for this. An online store will let me simply input my specs. I would prefer to buy from a physical store, but I’m not willing to when they make it a crap shoot.Report

      • I just want to know why 38-34 is so far to find in pant sizes, and 40/34 even more difficult. It’s not like they don’t offer end-seams longer, or waists wider, but it’s they assume if your waste is such-and-such it’s probably because you’re average sized and really husky, instead of tall and moderately husky.

        I am oddly shaped in many respects, but I know a lot of people with my pant size. (Shirts, on the other hand, I know I am a freak with special needs. Hats, too.Report

  3. Avatar Oscar Gordon
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    says:

    Question:

    Could a store craft a policy of not allowing headgear except those required for religious purposes? Or does that just open the door for being forced to allow all headgear if the employee makes a claim that his/her religion requires it, without being specific about the faith?Report

    • Avatar Saul Degraw in reply to Oscar Gordon
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      says:

      I generally think that this is possible. I’ve never heard of anyone saying that because you allow headscarfs and yarmulkes, you have to allow the dude with a backwards baseball cap to keep his cap on. There is no bro protection in Employment Discrimination law.Report

    • Avatar Brooke in reply to Oscar Gordon
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      says:

      This kind of policy isn’t a good idea, even though it may be possible. Why should religious exceptions to rules carry any more weight than other exceptions?

      Think about how important (and time sensitive) someone’s attempt to place religious practice ahead of performing their job duties could be. In retail, it’s not that big a deal, but if we’re talking about a pharmacist’s refusal to dispense prescribed medication because of these ridiculous “conscience” laws we’ve started to see, that’s a major impact on someone’s life.Report

      • Avatar dragonfrog in reply to Brooke
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        says:

        Your distinction of “performing their job duties” is a good one.

        A pharmacist who insists on wearing a turban/headscarf/yarmulke along with their work uniform, even if the pharmacy normally issues special pharmacy-branded caps, doesn’t impact their ability to perform their job. A refusal to dispense certain medications does.Report

    • Avatar dragonfrog in reply to Oscar Gordon
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      says:

      If ever there were a situation crying out for Pastafarians, this is it.Report

  4. Avatar Kim
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    says:

    What’s the difference between ++i and i++?
    … this is why lawyers shouldn’t conduct all job interviews ever.
    (apparently one recent job candidate, who claimed to know java, thought one of those wouldn’t compile).Report

    • Avatar morat20 in reply to Kim
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      says:

      I don’t recall a lot of emphasis on post versus per-increments way back in the day of my basic C classes.

      I happen to know what they do, but darned if I can ever recall learning it. Somewhere I just absorbed it. I tend to use i++, because it seems I mostly use it for loop counters and it doesn’t matter.

      Offhand, I’d rate knowing what the heck a pointer is, or being able to explain polymorphism, over that when it comes to interviews. (Mostly because I view i++ versus ++i as syntax, which takes less than five seconds to google to look it up if you don’t happen to know it. Whereas a functional understanding of pointers, polymorphism, or recursion requires….well, you need to know that stuff pretty solidly).Report

      • Avatar Kim in reply to morat20
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        says:

        I rarely if ever need to use recursion.
        The prefix versus postfix is a standard “do you understand basic syntax” question, though i’d rather see the ?: myself (I find the conditional statement to be much more compact, and hence useful).Report

        • Avatar morat20 in reply to Kim
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          says:

          Ugh. I tend to hate the ? syntax. If/else is more readable at a casual glance, and modern compilers do a fantastic job of mushing that sort of thing out at the end. I’d rather focus on algorithmic efficiency. I just don’t see what ternary operations get you. Heck, I tend to use unnecessary brackets (You know, you don’t need brackets if the if or else block is a single operation) for readability.

          To me it’s like bitwise operators. I’ve used them maybe a dozen times in the last decade. But I’ve had to go digging into code and optimize algorithms and cut-out unnecessary operations and generally streamline poor logic and spaghetti code regularly.

          So I put my focus on the big gains. If I write
          if(A)
          {
          code block 1;
          }
          else
          {
          code block 2;
          }

          It’s clear, easy to expand, and nobody gets confused, and it’s easy to comment the blocks. (a)?block1 : block2; is a harder to read.

          I get there’s places you can use it where you can’t use if/else, so I’m glad it exists.

          But like I said, I find syntax disposable. It was easy enough even when you had to grab a C book and flip through the index. Now, it’s trivial. Better to find someone who can think logically and write efficient algorithms than who has memorized obscure bits of syntax.

          Then again, I spent a solid year cleaning up code written by someone who could and did use bitwise operators and ternary expressions and all sorts of clever tricks — but whose ability to write an efficient algorithm was virtually nil, whose variable names were useless, whose code documentation was absent, and whose code was simply not extensible.

          I seriously hate rewriting chunks of code because the original author never stopped to think “Um, what if we want to do MORE than this?”. (His code wasn’t even efficient when it ran. It was just compact when read).Report

          • Avatar Kim in reply to morat20
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            says:

            In C, if you aren’t focusing on algorithm efficiency, why are you writing code again??
            If branches cost a ton of computing cycles nowadays, particularly if the CPU can’t predict which branch you’re gonna hit.

            I’ve used bitwise operators rather a lot, but that’s because I wind up playing with graphics in my free time, and XORing packed data is rather efficient to figure out where the graphics differ. This isn’t terribly hard to suss out — and it’s way more fun to read than assembly, which I also run into from time to time.Report

            • Avatar Morat20 in reply to Kim
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              says:

              *shrug*. Depends on what you’re doing, really — and when the code was originally written.

              What I’m working with now? It’s in C++. If I was writing it from scratch, it’d be in another language. But it was written 10 or 15 years ago by engineers who had Fortran and C compilers, and a thorough knowledge of the former (which drives the analysis engine) and a passing knowledge of the latter (which drives the front end and a lot of pre-analysis math.

              It was of course never designed to be extensible (internal tool that gradually had bits added to it, until someone realized it was a really good tool connected to a very, very, VERY good database of expensive information) so it got released to a wider audience on a per-license basis and that got good reviews, so it got expanded and extended….

              Sadly, in the real world — you’re often stuck with the software you have and the choices people made 5 or 10 years ago. And you’re constantly adding new things and fixing old stuff, so you’re stuck with kludges and other sub-optimal solutions and honestly “I’d like to spend five months doing something that no user will ever notice except by thinking ‘this seems a little faster, maybe?’ but will make my life easier” is rarely something management will approve — not when they have a huge list of new stuff that really does need in because all the analysis work is complete.Report

    • Avatar Burt Likko in reply to Kim
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      says:

      As you may have inferred, @kim , I’m being more than a little bit sarcastic with the title of the post.Report

    • Avatar Burt Likko in reply to Dand
      Ignored
      says:

      Good interview question: “This job requires the handling of a variety of meat products. Will that be an issue for you?”

      Bad interview question: “Do you have a religious objection to handling any kind of meat product?”

      The question for HR to confront is: if an applicant indicates a religious objection to handling (for instance) pork, are there reasonable workarounds? In other words, does an accommodation to a religious employee impose an undue burden on the employer?Report

      • Avatar Brooke in reply to Burt Likko
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        says:

        Whatever happened to not applying for a job if you don’t expect to be able to fulfill all of the requested responsibilities? Surely a normal person understands that one might be asked to scan pork products or alcohol as a cashier at a non-halal grocery store, or transport someone with those kinds of goods as a taxi driver?Report

        • Avatar Don Zeko in reply to Brooke
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          says:

          I don’t think anyone would agree that whatever the employer says the job requires goes; if nothing else there will be extreme cases; a law firm that required litigators to be white men because it felt that juries would react better to them than to non-whites or women is an unreasonable requirement that nobody would expect a job applicant to accept as legitimate. So we’re stuck arguing about what is and isn’t a reasonable accommodation to make for people’s religious beliefs, disabilities, etc. It’s inevitably a complicated question; and while I like SCOTUS’s religious freedom rulings of late about as much as Counselor Likko, I don’t fault the plaintiff in that situation for applying for that job.Report

          • Avatar Saul Degraw in reply to Don Zeko
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            says:

            Right. Again we are dealing with the pesky old problem of what should bear what burden and why. There is nothing about working in a clothing store that should violate Islamic law. There is also no reason the plaintiff in this case should know about A&F’s image policy.

            If she were applying for a job as a cook, dishwaher, or server in restaurant,; there is something that should set off “I might be required to handle non-Hallal products.” The situations are different.Report

            • Avatar Brooke in reply to Saul Degraw
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              says:

              I wasn’t implying that they are the same, but this kind of case does raise questions about other situations in which employees had different expectations that exemptions would be made from job duties on account of religious beliefs.Report

          • Avatar Burt Likko in reply to Don Zeko
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            says:

            Further to this, I think an applicant for a job at a retail clothing store has a reasonable expectation of a dress code that the employee be clean, neat, attractive, and dressed in a way generally similar to the clothing being sold. But I wouldn’t have assumed that a headscarf was out of bounds — headscarves from many different cultures are quite attractive, fashionable, and in some cases even alluring. Now, I am thinking of the walk-into-a-pole-beautiful Aishwarya Rai when I write that, although Audrey Hepburn may be a better example because of her “classic film star” status and because she was very much a Westerner. Shouldn’t take you more than three words in a google image search to see what I’m talking about: a headscarf can be quite attractive.

            And while I think SCOTUS has been too deferential to religion in recent years, that doesn’t mean I think it ought to be okay to discriminate on the basis of religion. Quite the opposite in fact. What I want to see is religion, religious belief, and religious practice rendered a matter of neutrality. My criticism has been when it appears to me that religion is being privileged. In this case, Ms. Elauf suffered a disadvantage because of her religion, and I think that sucks and it ought to be actionable. Remedying that disadvantage is not the same thing as granting her a privilege.Report

            • Avatar Saul Degraw in reply to Burt Likko
              Ignored
              says:

              “Further to this, I think an applicant for a job at a retail clothing store has a reasonable expectation of a dress code that the employee be clean, neat, attractive, and dressed in a way generally similar to the clothing being sold.”

              Unless the store is trying to be downtown, edgy, and bit bohemian 😉Report

            • Avatar Brooke in reply to Burt Likko
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              says:

              I think they ought to have hired her too, but what we’re really after is better guidelines about what’s reasonable. Is it out of bounds to ask an employee if she is willing to make an accommodation as well?Report

              • Avatar Burt Likko in reply to Brooke
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                says:

                Is it out of bounds to ask an employee if she is willing to make an accommodation as well?

                Yes, as the law is currently written and interpreted. “Hey there, Mr. Jewish Employee, how about we only schedule you for four hours on the Sabbath instead of the usual eight? We’re willing to meet you halfway!”

                I’m waiting for the wedding chapel, which is perfectly willing to conduct and host same-sex weddings, that gets approached by an employee who wants an exemption from same-sex weddings on religious grounds. It’ll have to be a non-ministerial employee, like a clerk or a catering associate, because there’s already a carve-out in Title VII for ministers. What’s the reasonable religious accommodation for the employee who says, “I won’t do a same-sex wedding?” If it’s a big enough business with enough employees on call, it’d be easy to just say, “Okay, then you just get that day off,” but there are plenty of such businesses with employee rosters just above the Title VII threshold, making it difficult for that employer to make do without “all hands on deck.”Report

              • Avatar DensityDuck in reply to Burt Likko
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                says:

                It’ll be even more fun when that employee sues for lost wages over the issue. After all, they had a reasonable expectation that they’d be working that day, right?Report

              • Avatar Alan Scott in reply to DensityDuck
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                says:

                Surely that’s come up already. After all, the go-to example is “I can’t work on my religious holidays” If the question of “can I still get paid for my missed day” hasn’t come up in the 51 year history of Title VII, I’d be much surprised.Report

            • Avatar Glyph in reply to Burt Likko
              Ignored
              says:

              Burt Likko:
              My criticism has been when it appears to me that religion is being privileged. In this case, Ms. Elauf suffered a disadvantage because of her religion, and I think that sucks and it ought to be actionable. Remedying that disadvantage is not the same thing as granting her a privilege.

              This is an interesting distinction that I am turning over in my mind, to see if I can universalize it. I guess my only concern with this is that (and I am not saying this is what happened here) you will have cases where the plaintiff was not truly disadvantaged, according to their *actual* aim.

              What I mean is, she was disadvantaged IF she truly wanted the job, and was denied it unfairly.

              But, if she (for example) wanted to make a living obtaining settlements from employers in lieu of actually working for them (or, if she is simply trying to make a point), then denying her the job didn’t disadvantage her at all, and she in fact used her religion to advantage.

              And here, once again, we must judge the *sincerity* of her beliefs, which makes me uncomfortable as a universalizable principle.Report

              • Avatar Oscar Gordon in reply to Glyph
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                says:

                I was just thinking about that with regard to Burt’s comment about Hooters. Since they are prone to settle rather than go to court, I wonder how many times a woman who wanted to wear a hajib could sue Hooters for discrimination before Hooters or the courts put a stop to it?Report

              • Avatar zic in reply to Glyph
                Ignored
                says:

                And here, once again, we must judge the *sincerity* of her beliefs, which makes me uncomfortable as a universalizable principle.

                I agree. I struggle to reconcile ‘sincerity of belief’ with my sincerely-held atheism, and a belief that someone else’s religious beliefs shouldn’t be forced upon others in some fashion because failure to do so impinges their religious freedom. So it does seem to me that religion is given preference in a principle that isn’t universal despite our efforts to make it be so, and civil rights have to be won in the face of the preference.Report

              • Avatar Oscar Gordon in reply to zic
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                says:

                Yep, being the null case against a protected class sucks, especially when the null case is a minority.Report

              • Avatar zic in reply to Oscar Gordon
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                says:

                And then again, maybe being the null case is protected.

                That warmed my heathen little heart.Report

              • Avatar Oscar Gordon in reply to zic
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                says:

                That does warm my non-existent soul.Report

              • Avatar Stillwater in reply to Glyph
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                says:

                What I mean is, she was disadvantaged IF she truly wanted the job, and was denied it unfairly.

                WEll, she was disadvantaged if she was denied the job unfairly, whether she wanted it or not. That’s the law! The remedy to that problem is, as Burt pointed out in the OP, for the firm to accommodate her beliefs, yeah? It’s all pretty clear at that point, seems to me, and doesn’t have to descend to murky nefarious “intentions” and all. Eg., if we (or you, or I) think that the business shouldn’t have to accommodate that person’s beliefs, then we have a different set of conditions we think ought to be in play, ones we can advocate for and try to enact and what not.Report

            • Avatar Richard Hershberger in reply to Burt Likko
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              says:

              “I am thinking of the walk-into-a-pole-beautiful Aishwarya Rai…”

              Mmm… The best reason to watch Bollywood. Well, actually the only reason, but a pretty darned good one!Report

          • Avatar Brooke in reply to Don Zeko
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            says:

            No, but we should be able to sort out what’s reasonable (you can’t refuse service because someone else has made a choice inconsistent with your beliefs) from outright discrimination (not hiring non-white lawyers).

            The examples I gave seem pretty straightforward.Report

        • Avatar Pyre in reply to Brooke
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          says:

          The 80s ended.Report

  5. Avatar DensityDuck
    Ignored
    says:

    Things that seem relevant:

    Ricci v. DeStefano. Firefighters in the city of New Haven, Connecticut took an exam to identify which ones would be promoted to management positions (applicants were ranked by score.) The city looked at the test results, found that none of the high scorers were black, and invalidated the test results (promoting nobody) in an effort to avoid a racial-discrimination lawsuit. Part of the Supreme Court’s ruling suggested that such an action–intentionally choosing not to hire or promote an employee in an attempt to avoid discrimination lawsuits–is itself “racially motivated” and, therefore, actionable under Title VII. Which would seem to apply here.

    ********

    “Alito would find that an employer who asked (only) “Can we schedule you to work on Saturdays?” and got the answer “no,” would be justified in all cases to not hire the employee, regardless of whether the reason for the “no” answer was religious or personal.”

    This is the same reasoning as “straight people aren’t allowed to marry each other, just like gay people, therefore our state’s gay-marriage ban isn’t discriminatory because it applies to everyone equally”.Report

    • Avatar Burt Likko in reply to DensityDuck
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      says:

      As to the second point, @densityduck , yes, that’s pretty similar reasoning (assuming you meant “straight people of the same sex“). And it’s equally misplaced in the SSM context as it is in Alito’s concurrence here, because in both cases it elevates the formal rule over that rule’s practical effect.Report

  6. Avatar LWA
    Ignored
    says:

    I understand why Burt gives the advice to use caution when conducting interviews, but there is also a common wisdom (which shows up in comment boards) that the law is perversely crazy, and people can sue (and win big bucks!) for any trivial ridiculous thing.

    But from what I have seen at the street level is that there actually is quite a bit of “reasonable” that is applied in legal cases. As in, discrimination is allowed when there are reasonable grounds, the ADA only requires reasonable accommodation, and so on.

    I suspect that the reason this case received such intense scrutiny within A&F pre-lawsuit, was that on some level they knew that their preferred “look” was unreasonable and contrary to the public policy goal of being inclusionary to all faiths and cultures. Without explicitly stating it, they signaled as Saul commented, that they really only wanted to hire good looking white young people who weren’t too ethnic.

    I would even state it as a rule of thumb- when your intuition tells you to step very, very carefully, its probably a sign you are on thin ice.Report

    • Avatar DensityDuck in reply to LWA
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      says:

      “I suspect that the reason this case received such intense scrutiny within A&F pre-lawsuit, was that on some level they knew that their preferred “look” was unreasonable and contrary to the public policy goal of being inclusionary to all faiths and cultures. ”

      Or maybe they just didn’t want to litigate every single “you look like crap, go home and change” decision that a manager had to make.

      Where the failure comes in, here, is the decision to not hire. Nobody actually said “the dress code is discriminatory”, only that it was discriminatory to decide against hiring Elauf because of perceived religious interaction with it.Report

    • Avatar Francis in reply to LWA
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      says:

      Also remember that it takes two to make a lawsuit. Once the EEOC issued its ruling, A&F could have paid the $20K and agreed to make the appropriate changes to its hiring manual.

      If DFEH or EEOC knocked on my employer’s door, I’d advise to settle as quickly as possible. No liability admitted / mistakes were made / our apologies / it will never happen again. Who really wants to litigate all the way to the Supreme Court except outside counsel and an overly-stubborn CEO?Report

    • Avatar Saul Degraw in reply to LWA
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      says:

      @lwa

      Excellent observations (and thanks for the shout-out)

      Stuff like multi-culturalism is tough for a liberal democracy. A lot of political fights seem to be about where should the burdens be with the employer or the individual. Who should concede to whom?

      DensityDuck’s comment illustrates this below.

      There might need to be a post on thisReport

    • Avatar Richard Hershberger in reply to LWA
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      says:

      “…there is also a common wisdom (which shows up in comment boards) that the law is perversely crazy, and people can sue (and win big bucks!) for any trivial ridiculous thing.”

      It is surprising how many otherwise intelligent persons hold steadfastly to this, despite its not holding up to even minimal scrutiny. I have known doctors, for example, who are defiantly ignorant of the legal standard for medical malpractice. Here is a group of educated people with a strong professional interest in the subject, yet many would rather sit around the campfire telling ghost stories than to actually educate themselves. (Only a hardened cynic would point out that this phenomenon often manifests itself with the doctor ordering unnecessary tests, which naturally he charges for…)Report

  7. Avatar KatherineMW
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    says:

    Burt – Does this mean it’s in a prospective employee’s best interest to mention any religious issues during a job interview? For example, if you said “I can’t work on Sundays”, they could choose not to hire you for that reason, but if you said, “I can’t work on Sundays because I have to go to church”, they’re legally forbidden to use that as a reason to not hire you?Report

    • Avatar DensityDuck in reply to KatherineMW
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      says:

      Hell, we could make the case that if you mention some religious restriction then they HAVE to hire you, because now they have knowledge of your need for religious accommodation–and, therefore, a decision not to hire you might be due to that need, which is illegal under Title VII.

      Isn’t it great that we’ve made so many things illegal? There’s all *kinds* of ways to screw with people now!Report

    • Avatar Burt Likko in reply to KatherineMW
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      says:

      If Applicant says, “I can’t work on Sundays because I have to go to church,” Employer was always legally forbidden to use church attendance as a reason not to hire Applicant. This case didn’t change that. What this case tells us is that if Applicant says “I can’t work on Sundays,” nothing more, but Employer is pretty sure that the reason Applicant can’t work on Sundays is church, then failing to at least search for a reasonable accommodation is religious discrimination in violation of Title VII.

      Applicants volunteer forbidden information all the time: “I have children,” or “I am a regular churchgoer,” or the like. Employers should respond to such things by saying, “That doesn’t matter. What matters is ‘x’,” where ‘x’ is a bona fide demand of the job. So if Applicant says, “I can’t work on Sundays,” whether with or without volunteering information about religious activity, Employer is probably within legal bounds to say “Sundays are our busiest day. We have a lot less need of you if you can’t help out at the time we need help the most.” But the employer should also back that up by documenting a search for an accommodation: are there shifts or jobs available that don’t involve Sunday work? The answer to that question will vary from employer to employer, of course.Report

      • Avatar DensityDuck in reply to Burt Likko
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        says:

        For example, if Joe Jones is already hired but he gets all the non-Sunday shifts because he doesn’t like working Sundays, then the employer is required to put him back on Sunday and hire the person who says “my religion prohibits working on Sundays” (assuming that person meets all the other stated qualifications for the position.) And if Joe Jones doesn’t like it, well, too bad for him.Report

    • Avatar aaron david in reply to KatherineMW
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      says:

      This is an excellent question.

      Edited as @Burt already answered.Report

  8. Avatar Glyph
    Ignored
    says:

    Be interesting to see what this does at an employer with a more, uh…explicit dress code, like Hooters. Could a religiously-conservative woman of any stripe who could not be expected to comply with their dress code, claim religious discrimination?Report

  9. Avatar zic
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    says:

    I know @burt-likko was passing the buck on criminal free speech, but: I’ve read several pieces on it.

    And I still do not understand what’s going to happen as a result of this ruling. Back to the lower court who will re-examine their decision based on what? Does anybody have any notion on what that what might actually be?Report

    • Avatar Burt Likko in reply to zic
      Ignored
      says:

      Ken did a really nice write-up of Elonis over at Popehat; I linked to it above. Including his complaint that the law is now less clear on that issue than it was earlier this morning. Frankly, it’s not so much a passing of the buck as it is deference to an explainer post of superior quality.Report

      • Avatar zic in reply to Burt Likko
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        says:

        I read it, Burt, and I still don’t understand.

        Who’s opinion gets sent to the lower court and what do they need to consider as they reconsider the opinion? And will whatever the lower court decides come back to SCOTUS for review? Are they expecting the lower court to come up with a definition of threat that they’re unwilling to craft?Report

        • Avatar Saul Degraw in reply to zic
          Ignored
          says:

          Roberts opinion is the one that the lower court needs to base their decision on. They can look at other concurrences for guidance.

          “And will whatever the lower court decides come back to SCOTUS for review?”

          Hypothetically yes but who knows when. Chances are that there will be multiple threat cases in the next few years or decade. The Courts of Appeal could reach different conclusions and then cases can go to the Supreme Court for further clarification.

          “Are they expecting the lower court to come up with a definition of threat that they’re unwilling to craft?”

          More or less.Report

          • Avatar zic in reply to Saul Degraw
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            says:

            Thank you, @saul-degraw that’s very helpful.Report

          • Avatar Burt Likko in reply to Saul Degraw
            Ignored
            says:

            Yeah, that’s pretty much right, and Roberts’ opinion is uncharacteristically soupy. By deciding that the case was a jury instruction matter rather than a First Amendment matter, we don’t get any further legal refinement of what the “genuine threats” exception to the general rule of free speech might be. All we really know is that a jury instruction reading:

            A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.

            isn’t enough to adequately inform a jury of all the elements of 18 U.S.C. §875(c). “Wrongdoing must be conscious to be criminal,” the Chief wrote, but I know that’s not right because Congress has passed palletfuls of strict-liability crimes. It could be that wrongdoing must be conscious in cases concerning communication in order to be criminal — some communications are threats, even if we aren’t any clearer on what a “threat” is or is not.

            Seems to me that we’re steered most directly towards a two-step standard: subjectively, the subject target of the putative threat must have reasonably interpreted the comment as an actual threat against her, and the maker of the remarks must have intended that be made as a threat to her. At least, that’s my best guess after reading the opinion — which, as I am hardly alone in noting, is not Roberts’ best work. (His best work may very well be his dissent from the denial of certiorari in Pennsylvania v. Dunlap).

            The case goes back to the Third Circuit Court of Appeals next, and presumably the Third Circuit will try to come up with a better jury instruction. I’d predict Elonis will also argue before the Third Circuit that jeopardy has already attached, so the case should be dismissed. Maybe that wins, maybe not; if not, then the case likely gets sent back to the Eastern District of Pennsylvania for retrial.Report

            • Avatar Saul Degraw in reply to Burt Likko
              Ignored
              says:

              This is a tricky area. On the one hand, I don’t think anyone can reasonably deny that women are frequently the victim of thrests from numerous trolls and other people on-line. In this case, the female victim was being potentially threatened by her X. Gamer Gate revealed that all too many boys and men think it is perfectly acceptable use rape threats against women who criticize their little tree houses.

              On the other hand, we are still dealing with massive problems of mass incarceration and over criminalization. I often feel that we have mass incarceration and overcriminalization because almost every group can think of a special pleading. “Yes overcriminalization is a problem except we should be much much tougher on Crime X.” What happens then is that we just get tougher on every crime which leads to more prisons sentences, etc.

              In short, this stuff is hard to workout.Report

            • Avatar greginak in reply to Burt Likko
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              says:

              From reading the Popehat link and Dalhia Lathwick on Slate it seems like the court wants to see something more than just a reasonable person standard. They want to see proof of subjective intent to actually commit the crimes he was yakking about. It’s unclear how that subjective intent can be proved in many cases. If he said he would rape and strangle his ex there is no weapon to procure that would prove intent. He knows where she lives and who she is, so it isn’t an anonymous person situation. Without a vulcan mind meld it seems like it could be almost impossible to prove someone meant to do what they said they would.

              Given that, in this case, the dude already had a DVRO against him he pretty well knew he had crossed some lines before. This wasn’t some silly misunderstanding or strawman example thrown out by some of the people defending this ruling.Report

              • Avatar zic in reply to greginak
                Ignored
                says:

                I’ve been pondering this, because there does seem an alternative path here: the restraining order. Certainly, a threat like this would justify issuing a restraining order, and those orders typically include internet contact (I’m guessing this may vary by state, I don’t know for certain).

                What I expect to see, as a result, is a plethora of orders against internet trolling threats; and that’s a very rabbit-hole ridden warren of problems that might squarely target anonymous users.

                Edit: this is a totally illogical response after googling what DVRO is.
                Duh. But I’ll let it stand, because I still think that restraining orders will be the result for on-line threats.Report

              • Avatar greginak in reply to zic
                Ignored
                says:

                I don’t think the DVRO can deal with this. RO’s usually forbid contact between parties, but he can say he wasn’t contacting her. Just posting public threats to her but not emailed or messaged to her. That is what i think he did. His “lyrics” weren’t breaking the RO because he didn’t deliver them to her, they were his “public performance.”Report

          • Avatar Don Zeko in reply to Saul Degraw
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            says:

            @saul-degraw And not only are they asking the lower courts to make a rule, it’s entirely possible that the different circuits will make different rules, but SCOTUS will wait years and years before they grant cert on this issue again.Report

      • Avatar DensityDuck in reply to Burt Likko
        Ignored
        says:

        I don’t know if I agree that it’s “less clear”. I think it’s more clear that it’s the prosecution’s responsibility to show that the speaker intended the threat to be taken seriously–and I think that’s a good thing, because the pendulum regarding mens rea has been swinging way too far in one direction recently.Report

  10. Avatar Brooke
    Ignored
    says:

    At what point in an interview process does it become obligatory to hire someone? If there had been no internal communication fretting about what the headscarf could mean, it seems like she would have had no case.Report

    • Avatar Jesse Ewiak in reply to Brooke
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      says:

      “Ms. Elauf earned an objective rating in the interview which qualified her to be hired; however, Ms. Cooke did not hire her on the spot, and instead sought guidance from upper management.”Report

      • Avatar Brooke in reply to Jesse Ewiak
        Ignored
        says:

        Right, I’m not questioning that. My issue is whether “qualified to be hired” means that the company is obliged to extend an offer. I imagine retailers often have more qualified applicants than positions.Report

        • Avatar LWA in reply to Brooke
          Ignored
          says:

          @brooke
          The answer is no, the company is not obliged in any way. Since retail clerks are “at will” employees, Ms. Cooke could have stated that Ms. Elauf simply didn’t have a winning smile, engaging personality, get up and go mentality, vim vigor and vitality, or any other non-protected category, and refused to extend an offer.

          Which is why I wrote my comment above- its not that A&F was acting in good faith and was blindsided by some ridiculous lawsuit. They knew that the reason they didn’t want to hire her was that they didn’t want someone walking around looking like a foreigner.Report

          • Avatar Oscar Gordon in reply to LWA
            Ignored
            says:

            How in the hell did Ms. Elauf find out that she had met all the objective criteria and it all came down to the headgear?Report

            • Avatar Saul Degraw in reply to Oscar Gordon
              Ignored
              says:

              @oscar-gordon

              Do you want a serious answer?

              1. Ms. Elauf and/or her parents probably had a strong “hunch” that she was discriminated against because of her religion. This seems to be a hotly contested issue but many minorities do have strong intuitions about when they are the victims of bigotry and prejudice.

              2. She then contacted an employment lawyer or the EEOC directly. The law gives the EEOC the first right of refusal at all employment discrim cases. If the EEOC decides to pass it along, a private lawyer can take up the case.

              3. The EEOC had a hunch that the plaintiff was right. Remember there are lots of media stories about Abercrombie and Fitch refusing to hire retail staff out of a narrow band of looks. They decided to take the case on.

              4. During the discovery process, the EEOC got testimony and/or e-mails that the plaintiff met the objective requirements and was passed along because of her headgear.Report

            • Avatar Alan Scott in reply to Oscar Gordon
              Ignored
              says:

              IIRC, Elauf asked Cooke why she’d been past over, and Cooke, unclear about the equal-employment ramifications, simply told her it was because of the headscarf.

              I suspect Burt is a little bit off base when he attributes care, rather than coincidence to the original decision not to mention the headscarf. I haven’t interviewed at A&F, but I have interviewed for similar stores.

              Those interviews involved, no-contest, the least experienced interviewers I’ve ever worked with. A&F is a corporate store with low-pay, high turnover retail. In many such stores, most of the important decisions are made at the district or corporate level, and on-site management is given a pretty limited set of freedoms and responsibilities–and consequently isn’t necessarily very trained or skilled in management-type tasks. But in most of those situations, it’s people like the store manager or the district HR that does the hiring. Fashion retail is the only place I’ve seen that responsibility delegated to the “whoever had time/management in only the most technical sense” level.

              I rather suspect that Heather Cooke’s qualification for Assistant Manager was something along the lines of: has worked here for two years and not yet been caught stealing merchandise. She was probably given a 3-page memo with instructions about how to conduct an interview, and asked to sign a paper saying she’d read it (but likely not given actual time to read it).

              Burt’s title is probably more accurate than you’d think. It doesn’t have to be a lawyer, but more interviews probably need to be conducted by Salaried Management or HR reps, who have some basic understanding of what they’re doing and the legal implications it has.Report

              • Avatar Saul Degraw in reply to Alan Scott
                Ignored
                says:

                @alan-scott

                Indeed. This is an issue with other areas of the law as well. There is a whole series of lawsuits involving whether Assistant Managers are considered exempt employees under the FLSA. The answer is often no because they often act more like retail staff than managers with decision making powers.Report

              • Avatar Burt Likko in reply to Alan Scott
                Ignored
                says:

                Your assessment of Ms. Cooke may be accurate, @alan-scott. Nevertheless, she did do what lots of memos, manuals, and other professionally written advice suggests: when you see a trouble area, steer clear.

                Still another way to interpret what she did was that the best advice available have been presented to her, but she had not absorbed all of its nuances. And that’s kind of why I chose the admittedly-sarcastic title for this post. Not everyone is a lawyer. And the process of hiring people should not require that everyone be a lawyer.Report

              • Avatar Richard Hershberger in reply to Alan Scott
                Ignored
                says:

                FWIW, in my (blessedly dated) experience in retail, what you describe would be entirely typical.Report

    • Avatar DensityDuck in reply to Brooke
      Ignored
      says:

      “At what point in an interview process does it become obligatory to hire someone? ”

      Never.

      …so long as you don’t mind getting sued if the person has reason to believe that they provided information regarding a protected status and were denied the job based on that status.

      Which is why, as a job applicant, it’s in your best interest to divulge any protected status information immediately on starting the interview.Report

  11. Avatar LeeEsq
    Ignored
    says:

    Under this decision, do strip clubs have to make reasonable accommodation for dancers that have a religious objection to going nude?Report

    • Avatar Saul Degraw in reply to LeeEsq
      Ignored
      says:

      I think this goes under silly hypothetical land. People with objections for dancing nude are probably not going to apply for jobs at strip clubs. There is no reason for the plaintiff in this case to think that A&F would object to her head scarf. Presumably she otherwise dressed like a typical (if modest) American teenager in jeans, sneakers, and shirts. There is no evidence that the plaintiff wore a burqua to her interview or on a regular basis.Report

    • Avatar Jaybird in reply to LeeEsq
      Ignored
      says:

      From what I understand, dancers are independent contractors. So they pay the club $X to work there (like renting a chair at a salon) and they take home whatever tips they happen to make.

      You’d probably need a critical mass of applicants in order to shut any given club down.Report

    • Avatar Don Zeko in reply to LeeEsq
      Ignored
      says:

      I’m thinking willingness to get naked is a BFOQ here in a way that the headscarf issue is not.Report

  12. Avatar Stillwater
    Ignored
    says:

    Awesome post Burt. (Man, I hope you get yer judgeship soon – you’re a great writer of opinions.)

    I have some questions about Ken White’s treatment of the Elonis case. I heard this morning that the SC had basically tossed out the “reasonable person” standard in this case (haven’t there been some other chinks in the reasonable person standard lately?) and Ken mentioned that while they ruled in favor of Elonic by doing so, the didn’t offer any guidance for future interpretations of the statute, eg, regarding recklessness and/or subjective intent.

    Here’s the question: how the hell could a court ever prove beyond a reasonable doubt subjective intent? Seems to me the burden imposed by a person saying “I did not subjectively intend to have relations with that woman” cannot be overcome by any mechanism other than a reasonable person standard.

    Re: reckelssness: how would a determination of recklessness be established without a “reasonable person’s” judgement? Is that possible? And if it isn’t, then what could possibly decide these cases in the future?

    Or, alternatively, should all speech – even so-called threatening speech – just be allowed, and is that potentially where the court is going on this stuff?Report

    • Avatar Francis in reply to Stillwater
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      says:

      “how the hell could a [prosecutor] ever prove beyond a reasonable doubt subjective intent?”

      Because most jurors are normal people, and most normal people are ready to find that defendants intend the natural and expected consequences of their actions.

      Take an ordinary assault (not battery) case. Did the defendant have the subjective intent of putting the victim in fear of being hit? Well, the defendant may claim that swinging a pool stick in a crowded bar is just part of his usual exercise routine, but not a lot of jurors are going to believe that.

      Same with threats. You prove the case by putting the speech acts in a larger course of conduct between the parties and request that the jury use its plain common sense to find that the defendant had the requisite mental state. As Ken points out, very few people are performance artists.

      Final note: In the US, defendants frequently invoke their 5th Amendments right against self-incrimination and refuse to testify. And yet every day prosecutors pile up convictions. Jurors convict because even without the defendant’s testimony they infer the requisite mental state from the course of conduct. (For example, the difference between murder and manslaughter is frequently entirely dependent on findings regarding the defendant’s mental state. Jurors make these distinctions all the time.)Report

      • Avatar zic in reply to Francis
        Ignored
        says:

        That’s well put @francis

        I don’t recognize your name before today; but I hope to see it frequently. Welcome (and I apologize if I’ve just missed, and stress the Welcome again!)Report

      • Avatar Stillwater in reply to Francis
        Ignored
        says:

        Francis,

        You prove the case by putting the speech acts in a larger course of conduct between the parties and request that the jury use its plain common sense to find that the defendant had the requisite mental state.

        I think I understand that part (tho maybe not!), so here’s my question to figure out where I’m not thinking about this correctly: isn’t determining subjective intent along these lines equivalent to the jury finding that the speech was objectively threatening? Ie., what’s the difference between a prosecutor establishing to a jury of reasonable people that speech was subjectively intended to be threatening, and a prosecutor establishing (to a jury of reasonable people) that speech is objectively threatening according to a “reasonable person” standard?Report

        • Avatar Burt Likko in reply to Stillwater
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          says:

          I think this question may win the award for best question of the thread. The answer, I think, is that yes in most cases these will be the same thing. It’s just possible that a bizarre set of circumstances may come up where other facts prove or disprove one element but not the other. Not this case, though.Report

        • Avatar Francis in reply to Stillwater
          Ignored
          says:

          “Is that your bitch?” in the context of a dog show. Depending on who it’s said to, who (or what) is the referent and the level of aggression in the speech act according to witnesses, that phrase could be either threaten or non-threaten for both objective and subjective.

          Context is everything. First day of crim law class, the law professor gave the following hypothetical defendant testimony. “He pulled out a knife, so I pulled out my gun and shot him.” Self-defense, right? What happens if the defendant adds the following: “He pulled out a knife, so I went home, got my gun, returned to the bar, then I pulled out my gun and shot him.” Different case, right?

          Most cases aren’t hard as a matter of law, so we don’t spend much time as lawyers talking about them. The edge cases get disproportionate attention because reasonable people can differ. TV shows, especially “Law and Order” are all about edge cases. What one career prosecutor sees in a lifetime, if they’re lucky, happens every week on TV.Report

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