Fashion vs. Faith at Abercrombie and the Religious Discrimination Suit the Resulted

The U.S Supreme Court has announced that it will take its first hijab case to decide whether Abercrombie, the fashion retail chain, can deny employment to an otherwise qualified young woman who wished to wear a headscarf at work. U.S. Equal Employment Opportunity Commission v. Abercrombie & Fitch started in 2008. A 17-year old woman named Samantha Elauf applied for a job at the Abercrombie Kids store at a mall in Tulsa, Oklahoma. 

Abercrombie sales associates are called “models” and they are expected, as part of their job, to look good. In fact, part of the job interview is a score on how you look. Once someone is hired, the newly hired “model” has to comply with the Abercrombie “look policy” governing their overall style and how they dress.

Elauf was aware of the general situation. She asked a friend before interviewing if she could be able to wear the hijab on the job. The friend, who knew the store’s assistant manager, was told that be expected the hijab would be fine as he has worked with someone who wore a yarmulke at Abercrombie. He did say that the look policy prohibited anything black so she would have to wear a scarf of a different color. Elauf thought that would be fine. She went to her interview (wearing what was described as “an Abercrombie like T-shirt and jeans” and her black hijab). She didn’t bring up religion or her religious reasons for wearing a headscarf. The interviewer didn’t bring it up either. The interviewers did outline other requirements of the look policy (nail polish and excessive makeup). Elauf did well in her job interview. She even got a 2 out of 3 for her appearance. Her tallied score was 6, which was normally a high enough score to “score” her the job.

After the interview, the interviewer asked her direct supervisor about the hijab. She was directed to the district manager. At that point, it was decided that the headscarf would be inconsistent with the look policy. The interviewer was told to drop Elauf’s appearance score from 2 out of 3 to 1 out of 3. This put her total at 5, which was one short of a job recommendation. Elauf did not get the job at Abercrombie.  

That’s when the EEOC sued Abercrombie for religious discrimination. It appeared to be an open and shut case and a federal district court judge decided summarily for the EEOC. Then the 10^th Circuit reversed. In a split decision, the court didn’t send the issue to trial, but instead issued summary judgment for the retail store, Abercrombie & Fitch. The court reasoned that Elauf hadn’t told Abercrombie that she would require religious accommodation under the look policy in order to wear her hijab.

A dissenting judge, Ronald Reagan appointee David Ebel, pointed out that Elauf didn’t advise the store of the need for special religious accommodation because she had every reason to assume she wouldn’t need one. She was advised by her friend (who had consulted the assistant manager) that her hijab wouldn’t violate the look policy at the store as long as she wore any color other than black. On the other hand, Abercrombie, who was in a position to know that the hijab might be in violation of its policies, never brought the issue up with Elauf. They avoided the conversation.

It is unsure exactly how the Supreme Court will handle the issue as it could be seen as an example of why flexibility may be needed when circumstances warrant it, but the Supreme Court doesn’t generally take on cases without doing so to create a principle.

If you need additional information regarding discrimination in the workplace or a hostile work environment please contact the experts at Blumenthal, Nordrehaug & Bhowmik. 

New Employment Laws In Play Regarding Licenses for Undocumented Individuals

In 2013, the Department of Motor Vehicles was authorized to issue an original driver’s license to an individual who is not able to submit proof that their presence in the United States is authorized under federal law. (California Assembly Bill 60 created Vehicle Code section 12801.9). This same bill also made it illegal to discriminate against a person who holds such a driver’s license under the Unruh Civil Rights Act. AB 60 is to take effect on January 1^st, 2015.

The licenses issued to undocumented persons under the new law will have a distinctive design/color and will have text on the photo indicating limitations for official federal purposes. Additional provisions related to the licenses were included in Assembly Bill 1660 (passed in September) to provide protections in employment context. Employers will be prohibited from discriminating against a person because they hold a license that was issued under Vehicle Code section 12801.9. Employers will be prohibited from requiring workers to present a driver’s license unless possessing one is required by the employer or otherwise permitted by laws in place. Additional provisions have been put in place to protect holders of licenses issued under Vehicle Code section 12801.9 from unlawful release of private information, use to establish citizenship or immigration status for investigation, arrest, citation, etc.

The new licenses will not be acceptable to establish eligibility for employment and they will not be acceptable for any official federal requirements or purposes. The new laws will not change the employers’ rights regarding obtaining information in order to establish an employee’s authorization to work (required under federal law). Employers will still be required to have employees provide documentation and submit the I-9 documentation to determine work eligibility. Employer action taken in accordance with federal Immigration and Nationality Act will not be in violation of the new laws regarding the licenses and the use of licenses issued under Vehicle Code section 12801.9.

For additional information regarding the new laws regarding issuance of licenses for undocumented persons or to get further information on federal work eligibility laws, contact the southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik. 

Labor Law in Place to Help Employees Beat the Heat

A newly amended California labor code provision turns up the heat on employers in order to protect employees from the heat. Amendments allow private enforcement of laws regarding heat-illness prevention. Previously, they were imposed only by the California Occupational Safety and Health Administration (OSHA) with limited resources.

With the new provision, California employers must be even more fastidious about guarding their employees from the sun’s heat. To do so they must provide employees with cool down periods or they might end up facing litigation en masse. Any employer who has an outdoor space at their place of employment will find it vital to have a heat-illness prevention program set in motion so that employees are both allowed and encouraged to rest out of the heat for at least 5 minutes whenever they feel in danger of overheating. 

Employers may feel put out by the rules. They are required to provide shade for employees who work in the sun (especially during sunny days). This can sometimes be difficult. Necessary cool-down periods any particular employee might need are unknown and cannot be scheduled ahead of time. So employers may find regulating employee behavior to ensure they are meeting the standards for heat-illness prevention difficult. It is recommended that California employers review the policies they have in place and that they offer renewed training for managers who will be responsible for compliance and the maintenance of their compliance records.

If you have questions regarding the regulations your California employer may be required to adhere to, contact Blumenthal, Nordrehaug & Bhowmik, your southern California employment law experts. 

California Law Prohibits Religious Discrimination in the Workplace

After hearing the many stories from California employees, some are starting to wonder if California’s laws that prohibit religious discrimination in the workplace are enough to get the job done. One example of blatant religious discrimination follows.

A young Muslim woman went through the application process at a beauty supply store. During her interview she did not wear her hijab. After she was hired, she started her first day of work with the traditional hijab, a headscarf covering her hair, in place. She was told by her direct supervisor (in front of her coworkers and customers in the store) to take the hijab off or to go home.

She explained her religious beliefs and that the hijab held significant religious importance to the manager. The hijab is worn as an expression of devotion to God. It’s also a symbol of modesty and privacy. It’s not unique to Islam. After her thorough and careful explanation, she was sent home for not removing the hijab. She is allowed to keep her job, but her hours are cut back and she is asked to work in the back of the store. 

This is just one of many examples of religious discrimination in the workplace. Muslims face a number of difficult situations such as this, most of which are listed in the Council on American-Islamic Relations’ (CAIR) newest report regarding the civil rights of Muslims in California. The California offices of CAIR received 933 complaints in the last year. The Los Angeles branch received 444 complaints (the highest of any of the CAIR California offices).  

A 2012 California law prohibits religious discrimination in the workplace, but in spite of the intention of the law to provide protection, many are still reporting hostile work environments, alleged harassment, retaliation for political/religious beliefs, wrongful termination, etc.

Under California’s Workplace Religious Freedom Act, employees must provide employees with reasonable accommodations to suit religious beliefs and associated observances. The only exception is if doing so would cause “undue hardship.” To discuss the specifics of what constitutes an “undue hardship,” the meaning of “religious observance” and “religious belief” according to California law, etc. contact the employment law experts of southern California at Blumenthal, Nordrehaug & Bhowmik. We can assist you in determining what rights you have and how you can protect yourself from hostile work environments. 

Undisclosed Settlement Amount Agreed Upon in Neiman Marcus Wrongful Termination Suit

Neiman Marcus recently settled a wrongful termination lawsuit. The suit was filed by former Neiman Marcus employee, Amir Peleg, who claims that he was fired for being gay and Jewish. Peleg asked for $40 million in punitive damages and $16 million in compensatory damages for economic loss as well as emotional pain and suffering. A Los Angeles County court clerk recently announced that the department store giant settled the wrongful termination lawsuit. The jury trial for the case began on September 2^nd, 2014. It was still in progress when both parties agreed to a settlement agreement. The details of the agreed upon settlement were not released to the public and neither attorney could be reached for comment regarding the settlement.

Peleg is 59 years old. He is a former salesman for the Neiman Marcus fragrance department located in Beverly Hills. He claims that he was harassed about both his sexual orientation and his religion by his supervisor. His supervisor, Miryam Emamian is an Iranian woman of Muslim faith. It was noted in court that she refused to approve time off for Jewish holidays and that she made derogatory comments when he requested vacation time to go visit Israel. Peleg also claimed that his direct supervisor, Emamian, kept portions of bonuses he was given for exemplary sales. (Bonuses were in expensive beauty products). She was fired in 2008. Peleg’s attorney said that his client was an exemplary employee and a top associate with close to $1 million in sales/year. After his dismissal from Neiman Marcus, Peleg had to move out of his home and file for bankruptcy.

Neiman Marcus claims that Peleg was dismissed because he provided thousands in free samples of expensive face cream product and that the product he gave away as “free samples” eventually made its way to a Chinese website where it was sold for profit.

For more information on wrongful termination contact the California employment law experts at Blumenthal, Nordrehaug & Bhowmik. 

Settlement Story: House GOP Settles Wrongful Firing Lawsuit

There is, seemingly, always a new wrongful termination story popping up in the news. Recent headlines point towards Olympia, Washington. In this particular wrongful termination case, the legal battle has been ongoing for three years.

The wrongful termination lawsuit was brought against the House by the former House Republican staff members. The staffers’ names were: John S. Archer, John Charba and William Engelhardt. Claims made by the men included: age discrimination, allegations that staffers were put under pressure to work on members’ campaigns as well as attend fundraising events.

Last month, a judge dismissed all but one of the claims: age discrimination.

House Republican Caucus chief of staff, Lisa Fenton, stated that the settlement of $120,000 was reached in order to end the three year long battle between the House Republican leadership and the three previous staff members who filed. The settlement agreement bars additional legal proceedings/action. The Republican House leaders did not admit to any wrongdoing.

Wrongful termination lawsuits are typically founded on claims of discrimination (age, religion, sex, nationality, etc.), retaliation (for instance, filing of or participation in a discrimination claim), refusal to commit an illegal act, departure from posted termination process or procedures, etc. Employees are protected from wrongful termination by California labor law. Winning a wrongful termination case tends to result in one of two things: reinstatement of the employee at the place of employment they were wrongfully dismissed from or monetary compensation for the wrongfully terminated paid out by the former employer.

A proven wrongful dismissal will tend to lead to two main remedies: reinstatement of the dismissed employee, and/or monetary compensation for the wrongfully dismissed.

For additional information on wrongful firing or wrongful termination please contact the southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik. 

Netflix and Amazon Beat Blacklisting Lawsuit

Claims filed by Jerry Kowal against Netflix and Amazon included defamation and wrongful termination. The two companies, Netflix and Amazon, are competitors. They both provide online video content. But these two competitors got to share a victory together in court when the Los Angeles Superior Court judge Michael Stern dismissed claims against the two online video content giants. The claims were brought by Jerry Kowal, a former employee of both of the companies listed in the suit. He alleged that he had been wrongfully terminated by Amazon after Netflix blacklisted him.

Kowal worked at Netflix as a director of content acquisition. He had what he described as an exceptional reputation, but quickly noticed that the atmosphere at the company was cold, hostile and cutthroat. As a result, he decided to take a job at Amazon. He claims that shortly after he started at Amazon, Netflix attorneys sent a letter to Amazon accusing Kowal of unfair competition and insisting that they have access to search Kowal’s email accounts and computer/s for any business information belonging to Netflix. Kowal allowed that Netflix information could still be on his devices, but he adamantly denied using any of it for work at Amazon.

The burden of proof fell on Kowal. He needed to prove that there was a likelihood of prevailing on the merits of his claims. The judge decided that he did not meet the expected standard due to the fact that several of his allegations were based on speech protected by California Civil Code 47(b), which covers speech “made…in the initiation or course of any other proceeding authorized by law.” In this particular case, the letter Netflix sent to Amazon alleged unfair competition by Kowal.

For questions about wrongful termination, contact Blumenthal, Nordrehaug & Bhowmik, the southern California employment law experts.