June Legal Roundup: Another Misstep for Abercrombie

What did the company do now? Refuse to hire a job applicant because she wore a hijab.

Here's the latest on some discrimination cases that have gone before the courts:

National Origin and Religion | Disability | Age | Sex


Clothing company should allow hijab.

Abercrombie & Fitch denied a job to a Muslim teenage applicant because she wore her hijab head covering to the job interview.

The Equal Employment Opportunity Commission (EEOC) charges that the company found the head covering was not consistent with its "Look Policy" requiring employees to wear clothing which is sold in Abercrombie stores and prohibiting them from wearing "caps." Abercrombie had made at least 70 exceptions to its Look Policy since 2006, including to the caps provision.

The court found sufficient evidence that the company failed to meet its reasonable accommodation obligation under Title VII.

EEOC v. Abercrombie & Fitch Stores, Inc. (N.D. Cal., 2013)

Failure to accommodate Muslim prayer creates case, but trying to accommodate Ramadan creates strike by Hispanic employees.

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The EEOC may maintain a case against a meatpacking plant for a pattern of denying the accommodation of appropriate break time for 150 Somali Muslim employees. However, the firing of 80 Somali Muslim employees was upheld due to their reaction to an anti-Ramadan strike by Hispanic employees.

When the company altered the work schedule and breaks to accommodate the Muslim workers for Ramadan, a large number of Hispanic workers went on strike to protest the changes to their schedules. The company then delayed the Ramadan schedule alteration to try to work out the issues. Eighty Somali Muslims left and refused to return.

The court found no religious discrimination since the fired workers were refusing to engage in continuing the interactive process so their claims for discriminatory discharge were dismissed.

(This was not an NLRA case over rights to strike. The Teamsters Union tried to be on both sides, approving the Ramadan schedule change, then also supporting the Hispanic workers who struck against the union's approved Ramadan accommodation.)

EEOC v. JBS USA, LLC (D. Neb., 2013)


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Having another employee do lifting was not a reasonable request for accommodation.

An employee with a permanent 20-pound lifting restriction applied for a promotion to a position requiring lifting of parts for inspection. Many parts were in excess of 20 pounds.

She requested the accommodation of having another employee present to lift those parts. The company declined and did not promote her. She sued under the ADA.

The court ruled that the employee was not a qualified individual with a disability since she could not perform an essential function of the job. The requested accommodation was not reasonable since the 20-pound lifting was ongoing, not occasional. Thus, the employer would substantially have to pay two people to perform one job.

Majors v. General Electric Company (7th Cir., 2013)

Employer bound by contract; union unwilling to grant accommodation.

An equipment operator/driver lost a leg in an accident. He could no longer do the essential job functions of operating excavating equipment and driving "big rig" trucks. The company tried to accommodate by assigning him to a smaller truck that he could operate and did not require the same loading/unloading duties.

However, the collective bargaining agreement seniority provisions required the union and other employees to agree. The other employees and the union would not agree to waive the seniority rights of others to the smaller truck assignment. The employee sued under the ADA for failure to accommodate.

The court dismissed the case. The ADA gives contract rights priority over accommodation; the company was bound by the contract.

Henschel v. Clare County Road Commission (S.D. Mich., 2013)

Rat phobia may be a disability, but company was not required to accommodate.

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A warehouse worker had an anxiety disability, including fear of rats and insects. The warehouse had both, despite eradication efforts.

The warehouse worker requested a complete cure in the warehouse or reassignment to a rodent-free and insect-free environment. There were no open positions. The employee took leave and would not return to the warehouse. No other positions opened except a Human Resource Specialist job. The employee was terminated.

In the ensuing Rehabilitation Act of 1973 claim, the court found that the employer could not reasonably create a pristine environment. Though it was not listed as a job requirement on the position description, rats and insects are a fact of life in many warehouses, which cannot be completely eliminated. The American With Disabilities Act (ADA) requires accommodation of placing a disabled person in a vacancy; however, one must be qualified for the job. The warehouse worker had no qualifications for the HR position. So it was not a viable or reasonable accommodation.

Murry v. General Services Administration (5th Cir., 2013)

DOT certification was essential function for trucking supervisor.

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A food-processing-company delivery manager lost his federal Department of Transportation (DOT) driving certification due to an eye condition. The position description required a DOT certification to supervise drivers and to do driving as needed.

The manager claimed he should be exempt from driving and could do all the "management" duties otherwise. He was terminated, and he then filed an ADA suit.

The court held that driving and the DOT certification was essential for the manager's position and dismissed the case.

Knutson v. Schwan's Home Service, Inc. (8th Cir., 2013)

DOT and commercial certification was NOT an essential function.

A gas-company supervisor was terminated when the company determined he was not qualified to hold a DOT driving certification. His job's position description required a certification.

However, the actual duties did not require driving commercial vehicles; he supervised mechanics and drivers. He had to ride along and observe their performance. He had to go to road locations to meet drivers or observe mechanics—in a regular car. He never actually had to drive a commercial vehicle to accomplish the job.

CDL/Commercial Certification may have been "preferred" for the position, but it was not "required." Thus, the manager had a valid ADA case.

Bailey v. AmeriGas Propane, Inc. (D. Md., 2013)


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Dumb statement by bearer of bad news was not illegal, but still cost a lot.

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A company won an age-discrimination case but spent a huge amount on defense costs due to a stupid statement by a supervisor.

A 61-year old rental agent was fired. On a rating scale of 100—with 80 as minimum acceptable—she rarely achieved even a 56. Corporate headquarters reviewed overall performance of all agents, plus her violation of several important policies, and ordered her to be fired due to her ratings.

Her supervisor had no role in this decision but had to deliver the message. In the meeting, the supervisor called the employee "old Rose" and opined that "you're slipping and getting too old for your job." The fired agent filed an age-discrimination case under the Age Discrimination in Employment Act (ADEA) and Michigan's Elliott-Larsen Civil Rights Act.

The court dismissed the case because the supervisor's statements were unrelated to the actual termination decision. The decision was made at a higher level, for valid, nondiscriminatory reasons.

But did the company really "win"? A federal case often costs the company more than $100,000 in defense costs. Improper statements by supervisors cost employers countless dollars in lost profits or budgets even if the case is eventually "won." This case would never have occurred except for the supervisor's unprofessional comments.

Marsh v. Associated Estates Realty Corp. (6th Cir., 2013)


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Goodwill settles case for discrimination against men.

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The EEOC alleged that there was systemic discrimination against male employees in hiring and promotion.

The case alleged that Goodwill favored women at local donation centers due to a stereotype that women have better customer-service skills.

Goodwill will pay $130,000 in back pay and agree to provide jobs or promotions to 18 men. It will also take extensive monitoring and training efforts regarding its employment practices.

OFCCP v. Goodwill Industries of Southern California (2013)

Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.

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