EEOC v. Abercrombie & Fitch Stores, Inc.: Title VII Gives Favored Treatment to Employees’ Religious Practices

In Equal Emp’t Opportunity Comm’n v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768 (2015), the Supreme Court held that to prove a religion-based disparate treatment claim under Title VII of the Civil Rights Act of 1964, a job applicant need only show that her need for a religious accommodation was a motivating factor in the employer’s adverse employment action. Therefore, the applicant did not need to show that the prospective employer knew that the applicant’s practice was a religious practice requiring accommodation. More generally, the Court also observed that Title VII gives “favored treatment” to religious practices and requires employers to accommodate the same so long as the accommodation does not create an undue hardship for the employer.

Statutory Background – Title VII and Religious Discrimination

In relevant part, Title VII of the Civil Rights Act of 1964 prohibits two kinds of employment practices:

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”

42 U.S.C. § 2000e–2(a). The first category is typically referred to as “disparate treatment” or “intentional” discrimination, and the second category is typically referred to as “disparate impact” discrimination. Abercrombie involved a claim of disparate treatment discrimination based on a job applicant’s religion.

Title VII defines the word “religion” to “includ[e] all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to” a “religious observance or practice without undue hardship on the conduct of the employer’s business.” 575 U.S. 768, 771-72 (quoting 42 U.S.C. § 2000e(j)).

Therefore, Title VII prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship.

In Abercrombie, the issue for the Court was whether this rule applies only where an applicant has informed the employer of his need for a religious accommodation. 575 U.S. 768, 770.

Facts

Abercrombie was a clothing company. It imposed a “Look Policy” that governed how its employees dressed. The Look Policy prohibited “caps” as being too informal for Abercrombie’s desired image. 575 U.S. 768, 770.

The plaintiff, Samantha Elauf, was a practicing Muslim. Consistent with her understanding of her religion’s requirements, she wore a headscarf. She applied for a position in an Abercrombie store, and was interviewed by the store’s assistant manager. Using Abercrombie’s ordinary system for evaluating applicants, the assistant manager gave Elauf a rating that qualified her to be hired. However the assistant manager was concerned that Elauf’s headscarf would conflict with the company’s Look Policy. 575 U.S. 768, 770.

The assistant manager consulted with a store manager and then a district manager to clarify whether the headscarf was a forbidden “cap.” She told the district manager that she believed Elauf wore her headscarf because of her faith. The district manager told the assistant manager that Elauf’s headscarf would violate the Look Policy, as would all other headwear, religious or otherwise, and directed the assistant manager not to hire Elauf. 575 U.S. 768, 770.

The EEOC sued Abercrombie on Elauf’s behalf, asserting that the company’s refusal to hire Elauf violated Title VII. EEOC won in the trial court. The Tenth Circuit then reversed and awarded Abercrombie summary judgment. It concluded that ordinarily an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant (or employee) provides the employer with actual knowledge of her need for an accommodation. 575 U.S. 768, 770-71 (citing 731 F.3d 1106, 1131 (2013)).

The Court’s Decision

The Court reversed the Tenth Circuit. It held that to prevail in a disparate-treatment claim, an applicant need show only that his or her need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his or her need.

First, the Court observed that Title VII’s disparate-treatment provision forbids employers to: (1) “fail … to hire” an applicant (2) “because of” (3) “such individual’s … religion” (including religious practice). In Elauf’s case, Abercrombie (1) failed to hire Elauf, and the parties agreed that (if Elauf sincerely believed that her religion so required) Elauf’s wearing of a headscarf was (3) a “religious practice.” Therefore, the Court determined that the only remaining question was whether she was not hired (2) “because of” her religious practice. 575 U.S. 768, 772.

The Court then discussed the meaning of “because of.” The Court observed that under its decision in University of Tex. Southwestern Medical Center v. Nassar, 570 U.S. 338, 133 S.Ct. 2517 (2013) “because of” refers to the traditional notion of “but-for” causation. 575 U.S. 768, 772-73. It further observed, however, that Title VII relaxes this standard to prohibit even making a protected characteristic a “motivating factor” in an employment decision. 575 U.S. 768, 773 (quoting 42 U.S.C. § 2000e–2(m)).

The Court explained that the “because of” language in § 2000e–2(a)(1) links the forbidden consideration to each of the verbs preceding it. Therefore, an individual’s actual religious practice may not be a motivating factor in failing to hire, in refusing to hire, and so on. 575 U.S. 768, 773.

Importantly, the Court found, § 2000e–2(a)(1) does not impose a knowledge requirement on the employer. This makes Title VII different from some other antidiscrimination statutes, which do impose a knowledge requirement. For example, the Americans with Disabilities Act of 1990 defines discrimination to include an employer’s failure to make “reasonable accommodations to the known physical or mental limitations” of an applicant. 575 U.S. 768, 773 (quoting 42 U.S.C. § 12112(b)(5)(A) (emphasis added by the Court). But Title VII contains no such limitation. 575 U.S. 768, 773.

Therefore, the Court determined that Title VII’s intentional discrimination provision “prohibits certain motives, regardless of the state of the actor’s knowledge.” 575 U.S. 768, 773 (emphasis in original). This is because “[m]otive and knowledge are separate concepts.” Id. For example, the Court pointed out that “an employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive.” Id. (emphasis in original). And on the other side of the token, “an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.” Id.

Using this rationale, the Court found a straightforward rule for disparate-treatment claims based on a failure to accommodate a religious practice: “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” Id.

As an example of this rule, the Court provided a hypothetical where an employer thought (without knowing for certain) that a job applicant may be an orthodox Jew who would observe the Sabbath, and therefore be unable to work on Saturdays. The employer could not, under Title VII, decline to hire the applicant if the employer’s desire to avoid that accommodation was a motivating factor in that decision: “If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.” 575 U.S. 768, 773-74.

Finally, the Court rejected Abercrombie’s argument that in declining to hire Elauf it did not violate Title VII’s intentional discrimination requirement because it was simply applying a “neutral policy” about headwear. The Court observed that religious practices are entitled to “favored treatment” under Title VII:

But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not “to fail or refuse to hire or discharge any individual … because of such individual’s” “religious observance and practice.”

575 U.S. 768, 775.

The Court acknowledged that an employer like Abercrombie is entitled to have a no-headwear policy “as an ordinary matter.” But when an applicant requires an accommodation as an “aspec[t] of religious … practice,” the Court found that it would be no response for an employer to argue that the subsequent “fail[ure] … to hire” was due to an otherwise-neutral policy. Instead, “Title VII requires otherwise-neutral policies to give way to the need for an accommodation.” 575 U.S. 768, 775.

Analysis

In sum, Abercrombie held that to prove a religion-based disparate treatment claim under Title VII, a job applicant need only show that her need for a religious accommodation was a motivating factor in the employer’s adverse employment action. This rule does not require the applicant to show that the prospective employer knew that the applicant’s practice was a religious practice requiring accommodation. More generally, the Court observed that Title VII gives favored treatment to religious practices and requires employers to accommodate the same so long as the accommodation does not create an undue hardship for the employer.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

Originally published on Tim Coffield’s website.

Torres v. Texas Dep’t of Pub. Safety: States Do Not Have Sovereign Immunity Against Damages Claims for Servicemember Discrimination Under USERRA

In Torres v. Texas Dep’t of Pub. Safety, 142 S. Ct. 2455 (2022), the Supreme Court held that States do not have sovereign immunity against damages claims for servicemember employment discrimination in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). The Court determined that by ratifying the Constitution, the States agreed their sovereignty would yield to the national power to raise and support the military. Therefore, Congress was free to exercise this power to authorize private damages suits against nonconsenting States, as provided in USERRA.

Constitutional Background – Sovereign Immunity

The Eleventh Amendment to the U.S. Constitution states:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

Courts have interpreted the Eleventh Amendment and common law as barring suits for damages against states or state agencies. Sovereign immunity generally encompasses suits for damages by an employee against his or her state government employer, unless the employee’s claim is one for which sovereign immunity has been validly abrogated by Congress or waived by the state.

Sovereign immunity is the privilege of the sovereign not to be sued without its consent. As the Supreme Court observed in Virginia Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 253-56 (2011), the Court has long interpreted the Eleventh Amendment to confirm the framers’ structural understanding that States entered the Union with their sovereign immunity intact. Thus, the Court has held that States have retained their traditional immunity from suit, “except as altered by the plan of the Convention or certain constitutional amendments.” Alden v. Maine, 527 U.S. 706, 713 (1999).

This principle that States did not retain their immunity “as altered by the plan of the Convention” was particularly important to the decision in Torres.

Additionally, State may waive its sovereign immunity at its pleasure, College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 675–676 (1999), and in some circumstances Congress may abrogate it by appropriate legislation. But in the absence of waiver or valid abrogation, federal courts may not entertain a private person’s suit for damages against a State. Stewart, 563 U.S. at 253-56.

Constitutional Background – Article I and the Power to Raise and Support Armies

Article I of the Constitution grants Congress the power “[t]o raise and support Armies” and “[t]o provide and maintain a Navy.” Article I, § 8, clauses 1, 12–13.

Statutory Background – USERRA

Using that Article I authority, Congress enacted the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). USSERA gives returning servicemembers the right to reclaim their prior jobs with state employers and authorizes servicemembers to file suit if those employers refuse to accommodate veterans’ service-related disabilities. See 38 U.S.C. § 4301, et seq.; 38 U.S.C. § 4313(a)(3).

Facts

Torres enlisted in the Army Reserves in 1989. In 2007, he was called to active duty and deployed to Iraq. While serving in Iraq, Torres was exposed to toxic burn pits, a method of garbage disposal that sets open fire to all manner of trash, human waste, and military equipment. Torres received an honorable discharge. 142 S. Ct. 2455, 2461.

Torres returned home with constrictive bronchitis. This is a respiratory condition that narrowed his airways and made breathing difficult. Torres alleged that this condition left him unable to work his old job as a state trooper. Torres therefore asked his former employer, Texas Department of Public Safety, to accommodate his condition by reemploying him in a different role. Texas refused to provide this accommodation. 142 S. Ct. 2455, 2461.

Torres therefore sued Texas in state court to enforce his rights under USERRA, 38 U.S.C. § 4313(a)(3). Texas tried to dismiss the suit by asserting it had sovereign immunity. The trial court denied Texas’ motion. An appellate court reversed, reasoning that, under Supreme Court precedent, namely Central Va. Community College v. Katz, 546 U.S. 356, 126 S.Ct. 990, 163 L.Ed.2d 945 (2006), Congress could not authorize private suits against nonconsenting States pursuant to its Article I powers except under the Bankruptcy Clause. The Supreme Court of Texas declined to review the case. 142 S. Ct. 2455, 2461.

After the Texas court decision, the Supreme Court issued an important ruling in PennEast Pipeline Co. v. New Jersey, 594 U. S. ––––, 141 S.Ct. 2244, 210 L.Ed.2d 624 (2021). PennEast held that the States waived their sovereign immunity as to the federal eminent domain power pursuant to the “plan of the Convention.” 142 S. Ct. 2455, 2461 (citing PennEast, 141 S.Ct. 2244, 2258).

The Court’s Decision

The Court then took Torres’ case to determine whether, in light of that intervening ruling in PennEast, USERRA’s damages remedy against state employers was constitutional.

Applying the reasoning in PennEast, the Court held that by ratifying the Constitution, the States agreed their sovereignty would yield to the national power to raise and support the Armed Forces. Therefore, in enacting USERRA, Congress validly exercised this power to authorize private damages suits against nonconsenting States for violations of USERRA.

The Court observed that in PennEast, it considered whether Congress could, pursuant to its eminent domain power (another Constitutional power), authorize private suits against States to enforce federally approved condemnations necessary to build interstate pipelines. The PennEast Court had held that Congress could authorize such suits because, upon entering the federal system, the States implicitly agreed their “eminent domain power would yield to that of the Federal Government.” 142 S. Ct. 2455, 2463 (citing PennEast, 141 S.Ct. at 2259).

The Torres Court pointed out that PennEast defined the test for “structural waiver” of sovereign immunity as whether the federal power is “complete in itself, and the States consented to the exercise of that power—in its entirety—in the plan of the Convention.” 142 S. Ct. 2455, 2461-63 (quoting PennEast, 141 S.Ct. at 2263).

Reviewing the text of the Constitution, its history, and past cases, the Court determined that Congress’ power to build and maintain the Armed Forces fit the PennEast test. Under the PennEast test, the Court observed that Congress’ power to build and maintain a national military is “complete in itself.” 142 S. Ct. 2455, 2463, 2466 (citing PennEast, 141 S.Ct. at 2263). As the Court put it in PennEast, when they entered the Union, the States agreed that their sovereignty would “yield … so far as is necessary” to federal policy for the Armed Forces. 142 S. Ct. 2455, 2463, 2466 (quoting PennEast, 141 S.Ct. at 2259). The Court further emphasized that because the States committed not to “thwart” this federal power, “[t]he consent of a State,” including to suit, “can never be a condition precedent” to Congress’ chosen exercise of its authority. 142 S. Ct. 2455, 2459, 2463, 2466 (quoting PennEast, 141 S.Ct. at 2255, 2256–2257). In these circumstances, the States simply “have no immunity left to waive or abrogate.” 142 S. Ct. 2455, 2463 (citing PennEast, 141 S.Ct. at 2263).

Accordingly, when Congress enacted USERRA, it validly exercised its power to authorize private damages suits against nonconsenting States for violations of servicemembers’ rights under USERRA. Texas therefore did not have sovereign immunity against Torres’ damages claim for alleged violations of his rights under USERRA.

Analysis

In sum, in Torres the Supreme Court held that States do not have sovereign immunity against damages claims for servicemember employment discrimination in violation of USERRA. The Court determined that by ratifying the Constitution, the States agreed their sovereignty would yield to the national power to raise and support the military. Therefore, Congress was free to exercise this power to authorize private damages suits against nonconsenting States, as provided in USERRA.

Originally published on Tim Coffield’s website.

Morgan v. Sundance: Waiver, Prejudice, and Arbitration Under Federal Law

In Morgan v. Sundance, Inc., 142 S. Ct. 1708 (2022), the Supreme Court held that prejudice is not a condition of finding that a party, by litigating too long, waived its right to stay litigation or compel arbitration under the Federal Arbitration Act.

Facts

Morgan worked as an hourly employee at a Taco Bell franchise owned by Sundance. When she applied for the job, Morgan signed an agreement to arbitrate employment disputes. Morgan later filed in court a collective action asserting that Sundance had violated federal law regarding overtime compensation. Initially, Sundance defended against the lawsuit in court, filing an unsuccessful motion to dismiss and engaging in an unsuccessful mediation. Then, nearly eight months after Morgan filed the lawsuit, Sundance moved to stay the litigation and compel arbitration under the Federal Arbitration Act (FAA). Morgan opposed the motion, arguing that Sundance had waived its right to arbitrate by litigating for so long.

The Eight Circuit granted the motion holding, in relevant part, that Sundance’s delay had not prejudiced Morgan. That decision applied Eighth Circuit precedent, under which a party waives its right to arbitration if it knew of the right; “acted inconsistently with that right”; and “prejudiced the other party by its inconsistent actions. However, the prejudice requirement is not a feature of federal waiver law generally. The Eighth Circuit adopted that requirement because of the “federal policy favoring arbitration.” Other courts had rejected such a requirement. The Supreme Court took the case to resolve the split over whether federal courts may adopt an arbitration-specific waiver rule demanding a showing of prejudice. 142 S. Ct. at 1708–1712.

The Court’s Decision

The Court vacated and remanded, holding that there was no arbitration-specific waiver rule requiring a showing of prejudice. Assuming that federal law governed the issue, the Court observed that federal courts may not create “arbitration-specific variants” of federal procedural rules, like those concerning waiver, based on the FAA’s “policy favoring arbitration.” The Court observed that that policy “is merely an acknowledgment of the FAA’s commitment to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate and to place such agreements upon the same footing as other contracts.” Granite Rock Co. v. Teamsters, 561 U.S. 287, 302, 130 S.Ct. 2847 (2010) (internal quotation marks omitted). 142 S. Ct. at 1712–1714.

The Morgan Court therefore held that a court must hold a party to its arbitration contract just as the court would to any other kind. But a court may not devise novel rules to favor arbitration over litigation. The Court emphasized that the federal policy is about treating arbitration contracts like all others, not about fostering arbitration. 142 S. Ct. at 1712–1714.

Supporting this conclusion, the Court observed that the text of the FAA makes clear that courts are not to create arbitration-specific procedural rules like the one the Eight Circuit applied. For example, Section 6 of the FAA provides that any application under the FAA — including an application to stay litigation or compel arbitration — “shall be made and heard in the manner provided by law for the making and hearing of motions” (unless the statute says otherwise). The Court noted that this directive to treat arbitration applications “in the manner provided by law” for all other motions is simply a command to apply the usual federal procedural rules, including any rules relating to a motion’s timeliness. Therefore, the Court reasoned, because the usual federal rule of waiver does not require prejudice, Section 6 of the FAA supports the conclusion that prejudice is not a condition of finding that a party waived its right to stay litigation or compel arbitration under the FAA. 142 S. Ct. at 1712–1714.

The Court then concluded that after eliminating the prejudice requirement, the waiver inquiry would focus on Sundance’s conduct: for example, whether Sundance knowingly relinquished the right to arbitrate by acting inconsistently with that right. The Court noted that on remand, the Court of Appeals could resolve that question, or could determine that a different procedural framework was appropriate. The Court’s sole holding was that courts were not permitted to make up a new procedural rule based on the FAA’s “policy favoring arbitration.” 142 S. Ct. at 1712–1714.

Analysis

In sum, Morgan held that prejudice is not a condition of finding that a party, by litigating too long, waived its right to stay litigation or compel arbitration under the Federal Arbitration Act. This is because courts are not permitted to make up new arbitration-specific procedural rules based on the FAA’s “policy favoring arbitration.”

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1–434–218–3133 or send an email to info@coffieldlaw.com.

Originally published on Tim Coffield Attorney’s website.

Garcetti v. Ceballos: Private Citizen Speech, Public Employment, and the First Amendment

In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court reaffirmed its prior decisions that the First Amendment to the U.S. Constitution protects government employees from retaliation for speaking out as private citizens on matters of public concern. But when public employees make statements pursuant to their official duties, they are not speaking as private citizens for First Amendment purposes, and the Constitution does not protect their communications from employer discipline.

Facts

Ceballos was a supervising deputy district attorney for the Los Angeles County District Attorney’s Office, also known as a “calendar deputy.” A defense attorney asked Ceballos to review a case in which, the defense attorney claimed, police obtained a search warrant using an inaccurate affidavit. After examining the affidavit and visiting the location it described, Ceballos determined the affidavit contained serious misrepresentations.

After relaying his findings to his supervisors at the District Attorney’s Office, Ceballos followed up with a disposition memorandum recommending that the case be dismissed. The District Attorney’s Office nevertheless moved forward with prosecuting the case.

At a court hearing on the defendant’s motion to challenge the search warrant, Ceballos repeated his observations about the inaccurate affidavit. The trial court rejected the challenge.

Ceballos claimed that in the aftermath of these events, he was subjected to a series of retaliatory employment actions. These actions included reassignment from his calendar deputy position to a trial deputy position, transfer to another courthouse, and denial of a promotion.

Claiming that his supervisors at the District Attorney’s Office retaliated against him for his memorandum, in violation of his First Amendment and Fourteenth Amendment free speech rights, Ceballos filed suit. The District Court granted summary judgment against Ceballos, ruling, among other things, that the memo was not protected speech because Ceballos wrote it pursuant to his employment duties. The Ninth Circuit reversed, holding that the memo’s allegations were protected under the First Amendment analysis in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983). The District Attorney’s Office appealed. Garcetti at 413-417.

The Court’s Decision

The Garcetti Court held that when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and therefore the Constitution does not insulate their communications from employer discipline. The Court then determined that Ceballos did not speak as a citizen when he wrote his memo and, therefore, his speech was not protected by the First Amendment.

Read more about the case at TimCoffieldAttorney.com.

Comcast v. NAAAM: Law of Causation in 1981 Claims

In Comcast Corp. v. National Association of African American-Owned Media, No. 18-1171, __ U.S. __ (March 23, 2020), the Supreme Court held that race-discrimination claims brought under the Civil Rights Act of 1886, 42 U.S.C. § 1981, are subject to a but-for standard of causation.

Background

The Civil Rights Act of 1886, now codified at 42 U.S.C. § 1981, provides that “[a]ll persons … shall have the same right … to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens[.]” The law has been interpreted as, inter alia, prohibiting discrimination because of race in employment and other kinds of contractual relationships.

A similar discrimination law, Title VII of the Civil Rights Act, specifically provides for a “motivating factor” causation standard — that is, an employee can prevail on a Title VII race discrimination claim by proving that her race was a “motivating factor for any employment practice, even though other factors also motivated that practice.” 42 U.S.C. § 2000e-2(m).

The statutory language of 42 U.S.C. § 1981, however, does not specify the causation standard for proving race discrimination under § 1981.

The causation standard under § 1981 is important for employees because this law is, in some ways, more powerful than Title VII. For example, while Title VII race discrimination claims are subject to caps on compensatory and punitive damages, see 42 U.S.C. § 1981a, race discrimination claims under § 1981 are not subject to damages caps.

Read about this case’s facts at TimCoffieldAttorney.com.

Tyson Foods v. Bouaphakeo: Representative Proof in Wage Classes

In Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036 (2016), the Supreme Court held that representative proof from a sample, based on an expert witness’s estimation of average time that employees spent donning and doffing protective gear, could be used to show predominance of common questions of law or fact for purposes of class certification. The Court also reaffirmed the long-held FLSA principle that where an employer fails to keep accurate time records, an employee can meet her burden by providing evidence showing hours worked as a matter of just and reasonable inference.

Facts

The plaintiffs worked for Tyson Foods. These employees worked in the kill, cut, and retrim departments of a Tyson’s pork processing plant in Iowa. Their work required them to wear protective gear, but the exact composition of the gear depended on the tasks a worker performed on a given day. Tyson compensated some, but not all, employees for this donning and doffing, and did not record the time each employee spent on those activities.

The employees filed suit, alleging that the donning and doffing were integral and indispensable to their hazardous work and that Tyson’s policy not to pay for those activities denied them overtime compensation required by the Fair Labor Standards Act of 1938 (FLSA). They also raised a claim under an Iowa state wage law.

Learn more about this case at TimCoffieldAttorney.com.

Bostock v. Clayton County: Title VII Protections for LGBTQ Employees

In the landmark Bostock v. Clayton County, No. 17–1618, 590 U.S. ___ (2020), the Supreme Court held that an employer who fires an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964.

Facts

In each of three consolidated cases, an employer fired an employee at least in part for being

homosexual or transgender. Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee when began playing a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. R.G. & G.R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed the company that she planned to “live and work full-time as a woman.”

Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. The employees’ cases shared a common theory: that Title VII’s prohibition of workplace discrimination “because of sex” prohibited discrimination because an employee is homosexual or transgender. Their respective Circuit Courts reached conflicting conclusions. The Eleventh Circuit allowed the dismissal of Bostock’s suit, holding that Title VII does not prohibit employers from firing employees for being gay. The Second and Sixth Circuits, however, allowed Zarda’s and Stephens’ sex discrimination claims, respectively, to proceed under Title VII.

Read about the court’s decision at TimCoffieldAttorney.com.

Steiner v. Mitchell: Integral and Indispensable Equals Compensable

In the oldie-but-goldie decision of Steiner v. Mitchell, 350 U.S. 247 (1956), the Supreme Court held that time workers spend on activities performed before or after regular working hours is compensable under the Fair Labor Standards Act, if the activities are “integral and indispensable parts of the principal activity” of the worker’s employment. This holding, and the reasoning behind it, is an important principle of “donning and doffing,” equipment preparation, security screening, and similar cases, where workers seek compensation for time spent performing work-related activities off the clock or outside of regular work hours.

Facts

Steiner operated a car-battery manufacturing plant. The plant’s production employees worked with some toxic chemicals. These included lead and sulphuric acid. In the manufacturing process, some of the materials gave off dangerous fumes. Some were inevitably spilled or dropped, becoming a part of the dust in the air. In general, the chemicals permeated the entire plant and everything and everyone in it. Id. at 249-50.

In an effort to make the plant safer and thereby increase the efficiency of its operation, Steiner equipped it with shower facilities and a locker room with separate lockers for work and street clothing. Also, Steiner furnished work clothes for the employees to wear. The cost of providing their own work clothing would be prohibitive for the employees, since the acid caused such rapid deterioration that the clothes sometimes lasted only a few days. The employees regularly changed into work clothes before the beginning of the productive work period, and showered and changed back at the end of that period. In addition, the company required the employees to take afternoon baths to minimize the amount of lead oxide absorbed into their blood. These measures were thought to protect the company and the employees. Id. at 250-52.

Steiner did not pay the employees for the time they spent in these activities, which together amounted to about 30 minutes per day. Steiner conceded that the employees’ clothes-changing and showering activities were indispensable to and integrally related to the performance of their productive work. Steiner, however, contended that these activities fell outside the concept of a “‘principal activity’ and that, being performed off the production line and before or after regular shift hours, the time employees spent doing them was not compensable time under the Fair Labor Standards Act. Id. at 250-52.

Read the full analysis at TimCoffieldAttorney.com

Genesis Healthcare v. Symczyk: Rule 68 and Collective Actions

In Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66 (2013), the Supreme Court held that a putative Fair Labor Standards Act collective action brought by one employee on behalf of others was no longer justiciable when, as conceded by the employee, her individual claim became moot before others joined the case.

Facts

Symzcyk worked for Genesis Healthcare as a registered nurse. In 2009, Symczyk brought a putative collective action under the FLSA on behalf of herself and “other employees similarly situated.” 29 U.S.C. § 216(b). She alleged Genesis violated the FLSA by automatically deducting 30 minutes of time worked per shift for meal breaks for certain employees, even when the employees performed compensable work during those breaks. Symcyzk, who remained the sole plaintiff throughout the case, sought statutory damages for the alleged violations.

After Symczyk filed suit, but before any other employees joined the suit, the employer sent Symczyk an offer of judgment under Federal Rule of Civil Procedure 68, which Symczyk ignored. The offer had proposed to pay all of her statutory damages, plus costs and reasonable attorney’s fees. The District Court, finding that no one else had joined the case, and that the Rule 68 offer fully satisfied Symczyk’s claim, concluded that Symczyk’s suit was moot. The court therefore dismissed the case for lack of subject-matter jurisdiction.

The Third Circuit reversed, holding that while Symczyk’s individual claim was moot, the collective action on behalf of other similar employees was not. The Third Circuit reasoned that allowing employers to use calculated Rule 68 offers to “pick off” named plaintiff-employees before certification would frustrate the goals of collective actions. The court therefore remanded the case to the trial court, with instructions to allow Symczyk to seek conditional certification of the collective action and move forward with the case on behalf of other employees who might join. See 569 U.S. at 69-71.

Read the full blog at TimCoffieldAttorney.com.

Kasten v. Saint-Gobain: Scope of FLSA Protected Activity

In Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (2011), the Supreme Court held that the anti-retaliation provision of the Fair Labor Standards Act protects employees who make oral (as well as written) complaints that their employer violated the FLSA.

Facts

Kasten worked for Saint-Gobain Performance Plastics. He complained orally to his superiors that the company located its timeclocks between the area where Kasten and his co-workers put on (and removed) their work-related protective gear and the area where they carried out their job duties. This location, Kasten complained, prevented workers from receiving credit for the time they spent putting on and taking off their work clothes — contrary to the requirements of the FLSA. Kasten complained only orally and did not make a written complaint. Saint-Gobain fired him. Id. at 5-6.

Kasten then sued his former employer, alleging that Saint-Gobain violated the FLSA’s anti-retaliation provision by terminating him for complaining orally about the legality of the location of the timeclocks. The trial court granted summary judgment for the employer, holding that the FLSA’s anti-retaliation provision covered only written complaints and did not cover oral complaints. The Seventh Circuit affirmed and Kasten appeals.

The Court’s Decision

The FLSA’s anti-retaliation provision makes it unlawful for employers “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee.” 29 U.S.C. § 215(a)(3) (emphasis added).

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