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Supreme Court rules on headscarf dress code discrimination, threatening speech online

The Supreme Court offered two decisions today. The justices ruled in favor of a young Muslim woman who was rejected from working at Abercrombie & Fitch because she wears a hijab. The court also overturned the conviction of a man who had posted threatening language against his ex-wife on Facebook. Marcia Coyle of The National Law Journal joins Jeffrey Brown to discuss those cases.

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  • GWEN IFILL:

    The often divided Supreme Court was mostly united today on two high-profile decisions, one involving workplace discrimination and the other about threats made online.

    Jeffrey Brown has that story.

  • JEFFREY BROWN:

    Both cases ended in lopsided decisions from the high court. In one, justices ruled in favor of a young Muslim woman who was rejected from working at the clothing store Abercrombie & Fitch because she wears a hijab, or headscarf. In the other, the court overturned the conviction of a man who had posted threatening language against his ex-wife on Facebook.

    With us now, as always, to discuss the cases is Marcia Coyle of The National Law Journal.

    Welcome back, Marcia.

    Let’s start with the headscarf case. Right?

  • MARCIA COYLE, The National Law Journal:

    OK.

  • JEFFREY BROWN:

    Remind us of the facts of this case.

  • MARCIA COYLE:

    All right.

    The Equal Employment Opportunity Commission sued Abercrombie & Fitch on behalf of Samantha Elauf, claiming that the company violated Title VII, our nation’s major job bias law, which prohibits discrimination on the basis of religious beliefs and practices.

    Ms. Elauf, as you said, had applied for a job in the company’s Tulsa, Oklahoma, store wearing the headscarf. She didn’t say it was for religious reasons, but the hiring manager believed that was the case, sought guidance from a superior on whether that headscarf violated the company’s dress code, what it called the look policy.

  • JEFFREY BROWN:

    The look policy, which is how one is supposed to look to be — to work there.

  • MARCIA COYLE:

    In one of their stores, exactly.

  • JEFFREY BROWN:

    Yes.

  • MARCIA COYLE:

    She was told it did and she shouldn’t hire Ms. Elauf.

    Ms. Elauf did win in the trial court, got a jury award, but a federal appeal court reversed it, saying that she had the burden to tell Abercrombie & Fitch that she needed an accommodation for her religious beliefs, and employers cannot be held liable unless they have actual knowledge of the need. The Supreme Court disagreed.

  • JEFFREY BROWN:

    So, the Supreme Court overruled that overruling today, right, to say that the company’s failure to accommodate her was in fact a civil rights violation.

  • MARCIA COYLE:

    Exactly. That’s right, an unlawful employment practice.

    The court said basically, to prevail on an intentional discrimination claim, as this was, a job applicant or employee has to show only that the need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of the need.

  • JEFFREY BROWN:

    We have one of the key passages here from Justice Scalia.

  • He wrote:

    “The rule for disparate treatment claims based on a failure to accommodate religious practice is straightforward. An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

  • MARCIA COYLE:

    Right.

    He even gave the example of an employer who suspects, thinks, is not certain that a job applicant is an Orthodox Jew, who might not be able to work on Saturdays. If that applicant needed an accommodation and the employer declined to hire that applicant in order to avoid giving an accommodation, then that’s a violation of Title VII, even if it’s an unsubstantiated suspicion.

  • JEFFREY BROWN:

    Now, if you fast-forward, Abercrombie, for its part, has said it’s changed its policies anyway.

  • MARCIA COYLE:

    Yes.

  • JEFFREY BROWN:

    But what about wider applications or potential applications for this?

  • MARCIA COYLE:

    This is — I think you could characterize this as broader protection for religious beliefs and practices.

    It goes beyond the Muslim applicants here, the Sikhs and others who have physical objects denoting their religion that may encounter discrimination in hiring, firing, promotion, et cetera. Now you will not be able to really use these look policies that have been used for a very long time as pretext for discrimination.

  • JEFFREY BROWN:

    All right, case number two, Facebook, Internet, speech online.

  • MARCIA COYLE:

    Very different cases.

  • JEFFREY BROWN:

    They’re very different, but facts of this case.

    (CROSSTALK)

  • MARCIA COYLE:

    OK.

    Anthony Elonis, after his wife left him, taking their two children, and he lost his job, he started putting on his Facebook site some very violent, vicious posts about how he would kill her, how he would shoot up a kindergarten class, how he would kill an FBI agent who came to investigate the wife’s concerns about the Facebook post.

    He was prosecuted and convicted under a federal law that makes it a crime to transmit a communication in interstate or foreign commerce that threatens bodily injury or harm to another. He served three years in prison. He appealed his conviction, arguing, one, that what he said on Facebook was really cathartic, in the nature of rap lyrics, protected by the First Amendment, and, importantly, the lower court gave the — used the wrong standard to convict him.

    The lower court said all the prosecution had to show was that a reasonable person viewing the Facebook post would perceive them as actual threats.

  • JEFFREY BROWN:

    And, today, the court, looking at that statute, said that was the wrong standard. Right?

  • MARCIA COYLE:

    Yes, it did.

  • JEFFREY BROWN:

    It said that they actually have to show that this person had intent to do harm.

  • MARCIA COYLE:

    Right.

    Chief Justice Roberts wrote the opinion. And he disagreed with the lower court and with Mr. Elonis, who said the prosecution had to prove that he subjectively intended to harm each person he talked about. Chief Justice Roberts said that the standard used by the lower court is really one used in civil cases. But criminal cases require something more. They require a guilty mind, an awareness of wrongdoing.

    So he said the intent here that the prosecution has to show is that the transmission of the communication had the purpose of issuing a threat or that the defendant had knowledge that it would be viewed as a threat.

  • JEFFREY BROWN:

    And the court didn’t go further, right, to decide this on First Amendment grounds. That would have been — that’s still the territory that’s a little unknown, right, is how much speech is allowed online.

  • MARCIA COYLE:

    Absolutely. Absolutely.

    This was viewed as potentially a huge First Amendment case. The court specifically left it open, as it will do. If it can find a nonconstitutional way to resolve a case, it will.

    (CROSSTALK)

  • JEFFREY BROWN:

    It doesn’t have to decide these big constitutional issues. It will let it sit.

  • MARCIA COYLE:

    Right. And that’s exactly what the chief justice said. We can resolve this on the interpretation of the criminal law itself.

  • JEFFREY BROWN:

    So, just very briefly, where — in terms of this particular case, this fellow could, in fact, still be — I mean, his conviction could be upheld.

  • MARCIA COYLE:

    Well, it’s really unknown what’s going to happen with Mr. Elonis, whether the government would try to retry him.

  • JEFFREY BROWN:

    Yes.

  • MARCIA COYLE:

    His conviction has been overturned.

    He served his time. It’s my understanding he’s back in jail though on unrelated charges. So it leaves it open. And the dissent in the case, they said that the court’s new test is only going to create additional confusion and chaos.

  • JEFFREY BROWN:

    All right, Marcia Coyle of The National Law Journal, as always, thanks so much.

  • MARCIA COYLE:

    My pleasure, Jeff.

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