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Distributed quarterly by mail and email, the Conservative Caucus of Delaware's newsletter contains relevant information and insights from noted leaders, authoritative stakeholders and like-minded members who demonstrate their passion for the truths we hold dear by putting pen to paper!

10th Circuit Ruling in the Right Direction  


     The unassuming U.S. Court of Appeals for the 10th Circuit is quickly emerging as the most pro-employer circuit in the union.  The 10th Circuit encompasses six States, Colorado, Kansas, New Mexico, Oklahoma, Wyoming, and Utah.  In the past two years, the court has sided with employers in high-profile employment discrimination cases and in the controversial Health and Human Services (HHS) Mandate case.





The Equal Employment Opportunity Commission (EEOC) alleged that a 17-year-old girl, named Samantha Elauf was not hired in 2008 at an Abercrombie Kids store in

Tulsa Oklahoma’s Woodland Hills Mall because her hijab (head scarf) violated the retailer's “Look Policy.”  The “Look Policy” prohibited the wearing of any head coverings.  The district court judge agreed with the EEOC that Abercrombie & Fitch, committed religious discrimination against her by refusing to hire her for wearing a head scarf.

     In a 2013 decision EEOC v. Abercrombie & Fitch Stores, Inc., No. 11-5110, the 10th Circuit reversed, finding that Elauf never informed Abercrombie that she needed a religious accommodation.  Even though Elauf wore the head scarf to the interview, the court found that she failed to provide “notice” that she wore the headscarf for religious reasons and that she needed an accommodation for that practice. 

     In order to succeed on a religious discrimination claim, the employee has the burden of proving that: (1) she had a bona fide religious belief that conflicted with the employer’s requirements; (2) informed the prospective employer of the conflicting belief; and (3) was not hired because of the conflict.  Elauf failed to meet her burden with regard to the second prong.

     Although Abercrombie has since changed its “Look Policy,” the 10th Circuit’s decision correctly placed the burden on the employee.    

The employer cannot presume to know what is or is not a request for a religious accommodation. Meanwhile in the 9th Circuit, two U.S. federal district judges found in favor two Muslim females on similar facts.  Both matters were settled; Hani Khan was awarded a $48,000 settlement for being fired for wearing a head scarf and Halla Banafa was awarded $23,000 for not being hired.

    The Americans with Disabilities Act Amendments Act (ADAAA) became effective on January 1, 2009.  It was passed in response to a series of U.S. Supreme Court decisions that narrowed the disability definition for purposes of the American with Disabilities Act (ADA).  With the new ADAAA, virtually any “condition” can satisfy the definition of “disability,” such as high blood pressure, which was previously not considered a disability. In an unpublished opinion, Allen v. SouthCrest Hospital, No. 11-5016 (10th Cir. Dec. 21, 2011), the 10th Circuit was the first Circuit to comment on the application of the new ADAAA.  The court held that a female medical assistant with migraine headaches failed to prove her case. Under the ADA, Alethia Roselle Allen could establish that she was disabled if she was “physically or mentally impaired such that, she was substantially limited in one or more major life activities.” 

     Although the court found that Allen’s migraines constituted the requisite “impairment” for an ADA claim, she did not meet her burden in proving that the migraines “substantially limited” her ability to work and care for herself.  The court stated that, even if the ADAAA applied to this case, it would not reach a different result.  The 10th Circuit determined that the EEOC's 2011 regulations, interpreting the new ADAAA, did not change the definition of work as a major life activity, thereby allowing for its narrow interpretation.  This decision is at odds with other federal courts, which have liberally interpreted the ADAAA.      

     The 10th Circuit decision, which has received a lot of attention in recent weeks, is Sebelius v. Hobby Lobby, No. 12-6294; it is one of two cases that the Supreme Court has granted judicial review on the issue of the HHS Mandate. The other case is Conestoga Wood Specialties v. Sebelius, No 13-356 out of Pennsylvania from the 3rd Circuit. In September 2012, Hobby Lobby Stores, Inc., an arts and crafts retail chain with over 500 stores in 41 states, filed a lawsuit in federal District Court for the Western District of Oklahoma, opposing the HHS Mandate. The company argued that the Mandate forced the Christian-owned-and-operated business to provide, the “morning after pill” and “week after pill” in their health insurance plan in violation of their First Amendment Rights and Religious Freedom Restoration Act (RFRA) of 1993.  Hobby Lobby also sought an injunction to avoid paying fines of $1.3 million per day.

     Hobby Lobby argued that, as a corporation, it can legally exercise religion based on the RFRA and Dictionary Act. The RFRA protects “a person’s exercise of religion” and the Dictionary Act defines a legal person to include “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 

     The 10th Circuit ruled in favor of Hobby Lobby based on the RFRA and the Dictionary Act: A corporation is a person according to law, and the law protects the religious expression of all people, therefore the law protects the religious expression of a corporation, within certain limits, and granted their request for an injunction. 

     In contrast, the 3rd Circuit, covering Pennsylvania, New Jersey, Delaware, and V.I. ruled against the Mennonite-owned cabinet factory. In its ruling, the 3rd Circuit determined that the HHS Mandate was a neutral law, aimed at giving women access to abortion services. “They were not enacted to target religious exercise,” the court said.

     It’s interesting that the 10th Circuit’s decision in the Hobby Lobby case was of such concern to the 3rd Circuit that the 3rd Circuit spent much of its decision addressing the 10th Circuit’s opinion rather than the case before it.  For employers, the 10th Circuit Court is providing them with legal weapons to defend themselves against an increasingly “victimized” workforce and an over-reaching government.  

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