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Stoel Rives Summer Associate Dexter Pearce co-authored this post.

In a case Justice Antonin Scalia described as “really easy,” the Supreme Court held that an employer can be liable for failing to accommodate a religious practice even if the employer lacks actual knowledge of a need for an accommodation. Writing for the 8-to-1 majority (Justice Thomas dissented), Scalia stressed that Title VII is concerned with motive, not knowledge. Thus, even if an employer has no more than an “unsubstantiated suspicion” of an applicant’s religious beliefs/practices, the employer violates Title VII if it’s action is motivated by a desire to avoid a potential accommodation.

Abercrombie employs a “Look Policy” that prohibits “caps.” Samantha Elauf, a practicing Muslim, applied for a retail sales position. Elauf wore a headscarf to her interview, but neither the headscarf nor religion were discussed. Heather Cooke, the assistant store manager and interviewer, identified Elauf as qualified for the position, but asked her store manager and the district manager about Elauf’s headscarf, noting that she believed Elauf wore her headscarf because of her faith. The district manager told Cooke that the headscarf would violate the Look Policy and instructed her not to hire Elauf.
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Continue Reading U.S. Supreme Court’s Decision in EEOC v. Abercrombie & Fitch: It’s All About the Motive

The Washington Supreme Court has significantly limited non-profit religious organizations’ immunity from employment discrimination claims brought under the Washington Law Against Discrimination (“WLAD”), RCW 49.60. In Ockletree v. Franciscan Health System, the majority held that the exemption of non-profit religious organizations from the definition of “employer” in the WLAD is unconstitutional as applied in circumstances outside the scope of the organizations’ religious purposes.

Larry Ockletree worked as a security guard for a non-profit religious organization, FHS. Following the termination of his employment, Ockletree raised claims of race and disability discrimination against his former employer. FHS moved to dismiss Ockletree’s WLAD claims, arguing that it is exempt from the WLAD’s definition of an “employer,” which expressly excludes “any religious or sectarian organization not organized for private profit.” RCW 49.60.040(11).

The United States District Court certified two questions to the Washington Supreme Court: (1) whether the WLAD’s exemption for non-profit religious organizations violates the privileges and immunities clause or the establishment clause of the Washington Constitution; and (2) if not, whether the exemption is unconstitutional as applied to an employee claiming that the religious non-profit organization discriminated against him for reasons unrelated to a religious purpose, practice or activity.…

Continue Reading Washington Supreme Court Holds That the WLAD Exemption for Non-Profit Religious Organizations is Unconstitutional as Applied to Certain Employees

The Oregon Legislature was in session in 2009, and many labor and employment-related bills came up for consideration.  A complete list of the bills that passed and the bills that failed follows below (you may have to click "continue reading." 

Several passed and will become law effective January 1, 2010.  Several others didn’t get the support they needed to become law, but employers may want to take note as they may gain more traction in the next legislative session. 

Notable winners:  leave for military spouses, a ban on "captive audience" union meetings, and protections for stalking victims.  Notable losers:  several attempts to clarify an employer’s obligation to accommodate medical marijuana use. 

Up next:  a federal labor and employment legislation update.  Stay tuned!…

Continue Reading 2009 Oregon Legislative Update

Last week Oregon Governor Ted Kulongoski signed Senate Bill 786, which will require employers to more extensively accommodate employees’ religious practices and observation.  The bill passed both the Oregon House and Senate by wide margins earlier this Spring.  The new law will take effect January 1, 2010.

Oregon law already prohibits discrimination based on an employee’s religion.  Senate…