Three Key EEO Cases to Watch on the SCOTUS Docket This Term

The Supreme Court is set to weigh in on several key questions for employers this term related to employee discrimination.  When does an employer have to accommodate a pregnant employee?  How about a job applicant who wears a head scarf in an interview but does not make it clear she is doing so for religious reasons and needs an accommodation?  Can a court decide whether the EEOC has done enough to resolve your case?  Here are three key EEO cases to keep your eye on in the coming months.

1. When Must Employers Accommodate Pregnant Employees?

In Young v. United Parcel Serv., Inc., U.S., No. 12-1226, the high Court will review whether the Pregnancy Discrimination Act of 1978 (“PDA”) requires an employer to accommodate pregnant employees when it accommodates similarly disabled non-pregnant employees.

Peggy Young, a UPS delivery driver, asked for a light duty assignment after her doctor said she should not lift more than 20 pounds for the first 20 weeks of her pregnancy and not more than 10 pounds thereafter.  UPS offered light duty only to employees with on-the-job injuries, employees accommodated under the ADA, or certain employees who temporarily lost certification from the Department of Transportation.  Because she did not fall into one of these three categories, Young was ineligible under UPS’s accommodation policy.  She sued, arguing, among other things, that offering light duty work to some employees but not pregnant employees violated the PDA’s requirement to treat pregnant employees the same “as other persons not so affected but similar in their ability or inability to work.”

The Fourth Circuit held that Young failed to establish that similarly situated employees received more favorable treatment and that the light duty policy was “pregnancy blind.”  Young appealed, arguing that under the PDA, she (and other pregnant employees) should be compared to non-pregnant employees who have lifting restrictions and are accommodated under the company’s policy—not to non-pregnant workers who are not accommodated.

Young filed her brief on September 4, 2014.  UPS’s brief is due October 24, 2014.  Oral argument is scheduled for December 3, 2014.  The Fourth Circuit opinion can be found here.  For more on this case, see our July 15, 2014 blog post here.

2. Is Wearing a Head Scarf in an Interview Enough Notice of the Need to Provide Religious Accommodation?  

In EEOC v. Abercrombie & Fitch Stores, Inc., U.S., No. 14-86, the Court will determine whether Abercrombie can be liable under Title VII for refusing to hire a job applicant who wore a hijab in her job interview but did not explicitly say that it was for her religion and did not ask for an accommodation.

Abercrombie’s dress policy required employees to dress “in clothing that is consistent with the kinds of clothing that Abercrombie sells in its stores” and prohibits employees from wearing black clothing and “caps.”  In 2008, Samantha Elauf, a practicing Muslim, applied for a model position at Abercrombie and wore a hijab during the interview.  The hiring manager reduced Elauf’s score in the appearance category because of her hijab, which brought her overall score below the hiring level.

The Tenth Circuit held that Abercrombie was not liable for failing to accommodate Elauf’s religion because she never told Abercrombie prior to its hiring decision that she wore her hijab for religious reasons.  Nor did she tell Abercrombie that she needed an accommodation to avoid a conflict with the company’s dress policy.  Thus, the court granted summary judgment for Abercrombie.

The Supreme Court granted the petition for review on October 2, 2014.  EEOC’s brief is due November 26, 2014, and Abercrombie’s brief is due January 15, 2014.  The Supreme Court has not yet set a date for oral argument.   The Tenth Circuit opinion can be found here.

3. Can Courts Evaluate Whether the EEOC Has Done Enough to Resolve Your Case?

In Mach Mining LLC v. EEOC, U.S., No. 13-1019, the Court is expected to decide whether courts can review the adequacy of the EEOC’s pre-litigation settlement and conciliation efforts as required under Title VII.  In 2013, the Seventh Circuit ruled that the EEOC’s conciliation efforts are not reviewable, even though every other federal circuit to consider the issue has disagreed, with many requiring that the agency meet a “good faith” effort standard.

In 2008, the EEOC investigated a charge of gender discrimination against Mach Mining and determined that there was reasonable cause to believe the company had discriminated against a class of female job applicants.  The EEOC notified the company of its intention to begin informal conciliation in late 2010.  The parties attempted to negotiate a settlement but could not reach agreement.   In September 2011, the EEOC notified Mach Mining that it considered the conciliation process unsuccessful and filed a complaint in district court.

The EEOC moved for summary judgment solely on issue of whether, as a matter of law, an alleged failure to conciliate is an affirmative defense to its suit for unlawful discrimination.  The district court denied the EEOC’s motion, and held that court should evaluate conciliation to the extent needed to “determine whether the EEOC made a sincere and reasonable effort to negotiate.”  The Seventh Circuit reversed, holding that if the EEOC has pled on the face of its complaint that it complied with all procedures required under Title VII and the relevant documents are factually sufficient, the court’s review of those procedures is satisfied.

Mach Mining filed its brief on September 4, 2014.  The EEOC’s brief is due October 27, 2014. The Supreme Court has not yet set a date for oral argument.   The Seventh Circuit opinion can be found here. For more on this case, see our April 8, 2014 blog post here.