Two Noteworthy Supreme Court Decisions Announced Today

June 1, 2015

EEOC v. Abercrombie & Fitch

In EEOC v. Abercrombie & Fitch, a Muslim woman who wore a headscarf was denied a job under the Abercrombie's "look policy" and sued under Title VII's prohibition on religious discrimination. Abercrombie had stated it did not have "actual knowledge" of the woman's need for a religious accommodation -- meaning she never told the company she had to wear a headscarf because of her religion. The Court said Title VII contained no such requirement; the job applicant only has to show that the need for a religious accommodation was a motivating factor in the employer's decision. In other words, the employer can't discriminate against the employee or prospective employee "because of" their religion, or on account of their religion, and can't make their religious practice "a factor" in employment decisions.

This is a good result with regard to protecting the religious practices of employees. In the future, in other contexts where employers may seek to exclude Christians from the workplace, the employers won't be able to escape the law by claiming ignorance. While the headscarf was at issue in this case, it could have just as easily been a Mennonite woman's hair-covering. The next case may feature a Christian's cross, crucifix, or "fish" pin that is the problem for the employer. In all these cases, the Court's ruling today means that the employer won't be able to escape liability by just claiming "the employee never told me they needed a religious accommodation." Regardless of whether the employee told the employer, as long as they can show the employer's decision was at least partly motivated by the need for an accommodation, the employee can prevail.

Elonis v. United States

In Elonis v. United States, an individual posted violent rap lyrics on Facebook concerning his wife, co-workers, a kindergarten class, and law enforcement. He was convicted in federal district court under a federal statute (18 USC Section 875(c)) prohibiting threatening communications, on the grounds that a "reasonable person would foresee that his statements would be interpreted as a threat." This standard, which could result in someone's conviction for a threat which they were merely negligent about, was upheld by the U.S. Court of Appeals for the Third Circuit. Today, the Supreme Court reversed, saying that Section 875 must be interpreted to include an intent requirement (thus the government has to prove that an individual intended their communication to be a threat under the statute (or knew it would be viewed as a threat), not that some other reasonable person merely sees it as a threat). The Court did not address whether a reckless act could result in conviction under Section 875, but ruled that negligent acts could not result in conviction under the statute.

This case was decided on statutory construction grounds, so the Court did not get into First Amendment issues. Nevertheless (recognizing that the comments in this case are certainly unsavory), his result has positive free speech implications, as the Court helped ensure this statute can't be used to target unpopular speech (possibly communications characterized as "hate speech") as threats -- which would have been easier to do under a negligence standard being applied to this statute. Practically, this ruling makes it more difficult to prosecute Christians proclaiming a Gospel message just because someone else feels "threatened" by their communications.

Along with strong First Amendment free speech jurisprudence, pro-individual rights interpretations of criminal laws like Section 875 (such as the Court's opinion in this case) will help keep the government in check and ensure free discourse on contentious issues in the future.

It is important to remember that the Court did not actually rule that the comments in this case were constitutionally protected. It just said that to convict someone under the criminal statute at issue, the government had to prove more than it did regarding the individual's intent in making the comments.

This decision is also a win for those who believe the government is able to convict too easily under criminal statutes because in many cases it no longer has to show intent, and has far too many criminal statutes at its disposal.