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Corporate Counsel Connect collection

May 2015 Edition

The Year of Employment? SCOTUS docket heavy with major employment issues

Jeremy Byellin, JD

Jeremy ByellinThe Supreme Court's current term has seen a number of employment law cases. The end of March saw the Young v. UPS ruling, in which the Court ruled that the Pregnancy Discrimination Act (PDA) required employers to provide workplace accommodations under the Americans with Disabilities Act (ADA) to pregnant employees if the employer provided accommodations for a "large percentage" of nonpregnant employees "similar in their ability or inability to work."

With just under three months left in the term, the Court has two other major employment law cases remaining on its docket: Mach Mining, L.L.C. v. Equal Employment Opportunity Commission (EEOC), and EEOC v. Abercrombie & Fitch Stores. Both rulings promise to bring major shifts to the employment law landscape.

Mach Mining

The first case, Mach Mining, began with allegations of sex discrimination by a woman who unsuccessfully applied for a mining position with the employer, Mach Mining. She claimed that the company refused to hire her because she was female, and that the company has never hired a female for a mining position.

Despite the facts surrounding this case, the issue before the Court doesn't have anything to do with sex discrimination; rather, in response to the EEOC's lawsuit against the company, Mach Mining is claiming that the EEOC didn't engage in the statutorily-mandated conciliation process in good faith, and that the commission's lawsuit against the company must be dismissed on those grounds.

The question before the court is whether and to what extend a court may enforce the EEOC's mandatory duty to conciliate discrimination claims before filing suit. Mach Mining insists that the conciliation process be fully subject to judicial review to ensure that the EEOC attempted reconciliation in good faith. Complicating that position, however, is a confidentiality provision in Title VII that prohibits statements and communications from conciliation from being used as evidence in a subsequent proceeding.

Conversely, the EEOC argues that statutory language gives it broad discretion to reject any conciliation agreement that it does not find "acceptable," and that it thus has the prerogative to set the terms on which conciliation may be successfully concluded.

Indeed, during oral arguments on January 13, several justices took note of just how much discretion the language in the statue affords the EEOC in this regard. Except for Justice Scalia, none of the justices seemed amenable to the idea of authorizing full judicial review of the EEOC's conciliation process. At the same time, none of the justices were entirely comfortable with the complete absence of judicial oversight into the conciliation process.

The result will likely be a ruling that authorizes courts to make some kind of review of the process without interfering with conciliation's nature as an informal, confidential proceeding.


Abercrombie, the second case, is a religious discrimination case that started with the 2008 job interview of then-seventeen year old Samantha Elauf, who was seeking a sales position at an Abercrombie and Fitch store in Tulsa, Oklahoma. A Muslim, Elauf wore a traditional hijab to the interview. Company policy prohibits store employees from wearing hats, interpreted in this case as including hijabs in that prohibition. Because of this policy, Elauf was denied the position she sought.

The EEOC brought suit claiming that Abercrombie and Fitch discriminated against her because of her religion. The claim prevailed at the trial court, but lost on appeal. With oral arguments having taken place on February 25, the Supreme Court is now set to decide the case.

The central issue to be resolved by the ruling is which parties in a job interview bear the responsibility to mention whether an applicant's religious beliefs may conflict with the employer's policies. And from oral arguments, it seems that the most likely outcome will be a ruling that requires the employer to state the company's relevant policies and inquire whether the applicant has "any problem with" them.

Of course, there is also the issue of determining how and when the interviewer should know whether the applicant could have any religious objection to any of the company's policies, and what those objections would be, especially since the EEOC has taken the position that potential employers should not ask questions about an applicant's religion.

Potential impacts

Nevertheless, it seems that Abercrombie will create some kind of burden placed on employers to disclose company policy to job applicants during interviews, just as March Mining will bring new judicial oversight in some form to the EEOC conciliation process. We just won't know what the exact requirements will be until the Court issues its respective decisions.