Retail giant Abercrombie & Fitch has found itself a recipient of a second lawsuit filed against it by the E.E.O.C. within the past 12 months for refusing to hire a Muslim job applicant because she wore a hijab (religious head scarf).  The most recent case is entitled U.S. Equal Employment Opportunity Commission v. Abercrombie & Fitch, Co. et. al.   The case was filed in the U.S. District Court for the Northern District of California on September 2nd, Case number 5:10-CV-03911, and assigned to Judge Howard Lloyd.  According to the E.E.O.C. press release (2010 WLNR 17415315), in March 2008, an 18-year-old female applied for a job stocking merchandise at the “Abercrombie Kids” store at the Great Mall in Milpitas, Calif. In accordance with her religious beliefs, she wore a colorful headscarf to her interview. According to the EEOC, the Abercrombie & Fitch manager asked if she was Muslim and required to wear a head scarf, then marked “not Abercrombie look” on the young woman’s interview form. The EEOC’s suit alleges that Abercrombie & Fitch refused to accommodate the applicant’s religious beliefs by granting an exception to its “Look Policy,” an internal dress code that includes a prohibition against head coverings.

The first case, EEOC v. Abercrombie & Fitch d.b.a. Abercrombie Kids (Case No. 4:09cv602 in the U.S. District Court for the Northern District of Oklahoma) was filed by the St. Louis District Office of the E.E.O.C. in September 2009. Both cases are premised on Title VII of the Civil Rights Act of 1964 that prohibits discrimination based on religion (42 U.S.C.A. § 2000e-2) , and requires employers to accommodate the sincerely held religious beliefs or practices of employees, unless doing so would impose an undue hardship on the business.

The EEOC press release notes that, “This is not the first wake-up call for Abercrombie & Fitch. In 2005, the company agreed to a six-year consent decree and paid $40 million to a class of African Americans, Asian Americans, Latinos, and women. Why? They were sued by EEOC and private litigants for refusing to recruit, hire, promote, and retain minorities because they did not fit Abercrombie’s ‘All-American look.’

This latest case was filed just days after another Muslim woman from California received national attention for filing a complaint with the U.S. Equal Employment Opportunity Commission against the Walt Disney Company’s Grand Californian Hotel & Spa for not responding to her request to wear a hijab at work.

The EEOC press releases can be found in the EEOCDOCS database.  Try

Query: hijab

Results: 3

EEOC decisions are in FLB-EEOC.

The 9th Circuit recently considered the Stolen Valor Act, and struck it down as a facially invalid intrusion upon the 1st Amendment.  The act (18 USCA 704(b)) criminalizes a person falsely representing themselves as having received an award or medal for the Armed Forces.

The Defendant, Xavier Alvarez, had stated in front of a Water District Board of Directors (of which he was a member) the following:

“I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.”

As the court stated, this was all a lie. The defendant never served in the military.  For reasons the 9thCircuit did not go into, the FBI was tasked with investigating Mr. Alvarez’s statements.  Mr. Alvarez subsequently was charged and pled guilty to violating the Stolen Valor Act.  He then appealed to the 9th Circuit. 

The 9th Circuit determined that false statements of fact in most circumstances do enjoy 1st amendment protection.  The court then went on to apply strict scrutiny to 18 USCA 704(b) and (somewhat predictably) found that the provision failed the strict scrutiny test and was facially invalid.

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Yesterday’s Perry order is available on Westlaw here: 2010 WL 3212786. 

For other Perry-related citations, see our prior post .

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Credit: REUTERS/Janet Hamlin/Pool

Accused terrorist, Omar Khadr, is the youngest detainee at Guantanamo Bay. Khadr, was captured in Afghanistan in 2002, when he was just 15 years old. He is accused of helping assemble and plant roadside bombs for al Qaeda and of killing a special forces soldier. Last week, (Thursday, August 12, 2010), his trial began, marking the Obama Administration’s first full military trial of suspected terrorists detained at Guantanamo Bay (GITMO) .

There has been a lot of discussion over the Due Process Rights of GITMO detainees.  See May 19, 2010 blog article from Tedd C. entitled Guantanamo Detainees and Due Process—This Time in the U.K.   To read some law review articles on the issue of due process for Guantanamo detainees, go to WestlawNext and type in: Due Process Rights of Guantanomo Detainees. Click the Secondary Source link on the left panel to get a list of relevant articles.

Westlaw.com also has a number of dockets online where Omar Khadr is a party.

• Database: DOCK-FED-ALL
• Search: PTN(OMAR /2 KHADR) 

Khadr was just a teen when he was caught and detained. One of his defenses is that of being a “child soldier.” Was he too young to know the consequences of his acts? Was he threatened with violence or even death if he did not comply? An interesting article is found on Westlaw.  See International Law and Laws of War and International Criminal Law – Prosecution of Child Solders — United States v. Omar Ahmed Khadr, 33 Suffolk Transnat’l L. Rev. 175.

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Credit: Reuters/Pichi Chuang

During the Proposition 8 decision on August 4, 2010, Judge Vaughn Walker issued a temporary stay for briefing.  The motions and briefs can be found below.  Yesterday, Judge Walker ruled  that gay marriages could resume next week (Wednesday at 5 p.m. PST) in California while his landmark ruling last week that overturned a ban on same-sex matrimony is appealed.   The purpose of the delay is to give the  appeals court time to consider “in an orderly manner” whether the voter-approved ban, known as Proposition 8, should be left intact while appellate judges weigh the merits of the overall case.

Late on Thursday, the defenders of Proposition 8 filed papers asking the appellate court to block same-sex marriages for the duration of the appeal.  When we have the appeals materials available we will update this post.  You can subscribe to the RSS feed on our toolbar on the right-hand side to get an update notice.

Decision: 2010 WL 3170286

Motions:

• 2010 WL 3065298 Attorney General’s Opposition to Defendant-Intervenors’ Motion for Stay Pending Appeal (Aug. 6, 2010)
• 2010 WL 3065300 The Administration’s Opposition to Defendant-Intervenors’ Motion for Stay Pending Appeal (Aug. 6, 2010)
• 2010 WL 3065309 Plaintiffs’ and Plaintiff-Intervenor’s Joint Opposition to Defendant-Intervenors’ Motion for a Stay Pending Appeal (Aug. 6, 2010)
• 2010 WL 3054190  Defendant-Intervenors Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson, and Protectmarriage.com’s Motion for Stay Pending Appeal (Aug. 3, 2010)
• 2010 WL 2629020  Plaintiffs’ and Plaintiff-Intervenor’s Opposition to Defendant Intervenors’ Motion for Administrative Relief (Jun. 29, 2010)

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 Judge Vaughn Walker’s opinion, striking down Proposition 8 is on Westlaw at 2010 WL 3025614. The docket can be found at 3:09CV02292.

Orin Kerr (on Volokh) posed an interesting question this morning:

Should it matter to the constitutionality of Prop 8 that it was passed as part of a ballot initiative that restored preexisting law? 

The initiative process is interesting stuff for those of us from states without this process.   A 2007  Columbia Law Review article notes that 24 states permit this kind of citizen law making.  See 107 Colum. L. Rev. 1437. Footnote 1 from this article provides some interesting sources describing why the Federal Constitution rejects “direct democracy.”  For more on California’s initiative process, see CAJUR INITIATIVE § 1 et. seq.

To find an initiative, try the ‘legis’ databases.  In California, your search might look like this:

• Database: ca-legis-old
• Query: ci(prop! & 8)

Results tell you where the document has been codified in the statutes.  And, note that the statutrory credits at CA CONST Art. 1, § 7.5  references the relevant initiative:

(Added by Initiative Measure (Prop. 8, § 2, approved Nov. 4, 2008, eff. Nov. 5, 2008))

An appeal is likely.  To set up a docket alert to track when the appeal and briefs have been filed, click on “Alert Center” in the upper-right corner of Westlaw, choose “create” to the right of  “Docket Alert,” and follow the wizard for “Receive an alert when new cases are filed.” 

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