Supreme Court Overturns Facebook Threat Conviction and Rules Against Abercrombie & Fitch in Employment Discrimination Lawsuit

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jun 1, 2015

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The Supreme Court released two highly anticipated decisions this week dealing with religious rights in the workplace and social-media threat speech.  As the Court’s current term winds down, the Justices have begun what promises to be an exciting month with two critical opinions that could have a lasting impact on how employers treat job applicants and prosecutors approach online threat cases.

Supreme Court Overturns Conviction in Facebook Threat Case

In a case we covered last November when the Supreme Court heard oral arguments, a Pennsylvania man appealed a conviction stemming from threatening posts he made on his Facebook account.  Anthony Elonis was found guilty of making a “true threat” in violation of Pennsylvania law after a series of posts contained rap lyrics that suggested threats against his coworkers, an FBI agent, his ex-wife, and his children.  Elonis contended that he was simply writing rap lyrics that expressed his general dissatisfaction with life, but was convicted by a jury under the Pennsylvania law which only requires prosecutors prove a “reasonable person would view the Defendant’s postings as a serious expression of an intention to inflict bodily injury or take the life of an individual.”  In his appeal to the Supreme Court, Elonis argued that the law violated free speech by criminalizing his words and thoughts shared through social-media posts.

Although the Court ultimately overturned Elonis’s conviction, the majority issued a narrowly tailored decision that dismissed the outcome because jurors were not instructed to take into account his intent in order to determine if he engaged in criminal behavior.  According to Chief Justice John Roberts in his opinion for the 7 – 2 majority, “Elonis’s conviction … was premised solely on how his posts would be understood by a reasonable person. Such a “reasonable person” standard is a familiar feature of civil liability in tort law, but is inconsistent with the conventional requirement for criminal conduct—awareness of some wrongdoing.”  The majority was unconvinced that perception of the threats was sufficient for a criminal conviction, and set forth requirements for prosecutors that demand proof of a defendant’s intent in order to earn a conviction for threatening speech made online.

In a dissent, Justice Samuel Alito criticized the majority for not providing further guidance about the type of proof necessary, pointing out that the opinion leaves open the question of whether prosecutors must prove the purpose of the words was threatening, or whether proof of the defendant’s recklessness was sufficient.  For now, Alito’s questions will go unanswered, and lower courts will need to debate the requisite standard of proof required to satisfy intent behind online speech that toes the line of criminally threatening behavior, meaning the issue could see another turn in front of the Supreme Court.  Also unanswered are questions of free speech protections for potentially threatening statements made on social-media as the Justices declined to address the issue.

Abercrombie & Fitch Loses Supreme Court Battle

A Muslim woman who applied to work with Abercrombie & Fitch in 2008 filed a lawsuit after she was not hired, alleging that the company avoided employing her because she wore a religious head scarf that conflicted with dress code guidelines.  According to the lawsuit filed by the Equal Employment Opportunity Commission (EEOC) on behalf of Samantha Elauf, Abercrombie violated federal law which imposes a duty on all employers to accommodate religious practices by using her head scarf as a reason to withhold employment.  Attorneys for Abercrombie countered that the purpose of Ms. Elauf’s head scarf did not come up during her interview, and, as such, the company did not have actual knowledge of its religious connection.  The Supreme Court was unwilling to accept the loophole to federal anti-discrimination law, and established precedent that lawsuits alleging religious discrimination only need to show that a need for accommodation motivated negative treatment from employers.

Writing for the 8 – 1 majority, Justice Antonin Scalia explained, “Abercrombie’s primary argument is that an applicant cannot show disparate treatment without first showing that an employer has “actual knowledge” of the applicant’s need for an accommodation. We disagree. Instead, an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”  Under this holding, plaintiffs can succeed in discrimination lawsuits if it is evident that an employer had reason to believe that religious accommodation was necessary, but failed to take reasonable steps to do so.  Employers cannot plead ignorance of religious needs in cases like Samantha’s where it is clear that an applicant or employee requires religious accommodation, forcing companies to be more aware of, and sensitive to, religious traditions when making employment decisions.

With important rulings on healthcare and gay marriage slated for later this month, the Supreme Court started off its June opinions with two significant cases that are sure to have a lasting and widespread impact, even if they are likely to be overshadowed by the higher profile cases soon to come.

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