Why Lawyers Need To Conduct All Job Interviews For Everyone From Now On Forever

June comes in like a lion with two major cases handed down from the Supreme Court. I will leave it to Ken at Popehat to describe today’s criminal law free-speech decision in Elonis v. U.S.; that’s closer to his bailiwick than mine. What I do is employment law, my particular interest is the relationship of religion to the law. So for me, EEOC v. Abercrombie & Fitch Stores, Inc. is the high point of this week’s round of decisions closing out the 2014-2015 term.

AFkidsAbercrombie & Fitch (“A&F”) operated an “Abercrombie Kids” store at a mall in Tulsa, Oklahoma. A&F had and enforced a dress code, called the Look Policy (A&F subsequently abandoned this policy, in part because of this litigation). This policy requires that employees dressed in clothing and merchandise consistent with the clothing sold in the store. As relevant to this case, the policy prohibiting the wearing of “caps”. The term “cap” was not defined.

In 2008, Samantha Elauf, then sixteen years old, applied for a job at the Tusla Abercrombie Kids store. Ms. Elauf is a practicing Muslim, and believes that her religion requires that for a woman to dress appropriately in public, she must wear a headscarf. Ms. Elauf wore her headscarf to her interview. The stores assistant manager, Heather Cooke, interviewed Ms. Elauf, and neither Ms. Cooke nor Ms. Elauf raised or discussed the issue of the Headscarf.

Ms. Elauf earned an objective rating in the interview which qualified her to be hired; however, Ms. Cooke did not hire her on the spot, and instead sought guidance from upper management. Eventually, the issue was escalated to A&F’s district manager, Randall Johnson. Ms. Cooke told Mr. Johnson that she suspected that Ms. Elauf wore the headscarf because of her religion. (Mr. Johnson denied that this conversation took place.) Mr. Johnson responded that regardless of religion wearing that scarf would violate the company’s dress code, and he directed Ms. Cooke to not hire Ms. Elauf.

Ms. Elauf filed a complaint of religious discrimination with the Equal Employment Opportunity Commission, and the EEOC filed suit on her behalf. The EEOC won at the trial court level, awarding $20,000 in damages to Ms. Elauf, which seems about right for what she would have earned in near-minumum wages working a part-time retail job until she turned 18. On appeal, the Tenth Circuit reversed and found in favor of A&F. The Tenth Circuit reasoned that actual knowledge on the part of the employer of an applicants need for a religious accommodation would be necessary before a finding of discrimination could be made. Because Cooke had deliberately avoided, and Ms. Elauf had not raised, the issue of Ms. Elauf’s religion, A&F have not been put on notice of a need for a religious accommodation.

In today’s 8-1 decision written by Justice Antonin Scalia, the Supreme Court disagreed with the Tenth Circuit, and reinstated judgment in favor of the EEOC, and by extension Ms. Elauf. The vote was 8-1, with Justice Samuel Alito concurring in the result and Justice Clarence Thomas mostly dissenting.

Important to Justice Scalia’s reasoning was the fact that the EEOC brought a claim using “a disparate impact” theory. The facts of this case are well-suited for disparate impact claims, because the nature of a disparate impact practice is one that looks neutral on its face, but when applied to a particular group produces a discriminatory result. It may be easiest to think of it in terms of a Jewish applicant who wore a yarmulke. Is a yarmulke a “cap”? It certainly looks like one. But for the most part, only Jewish men wear them. So a policy that prohibits the wearing of yarmulkes discriminates against Jewish men because it has a disparate impact upon them.

800px-Muslim_girl_in_a_white_tudung_-_20100718[1]

One example of one young Muslim woman wearing one style of headscarf. This is not Ms. Elauf.

It always seemed obvious to me that the A&F policy, in addition to discriminating against Jewish men, would in practice discriminate against Muslim women. What makes it interesting was that A&F’s manager Ms. Cooke, undoubtedly after having been extensively trained on the subject by HR professionals and lawyers like me, had carefully skirted around and did not address the issue of Ms. Elauf’s religion while interviewing her. Is important to know how these rules when you’re planning to get a lawyer from attorneys in Florence sc or any other firm.

 

I have dispensed advice like this to clients in the past, although I hope my advice was and in this case would have been a little more subtle than “just don’t talk about it.” I would have advised the person conducting the hiring interview to have said to the applicant, “I notice that you are wearing a headscarf. Is that something that you would wear on the job? Because we have a policy against any kind of headwear.”

But that requires threading something of a needle, in that the question I would have coached the interviewer to ask does not address the applicant’s religion, a subject that I would have told the manager to have avoided. But it does come close. “Would you wear that headscarf on the job?” is perilously close to “Do you have some sort of religious need to wear the headscarf?” which is over the line of asking about religion. For some people, that is too fine, too subtle, too careful a distinction to make.

Moreover, the best job interviews move quickly, with a rapid back-and-forth between the interviewer and the interviewee – because a faster pace tends to reveal more forthright information about the applicant. It would be very easy for an interview were to make a mistake in such a process, having to quickly think of a way to ask a question that skirts around a dangerous subject but penetrates to a necessary one.

So it is difficult for me to condemn Ms. Cooke for deciding that in a process where she had to ask questions and record answers quickly, she would err on the side of caution. Yes, she could have parsed out the most searching inquiry available to her, which would have avoided asking a question that constituted an unlawful employment practice but did get to the question of whether the applicant would comply with the dress code. Once she had that information, she would have been in a position to seek useful guidance from a higher-up. As it was, when she did seek that guidance, there wasn’t enough good information, and instead a suspicion strong enough to cross the line into knowledge, of bad information.

That’s what makes the case interesting, because the kind of coaching and the kind of practice that Ms. Cooke displayed on behalf of A&F was intended to create a lacuna in the interview process, one created for the purpose of immunizing the company from Title VII liability. Instead, the opposite happened.

The other interesting question in this case was weather making an accommodation for Ms. Elauf to wear her headscarf at work would constitute an “undue burden” on A&F. If A&F could prove that allowing Ms. Elauf to wear a headscarf at work would unreasonably interfere with its business activities, based on the particular circumstances of this job, then A&F would (or at least could) have an affirmative defense against what would otherwise have been a Title VII violation. But there is no guidance on that point at all from the Court today.

smilingscaliaScalia’s opinion distinguishes between “motives” and “knowledge.” In this case, Scalia interprets the wording of Title VII to mean that “… an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.” Slip op., at 5. A rule of this nature disincentivizes creating the lacuna in interviewing questions; the interviewer is forced to have to push to the relevant information. A contrary rule would have required reading additional verbiage into the text of Title VII (according to Scalia), and the Court doesn’t have the power to do that; only Congress can add words to statutes.

At this point, I can hear at least one of my employer clients protesting that if she does not have knowledge of an applicant’s membership in a protected class, she can’t possibly form a motive of discriminating against members of that class. If A&F did not know that Ms. Elauf was Muslim, how could it have formed a motive discriminating against Muslims?

The majority opinion did not answer that question today, nothing that it did not have to in this case. Rather, it noted that A&F strongly suspected Ms. Elauf was a Muslim (note that the fact that A&F was correct in this suspicion is actually irrelevant.) As such, even without affirmative knowledge that Ms. Elauf was Muslim, Ms. Cooke and Mr. Johnson, on behalf of A&F, could have formed a motive to interpret and enforce a policy in a way that had a disparate impact on Muslims, and in fact they did do exactly that.

With that, the court ended its opinion, not addressing the issue of undue burden on A&F at all. To the extent that Scalia addressed the issue, he indicated in a footnote (slip op. 2-3) that the plaintiff’s burden of proving a failure to accommodate what synonymous with proving a failure to hire motivated in substantial part by religion. If the employer was willing to accommodate, the employer would have made a job offer. But this reasoning, while tautologically correct, offers little insight into the amount of hardship that A&F would have had to have proven in order to have successfully claimed an undue burden in accommodating Ms. Elauf’s headscarf.

Justice Alito wrote a concurring opinion. Alito’s arrival at a result overturning the Tenth Circuit and finding employer liability was predicated upon finding that decision-makers at A&F strongly suspected to the point of knowledge that Ms. Elauf was Muslim. Alito equated that strong suspicion with actual knowledge, and therefore concurred in the judgment. But, he pointed out that in the absence of such a suspicion was equivalent to the absence of actual knowledge, and so it would be difficult for an employer without such a suspicion to trigger Title VII liability.

alitoAlito raised the example of an employer who requires all employees to work on Saturday. Some prospective employees might not wish to work on Saturday for personal reasons, and others might not wish to work on Saturday for religious reasons. Alito suggests (correctly) that the majority rule would impose liability if a religious absenter were not hired, notwithstanding the fact that a non-religious absenter who was not hired would not have a Title VII case. In such a case, Alito believes it would then be appropriate for the employer to demonstrate that absenting employees from working on Saturdays would constitute an undue hardship. Given that the employer might not always know that a given applicant adhered to a religious practice prohibiting work on Saturdays, Alito would find that an employer who asked (only) “Can we schedule you to work on Saturdays?” and got the answer “no,” would be justified in all cases to not hire the employee, regardless of whether the reason for the “no” answer was religious or personal.

The dissent by Justice Thomas takes Alito’s position to the final step, the one that I can all-too-easily imagine my client arguing. Without actual knowledge of Ms. Elauf’s religious practices, A&F could not form a discriminatory intent, and two Justice Thomas, Title VII prohibits only intentional acts of discrimination. As applied in this case, A&F simply refused to create a new exception to the neutral-on-its-face dress code, and the resulting rule continued to be neutral to religious practices. Thomas recognizes that the effects of that rule would be borne more harshly by Muslim women, and by implication Jewish men, but because the reason for the policy was not to exclude Muslim women and Jewish men from working for A&F, but rather to do something religiously neutral (in this case, to present customers with a particular trade dress) this does not constitute an intentional discrimination and therefore should not be actionable.

But Thomas is very narrow reading of intent, and Alito’s very narrow reading of knowledge as predicate to motive, did not carry the day. Rather, Justice Scalia’s interpretation of the wording of Title VII did: A&F had a pretty good idea this young lady was Muslim and they didn’t hire her based on her wearing of a headscarf. That’s religious discrimination in violation of Title VII.

As a practical reality, employers will need to step up their game when they train employees who engage in hiring interviews. Kind of a shame for employers who thought they had been doing a good enough job of that already, employers like A&F. If Ms. Cooke is an exemplar of A&F’s training for intake interviews, then she was trained to both not simply ignore a potential conflict between what the interviewee was doing and the company’s policies and to not directly inquire about religion. She saw a conflict between those two imperatives, and chose to err on the side of caution, likely in the way that she had been trained to. She did later seek guidance from a superior, again likely in the way that she had been trained to.

The problem was, she did so without having first armed herself with the correct information together during the interview process: did the applicant need an accommodation to wear the headscarf? She didn’t have that information, information relevant to the job requirements, to present to Mr. Johnson. In the heat of the moment, she forgot how to surgically extract that information while leaving the other volatile areas alone, which meant that the case could never really progress to the point that whether the headscarf constituted an undue burden to A&F was never going to be reached.

Employers in the future will need to learn from this cautionary example: interviewing applicants is a part of business operations fraught with peril, and ought not to be relegated to people who have not had extensive training in avoiding the risks inherent therein.

Image credit: Both from Wikimedia commons (with modification by author); Supreme Court photographs of Justices Scalia and Alito.

Burt LikkoBurt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

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116 thoughts on “Why Lawyers Need To Conduct All Job Interviews For Everyone From Now On Forever

  1. Burt: Informative post, but I humbly recommend a re-write to clear up some typos and word drops, such as:

    “Alito suggests (correctly) that the majority rule would impose liability if a religious center were not hired …”

    center? and

    “In such a case, a little believes it would then be appropriate …” maybe Alito instead of a little?

    The real outcome of this case is that small employers are ever more vulnerable to employment claims. Who can afford to hire the lawyers to come to the office to conduct training? Who can afford to have multiple levels of review of an intake interview? (Alternatively, small employers won’t have ‘look’ policies and will instead hire the first qualified person who comes in the door.)

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  2. Excellent post.

    I suspect that retailers in general and fashion retailers in particular are going to make these kind of hiring decisions and mistakes more often than not. I find it interesting that you are treating A&F as a simple employer and avoiding the more tricky and potentially disturbing questions (which are not necessarily legal questions per se). A&F sells clothing. Specifically they sell clothing with a brand image that is supposed to be all-American but also kind of sexy. Their ads often feature men and women in various stages of semi-undress.

    A&F has frequently been criticized for purposefully only hiring employees who fit a particular type of all-American good looking which tends to look like fit teenagers and 20 somethings from a well-to-do Orange County suburb. There was a case in the UK (I think) where A&F got in trouble for refusing to hire a woman with a prosthetic arm because it did not go with their branding or sexy-image.

    A&F is not the only company with these sort of issues. Super Pervert Dov Charney was known for going into American Apparel stores and firing women he did not find good-looking enough. Or women who were not good-looking enough were segregated back to the stock room.

    There is a clothing brand that makes women’s clothing that was criticized for only making stuff in ultra-petite waist sizes. You rarely see men’s clothing companies (including expensive brands for metrosexuals like myself) reduce their market by only making clothing for men who are very physically fit.

    So the social questions are: Why does A&F think it goes against their wanna be sexy-image to hire a woman who needs to wear a headscarf or a man who wears a yarmulke? Surely an Orthodox Jewish guy can also have a very physically fit body. Do they think it is odd seeing a woman in skinny jeans and a headscarf? Are they worried that her modesty is going to turn away people from buying a bikini?

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    • These clothing retailers are trying to sell the image that their clothing is sexually alluring. A kippah or a hijab is an anti-sex sign because the wearer is presumed to be uninterested in a role in the hay before marriage. A&F want their clothing to conjure up images of sex readiness like you noted. A kippah or hijab does not do this.

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    • “You rarely see men’s clothing companies (including expensive brands for metrosexuals like myself) reduce their market by only making clothing for men who are very physically fit.”

      I am at the upper end (both vertically and horizontally) of the “normal” sizes. If I try to buy pants in a brick and mortar store, I am only able to do so if I happen to hit the store soon after they put a new shipment out. Otherwise, some other guy blessed with my build will have already gotten the one or two pairs my size. Yet there will always be any number of duplicates in the smaller sizes. The kicker is that my build is not actually particularly unusual, except for this purpose.

      On the one hand, presumably the store has done its market research and knows how many of each size to stock. On the other hand, personal experience does not bear out this presumption. It looks for all the world like they are using a bell curve distribution, but with wacky numbers plugged into it.

      The upshot is that I don’t bother with bricks and mortar stores for this. An online store will let me simply input my specs. I would prefer to buy from a physical store, but I’m not willing to when they make it a crap shoot.

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      • I just want to know why 38-34 is so far to find in pant sizes, and 40/34 even more difficult. It’s not like they don’t offer end-seams longer, or waists wider, but it’s they assume if your waste is such-and-such it’s probably because you’re average sized and really husky, instead of tall and moderately husky.

        I am oddly shaped in many respects, but I know a lot of people with my pant size. (Shirts, on the other hand, I know I am a freak with special needs. Hats, too.

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  3. Question:

    Could a store craft a policy of not allowing headgear except those required for religious purposes? Or does that just open the door for being forced to allow all headgear if the employee makes a claim that his/her religion requires it, without being specific about the faith?

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  4. What’s the difference between ++i and i++?
    … this is why lawyers shouldn’t conduct all job interviews ever.
    (apparently one recent job candidate, who claimed to know java, thought one of those wouldn’t compile).

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    • I don’t recall a lot of emphasis on post versus per-increments way back in the day of my basic C classes.

      I happen to know what they do, but darned if I can ever recall learning it. Somewhere I just absorbed it. I tend to use i++, because it seems I mostly use it for loop counters and it doesn’t matter.

      Offhand, I’d rate knowing what the heck a pointer is, or being able to explain polymorphism, over that when it comes to interviews. (Mostly because I view i++ versus ++i as syntax, which takes less than five seconds to google to look it up if you don’t happen to know it. Whereas a functional understanding of pointers, polymorphism, or recursion requires….well, you need to know that stuff pretty solidly).

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      • I rarely if ever need to use recursion.
        The prefix versus postfix is a standard “do you understand basic syntax” question, though i’d rather see the ?: myself (I find the conditional statement to be much more compact, and hence useful).

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        • Ugh. I tend to hate the ? syntax. If/else is more readable at a casual glance, and modern compilers do a fantastic job of mushing that sort of thing out at the end. I’d rather focus on algorithmic efficiency. I just don’t see what ternary operations get you. Heck, I tend to use unnecessary brackets (You know, you don’t need brackets if the if or else block is a single operation) for readability.

          To me it’s like bitwise operators. I’ve used them maybe a dozen times in the last decade. But I’ve had to go digging into code and optimize algorithms and cut-out unnecessary operations and generally streamline poor logic and spaghetti code regularly.

          So I put my focus on the big gains. If I write
          if(A)
          {
          code block 1;
          }
          else
          {
          code block 2;
          }

          It’s clear, easy to expand, and nobody gets confused, and it’s easy to comment the blocks. (a)?block1 : block2; is a harder to read.

          I get there’s places you can use it where you can’t use if/else, so I’m glad it exists.

          But like I said, I find syntax disposable. It was easy enough even when you had to grab a C book and flip through the index. Now, it’s trivial. Better to find someone who can think logically and write efficient algorithms than who has memorized obscure bits of syntax.

          Then again, I spent a solid year cleaning up code written by someone who could and did use bitwise operators and ternary expressions and all sorts of clever tricks — but whose ability to write an efficient algorithm was virtually nil, whose variable names were useless, whose code documentation was absent, and whose code was simply not extensible.

          I seriously hate rewriting chunks of code because the original author never stopped to think “Um, what if we want to do MORE than this?”. (His code wasn’t even efficient when it ran. It was just compact when read).

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          • In C, if you aren’t focusing on algorithm efficiency, why are you writing code again??
            If branches cost a ton of computing cycles nowadays, particularly if the CPU can’t predict which branch you’re gonna hit.

            I’ve used bitwise operators rather a lot, but that’s because I wind up playing with graphics in my free time, and XORing packed data is rather efficient to figure out where the graphics differ. This isn’t terribly hard to suss out — and it’s way more fun to read than assembly, which I also run into from time to time.

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            • *shrug*. Depends on what you’re doing, really — and when the code was originally written.

              What I’m working with now? It’s in C++. If I was writing it from scratch, it’d be in another language. But it was written 10 or 15 years ago by engineers who had Fortran and C compilers, and a thorough knowledge of the former (which drives the analysis engine) and a passing knowledge of the latter (which drives the front end and a lot of pre-analysis math.

              It was of course never designed to be extensible (internal tool that gradually had bits added to it, until someone realized it was a really good tool connected to a very, very, VERY good database of expensive information) so it got released to a wider audience on a per-license basis and that got good reviews, so it got expanded and extended….

              Sadly, in the real world — you’re often stuck with the software you have and the choices people made 5 or 10 years ago. And you’re constantly adding new things and fixing old stuff, so you’re stuck with kludges and other sub-optimal solutions and honestly “I’d like to spend five months doing something that no user will ever notice except by thinking ‘this seems a little faster, maybe?’ but will make my life easier” is rarely something management will approve — not when they have a huge list of new stuff that really does need in because all the analysis work is complete.

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    • Good interview question: “This job requires the handling of a variety of meat products. Will that be an issue for you?”

      Bad interview question: “Do you have a religious objection to handling any kind of meat product?”

      The question for HR to confront is: if an applicant indicates a religious objection to handling (for instance) pork, are there reasonable workarounds? In other words, does an accommodation to a religious employee impose an undue burden on the employer?

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      • Whatever happened to not applying for a job if you don’t expect to be able to fulfill all of the requested responsibilities? Surely a normal person understands that one might be asked to scan pork products or alcohol as a cashier at a non-halal grocery store, or transport someone with those kinds of goods as a taxi driver?

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        • I don’t think anyone would agree that whatever the employer says the job requires goes; if nothing else there will be extreme cases; a law firm that required litigators to be white men because it felt that juries would react better to them than to non-whites or women is an unreasonable requirement that nobody would expect a job applicant to accept as legitimate. So we’re stuck arguing about what is and isn’t a reasonable accommodation to make for people’s religious beliefs, disabilities, etc. It’s inevitably a complicated question; and while I like SCOTUS’s religious freedom rulings of late about as much as Counselor Likko, I don’t fault the plaintiff in that situation for applying for that job.

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          • Right. Again we are dealing with the pesky old problem of what should bear what burden and why. There is nothing about working in a clothing store that should violate Islamic law. There is also no reason the plaintiff in this case should know about A&F’s image policy.

            If she were applying for a job as a cook, dishwaher, or server in restaurant,; there is something that should set off “I might be required to handle non-Hallal products.” The situations are different.

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            • I wasn’t implying that they are the same, but this kind of case does raise questions about other situations in which employees had different expectations that exemptions would be made from job duties on account of religious beliefs.

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          • Further to this, I think an applicant for a job at a retail clothing store has a reasonable expectation of a dress code that the employee be clean, neat, attractive, and dressed in a way generally similar to the clothing being sold. But I wouldn’t have assumed that a headscarf was out of bounds — headscarves from many different cultures are quite attractive, fashionable, and in some cases even alluring. Now, I am thinking of the walk-into-a-pole-beautiful Aishwarya Rai when I write that, although Audrey Hepburn may be a better example because of her “classic film star” status and because she was very much a Westerner. Shouldn’t take you more than three words in a google image search to see what I’m talking about: a headscarf can be quite attractive.

            And while I think SCOTUS has been too deferential to religion in recent years, that doesn’t mean I think it ought to be okay to discriminate on the basis of religion. Quite the opposite in fact. What I want to see is religion, religious belief, and religious practice rendered a matter of neutrality. My criticism has been when it appears to me that religion is being privileged. In this case, Ms. Elauf suffered a disadvantage because of her religion, and I think that sucks and it ought to be actionable. Remedying that disadvantage is not the same thing as granting her a privilege.

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            • “Further to this, I think an applicant for a job at a retail clothing store has a reasonable expectation of a dress code that the employee be clean, neat, attractive, and dressed in a way generally similar to the clothing being sold.”

              Unless the store is trying to be downtown, edgy, and bit bohemian ;)

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            • I think they ought to have hired her too, but what we’re really after is better guidelines about what’s reasonable. Is it out of bounds to ask an employee if she is willing to make an accommodation as well?

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              • Is it out of bounds to ask an employee if she is willing to make an accommodation as well?

                Yes, as the law is currently written and interpreted. “Hey there, Mr. Jewish Employee, how about we only schedule you for four hours on the Sabbath instead of the usual eight? We’re willing to meet you halfway!”

                I’m waiting for the wedding chapel, which is perfectly willing to conduct and host same-sex weddings, that gets approached by an employee who wants an exemption from same-sex weddings on religious grounds. It’ll have to be a non-ministerial employee, like a clerk or a catering associate, because there’s already a carve-out in Title VII for ministers. What’s the reasonable religious accommodation for the employee who says, “I won’t do a same-sex wedding?” If it’s a big enough business with enough employees on call, it’d be easy to just say, “Okay, then you just get that day off,” but there are plenty of such businesses with employee rosters just above the Title VII threshold, making it difficult for that employer to make do without “all hands on deck.”

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                  • Surely that’s come up already. After all, the go-to example is “I can’t work on my religious holidays” If the question of “can I still get paid for my missed day” hasn’t come up in the 51 year history of Title VII, I’d be much surprised.

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            • Burt Likko:
              My criticism has been when it appears to me that religion is being privileged. In this case, Ms. Elauf suffered a disadvantage because of her religion, and I think that sucks and it ought to be actionable. Remedying that disadvantage is not the same thing as granting her a privilege.

              This is an interesting distinction that I am turning over in my mind, to see if I can universalize it. I guess my only concern with this is that (and I am not saying this is what happened here) you will have cases where the plaintiff was not truly disadvantaged, according to their *actual* aim.

              What I mean is, she was disadvantaged IF she truly wanted the job, and was denied it unfairly.

              But, if she (for example) wanted to make a living obtaining settlements from employers in lieu of actually working for them (or, if she is simply trying to make a point), then denying her the job didn’t disadvantage her at all, and she in fact used her religion to advantage.

              And here, once again, we must judge the *sincerity* of her beliefs, which makes me uncomfortable as a universalizable principle.

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              • I was just thinking about that with regard to Burt’s comment about Hooters. Since they are prone to settle rather than go to court, I wonder how many times a woman who wanted to wear a hajib could sue Hooters for discrimination before Hooters or the courts put a stop to it?

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              • And here, once again, we must judge the *sincerity* of her beliefs, which makes me uncomfortable as a universalizable principle.

                I agree. I struggle to reconcile ‘sincerity of belief’ with my sincerely-held atheism, and a belief that someone else’s religious beliefs shouldn’t be forced upon others in some fashion because failure to do so impinges their religious freedom. So it does seem to me that religion is given preference in a principle that isn’t universal despite our efforts to make it be so, and civil rights have to be won in the face of the preference.

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              • What I mean is, she was disadvantaged IF she truly wanted the job, and was denied it unfairly.

                WEll, she was disadvantaged if she was denied the job unfairly, whether she wanted it or not. That’s the law! The remedy to that problem is, as Burt pointed out in the OP, for the firm to accommodate her beliefs, yeah? It’s all pretty clear at that point, seems to me, and doesn’t have to descend to murky nefarious “intentions” and all. Eg., if we (or you, or I) think that the business shouldn’t have to accommodate that person’s beliefs, then we have a different set of conditions we think ought to be in play, ones we can advocate for and try to enact and what not.

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          • No, but we should be able to sort out what’s reasonable (you can’t refuse service because someone else has made a choice inconsistent with your beliefs) from outright discrimination (not hiring non-white lawyers).

            The examples I gave seem pretty straightforward.

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  5. Things that seem relevant:

    Ricci v. DeStefano. Firefighters in the city of New Haven, Connecticut took an exam to identify which ones would be promoted to management positions (applicants were ranked by score.) The city looked at the test results, found that none of the high scorers were black, and invalidated the test results (promoting nobody) in an effort to avoid a racial-discrimination lawsuit. Part of the Supreme Court’s ruling suggested that such an action–intentionally choosing not to hire or promote an employee in an attempt to avoid discrimination lawsuits–is itself “racially motivated” and, therefore, actionable under Title VII. Which would seem to apply here.

    ********

    “Alito would find that an employer who asked (only) “Can we schedule you to work on Saturdays?” and got the answer “no,” would be justified in all cases to not hire the employee, regardless of whether the reason for the “no” answer was religious or personal.”

    This is the same reasoning as “straight people aren’t allowed to marry each other, just like gay people, therefore our state’s gay-marriage ban isn’t discriminatory because it applies to everyone equally”.

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    • As to the second point, , yes, that’s pretty similar reasoning (assuming you meant “straight people of the same sex“). And it’s equally misplaced in the SSM context as it is in Alito’s concurrence here, because in both cases it elevates the formal rule over that rule’s practical effect.

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  6. I understand why Burt gives the advice to use caution when conducting interviews, but there is also a common wisdom (which shows up in comment boards) that the law is perversely crazy, and people can sue (and win big bucks!) for any trivial ridiculous thing.

    But from what I have seen at the street level is that there actually is quite a bit of “reasonable” that is applied in legal cases. As in, discrimination is allowed when there are reasonable grounds, the ADA only requires reasonable accommodation, and so on.

    I suspect that the reason this case received such intense scrutiny within A&F pre-lawsuit, was that on some level they knew that their preferred “look” was unreasonable and contrary to the public policy goal of being inclusionary to all faiths and cultures. Without explicitly stating it, they signaled as Saul commented, that they really only wanted to hire good looking white young people who weren’t too ethnic.

    I would even state it as a rule of thumb- when your intuition tells you to step very, very carefully, its probably a sign you are on thin ice.

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    • “I suspect that the reason this case received such intense scrutiny within A&F pre-lawsuit, was that on some level they knew that their preferred “look” was unreasonable and contrary to the public policy goal of being inclusionary to all faiths and cultures. ”

      Or maybe they just didn’t want to litigate every single “you look like crap, go home and change” decision that a manager had to make.

      Where the failure comes in, here, is the decision to not hire. Nobody actually said “the dress code is discriminatory”, only that it was discriminatory to decide against hiring Elauf because of perceived religious interaction with it.

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    • Also remember that it takes two to make a lawsuit. Once the EEOC issued its ruling, A&F could have paid the $20K and agreed to make the appropriate changes to its hiring manual.

      If DFEH or EEOC knocked on my employer’s door, I’d advise to settle as quickly as possible. No liability admitted / mistakes were made / our apologies / it will never happen again. Who really wants to litigate all the way to the Supreme Court except outside counsel and an overly-stubborn CEO?

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    • Excellent observations (and thanks for the shout-out)

      Stuff like multi-culturalism is tough for a liberal democracy. A lot of political fights seem to be about where should the burdens be with the employer or the individual. Who should concede to whom?

      DensityDuck’s comment illustrates this below.

      There might need to be a post on this

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    • “…there is also a common wisdom (which shows up in comment boards) that the law is perversely crazy, and people can sue (and win big bucks!) for any trivial ridiculous thing.”

      It is surprising how many otherwise intelligent persons hold steadfastly to this, despite its not holding up to even minimal scrutiny. I have known doctors, for example, who are defiantly ignorant of the legal standard for medical malpractice. Here is a group of educated people with a strong professional interest in the subject, yet many would rather sit around the campfire telling ghost stories than to actually educate themselves. (Only a hardened cynic would point out that this phenomenon often manifests itself with the doctor ordering unnecessary tests, which naturally he charges for…)

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  7. Burt – Does this mean it’s in a prospective employee’s best interest to mention any religious issues during a job interview? For example, if you said “I can’t work on Sundays”, they could choose not to hire you for that reason, but if you said, “I can’t work on Sundays because I have to go to church”, they’re legally forbidden to use that as a reason to not hire you?

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    • Hell, we could make the case that if you mention some religious restriction then they HAVE to hire you, because now they have knowledge of your need for religious accommodation–and, therefore, a decision not to hire you might be due to that need, which is illegal under Title VII.

      Isn’t it great that we’ve made so many things illegal? There’s all *kinds* of ways to screw with people now!

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    • If Applicant says, “I can’t work on Sundays because I have to go to church,” Employer was always legally forbidden to use church attendance as a reason not to hire Applicant. This case didn’t change that. What this case tells us is that if Applicant says “I can’t work on Sundays,” nothing more, but Employer is pretty sure that the reason Applicant can’t work on Sundays is church, then failing to at least search for a reasonable accommodation is religious discrimination in violation of Title VII.

      Applicants volunteer forbidden information all the time: “I have children,” or “I am a regular churchgoer,” or the like. Employers should respond to such things by saying, “That doesn’t matter. What matters is ‘x’,” where ‘x’ is a bona fide demand of the job. So if Applicant says, “I can’t work on Sundays,” whether with or without volunteering information about religious activity, Employer is probably within legal bounds to say “Sundays are our busiest day. We have a lot less need of you if you can’t help out at the time we need help the most.” But the employer should also back that up by documenting a search for an accommodation: are there shifts or jobs available that don’t involve Sunday work? The answer to that question will vary from employer to employer, of course.

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      • For example, if Joe Jones is already hired but he gets all the non-Sunday shifts because he doesn’t like working Sundays, then the employer is required to put him back on Sunday and hire the person who says “my religion prohibits working on Sundays” (assuming that person meets all the other stated qualifications for the position.) And if Joe Jones doesn’t like it, well, too bad for him.

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  8. Be interesting to see what this does at an employer with a more, uh…explicit dress code, like Hooters. Could a religiously-conservative woman of any stripe who could not be expected to comply with their dress code, claim religious discrimination?

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  9. I know was passing the buck on criminal free speech, but: I’ve read several pieces on it.

    And I still do not understand what’s going to happen as a result of this ruling. Back to the lower court who will re-examine their decision based on what? Does anybody have any notion on what that what might actually be?

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    • Ken did a really nice write-up of Elonis over at Popehat; I linked to it above. Including his complaint that the law is now less clear on that issue than it was earlier this morning. Frankly, it’s not so much a passing of the buck as it is deference to an explainer post of superior quality.

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      • I read it, Burt, and I still don’t understand.

        Who’s opinion gets sent to the lower court and what do they need to consider as they reconsider the opinion? And will whatever the lower court decides come back to SCOTUS for review? Are they expecting the lower court to come up with a definition of threat that they’re unwilling to craft?

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        • Roberts opinion is the one that the lower court needs to base their decision on. They can look at other concurrences for guidance.

          “And will whatever the lower court decides come back to SCOTUS for review?”

          Hypothetically yes but who knows when. Chances are that there will be multiple threat cases in the next few years or decade. The Courts of Appeal could reach different conclusions and then cases can go to the Supreme Court for further clarification.

          “Are they expecting the lower court to come up with a definition of threat that they’re unwilling to craft?”

          More or less.

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          • Yeah, that’s pretty much right, and Roberts’ opinion is uncharacteristically soupy. By deciding that the case was a jury instruction matter rather than a First Amendment matter, we don’t get any further legal refinement of what the “genuine threats” exception to the general rule of free speech might be. All we really know is that a jury instruction reading:

            A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.

            isn’t enough to adequately inform a jury of all the elements of 18 U.S.C. §875(c). “Wrongdoing must be conscious to be criminal,” the Chief wrote, but I know that’s not right because Congress has passed palletfuls of strict-liability crimes. It could be that wrongdoing must be conscious in cases concerning communication in order to be criminal — some communications are threats, even if we aren’t any clearer on what a “threat” is or is not.

            Seems to me that we’re steered most directly towards a two-step standard: subjectively, the subject target of the putative threat must have reasonably interpreted the comment as an actual threat against her, and the maker of the remarks must have intended that be made as a threat to her. At least, that’s my best guess after reading the opinion — which, as I am hardly alone in noting, is not Roberts’ best work. (His best work may very well be his dissent from the denial of certiorari in Pennsylvania v. Dunlap).

            The case goes back to the Third Circuit Court of Appeals next, and presumably the Third Circuit will try to come up with a better jury instruction. I’d predict Elonis will also argue before the Third Circuit that jeopardy has already attached, so the case should be dismissed. Maybe that wins, maybe not; if not, then the case likely gets sent back to the Eastern District of Pennsylvania for retrial.

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            • This is a tricky area. On the one hand, I don’t think anyone can reasonably deny that women are frequently the victim of thrests from numerous trolls and other people on-line. In this case, the female victim was being potentially threatened by her X. Gamer Gate revealed that all too many boys and men think it is perfectly acceptable use rape threats against women who criticize their little tree houses.

              On the other hand, we are still dealing with massive problems of mass incarceration and over criminalization. I often feel that we have mass incarceration and overcriminalization because almost every group can think of a special pleading. “Yes overcriminalization is a problem except we should be much much tougher on Crime X.” What happens then is that we just get tougher on every crime which leads to more prisons sentences, etc.

              In short, this stuff is hard to workout.

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            • From reading the Popehat link and Dalhia Lathwick on Slate it seems like the court wants to see something more than just a reasonable person standard. They want to see proof of subjective intent to actually commit the crimes he was yakking about. It’s unclear how that subjective intent can be proved in many cases. If he said he would rape and strangle his ex there is no weapon to procure that would prove intent. He knows where she lives and who she is, so it isn’t an anonymous person situation. Without a vulcan mind meld it seems like it could be almost impossible to prove someone meant to do what they said they would.

              Given that, in this case, the dude already had a DVRO against him he pretty well knew he had crossed some lines before. This wasn’t some silly misunderstanding or strawman example thrown out by some of the people defending this ruling.

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              • I’ve been pondering this, because there does seem an alternative path here: the restraining order. Certainly, a threat like this would justify issuing a restraining order, and those orders typically include internet contact (I’m guessing this may vary by state, I don’t know for certain).

                What I expect to see, as a result, is a plethora of orders against internet trolling threats; and that’s a very rabbit-hole ridden warren of problems that might squarely target anonymous users.

                Edit: this is a totally illogical response after googling what DVRO is.
                Duh. But I’ll let it stand, because I still think that restraining orders will be the result for on-line threats.

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                • I don’t think the DVRO can deal with this. RO’s usually forbid contact between parties, but he can say he wasn’t contacting her. Just posting public threats to her but not emailed or messaged to her. That is what i think he did. His “lyrics” weren’t breaking the RO because he didn’t deliver them to her, they were his “public performance.”

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          • And not only are they asking the lower courts to make a rule, it’s entirely possible that the different circuits will make different rules, but SCOTUS will wait years and years before they grant cert on this issue again.

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      • I don’t know if I agree that it’s “less clear”. I think it’s more clear that it’s the prosecution’s responsibility to show that the speaker intended the threat to be taken seriously–and I think that’s a good thing, because the pendulum regarding mens rea has been swinging way too far in one direction recently.

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  10. At what point in an interview process does it become obligatory to hire someone? If there had been no internal communication fretting about what the headscarf could mean, it seems like she would have had no case.

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    • “Ms. Elauf earned an objective rating in the interview which qualified her to be hired; however, Ms. Cooke did not hire her on the spot, and instead sought guidance from upper management.”

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        • The answer is no, the company is not obliged in any way. Since retail clerks are “at will” employees, Ms. Cooke could have stated that Ms. Elauf simply didn’t have a winning smile, engaging personality, get up and go mentality, vim vigor and vitality, or any other non-protected category, and refused to extend an offer.

          Which is why I wrote my comment above- its not that A&F was acting in good faith and was blindsided by some ridiculous lawsuit. They knew that the reason they didn’t want to hire her was that they didn’t want someone walking around looking like a foreigner.

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            • Do you want a serious answer?

              1. Ms. Elauf and/or her parents probably had a strong “hunch” that she was discriminated against because of her religion. This seems to be a hotly contested issue but many minorities do have strong intuitions about when they are the victims of bigotry and prejudice.

              2. She then contacted an employment lawyer or the EEOC directly. The law gives the EEOC the first right of refusal at all employment discrim cases. If the EEOC decides to pass it along, a private lawyer can take up the case.

              3. The EEOC had a hunch that the plaintiff was right. Remember there are lots of media stories about Abercrombie and Fitch refusing to hire retail staff out of a narrow band of looks. They decided to take the case on.

              4. During the discovery process, the EEOC got testimony and/or e-mails that the plaintiff met the objective requirements and was passed along because of her headgear.

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            • IIRC, Elauf asked Cooke why she’d been past over, and Cooke, unclear about the equal-employment ramifications, simply told her it was because of the headscarf.

              I suspect Burt is a little bit off base when he attributes care, rather than coincidence to the original decision not to mention the headscarf. I haven’t interviewed at A&F, but I have interviewed for similar stores.

              Those interviews involved, no-contest, the least experienced interviewers I’ve ever worked with. A&F is a corporate store with low-pay, high turnover retail. In many such stores, most of the important decisions are made at the district or corporate level, and on-site management is given a pretty limited set of freedoms and responsibilities–and consequently isn’t necessarily very trained or skilled in management-type tasks. But in most of those situations, it’s people like the store manager or the district HR that does the hiring. Fashion retail is the only place I’ve seen that responsibility delegated to the “whoever had time/management in only the most technical sense” level.

              I rather suspect that Heather Cooke’s qualification for Assistant Manager was something along the lines of: has worked here for two years and not yet been caught stealing merchandise. She was probably given a 3-page memo with instructions about how to conduct an interview, and asked to sign a paper saying she’d read it (but likely not given actual time to read it).

              Burt’s title is probably more accurate than you’d think. It doesn’t have to be a lawyer, but more interviews probably need to be conducted by Salaried Management or HR reps, who have some basic understanding of what they’re doing and the legal implications it has.

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              • Indeed. This is an issue with other areas of the law as well. There is a whole series of lawsuits involving whether Assistant Managers are considered exempt employees under the FLSA. The answer is often no because they often act more like retail staff than managers with decision making powers.

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              • Your assessment of Ms. Cooke may be accurate, . Nevertheless, she did do what lots of memos, manuals, and other professionally written advice suggests: when you see a trouble area, steer clear.

                Still another way to interpret what she did was that the best advice available have been presented to her, but she had not absorbed all of its nuances. And that’s kind of why I chose the admittedly-sarcastic title for this post. Not everyone is a lawyer. And the process of hiring people should not require that everyone be a lawyer.

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    • “At what point in an interview process does it become obligatory to hire someone? ”

      Never.

      …so long as you don’t mind getting sued if the person has reason to believe that they provided information regarding a protected status and were denied the job based on that status.

      Which is why, as a job applicant, it’s in your best interest to divulge any protected status information immediately on starting the interview.

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    • I think this goes under silly hypothetical land. People with objections for dancing nude are probably not going to apply for jobs at strip clubs. There is no reason for the plaintiff in this case to think that A&F would object to her head scarf. Presumably she otherwise dressed like a typical (if modest) American teenager in jeans, sneakers, and shirts. There is no evidence that the plaintiff wore a burqua to her interview or on a regular basis.

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    • From what I understand, dancers are independent contractors. So they pay the club $X to work there (like renting a chair at a salon) and they take home whatever tips they happen to make.

      You’d probably need a critical mass of applicants in order to shut any given club down.

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  11. Awesome post Burt. (Man, I hope you get yer judgeship soon – you’re a great writer of opinions.)

    I have some questions about Ken White’s treatment of the Elonis case. I heard this morning that the SC had basically tossed out the “reasonable person” standard in this case (haven’t there been some other chinks in the reasonable person standard lately?) and Ken mentioned that while they ruled in favor of Elonic by doing so, the didn’t offer any guidance for future interpretations of the statute, eg, regarding recklessness and/or subjective intent.

    Here’s the question: how the hell could a court ever prove beyond a reasonable doubt subjective intent? Seems to me the burden imposed by a person saying “I did not subjectively intend to have relations with that woman” cannot be overcome by any mechanism other than a reasonable person standard.

    Re: reckelssness: how would a determination of recklessness be established without a “reasonable person’s” judgement? Is that possible? And if it isn’t, then what could possibly decide these cases in the future?

    Or, alternatively, should all speech – even so-called threatening speech – just be allowed, and is that potentially where the court is going on this stuff?

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    • “how the hell could a [prosecutor] ever prove beyond a reasonable doubt subjective intent?”

      Because most jurors are normal people, and most normal people are ready to find that defendants intend the natural and expected consequences of their actions.

      Take an ordinary assault (not battery) case. Did the defendant have the subjective intent of putting the victim in fear of being hit? Well, the defendant may claim that swinging a pool stick in a crowded bar is just part of his usual exercise routine, but not a lot of jurors are going to believe that.

      Same with threats. You prove the case by putting the speech acts in a larger course of conduct between the parties and request that the jury use its plain common sense to find that the defendant had the requisite mental state. As Ken points out, very few people are performance artists.

      Final note: In the US, defendants frequently invoke their 5th Amendments right against self-incrimination and refuse to testify. And yet every day prosecutors pile up convictions. Jurors convict because even without the defendant’s testimony they infer the requisite mental state from the course of conduct. (For example, the difference between murder and manslaughter is frequently entirely dependent on findings regarding the defendant’s mental state. Jurors make these distinctions all the time.)

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      • Francis,

        You prove the case by putting the speech acts in a larger course of conduct between the parties and request that the jury use its plain common sense to find that the defendant had the requisite mental state.

        I think I understand that part (tho maybe not!), so here’s my question to figure out where I’m not thinking about this correctly: isn’t determining subjective intent along these lines equivalent to the jury finding that the speech was objectively threatening? Ie., what’s the difference between a prosecutor establishing to a jury of reasonable people that speech was subjectively intended to be threatening, and a prosecutor establishing (to a jury of reasonable people) that speech is objectively threatening according to a “reasonable person” standard?

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        • I think this question may win the award for best question of the thread. The answer, I think, is that yes in most cases these will be the same thing. It’s just possible that a bizarre set of circumstances may come up where other facts prove or disprove one element but not the other. Not this case, though.

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        • “Is that your bitch?” in the context of a dog show. Depending on who it’s said to, who (or what) is the referent and the level of aggression in the speech act according to witnesses, that phrase could be either threaten or non-threaten for both objective and subjective.

          Context is everything. First day of crim law class, the law professor gave the following hypothetical defendant testimony. “He pulled out a knife, so I pulled out my gun and shot him.” Self-defense, right? What happens if the defendant adds the following: “He pulled out a knife, so I went home, got my gun, returned to the bar, then I pulled out my gun and shot him.” Different case, right?

          Most cases aren’t hard as a matter of law, so we don’t spend much time as lawyers talking about them. The edge cases get disproportionate attention because reasonable people can differ. TV shows, especially “Law and Order” are all about edge cases. What one career prosecutor sees in a lifetime, if they’re lucky, happens every week on TV.

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