with Robert B. Fitzpatrick

THE INFORMATION CONTAINED HEREIN IS BASED UPON SOURCES BELIEVED TO BE ACCURATE AND RELIABLE – INCLUDING SECONDARY SOURCES. DILIGENT EFFORT WAS MADE TO ENSURE THE ACCURACY OF THESE MATERIALS, BUT THE AUTHOR ASSUMES NO RESPONSIBILITY FOR ANY READER’S RELIANCE ON THEM AND ENCOURAGES READERS TO VERIFY ALL ITEMS BY REVIEWING PRIMARY SOURCES WHERE APPROPRIATE AND BY USING TRADITIONAL LEGAL RESEARCH TECHNIQUES TO ENSURE THAT THE INFORMATION HAS NOT BEEN AFFECTED OR CHANGED BY RECENT DEVELOPMENTS. THIS PAPER IS PRESENTED AS AN INFORMATIONAL SOURCE ONLY. IT IS INTENDED TO ASSIST READERS AS A LEARNING AID; IT DOES NOT CONSTITUTE LEGAL, ACCOUNTING, OR OTHER PROFESSIONAL ADVICE. IT IS NOT WRITTEN (NOR IS IT INTENDED TO BE USED) FOR PURPOSES OF ASSISTING CLIENTS, NOR TO PROMOTE, MARKET, OR RECOMMEND ANY TRANSACTION OR MATTER ADDRESSED; AND, GIVEN THE PURPOSE OF THE PAPER, IT MAY OMIT DISCUSSION OF EXCEPTIONS, QUALIFICATIONS, OR OTHER RELEVANT INFORMATION THAT MAY AFFECT ITS UTILITY IN ANY LEGAL SITUATION. THIS PAPER DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR AND ANY READER. DUE TO THE RAPIDLY CHANGING NATURE OF THE LAW, INFORMATION CONTAINED IN THIS PAPER MAY BECOME OUTDATED. IN NO EVENT WILL THE AUTHOR BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, OR OTHER DAMAGES RESULTING FROM AND/OR RELATED TO THE USE OF THIS MATERIAL. 2

Robert (“Bob”) Brian Fitzpatrick is the principal in the law firm of Robert B. Fitzpatrick PLLC in Washington, D.C. where he represents clients in employment law matters. Mr. Fitzpatrick has concentrated his practice in employment law disputes for almost fifty years. He has represented clients in individual and class actions. He has represented clients in employment discrimination, workplace harassment, retaliation, age discrimination, FMLA, ADA, whistleblower, wrongful termination, non-compete, trade secrets, Computer Fraud and Abuse Act, and wage and hour claims, among others. He counsels numerous executive clients regarding employment agreements and compensation issues. He has negotiated literally thousands of severance agreements. He has represented clients in practically every industry and profession, including government employees, employees in the hospitality industry, the high tech/computer, government contractors, transportation, entertainment, sports, financial services, trade associations, academia, and others. He is also a frequent speaker on employment law topics, and has written countless articles on employment law, a few of which can be found on his website ( and his blog, Fitzpatrick on Employment Law ( In addition to his law practice, he teaches mythology, the French Revolution, and Shakespeare to elementary school students. Prior to entering private practice, Mr. Fitzpatrick served as a staff attorney in the Jackson, Mississippi office of the Lawyers’ Committee for Civil Rights Under Law in the late 1960’s; as a staff attorney in the Office of General Counsel of the Equal Employment Opportunity Commission in the early 1970’s; and with the Washington Research Project (now the Children’s Defense Fund – see training minority attorneys in the Deep South to litigate employment discrimination cases. He has been in private practice in Washington, D.C. since 1970, having been born in Washington, D.C., and raised in neighboring Chevy Chase, Maryland. He attended Georgetown Preparatory School in North Bethesda, and received his undergraduate and law degrees from the George Washington University. He is the father of three and a grandfather of three. He is an avid hiker and kayaker. He is a Fellow of the College of Labor & Employment Lawyers, having been inducted as a Fellow at the first annual induction ceremony in He has been listed as one of The Best Lawyers in America® for at least 25 continuous years. He is admitted to practice in all courts of the District of Columbia (Superior Court, D.C. Court of Appeals, and the Federal District Court of the District of Columbia), the Federal District Court for Maryland, the Federal District Court for the Northern District of Mississippi, the Supreme Court of the United States, the Federal Circuit, the Court of Federal Claims, and the United States Courts of Appeals for the District of Columbia as well as the Fourth and Sixth Circuits. 3

4  On appeal from EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106 (10th Cir. Okla., 2013)  Panel: Kelly, Ebel & Holmes, J.J. EEOC v. Abercrombie & Fitch Stores, Inc. 135 S. Ct (2015) (Religious Accommodation)

5  Supervisor believed job applicant was a Muslim.  Supervisor guessed that there was a religious reason why she wore her headscarf.

6 The term “because of”…typically imports… [at least]… but-for causation. Title VII relaxes this standard, however, to prohibit even making a protected characteristic a “motivating factor” in an employment decision. 42 U.S.C. §2000e-2(m). “Because of” in §2000e-2(a)(1) links the forbidden consideration to each of the verbs preceding it; an individual’s actual religious practice may not be a motivating factor in failing to hire, in refusing to hire, and so on. It is significant that §2000e-2(a)(1) does not impose a knowledge requirement. - Scalia, J.

7 An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions... [i]f the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII. - Scalia, J.

8  In light of Justice Scalia’s “motivating factor” analysis, regarding “because of” is the Fifth Circuit’s distinction between 2000e-2(a) (pretext requires but-for causation) and 2000e-2(m) (mixed motive requires motivating factor causation) no longer good law?

9 While a knowledge requirement cannot be added to the motive requirement, it is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice—i.e., that he cannot discriminate “because of” a “religious practice” unless he knows or suspects it to be a religious practice. That issue is not presented in this case, since Abercrombie knew—or at least suspected—that the scarf was worn for religious reasons. The question has therefore not been discussed by either side, in brief or oral argument. It seems to us inappropriate to resolve this unargued point by way of dictum, as the concurrence would do. Footnote 3

10  Don’t Assume  Don’t Ask  Can applicant adhere to job requirements?  Engage in interactive dialogue.  Reasonable accommodation Tips  Do not guess, and do not ask, whether there is any need for an accommodation, only those whom you suspect to have a religious belief ask, uniformly, all applicants.

11  After the Supreme Court decision, Abercrombie settled for $25, and courts costs of $18, Aftermath

12  Is the statutory perception theory now the law of the land?  Third Circuit in Fogleman v. Mercy Hosp., Inc. 283 F.3d 561 (3d Cir. 2002) adopted the perception theory in statutory retaliation cases. Perception Theory

13  The Supreme Court, this term, has a First Amendment perception theory case, Heffernan v. City of Patterson, 777 F.3d 147 (3d Cir. 2015), cert. granted 2015 U.S. LEXIS 4682 (U.S. Oct. 1, 2015). First Amendment

14 Holt v. Hobbs, 135 S. Ct. 853 (2015) (Religious Liberties in Prison)  On appeal from Holt v. Hobbs, 509 Fed. Appx. 561 (8th Cir. Ark. 2013)  Panel: Bye, Arnold, & Shepherd, J.J.

15  Justice Ginsburg writes a two-line concurrence, joined by Justice Sotomayor (who also concurs separately) (internal citations omitted): Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief. On that understanding, I join the Court’s opinion.

16  Concurring separately, Justice Sotomayor writes: Nothing in the Court’s opinion calls into question our prior holding in Cutter v. Wilkinson that “[c]ontext matters” in the application of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). In the dangerous prison environment, “regulations and procedures” are needed to “maintain good order, security and discipline, consistent with consideration of costs and limited resources.” Of course, that is not to say that cost alone is an absolute defense to an otherwise meritorious RLUIPA claim.

17  Justice Alito also concurred writing, in part, that: RLUIPA, like RFRA…“‘requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law [to]…the particular claimant whose sincere exercise of religion is being substantially burdened.’” RLUIPA requires us to “‘scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants’” and “to look to the marginal interest in enforcing” the challenged government action in that particular context.

18 Mach Mining, LLC v. EEOC, 135 S. Ct (2015) (Conciliation)  On appeal from EEOC v. Mach Mining, LLC, 738 F.3d 171 (7th Cir. 2013)  Panel: Wood, C.J.; Kanne, Hamilton, J.J.

19  The Court adopts “bare bones” review as to whether EEOC engaged in conciliation before filing suit.  Dicta in Mach Mining that case should be stayed and EEOC ordered to attempt conciliation.

20 “EEOC must inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of ‘reasonable cause.’ Such notice properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result.” S. Ct. at 652

21 EEOC must try to engage the employer in an informal method of “conference, conciliation, and persuasion.” The informal method requires “some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the alleged discriminatory practice.”

22  See EEOC v. OhioHealth Corp., 2015 U.S. Dist. LEXIS (S.D. Ohio June 29, 2015) (Court finds that EEOC did not engage in conciliation).

23  See Mach Mining on remand, EEOC v. Mach Mining, LLC, No. 11- cv-00879, 2016 U.S. Dist. LEXIS 5918 (S.D. Ill. Jan. 19, 2016)

24 This case is not persuasive to the Court, as it impermissibly considered positions taken by the parties during the conciliation. The OhioHealth Court discussed whether a ‘final’ offer was made and the EEOC’s failure to provide supporting calculations for a damage demand… OhioHealth court’s conclusion that an unsupported ‘take-it-or-leave-it’ demand letter could not constitute an attempt to engage in conciliation…is at odds with Mach Mining’s rejection that the EEOC is required to lay out the factual and legal bases for its position and/or provide calculations underlying its monetary demands.

25  See EEOC v. Sterling Jewelers, 801 F.3d 96 (2d Cir. 2015) (Court rejects argument, based on Mach Mining, that it should review the sufficiency of the EEOC’s investigation before its cause decision.

 On appeal from Tackett v. M&G Polymers USA, LLC, 733 F.3d 589 (6th Cir. 2013)  Panel: Keith, Martin, & Cole, J.J. 26 (Retiree Benefits)

27  UAW v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1983) rejected.  Justice Thomas wrote for the five-justice majority.  Justice Ginsburg wrote a concurring opinion that was joined by three other justices.

28  Fulghum v. Embarq Corp., 785 F.3d 395 (10th Cir. 2015), cert. denied 136 S. Ct. 537 (2015), 136 S. Ct. 538 (2015) (whether an ERISA-governed welfare plan must include “clear and express” vesting language as a pre-requisite to a contractual vesting claim as a matter of law).

29  On remand from the 10th Circuit’s decision, the District Court in Kansas explained that, in its view, the Supreme Court held, in Tackett, that “the intent to vest must be found in the plan documents, and must be stated in clear and express language.”  See Fulghum v. Embarq Corp., 2015 U.S. Dist. LEXIS (D. Kan. June 10, 2015).

30  Dewhurst v. Century Aluminum Co., Civ. No. 2: , 2015 U.S. Dist. LEXIS (S.D. W. Va. Sept. 9, 2015) (holding that retirees were not entitled to lifetime health benefits where the collective bargaining agreements provided that the retiree healthcare benefits “shall remain in effect for the term of this…Labor Agreement”)

31  UAW v. Kelsey-Hayes Co., No. 11-cv-14434, 2015 U.S. Dist. LEXIS (E.D. Mich. Sept. 17, 2015) (Holding, based on language of CBA and Plant Closing Agreement, that retiree benefits were intended to survive the expiration of the CBA and the plant closure)

32  Reese v. CNH Indus. N.V., No. 04-cv-70592, 2015 U.S. Dist. LEXIS (E.D. Mich. Sept. 28, 2015) (on reconsideration, Court held it had committed a “palpable error” in finding for the defendants and held that the “clear and express” test was not required.

33  Zino v. Whirlpool Corp., No. 5:11-cv-01676, 2015 U.S. Dist. LEXIS (N.D. Ohio Oct. 30, 2015) (holding that retirees were entitled to lifetime health benefits, rejecting a “clear and express” test)

34  Barton v. Constellium Rolled Prods.-Ravenswood, LLC, No. 2:13-cv-03127, 2016 U.S. Dist. LEXIS 756 (S.D.W. Va. Jan. 4, 2016) (holding that retirees were not entitled to lifetime health benefits under clear and unambiguous language of agreements).

35  On appeal from Imburgia v. DIRECTV, Inc., 225 Cal. App. 4th 338, 170 Cal. Rptr. 3d 190 (Cal. App. 2d Dist., 2014) DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463 (2015) (Federal Arbitration Act)

36  Concepcion was 5-4.  DirecTV was 6-3, with Justice Breyer writing the opinion.  Language in the opinion that, if pure contract interpretation, the Court will not intervene.

37  Court says parties are free to choose the rules governing arbitration, and can even choose the law of Tibet or pre-revolutionary Russia.  Opinion turns on whether the state law is valid or invalid.

38  Is Justice Breyer moving from dissent in Concepcion to the majority in DirecTV merely a reflection of his view regarding the supremacy of law?  What about Justice Kagan, who was also among the six-Justice majority.

39  Justice Thomas continues to dissent on the ground that the FAA should not apply in state courts.  Justices Ginsburg and Sotomayor dissent, bemoaning the Court’s “bent” and the “ever-larger expansion of the FAA’s scope.”

 On appeal from Maclean v. Dept. of Homeland Sec., 714 F.3d 1301 (Fed. Cir. 2013)  Panel: Prost, Moore, and Wallach, J.J. 40 (Whistleblower Protected-Disclosure Prohibited by Regulation)

41  Court stressed that defendant’s disclosure was not “specifically prohibited by law.”  MacLean, without authorization, disclosed to a reporter the otherwise unpublicized termination of missions related to hijack prevention, claiming that he was disclosing a matter related to public safety.

42  The suit was brought under the Federal Whistleblower Protection Act, which prevents the government from terminating an employee for revealing  “any violation of any law, rule, or regulation” or “a substantial and specific danger to public health or safety” – unless the revelation is “specifically prohibited by law.