In Abercrombie, Samantha Elauf, a practicing Muslim, sued retailer, Abercrombie & Fitch, for employment discrimination under 42 U.S.C. Section 2000(e)(2) for refusing to hire her because of the headscarf that Elauf wore for religious reasons. Elauf’s hijab conflicted with Abercrombie’s dress policy. While the EEOC prevailed at the district court level, the Tenth Circuit reversed, finding for Abercrombie.
The United States Supreme Court then reversed the Tenth Circuit, remanding the case in an opinion drafted by Justice Scalia. The Court held that “Title VII does not demand mere neutrality with regard to religious practices–that they be treated no worse than other practices. Rather it gives them favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual…because of such individuals’ religious observance and practice.'”
In Elonis, Anthony Elonis used Facebook to post rap lyrics about his wife, his co-workers, a kindergarten class, and federal and state law enforcement. While the lyrics contained “graphically violent language and imagery,” Elonis included comments that the lyrics were fictitious and that he was exercising his First Amendment rights.
As a result of these postings, Elonis’s wife sought court ordered protection while his employer fired him. His employer then reported Elonis to the FBI which began monitoring Elonis’s Facebook posts and behavior. Eventually the FBI arrested Elonis for violating 18 U.S.C. Section 875(c) “which makes it a federal crime to transmit in interstate commerce any communication containing any threat…to injury the person of another.” Elonis asked the trial court to instruct the jury that the Government had to prove that he intended the communication to be a “true threat.” Instead the court instructed the jury that Elonis “…could be found guilty if a reasonable person would foresee that his statements would be interpreted as a threat.”
Elonis was convicted and his conviction was affirmed by the Third Circuit.
The United States Supreme Court reversed and remanded, indicating that “…Elonis’s conviction was premised solely on how his posts would be viewed by a reasonable person, a standard feature of civil liability in tort law inconsistent with the conventional criminal conductive requirement of awareness of some wrongdoing….This Court has long been reluctant to infer that a negligence standard was intended in criminal statutes….And the Government fails to show that the instructions in this cased required more than a mental state of negligence.”