Religious Descrimination at Abercrombie & Fitch?

[dcmdale]

This seems to be a bit of a straw man, it being much more difficult to not be black than it is to not wear a hat.

Perhaps, but intended more as an illustration as to why courts aren't as willing to just accept "supporting a marketing concept" when evaluating these kinds of cases.

[Purple Fencer]

This seems to be a bit of a straw man, it being much more difficult to not be black than it is to not wear a hat.

Oh I dunno.....worked for Jacko...

[dcmdale]

Enlighten, then?

Ponder, upon your navel, if you will, what cataclysmic neurological maelstrom would cause you to argue on the same side as Chase and against Philistine, our resident ACLU attorney?

Feel enlightened? Sorry, couldn't resist.

[migopod]

Ponder, upon your navel, if you will, what cataclysmic neurological maelstrom would cause you to argue on the same side as Chase and against Philistine, our resident ACLU attorney?

Feel enlightened? Sorry, couldn't resist.

I don't think I'm arguing the same case as Chase, although perhaps in the same general side. My educated guess based on what I know of Chase is that he's okay with discriminating against Muslims because he hates Muslims. I think that religion is silly in general, and that the law shouldn't discriminate in favor of someone because they buy into a mythology.

[telkanuru]

Ponder, upon your navel, if you will, what cataclysmic neurological maelstrom would cause you to argue on the same side as Chase and against Philistine, our resident ACLU attorney?

I definitely don't think I would agree with anything Chase would have to say on the subject.

[dcmdale]

I don't think I'm arguing the same case as Chase, although perhaps in the same general side. My educated guess based on what I know of Chase is that he's okay with discriminating against Muslims because he hates Muslims. I think that religion is silly in general, and that the law shouldn't discriminate in favor of someone because they buy into a mythology.

Mine was a rather lame attempt at humor, I guess that I should stick to things I know how to do.

As to Chase, I don't know him other than what he posts here, but I would imagine that he would characterize his beliefs more along the lines of loving Muslims, but hating Islam. Probably much like I would expect you to differentiate between Christians as people and your attitudes towards their "mythology."

The Civil Rights Act forbids discrimination by covered employers based on, among other things, religion/religious belief. Employers, by and large, hate it because the act places limitations on the rationale that can be used in hiring and firing decisions and creates the possibility that the employer might be sued even for an appropriate decision, but because it goes against someone who can claim discrimination. I can't just reject the skinny girl for the loading dock position because I don't think she can handle the work, I have to figure out whether she can lift the boxes that come in and whether (even if she can't) I have to buy lift equipment or get things shipped in smaller units. I can't lawfully fire a black store clerk just because some of my best customers tell me that they are uncomfortable having him wait on them and that they will take their business elsewhere. A Christian College cannot lawfully require people in their accounting department to be Christians (professors, yes; support staff, no).

The reason that this case provokes what I called a reverse knee-jerk reaction is that the usual case in the U.S. involves a "Christian" employer who wants to hire "Christian" staff. (I am using quotation marks because Christian here means whatever the employer defines as "Christian," not as a sign of disrespect). If you are a covered employer, you really can't do that. Here, instead of the case being religious employer vs. non-religious potential employee (the usual case), we find non-religious employer vs. religious employee. Legally, the results should be the same in either case, but the knee jerk reaction on both sides tends to support their own side, not equality.

[migopod]

I'm going to re-post this (riposte?) because it may have been lost in the page break.
I understand the whole religious discrimination business, and how perhaps it's reasonable to require accommodating people's legitimate "mandatory" articles of faith, but should it, or does it extend to voluntary expressions of devotion? Can an employer, for example, deny an evangelical Christian the right to proselytize on the clock? Is an employer required to allow a Cristian to wear a crucifix visibly even if they have a blanket no-jewelry policy, or can they require their employee to wear their cross inside their shirt?

How's this for another wrinkle with respect to the hijab.

For Muslim women in the US (or anywhere where Sharia law is not enforced) there is no obligation to wear head covering. Muslim women wear the hijab for various reasons, but the Quran doesn't require it or even mention head covering. Given that it's a personal preference issue and not an explicit article of faith, like the yarmulke or Sikh head coverings, if she were presented at the intervew with the option of being employed at A&F if she agreed to not wear the hijab at work because of the no-hats policy, would this still be religous discrimination? If a Christian was asked to wear a cross inside their shirt rather than outside due to a blanket no-jewelry policy and they were not hired (or fired) because they refused, would they have the same grounds for litigation? There's no specific citable religous commandment to only wear a cross so that it's visible (or even to wear one at all).

[erooMynohtnA]

I'm not sure I understand you.

Are you suggesting that laws against religious discrimination are OK, but that if an employer decides to put in place policies that keep out followers of certain religions (because the policies prevent practices necessary for followers), that that's OK, regardless of whether or not there is any legitimate business reason for the policy?

--Philistine

I think that a policy that is put in place to target a religion is bad.

I think any policy that is altered to for religious exceptions is bad.

[dcmdale]

I'm going to re-post this (riposte?) because it may have been lost in the page break.
I understand the whole religious discrimination business, and how perhaps it's reasonable to require accommodating people's legitimate "mandatory" articles of faith, but should it, or does it extend to voluntary expressions of devotion?

Courts generally will not evaluate religious dogma to determine whether an asserted requirement is voluntary or not. With respect to the hijab, her assertion that wearing it is a requirement of her belief system will largely preclude consideration of Islamic laws that might allow her not to.

Can an employer, for example, deny an evangelical Christian the right to proselytize on the clock?

I have never seen a case on this. All of my employers over the last 20 years have a blanket policy against proselytizing on the job. I suspect that at least reflects the opinions of the HR attorneys.

Is an employer required to allow a Cristian to wear a crucifix visibly even if they have a blanket no-jewelry policy, or can they require their employee to wear their cross inside their shirt?

It would likely depend on the exact circumstances. Safety is a clear rationale, for instance. I am not aware of any Christian sect that requires wearing the cross, so someone would have to assert that it was actually a requirement to provoke the same level of review. (This does come up in some contexts with respect to Sikhs and their knives, however). Are wedding rings allowed as exceptions to this blanket policy? There are a lot of considerations.

[I_luv_saber]

So from what we know so far:

• She was not hired because she wore a hajib to the interview
• She was, AFAWK, not told she would have to remove the hajib to work there (which is in line with the story that she found out from a friend later).

So - if she was never asked, I'm gonna guess the interviewer had one of two things going on. Either she simply assumed she would refuse and never asked (kind of pig-headed), or simply did not want to hire a Muslim. Honestly, I think it's a little of column A and a little of column B. I don't think it was quite as much the fact that a hat simply would not fit in... it's the fact that THAT kind of hat would not fit in. Reasonable accommodation could probably have been made, but due to the current negative feelings towards Muslims they were afraid of hiring someone who wore something associated with it.

It may not be clear-cut discrimination, but this particular case certainly is dancing along that fine line...

[I_luv_saber]

Look, I think just about all of us here agree that no policy should be put in place specifically targeting a particular religion (like not a no hat policy which is general, but perhaps a no hajib policy, or a no yarmulke policy).

I think the biggest hang-up is what is considered reasonable accommodation.

For example: Working in a hotel (which runs 24/7), would it be out of the question to have special accommodation for Jewish workers to have Hanukkah off? Of course not, providing it would not cause undue hardship. So if an employer has nothing but Jewish employees, it would obviously cause undue hardship to give all Jewish workers Hanukkah off. This is a pretty simple comparison, but I think it adequately demonstrates my point.

Now - the question here is: Could A&F have provided reasonable accommodation without causing undue hardship?

Personally, I think there may be a case for discrimination because of the fact that she was never given an opportunity to conform to policy - a preconceived notion kept her from getting fired.

But, for the sake of argument, let's say she was asked to remove it and refused. In this case I'd be a little more inclined to believe that they have a right to uphold a generalized no hats policy. I think that to be on the safe side, legally speaking, if they had reasonable accommodation (such as the stockroom job) then they should extend that (I think they'd have a much harder time arguing undue hardship when no-one is going to see the person and when accommodations were made in other cases).

In short: If they can reasonably accommodate a person's needs without really affecting the running of the company and they choose not to, that's sketchy, and I would say in most cases discrimination. If accommodating the person would affect their business in some way, it's a bit of a different gig.

[telkanuru]

That's not it at all, imo.

The purpose behind the policy must be examined. If a policy prohibits religious hats, then it is discrimination on the basis of religion. If it is a blanket prohibition on hats, then it's simply as Anthony put it, hat discrimination.

[I_luv_saber]

Well, that's kind of what I'm saying. If it's a generalized policy, not targeting a specific religion, it's not really discriminatory. I'm not saying it is.

EDIT: In my last last sentence of my last post, I see where I said it was discrimination. However I'm not holding that the policy is, if you see the rest of my post. I simply spoke poorly in that last sentence.

Where we're splitting the sheets is the accommodation part. IMO, if you can easily make a reasonable accommodation with no harm to the company (i.e., working in an office or stockroom), I could see a case made where an exemption should be made (see my previous analogy). If it would negatively affect the company, like A&F's standpoint that it would affect their image, there's an argument that maybe accommodation isn't so reasonable.

I'm not really 100% decided though... it's a sticky situation. I'm a little hesitant to jump on board that image is a valid reason... that can really open a pretty big door to lots of other discriminations... OTOH it is THEIR company. I dunno...

[Philistine]

I think that a policy that is put in place to target a religion is bad.
{snip}

How can you tell if a "no-hats" policy (or any other policy that might have an effect--"no beards", for instance) is enacted to target a religion?

--Philistine

[Philistine]

That's not it at all, imo.

The purpose behind the policy must be examined. If a policy prohibits religious hats, then it is discrimination on the basis of religion. If it is a blanket prohibition on hats, then it's simply as Anthony put it, hat discrimination.

And if a canny business-owner who doesn't like muslims or sikhs, for example, puts in a no-hats, no-beards policy to keep them out--but doesn't tell anyone that's why he's doing it--no problem?

--Philistine

[fencerchica]

If a Christian was asked to wear a cross inside their shirt rather than outside due to a blanket no-jewelry policy and they were not hired (or fired) because they refused, would they have the same grounds for litigation?

There was actually a case like this a couple of years ago where a British Airways check-in clerk refused to wear her cross necklace under her clothes, contravening their no-jewelry safety policy. Her argument was that it was religious discrimination because Sikhs weren't required to somehow cover up their turbans since that was obviously impractical. I guess she was claiming a turban = jewelry? Seems pretty flaky to me. But BA offered to let her wear a lapel pin, and she rejected that. The end result was that Tony Blair got involved arguing on her behalf and BA caved completely. Now they allow symbols of faith on lapel pins or chains. If she manages to get herself caught in a conveyor belt with her cross dangling over dangerous machinery though, I think that would be pretty karmic.

[dcmdale]

That's not it at all, imo.

The purpose behind the policy must be examined. If a policy prohibits religious hats, then it is discrimination on the basis of religion. If it is a blanket prohibition on hats, then it's simply as Anthony put it, hat discrimination.

This is part of why I like this particular case. These are exactly the same arguments made in virtually every Civil Rights case against an employer.

Many Civil Rights cases based on facially neutral policies that have a unintended (or plausibly unintended) impact on a protected group. Employers invariably complain that they have good business reasons for their policies. Discriminatory impact of otherwise neutral policies is clearly part of what the Civil Rights Act was intended to address through reasonable accommodation. Griggs v. Duke Power: "Good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups..."

This case isn't a slam-dunk against A&F. Employers do win their share of these kinds of cases because they tend to be very individually fact oriented.

[MyrddinsPrecint]

So if an employer has nothing but Jewish employees, it would obviously cause undue hardship to give all Jewish workers Hanukkah off.

Uh, I know this isn't the point, but Hanukkah isn't a terribly big holiday for religious Jews. Culturally it's become somewhat significant because of Christmas, but there are no specific requirements like being in Temple for most of the day. In the future, your example would work better with the high holy days (Rosh Hashanah, Yom Kippur), which are SeriousBusiness.

[erooMynohtnA]

How can you tell if a "no-hats" policy (or any other policy that might have an effect--"no beards", for instance) is enacted to target a religion?

--Philistine

You can't.

[Purple Fencer]

Uh, I know this isn't the point, but Hanukkah isn't a terribly big holiday for religious Jews. Culturally it's become somewhat significant because of Christmas, but there are no specific requirements like being in Temple for most of the day. In the future, your example would work better with the high holy days (Rosh Hashanah, Yom Kippur), which are SeriousBusiness.

Heh....that backup up something my old boss (who is Jewish) told me..."We made ourselves a Jewish Christmas."

She also calls bagels "Jewish doughnuts."