Religious Descrimination at Abercrombie & Fitch?

[Hauptman]

Originally Posted by telkanuru

No, of course not. That's discrimination explicitly based on religion.

The point I continue to make is that the A&F case does not seem unreasonable to me because it's not the type of hat they find objectionable, it's that the hat is on the head.

Except I don't believe that an employer's desire for "no hats" can trump a religious need to wear a hat by an employee UNLESS the company can show that wearing a hat in some way impairs the employees ability to do the job.

For most clothing retailers, they would lose that argument; wearing a hijab would not interfere with her ability to sell clothes and assist customers. On the other hand, A&F is unusual in that they use their salespeople as models for their clothing, and so they can make a case that a hijab would interfere with the look that their models are supposed to be conveying, and negatively affects the job.

I say that they "can" make this argument, but it is not clear as to whether it is an effective argument.

[I_luv_saber]

^ This

EDIT: I can't rep you yet, dammit!

[erooMynohtnA]

Originally Posted by thereom4

I've been reading this thread but chose not to comment. But I would like to say that a hijab is a head covering and not a hat. Although a hat is also a head covering. A hat is a hat. A hijab is a hijab. They are not the same thing thus not interchangeable.

http://www.merriam-webster.com/dictionary/hat

As per my opinion on this case: I'm with the liberals on this one.

Unsurprising, really.

[keith]

Originally Posted by dcmdale

I guess I was pushing beyond the A&F example to discrimination less closely tied to marketing concepts. For instance, if Hewlett/Packard restricted top management positions to Christians "to restore the ethical heritage of the company," or Steve Jobs wanted to restrict development positions to Buddhists because he felt that people of that philosophy developed better code, or Cisco demanded that all Salespeople be Atheists because "religious people are stupid."

Or that greasy hair and poor personal hygiene results in better code?

I think in all these cases there is a difference - we all accept that appearance/attitude matter to different degrees for different employers.

This involves discrimination but we accept it because we know deep in the darkest corner of our benighted souls that we are (were ) probably more likely to by item of clothing X when told how good we look in it by an individual who we regard as being able to validate our choice.

The examples you cite miss that difference. Although I'd be curious whether HP wanted to enhance or limit the role of ethics in executive decisions by only hiring Christians.

Originally Posted by dcmdale

You haven't been looking at my personnel file, have you?

Some things are universal truths.

Originally Posted by dcmdale

I am not sure which side that puts you on here. By my count, there is a conservative'ish attorney and a liberal'ish attorney arguing that this potentially violates the Civil Rights Act of 1964 and a coalition of liberal and conservatives who think that A&F's actions are justifiable because they support the marketing direction of A&F.

I think the fact that the lawyers are on one side simply illustrates to what degree the legal opinion informs whether A&F have a case to answer.

There are a couple of intertangled things here;

Does A&F have a legal case to answer (based on precedent).

Does A&F have a legal defense (based on precedent).

Is the A&F policy justifiable, even if discriminatory. (This is why the liberals are on the other side from the lawyers.)

How sensible is US anti-discrimination law.

Even if US anti-discrimination law is a bit silly would it be made better or worse by the straight forward repeal of large swathes.

[thereom4]

Originally Posted by erooMynohtnA

http://www.merriam-webster.com/dictionary/hat

From that same defintion: 1 : a covering for the head usually having a shaped crown and brim

Hijabs have neither shaped crowns nor brims.

Originally Posted by erooMynohtnA

Unsurprising, really.

.......hatching a plan to surprise you.

[erooMynohtnA]

Originally Posted by thereom4

From that same defintion: 1 : a covering for the head usually having a shaped crown and brim

Hijabs have neither shaped crowns nor brims.

I agree. If that is the balance of your argument, I think we've established hijabs are hats.

[keith]

Originally Posted by erooMynohtnA

I agree. If that is the balance of your argument, I think we've established hijabs are hats.

So a no scarf policy would be discriminatory if it forbade people from putting the scarf over their hair?

[thereom4]

Originally Posted by erooMynohtnA

I agree. If that is the balance of your argument, I think we've established hijabs are hats.

The royal "we" may have established that, but again a hijab is not a hat.

[dcmdale]

Originally Posted by keith

Although I'd be curious whether HP wanted to enhance or limit the role of ethics in executive decisions by only hiring Christians.

I chose this only because the historic "H/P Way" reflected the Christian values of the early leadership, therefore, it would be slightly more plausible. Whether such a change would in fact result in improved ethics would be under a scenario where the Civil Rights Act was abolished (at least wrt to religion) a business decision that a court would not look into.

Originally Posted by keith

I think the fact that the lawyers are on one side simply illustrates to what degree the legal opinion informs whether A&F have a case to answer.

I am more inclined to believe that the attorneys here are more in tune with the impact of repealing protection.

Theorum is absolutely correct in saying that passage of the Civil Rights Act didn't end bigotry and discrimination, but it is the cornerstone upon which huge gains were made for Civil Rights. Simple repeal would make the workplace open for just about any form of bigotry supported by management.

Originally Posted by keith

Even if US anti-discrimination law is a bit silly would it be made better or worse by the straight forward repeal of large swathes.

The key provision is:

It shall be an unlawful employment practice for an employer -to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin

What would you like to change?

[thereom4]

Originally Posted by dcmdale

Welcome to this discussion. I was rather hoping that you would join because I think you offer some unique perspectives both on unintended discriminatory consequences and plausibly deniable forms of discrimination.

Thanks. I'm kinda late.

Originally Posted by dcmdale

I am not sure which side that puts you on here. By my count, there is a conservative'ish attorney and a liberal'ish attorney arguing that this potentially violates the Civil Rights Act of 1964 and a coalition of liberal and conservatives who think that A&F's actions are justifiable because they support the marketing direction of A&F.

I'm on the side that is arguing that A&F's actions are not justifiable and are in violation of Title VII of the Civil Rights Act of 1964.

A&F's possible defense: BONA FIDE OCCUPATIONAL QUALIFICATION - To establish the defense of bona fide occupational qualification the defendant has the burden of proving that a definable group/class of employees would be unable to perform the job safely and efficiently or that it was impossible or highly impractical to consider the qualifications of each such employee and that the bona fide occupational qualification is reasonably necessary to the operation of the business.*

Since this is A&F's only possible defense (Though I could be wrong. A creative lawyer could find another), I don't think any judge who can read would rule in their favor. They'll settle if it doesn't go to court, just like they did in Gonzalez vs. Abercrombie & Fitch. The settlement amount was $50 million dollars.Their 'Look' policy on face value appears very discriminatory and if nothing else ridiculous. If their goal is to pay people whom they've discriminated against not to work for them......mission accomplished.

I understand branding but I don't understand discrimintation. Just because you have a target audience in mind doesn't mean you should discriminate against those who don't fit in that mold. I thought this was a capitalist society? Why not try and maximize possible sales and widen your market?

If they're attempting to sell the 'model' image it would behoove them to target all young women and men who buy into that garbage (IMHO). They exist. But I guess that dilutes the brand. If everybody can buy it, it's not longer special. So I guess they'll continue their exclusionary sales model.

I'm personally not impressed by A&F. Their clothes are overpriced and boring. I'd rather save the $60 I'd spend on a tank top at A&F and buy 6 some place else. If I go to walmart I can get 12. And yes I am that cheap. I always have been and I always will be.

dcmdale: I did re-read your post and I see that I misread it. I missed where you used the word "freedom." I read it too fast and as a result responded too fast. I apologize. My reply did not answer your post.

I do stand by my post as an answer to whether or not one group would become disadvantaged as a result of a disadvantaged (in the true sense of the word) group, in the context of civil rights, being given "rights." Rights that they should already have and shouldn't have to fight for.

*http://www.lectlaw.com/def/b044.htm

Edit and sidenote: Re: my cheapness

Here is a cami at A&F: http://www.abercrombie.com/webapp/wc...-1_12262_12203 they are charging $70 for a see-through shirt

Here is a cami at Forever 21: http://www.forever21.com/product.asp...820470&Page=1# they are charging $2.50

With a little lace, creativity and fabric glue (or thread if you can sew) you can get make a better shirt for a quarter of what you'd pay at A&F: http://www.mjtrim.com/Catalog/Catego...px?refArea=Top and http://www.mjtrim.com/Catalog/Produc...672/26672.aspx

[keith]

Originally Posted by dcmdale

I am more inclined to believe that the attorneys here are more in tune with the impact of repealing protection.

Perhaps, although I am not arguing against protection.

Originally Posted by dcmdale

Theorum is absolutely correct in saying that passage of the Civil Rights Act didn't end bigotry and discrimination, but it is the cornerstone upon which huge gains were made for Civil Rights. Simple repeal would make the workplace open for just about any form of bigotry supported by management.

Indeed, wasn't directly arguing for the repeal without replacement, simply observing that some of the specific focus seems to run into trivial counter examples. You cannot discriminate against religious belief, but you can against ethical/ideological beliefs. I appreciate that many see a difference, but it would be intellectually problematic for them not to.

Originally Posted by dcmdale

The key provision is:

What would you like to change?

Well I would disagree about this being the key provision - after all Hooters gets around it - but how about just hacking of the last 11 words.

I'd also agree that anti-discrimination law cannot eliminate sexsim/racism/religious bigotry or even just plain stupidity. All it does is to make it non-trivial to be a bigot. That it works as well as it has is probably in part due to the idea raised in Theorem4's earlier post about the nature of discrimination (racism or otherwise). Perhaps at the end of the day most people will, when forced to make a conscious choice with regard to an unstated preference make less stupid decisions*.

*which sounds terribly panglossian but I really can't be bothered to refine it suitably .

[dcmdale]

Originally Posted by keith

Well I would disagree about this being the key provision - after all Hooters gets around it - but how about just hacking of the last 11 words.

Hooters is an interesting case. The EEOC did file a civil rights complaint against them in the 1990's under this provision. It was dropped primarily because of the direct interference of certain powerful members of Congress. Go figure.

Hacking off the last 11 words would just make it illegal to refuse to offer employment to anyone who applies. That might do a lot for unemployment, but is probably not what you intended.

[erooMynohtnA]

Originally Posted by keith

So a no scarf policy would be discriminatory if it forbade people from putting the scarf over their hair?

It would be discriminatory against scarves worn as hats, if that's what you're asking.

[keith]

Originally Posted by dcmdale

Hooters is an interesting case. The EEOC did file a civil rights complaint against them in the 1990's under this provision. It was dropped primarily because of the direct interference of certain powerful members of Congress. Go figure.

well what a surprise.

Originally Posted by dcmdale

Hacking off the last 11 words would just make it illegal to refuse to offer employment to anyone who applies. That might do a lot for unemployment, but is probably not what you intended.

No it would focus on the question of justification. Which is really at the root here. I don't like A&Fs marketing policy nor their general image management. On the other hand shallow pandering to american suburbia has made them a fair bit of money. Now if there were any systematic evidence of anti-muslim bias I'd be breaking out my trusty liberal pitch fork. Sadly I think this is just the prejudice of the everyday, nasty & unpleasant but as you say impractical to outlaw.

There are some places the law just can't reach which is perhaps just as well. Fortunately there are other choices.

[Inquartata]

I'm not getting involved in this one beyond asking whether the hood on my sweatshirt means that a sweatshirt is a hat...

[lindajdunn]

My $0.02:

Given that Hooters has successfully defended itself in court against discrimination suits based upon their practice of hiring women with certain... ahem... attributes, I doubt A&F would have difficulty defending their hiring of salesclerks based upon their appearance and their ability to model the clothing that the store is selling.

[Philistine]

Originally Posted by dcmdale

Hooters is an interesting case. The EEOC did file a civil rights complaint against them in the 1990's under this provision. It was dropped primarily because of the direct interference of certain powerful members of Congress. Go figure.{snip}

Actually, the Hooters case was settled for a moderate payment ($3.75 million) and a continuation of the female-only server policy with the creation of male-eligible positions (e.g. bartender and host).

I generally have a lot more sympathy for someone who's just "minding there own business" and gets fired/not hired then those (like in the Hooters case) trying to make a political point/fast buck by applying for positions they don't actually want.

--Philistine

[Philistine]

Originally Posted by keith

{snip}
Indeed, wasn't directly arguing for the repeal without replacement, simply observing that some of the specific focus seems to run into trivial counter examples. You cannot discriminate against religious belief, but you can against ethical/ideological beliefs. I appreciate that many see a difference, but it would be intellectually problematic for them not to.
{snip}

At the end of the day--it boils down to a question of which things a given body has decided you can't discriminate against. At the federal level it's certain things. All (I think) States, and many large cities have similar anti-discrimination provisions which may add additional things. Political ideology is a common addition. Other things vary--prior or present military service, for example or sexual orientation are others.

Most states have "at will" employment, often explained as "you can fire someone for any reason, so long as it's not an illegal reason." The "illegal reasons" are generally violations of discrimination laws (and potentially some others, depending on the State).

So, it is entirely proper (and, in fact, quite a good idea) to fire someone because they are a Mets fan or a Redskin's fan--but not because they are black, jewish, a woman, over 40, disabled, etc.

It certainly results in some anomalies, and some inefficiencies in the system, and is often arbitrary--.e.g., if you protect one thing from discrimination, why not another--but I think it unlikely that the system will change anytime soon in any major way in the direction of "less protection."

--Philistine

[thereom4]

Originally Posted by lindajdunn

My $0.02:

Given that Hooters has successfully defended itself in court against discrimination suits based upon their practice of hiring women with certain... ahem... attributes, I doubt A&F would have difficulty defending their hiring of salesclerks based upon their appearance and their ability to model the clothing that the store is selling.

I don't agree with this. Hijabs come in many different colors (you can make your own) and they can be adjusted for length, so long as it covers the hair. A woman could still model clothing with a hijab on. Also A&F refused to hire a number of women of color in the Gonzalez v. Abercrombie & Fitch case. A&F is now $50 million dollars 'poorer' because of it. I doubt these womens' appearances would affect their ability to model A&F's clothing. Tyra Banks and Naomi Campbell come to mind. I think A&F's problem is that they are afraid of offending their audience. If someone became offended because the 'model' ringing up their purchase was wearing a head scarve they probably are just racist. Or maybe they don't watch TV and have never seen a woman wearing a hijab. Or maybe they're wondering where the woman wearing a hijab hair has gone. (It's under the hijab) Is a head scarve really that jarring? I mean c'mon.

Side note: Scarves that were modeled after the keffiyeh were being sold at A&F (now on clearance at A&F, I just checked) and many other stores not too long ago. If it was cool to wear a hijab they'd be all over it. Believe me if the right person started wearing hijabs as an accessory and it became cool, A&F buyers would place their orders immediately. Keffiyeh (worn by men) are similar to hijabs in that they are worn on the head. When keffiyeh were trending in this country, everyone wore one around their necks, including Rachel Ray and Kanye West, A&F models were no exception. They wore their's shirtless.

[I_luv_saber]

Originally Posted by Inquartata

I'm not getting involved in this one beyond asking whether the hood on my sweatshirt means that a sweatshirt is a hat...

Not sure, but you better look out for bans on hoods...