Religious Descrimination at Abercrombie & Fitch?

[dcmdale]

I have been feeling that our current shouting matches are getting a little tiresome... Thoughts?

From Time

Given the hyper-sexualized advertising that Abercrombie & Fitch has long embraced, it is no surprise that the company encourages its employees to let their hair down. But is the company practicing discrimination if it won't hire a young woman who covers her head for religious reasons? Yes, according to the Equal Employment Opportunity Commission. Last week the EEOC filed suit against Abercrombie on behalf of Samantha Elauf, a 19-year-old community college student from Tulsa, Okla., who is Muslim. The suit alleges that Abercrombie "refused to hire Ms. Elauf because she wears a hijab, claiming that the wearing of the headgear was prohibited by its Look Policy," or employee dress code. The suit says that Abercrombie "failed to accommodate her religious beliefs by making an exception to the Look Policy. These actions constitute discrimination against Ms. Elauf on the basis of religion."
Elauf, who had experience working in retail, interviewed for a position at a Tulsa Abercrombie Kids store in June 2008. During the interview, she wore a black hijab, or headscarf, in line with Muslim religious tradition. According to the EEOC, Elauf got word through a friend, who worked in the store, that the headscarf cost her the job. The EEOC alleges that during its investigation, Abercrombie & Fitch flatly told the agency, in a position statement, that "under the Look Policy, associates must wear clothing that is consistent with the Abercrombie brand, cannot wear hats or other coverings, and cannot wear clothes that are the color black." Elauf is suing for back pay and compensation related to emotional pain and anxiety. "If these allegations are true," says Chuck Thornton, deputy director of the ACLU of Oklahoma, "they are serious. In this day and age, it's not acceptable. Certainly, a headscarf is part and parcel of the Islamic experience." (Read "How to Reach Teens in a Recession? Ask A[a {e}]ropostale.")
When contacted for a response, Abercrombie & Fitch issued the following statement: "We cannot comment on pending litigation. We have a strong equal-opportunity policy, and we accommodate religious beliefs and practices when possible. We are confident that the litigation of this matter will demonstrate that we have followed the law in every respect."
Was Abercrombie & Fitch within its rights to enforce its dress code? Title VII of the Civil Rights Act of 1964 prohibits religious discrimination. "It shall be an unlawful employment practice for an employer to fail or refuse to hire .... any individual ... because of such individual's race, color, religion, sex or national origin," the law states. The key language, says Stewart Schwab, an employment lawyer and dean of Cornell Law School, is found in a 1972 amendment to Title VII. This amendment defined "religion." It reads, "The term 'religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business."
This case could hinge on a jury's interpretation of the phrase "undue hardship." If Abercrombie & Fitch had made an exception of its Look Policy for Elauf - a "reasonable accommodation" - would that move have hurt the Abercrombie brand? On the surface, that argument seems specious, at best. Would shoppers at that Abercrombie Kids store have been so jarred by the hijab that they wouldn't have bought the company's jeans? If the company makes that case, it doesn't think much of the religious tolerance of the good folks of Oklahoma. (Read "Abercrombie & Fitch: Worst Recession Brand?")
Still, this case is far from a lock for Elauf. "You can't give a blanket statement that this clearly violates her rights," says Schwab. "Employers often win cases involving dress codes. There's a general feeling that employers are entitled to set an image in their stores." If a company sells sex - you can sometimes find a shirtless male model hanging out in front of Abercrombie stores - let's face it, head coverings aren't ideal.
No matter how the suit turns out, Abercrombie & Fitch doesn't need another headache. The company just announced more dismal sales figures: August same-store sales declined 29%. In 2004, the EEOC sued Abercrombie for limiting its hiring of minorities; that case was settled for $50 million. A British woman sued the company for discrimination after Abercrombie's management allegedly shunted her to the stockroom for wearing a cardigan to cover her prosthetic arm. In August, a tribunal awarded her nearly $15,000. The EEOC has also sued Hollister, a teen retailer owned by Abercrombie, for allegedly firing a Pentecostal worker who asked to dress more modestly. That case is still pending.
As for Elauf, she is under attorney's orders to keep quiet about the case. But her grandfather, Ata Elauf, is clearly irked. "They put a wedge into her Americanism," says Elauf. "She grew up here speaking the language, going to school. Why did they do this? She's sort of confused."
Read "Brief History: Affirmative Action."
View this article on Time.com




http://news.yahoo.com/s/time/2009092...08599192560700

[migopod]

I personally don't see why it's a big deal for a private business entity to discriminate based on religion.
If they're not federally funded, I don't personally see why they should be required by law to disregard religion in hiring decisions.

Say I was hiring pharmacists, I'd want to consider whether their religious beliefs would prevent them from filling prescriptions, and probably preferentially hire a pharmacist who would fill prescriptions over one who would not. Similarly, I would probably not want to hire Jews and Muslims to work in a meat-processing plant that specializes in pork products.

The government's beholden to the whole 1st amendment, but A&F isn't. Why should they have to make reasonable accommodations for religious belief?

[I_luv_saber]

\
Say I was hiring pharmacists, I'd want to consider whether their religious beliefs would prevent them from filling prescriptions, and probably preferentially hire a pharmacist who would fill prescriptions over one who would not. Similarly, I would probably not want to hire Jews and Muslims to work in a meat-processing plant that specializes in pork products.

I think that would probably fall under the necessary requirement of "undue hardship".

I don't like where that would be heading...

It'd be far to easy to discriminate and not hire a Muslim just because someone does not like Islam (not to mention as a workaround for racial discrimination), or not hire a practicing Jew because someone doesn't like Jews (another backdoor for racism)...

[MyrddinsPrecint]

They might want to rethink their "look" policy--- this isn't the first time it's gotten them into serious trouble. Like a couple months ago when a woman who was told she had to work in the stockroom where no one could see her during the summer, so that no one would see her prosthetic arm.

http://jezebel.com/5289492/abercromb...he-look-policy

[JackOfHearts]

I don't see why anyone would want to shop at A&F, let alone work there. Still, I guess a job is a job in this economy. Strictly speaking, I really don't think anyone should apply for a job if the nature and/or duties of the job would go against their religious beliefs. I once went out with a girl that worked at A&F, and yea, they pretty much want their employees to be models for their brand. A hijab is certainly eye catching, but not so much as to detract from their merchandise, I would think. Being a privately owned company doesn't, or rather shouldn't, excuse discrimination.

[chase]

Does she also think that she's being discriminated against by being turned down by a modeling agency looking for a swimsuit model?

[erooMynohtnA]

How is this religious discrimination? It's not. It's much worse than that, it's hat discrimination.

Seriously though, if my religious customs are such that I need to wear Adidas clothing all the time, I don't expect Nike to hire me.

[migopod]

I think that would probably fall under the necessary requirement of "undue hardship".

I don't like where that would be heading...

It'd be far to easy to discriminate and not hire a Muslim just because someone does not like Islam (not to mention as a workaround for racial discrimination), or not hire a practicing Jew because someone doesn't like Jews (another backdoor for racism)...

If I insisted that I had an absolute first amendment free-speech right to wear a tee-shirt with a slogan like "F*** JESUS" I would probably win in court if I were arrested walking down a public street. If I were fired from my job because I refused to cover or remove the same shirt, I doubt I'd have a free-speech case that I could win. Especially if I were fired from a job in a Christian bookstore for wearing that shirt.

Aspects of the first amendment, specifically free speech and right to assemble, have been ruled not protected in private places. Shopping malls can limit free expression within their grounds quite legally, so why should they be required to provide reasonable accommodations for religious expression but not political expression?

I'm not saying I agree with A&F's policy on this, but I don't really get why the legal issue. Isn't this what boycotts were made for?

[JackOfHearts]

I'm not saying I agree with A&F's policy on this, but I don't really get why the legal issue. Isn't this what boycotts were made for?

Probably because boycotts don't pay well. She's looking for a job and she's suing for "back pay and compensation related to emotional pain and anxiety". In this economy, I can't really blame her.

[Philistine]

{snip}
Aspects of the first amendment, specifically free speech and right to assemble, have been ruled not protected in private places. Shopping malls can limit free expression within their grounds quite legally, so why should they be required to provide reasonable accommodations for religious expression but not political expression?
{snip}

It's not a first amendment issue, it's a discrimination issue. Title VII doesn't prevent an employer from infringing on a person's first amendment rights--which (private) employers do all the time--it prevents them from discriminating on the basis of race, color, national origin, religion, and sex.

Essentially, in order to be able to discriminate on the basis of one of these traits it has to be shown that the trait really is a bona fidequalification reasonably necessary to the normal operation of the business, and if so, that no reasonable accomadation can be made.

--Philistine

[dcmdale]

I'm not saying I agree with A&F's policy on this, but I don't really get why the legal issue. Isn't this what boycotts were made for?

It shall be an unlawful employment practice for an employer -

(1) 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; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

There are exceptions, but A&F don't seem to fit them.

[migopod]

Probably because boycotts don't pay well. She's looking for a job and she's suing for "back pay and compensation related to emotional pain and anxiety". In this economy, I can't really blame her.

But boycotts could get A&F to change their policy.

[MyrddinsPrecint]

It's not a first amendment issue, it's a discrimination issue. Title VII doesn't prevent an employer from infringing on a person's first amendment rights--which (private) employers do all the time--it prevents them from discriminating on the basis of race, color, national origin, religion, and sex.

Essentially, in order to be able to discriminate on the basis of one of these traits it has to be shown that the trait really is a bona fidequalification reasonably necessary to the normal operation of the business, and if so, that no reasonable accomadation can be made.

--Philistine

Seriously, even the one armed girl was going to be allowed to work in the stock room until the winter line came in and she was allowed to wear long sleeves.

[telkanuru]

How is this religious discrimination? It's not. It's much worse than that, it's hat discrimination.

Seriously though, if my religious customs are such that I need to wear Adidas clothing all the time, I don't expect Nike to hire me.

This, pretty much.

[migopod]

There are exceptions, but A&F don't seem to fit them. [/indent]

I'm suggesting that perhaps the law shouldn't provide special exemption because of religion.
Why should religion have a higher legal status than say political affiliation?

[JackOfHearts]

But boycotts could get A&F to change their policy.

So could a lawsuit. And again, boycotts cost money. Which she doesn't have. Because she couldn't get a job. Which could be because they didn't want to hire her over the hijab, as a friend of hers had said. Which if true could have them compensate her should she win the suit. And maybe then she would boycott them. More likely she'd buy a new outfit and keep applying for jobs. I know I could use some new shirts.

[JackOfHearts]

I'm suggesting that perhaps the law shouldn't provide special exemption because of religion.
Why should religion have a higher legal status than say political affiliation?

So you'd rather be turned down for a job because of the political party you're a part of?

[Philistine]

I'm suggesting that perhaps the law shouldn't provide special exemption because of religion.
Why should religion have a higher legal status than say political affiliation?

Presumably because religious discrimination has generally been far more prevelant and virulent historically than political party affiliation.

--Philistine

[telkanuru]

So could a lawsuit. And again, boycotts cost money. Which she doesn't have. Because she couldn't get a job. Which could be because they didn't want to hire her over the hijab, as a friend of hers had said. Which if true could have them compensate her should she win the suit. And maybe then she would boycott them. More likely she'd buy a new outfit and keep applying for jobs. I know I could use some new shirts.

The thing is, they didn't hire her not because she was a Muslim, but because she was wearing a hat and wouldn't take it off.

[JackOfHearts]

The thing is, they didn't hire her not because she was a Muslim, but because she was wearing a hat and wouldn't take it off.

Even a hat can have religious significance. Not to sound un PC (And really, there's too much of that as it is) but if a seven-eleven worker can wear a turban, is it so unreasonable for A&F to allow a hijab?