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While I'm all for freedom of religion, I don't think that companies should be required to make exceptions to generally applicable policies such as these to accommodate someone whose religious beliefs are at odds with the policy. The company has a policy that no headgear is to be worn; the prospective employee has a policy that she has to wear a headscarf (clearly headgear). Why should the company be the one that has to give? She's free to work for a company that doesn't have policies that conflict with her religion. If she really wants to work for Abercrombie, she should be the one who has to change.
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@Esquire99: I work for Abercrombie and I can totally understand the whole look policy reguards. We are based soley on our image and I think this young girl was just trying to get money. Im sorry but it's not a secret what we base our image on, so why would we have to accomindate for someone? This kind of stuff really gets me upset. I just think someone people are idiots. Go cry to someone else. (by the way, yes I know my spelling is pretty off in some words.. sorry). But seriously... stuff like this makes me sick. Too bad for Abercrombie!
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@Esquire99: Does A&F have a policy of No Headgear?
If someone wanted to wear a baseball cap and A&F insisted they choose between the hat or the job (or have them work in the back), then their case would be more persuasive.
@mythago:
You would be correct, which is why I tried to limit my comments/analysis to what I think the law should be, not necessarily what it is.
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@Esquire99: I kind of agree with you, but A&F has been so dickish about this policy in the past that it's very very difficult to side with them.
I wish they would just die.
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You know, my employer has that exact same policy - with a religious exemption. Unless it's religious in nature, leave the headgear at home. Not that hard.
@Esquire99: The law already thought of that one... it's called the \"reasonable accommodation\" standard. Somebody whose religion requires them to avoid meat cannot force their way into a line job at a slaugherhouse; the religious belief interferes with the required duties of the job. A blind man cannot force his way into getting a job shelving books at the library.
An A&F employee wearing a head scarf can still do every job a non-head-scarf-wearing employee can, she just cannot comply with the \"look\" policy. Therefore, allowing an employee to wear a headscarf is a reasonable accommodation.
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@sirwired: This. And the thing is, an employee wearing a headscarf (or a yarmulke, or a turban, or other religious headgear) can comply with the \"look\" policy, barring the headgear portion. If she's willing to wear the clothes they require and can perform the actual duties of the job, then I don't really see where they have a leg to stand on. And really, it's not like she's wearing a full-length abaya or a burqa or something- it's a hijab, which plenty of women wear, which won't prevent her from wearing Abercrombie's clothing or prevent customers from seeing said clothing.
The thing is, I might have marginally more sympathy for Abercrombie in this if they hadn't already demonstrated a completely cavalier disregard for discrimination laws (in several countries) both with regard to the \"look\" policy and independent of it. They've already been nailed for discriminating against disabled employees, disabled customers, black employees, discriminatory hiring and promotion practices... they're a scummy company that has obviously learned nothing from previous judgments against them, and at this point, I hope they go down. I'd have no problem with a huge punitive settlement coming out of this; maybe then they'll reconsider the profitability of wantonly violating anti-discrimination laws.
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@FaustianSlip:
If the look of their employees is a Bonafied Occupational Qualifier then they can force their employees to dress a certain way.
Since they are a clothing store and they want their employees to show off their clothes it would be very easy for them to show that their clothes are Bonafide Occupational Qualifiers.
This lawsuit is obviously being filed by someone ignorant of the law.
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@threadislocked: Speaking of ignorant of the law, you don't seem to understand what BFOQ means. It means actually being able to perform the job duties. For example, being male is a BFOQ for being a sperm donor. It is not a BFOQ for being a flight attendant, even if the airlines wants to sell tickets with a Sexy Stewardess promotion.
If you think it is \"very easy\" for an employer to simply Looks Policy themselves into a BFOQ, please tell me where you practice law; I know some plaintiffs' employment lawyers who would love to be on the other side of a lawsuit from you.
@mythago: @Esquire99: As someone who does work in employment law, these comments are making me want to bash my head into the nearest wall. If the law were as Esquire99 wants it to be, then we'd all be in huge trouble. People who say that religion deserves no protection often get very prickly when their own religion (or lack thereof) is the one that is being discriminated against. If religion affords no protection, then businesses can insist that all employees wear a cross necklace to work, or all pray together at the 4pm break every day, or that jews need not apply, or that you're not allowed to eat beef, pork, seafood etc., ever...even when not at work. Geez, why not say that businesses get to beat anyone who comes into the store who isn't the right religion. As long as they post a sign on the door, who's to keep these businesses from practicing their business model in whatever way they choose? Not me, that's for sure. After all, anyone can just choose not to follow their religion and turn their back on their beliefs - if they want a job that is. While we're at it, why not insist on skin lightening treatments for minorities to make them more white-like? After all, with all the advances in skin lightening, being dark-skinned is really just a choice, like religion, and doesn't deserve any special protection any longer. It's not like America has a history of making anyone who isn't white and christian (and the right kind of christian at that!) feel unwelcome. All these anti-discrimination laws are just outdated and silly.
And for those that say only people who follow their religions tenets 100% all the time deserve protection - when religion itself is highly interpreted and there are a multitude of different branches and sects to every religion...that all interpret what is required of their followers, coupled with the fact that every religion recognizes that it is impossible to follow the rules 100% (Catholic confession, for example)...
...aaagh! Today is a day where Consumerist comments make my brain melt.
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@whim17: I have to agree with you - the comments are a bit much. I've worked in the employment sector for a long time and this seems like an easy case. Companies have tried to play this game(especially facial hair and headgear) and have usually lost. Of course, companies are welcome to try.
Even hard-core EDS which had a very strict dress code back in the 1990s had religious exemptions.
@whim17:
I do think there is a point at which policies become discriminatory. I think if the policy, on its face, is discriminatory (you can wear hats, just not hijabs or yalmukes) that isn't proper. However, when the policy is one of general applicability (no headgear, period) I don't think companies should be forced to accommodate religious beliefs. I think the situation you described involved forced prayer in the workplace is also over the line; clearly that's not just a general business policy (with business justifications) that isn't aimed at religion.
The policy in place at Abercrombie, on its face, seems to be one that is generally applicable to every employee. No employee is allowed to wear headgear at all. I don't think it's appropriate for them to be forced to make an exception because of someones religious beliefs.
I do agree with you regarding the argument regarding selective practice. I don't think it's appropriate to question someones motives by pointing out that they practice A, B and C of their religion, but not D.
@Esquire99: Policies of general applicability that are on their face neutral, but in application have the effect of discriminating against a group or groups of people is called adverse affect discrimination and has been unlawful for quite some time.
Blue eyes only at A&F. That's a policy of general applicability. White people are affected (if they have brown or green or are alibino), BUT almost all minorities are precluded from working there because blue eyes are almost non-existent in any race other than white. You are left with an all white workforce due to a rule of general applicability. Totally legal under your presumption.
Adverse effect discrimination has been held to be unlawful with height restrictions for firefighters and police officers because Asians and women are on average shorter than white men. The result is that it has a adverse effect on Asians and women.
It's ok if it's a BFOQ - but with the height example, it was found that it was an arbitrary number imposed, and the employer could provide NO good reason as to why it had to be THAT height and no other. They were forced to take the approach where they had to actually measure the candidates based on their ability to perform the job, and not the arbitrary height requirement (Oh Noz! Measure someone based on their actual capabilities and not some arbitrary requirement unrelated to the job functions! How will society survive!?).
It's up to A&F in this case to show that \"no headgear\" is necessary to the capable performance of the job; that the job can't be done without UNDUE HARDSHIP on the part of the employer. That's an incredibly hard argument to make. If they can't make it, they will be required to accommodate this young girl and allow her to wear the hijab (actually, they'll have to allow those who come after her in the future to have the opportunity she was denied).
And to head off any comments... Saying it's a BFOQ because it's part of their look policy is circular (is the policy of no head gear a BFOQ? Yes, because it's in the policy!). Not that you would make that argument, but many others in the comments already have.
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@whim17:
So, no chance the look policy can pass muster on the argument that these employees are, in fact, models? I know that pure looks (heck race) can be a bfoq in, say, screen acting--has it ever worked for retailers or the like? I ask this sincerely, since it's your practice area.
@treimel: That may be a part of the argument that A&F makes, but I can't say for sure, since I'm not knowledgeable about the details of the case, and not privy to what arguments will be made.
As to whether or not it will work, IMHO, I wouldn't bet on it. Are they, in fact, models? Employers often try to use alternate names for job titles to get around some law or another. If I were the EEOC, and that were the argument presented, I would tell the court to look beyond the job title and focus on the actual duties of the job. What do the employees do, and how does the hijab affect the performance of those duties? These employees do everything that retail associates do, they don't pose for pictures or act in front of a camera for commercials (you can say your dog isn't just your dog, but is actually your child, but that still won't get your Chihuahua a booster seat at your local restaurant, if you catch my drift).
A&F doesn't sell wigs, or hair extensions as far as I know. So how does the hijab affect what A&F is selling? Also, she was applying at the KIDS store and would not be wearing the clothes she was selling. And again, is it undue hardship for the employer to accommodate this person? In the jurisdiction where I work, I can almost guarantee that A&F would lose. If I were counselling the employer, I would tell them to settle, no question. I would also counsel them to immediately amend their policy and make an exemption for religious headgear. This girl could have been one amazing employee. She might have been motivated, customer and service-oriented, conscientious and a great sales person. A&F will never know, because of its rigid application of the 'Look' policy.
Of course, where I work, things are less employer friendly than in the States, but I think on this topic, A&F is arguing one stinker of a case.
IANAL
@sirwired: Isn't \"reasonable accommodation\" a concept that's normally reserved for issues surrounding disabilities (at least in the US)? I could totally be wrong about that, but I haven't found much information linking religious accommodation to the term \"reasonable accommodation\". It's usually linked to the ADA.
@billy:
While not using the same words, a similar concept seems to be what the EEOC is going for here.
@Esquire99: Disney takes a unique approach to this issue and, for the most part, gets away with it. Disney takes the position that they are not hiring employees but literally casting a show. Casting directors have greater latitude in selecting cast by criteria that would not be allowed otherwise - height, weight, hair and skin color, etc. It hasn't always worked for them. Storybook used to be purely female cast members and the river attractions, Thunder Mountain and the Jungle Cruise used to be purely male. The courts forced Disney to integrate for those attractions but for the most part Disney has gotten away with this approach. Not to say that that would work for A&F because Disney's primary product is entertainment.
@fantomesq:
Disney will say it that way for PR, but the government only sees Disney and their employees.
Disney must follow the law like everyone else and they do. All Disney has to do is show how certain attire is a Bonafide Occupational Qualifier. Now if a Disney employee does not work in front of customers than Disney would have to allow them to wear religious attire to not discriminate since it is hard to argue a Bonafide Occupational Qualifier, beside safety reasons, when customers never see you.
A chinese restaraunt can make it rule that only chinese people can be waitstaff and that would be legal if they are a chinese themed restaraunt and they make that them their BFOQ. Now if they have a cook position in the back that customer never see then they cannot claim a certain race as a BFOQ.
@threadislocked: Right, but demonstrating BFOQ in terms of ethnic restaurants or stage/screen acting are the typical situations where BFOQ actually works. OTHER applications of BFOQ *don't* usually work. Wilson v. Southwest Airlines is the leading case. SWA lost when they argued that sex appeal was a BFOQ. In other words, they argued that they needed a certain look that only certain women could bring to the company. In the same way, A&F is arguing that they will only hire people who conform to their look (ie, those that don't wear head scarves). If the precedent is Wilson v. SWA, they lose.
On the other hand, if A&F's attorney can make a distinction, they might have something. To me, banning head scarves sounds more like a de facto discrimination. I don't think it makes their case any better.
@threadislocked: And that analysis would pretty much reflect what we see with Disney. On stage, they can pretty much eliminate religious attire. I am yet to see a Disney employee with a yarmulke. Backstage cast members have more latitude.
@sirwired:
You are right the law did think of this situation when they have Bonafide Occupational Qualifiers (BFOQs) which override religious accomodation.
Just as Disney World can force someone to not wear a head scarf in a certain position A&F can also when it is a requirement of the job. A&F is a clothing store they have every right to require their employees to dress a certain way and no religion can take that right away from them.
These religious nut jobs are stupid to think everyone has to accomodate their unreasonable interpretations of their religion. I have friends that are muslim and their religion sees nothing wrong with them not wearing traditional dress when work or sports makes it not practical.
@sirwired:
While that might be what the law is, I don't think that's what the law should be. I simply don't think they should have to accommodate by altering this kind of policy. In fact, I'm not sure that I think they should have to accommodate at all for religious beliefs. I don't think companies should be able to create policies the intent of which is to discriminate, but if they have policies that have an incidental effect of running afoul of certain religious beliefs, I don't think any accommodation is reasonable. Those who are affected should just find work elsewhere.
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@Esquire99: This is a tough one and I'm torn.
On the one hand, it is a tenant of her religion. She should not be prevented from working due to it. However...
If I were A&F, I would argue as a defense whether she is truly following her religion. She shouldn't be able to pick and choose which parts to follow and then beat the company over the head with that. Does she ever eat pork? Does her family own a dog? It might be a little slimy, but I see it as the only real defense against this.
@TuxthePenguin:
I don't think you can really make an argument based on selective practice of the religion. Nearly every practitioner of every religion practices in a selective manner.
I think they should have to prove that the policy was enacted with the intent to discriminate against people based on their religion in order to prevail. If it's simply a policy that is applied to everyone, I think it's absurd that they should be expected to make an exception because someone has a religious belief that conflicts with it.
@Esquire99: Yeah, I agree. I think there are jobs that require people to work on the Sabbath. I think a few different cab drivers in NY got in trouble for refusing to let guide dogs in their cars for religious reasons.
To make a sillier argument, what is to stop someone from suing a strip club for not allowing them to wear whatever religious garment? I mean, that's a strippers job... A&F should be allowed to enforce a specific dress standard for their retail representatives.
ALTHOUGH, if I was the manager, I might have just said screw it and looked the other way on this rule.
@Esquire99: Actually, I think the defense is that the policy against head scarves is a \"bona fide occupational qualification\". It's a defense laid out for employment law discrimination cases. Essentially, the employer CAN discriminate when such discrimination is necessary to do the job. I remember that I read about a case from Southwest Airlines that spoke directly about this. It was a long time ago. When Southwest started out, they had a policy of only hiring sexy women to be flight attendants (no men). They got sued on discrimination charges. The defense was that they were in the business of providing airplane rides with sexy flight attendants (see:
).Anyway, the defense didn't work. A&F will probably say that their \"look\" doesn't include head scarves, but it seems like a court would probably say that it's more reasonable and easier for A&F to tolerate a variance in their \"look\".
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Next up, bacon manufacturer sued for refusing to hire workers whose religious beliefs forbid the handling of pork products.
@kateblack: I agree.
Let individuals make choices. If others dont agree with their choices they can refuse to hire them or do business with them. Discrimination laws should be for non-choices such as race.
@kateblack: For what it's worth, anti-discrimination laws generally make exceptions for \"bona fide\" requirements of the job. For example, you can discrimate by sex when hiring a washroom attendant.
I've read that Hooters has used this successfully to defend hiring only good-looking girls as wait staff.
If A&F fights this, they'll probably claim that their desire to project a certain image makes this \"look policy\" a bona fide requirement.
@kateblack: Also real life example is the cab drivers in Minneapolis who would/will not transport anyone carry alcohol or animals. The drivers are a group of Somali immigrants.
@kateblack: \"Next up, bacon manufacturer sued for refusing to hire workers whose religious beliefs forbid the handling of pork products\"
I don't know if you're merely joking or whether you attempted to make a serious analogy. If it's the former, stick to jokes. Your situation is not even remotely analogous to what's going on here..
Some religions bar the consumption and handing of certain foods. One being pork. It would simply be impossible for a bacon manufacture to accommodate such a person.
However, in this present situation, there is simply nothing keeping Abercrombie & Fitch from accommodating this lady, other than their stubborn and illegal refusal to change their discriminatory rule.
@kateblack: That is not really the same at all.
@kateblack:
You joke about it but a checker at Target wouldn't touch my bacon. She called in someone else to slide it across the scanner.
If your religious beliefs conflict with the policies of your job, I feel you should either bend your beliefs or find a new job.