We previously discussed a lawsuit against retailer Abercrombie & Fitch over a rule barring the wearing of religious headscarves in their business. Now the United States Court of Appeals for the Tenth Circuit has handed down an important decision in favor of the store involving a woman in Tulsa Oklahoma who said that she was passed over for a job due to her religious dress. The federal government supported Samantha Elauf, 17, in her claim of discrimination, but the court ruled 3-0 against the arguments of the U.S. Equal Employment Opportunity Commission.
The Tenth Circuit ruled that summary judgment was appropriate in the case because the policy is a reasonable condition for employment. In the 76-page opinion below, the panel noted that “there is no genuine dispute of material fact that Ms. Elauf never informed Abercrombie prior to its hiring decision that she wore her headscarf or ‘hijab’ for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie’s clothing policy.” The outcome was driven by the question of notice and the failure of the applicant to tell the store that the scarf was a religious practice and would have to remain in the course of employment.
What is most striking about this decision however is that it raised the right of businesses to maintain a “look” or image of their choosing. While I do not understand why the store would not want a more appealing, multicultural look (particularly for Muslim customers), the company made a strong case for saying that the appearance of employees is important to a clothing retailer:
Abercrombie contends that its Look Policy is critical to the health and vitality of its “preppy” and “casual” brand. . . . This is so, Abercrombie maintains, because it does very little advertising through traditional media outlets (e.g., print publications or television); instead, it relies on its in-store experience to promote its products. Consequently, Abercrombie expends a great deal of effort to ensure that its target customers receive a holistically brand-based, sensory experience. See, e.g., Aplt. App. at 70 (Dep. of Deon Riley, taken Mar. 17, 2011)(“Abercrombie has made a name because of the brand. It’s a fact that you walk into an environment, and it’s not just the smell or the sound, it’s the way the merchandise is set up. It’s the lighting. Most of all, it’s the stylish clothing . . . .”). The “main part” of a Model’s job is to “represent [Abercrombie’s] clothing[,] first and foremost.” Id. at 376. To Abercrombie, a Model who violates the Look Policy by wearing inconsistent clothing “inaccurately represents the brand, causes consumer confusion, fails to perform an essential function of the position, and ultimately damages the brand.”
We have previously discussed the right of businesses to insist on certain looks connected to their corporate image from Hooters to television anchors to other businesses (here and here). Should a company be allowed to create look policies that advance its corporate interests so long as it does not involve racial discrimination?
Since the court based much of its decision on the notice issue, the core free speech and free exercise issues are less clear in cases where notice is given by the employee and the employer refuses to hire the person. If the employee is wearing the store clothing, I am not sure why a head scarf would interfere with the store image or advertising. Indeed, shortly before the ruling, Abercrombie settled similar claims in two California cases by agreeing to change its dress code to allow religious attire.
I can certainly understand the store’s problem with a burka or body covering but a hard scarf seems less significant. Yet, the issue is far broader. Can a store select attract, modern-looking women as part of its advertising effort and company persona?
What do you think?
laserhaas, I totally agree it is not even close to black and white. My opinion is AF is on solid ground, the Hasidic store is not. Just my opinion.
LH,
You can’t embed pictures in WordPress comments, but you can insert the URL of the picture, like this one I snagged off “The Motley Moose”:
http://i550.photobucket.com/albums/ii416/mom4jazz/Motley%20Monday/monday-face_zpsa32ad7d1.jpg
Do you suppose a sales clerk wearing a necklace with a crucifix fit on it would fit in with Abercrombie & Fitch’s preppy image?
Hey J.D. @ 10:28
I don’t believe we can put pics here; but I’ve got a real cute one from my friends at the orange realm – of a weenie dog being pictured as
Locutis of Borgi…
Better question to you Mike Spindell;
What happens when this precedent goes all the way to extremists refusing yids on for a kippa violation?
Laserhaas,
Anyplace that won’t allow a kippa, is a place where no self respecting Jew should work.
It’s standard corporate indoctrination or join-the-cult policies. Do not think outside the box. Do not look outside the box. Do not speak outside the box. And if you don’t like it, don’t say anything about it or risk having other potential employers view you as a rabble rousing miscreant. You are part of the Borg. Resistance is futile.
As much as I hate to say it, since I loathe AF and its image, I believe that a company should have the right to enforce such a policy. Many firms dealing with the public sell their brand based on image. If you analyze “Hooters” beyond the skimpy servers outfits what else can they do when the food is so bad for you?
Laserhaas’ question is indeed unanswered. What did she wear to the interview?
You can have a store, based upon your religion, pointing out that it is based on the religion. However (nick) – it cannot be that you have a store that forbids people to not be of your religion.
It is NOT a simple black & white (erh, should I say, head wear No head wear) issue.
As a non-orthodox yid, I can just hear the heated debate now, when this policy is applied to my more religious friends;
who are then told they can neither wear a kippa (yamaka) – nor can the female wear a wig.
Then the fireworks would roil all around U.S.
Julie N;
Spot on – the F.o.R only applying to Christian desires
I should have pointed out, the Hasid’s don’t allow CUSTOMERS to wear shorts, sleeveless, etc. Making this only a related issue, but w/ a fundamental difference.
LOL – WeenieDog – that cracked me up.
You get a 3 Smiley Award for that one
🙂 🙂 🙂
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A store in NYC, owned by Hasidic Jews was found to be discriminatory by a local Human Rights Commission. The store has appealed. They do not allow “Sleeveless, shorts, low cut necklines, etc.”
Mr. Carlson: Your right to be “free from religion” does not extend to forcing other people to abandon their religious symbols. Your statement is no different from those made by fundie Christians who believe everyone should be forced to pray to the Christian God before football games and assemblies.
That being said, I guess freedom OF religion only counts for Christians, these days.
I think that she ought to apply for a job at Hooters. Cover the head, show the boobs.
I think the notice element is key here and agree with the ruling. Employment is a voluntary agreement and if one doesn’t like the terms of employ then one is not obligated to work for that employer. That being said, AF (from what appears in the press) seems to be a fairly dysfunctional organization to begin with and is struggling with an increasingly bad public image as a consequence. In that regard, this is a victory for them only in the technical sense.
Darrel;
Are you being for real?????
One’s right for freedom from religion….
Seriously!
Look away, don’t go near. For crying out loud. Are we now going to have Malls throw out Hallmark stores who sell greeting cards with a pic of Jesus etc?
Sheeesssshhhh…
There’s also the other question – less important – but more of curiosity;
why she wasn’t wearing the head-wear when interviewed!
I’m believe we are in a dangerous area of unsettled Law; when a precedent can be set to restrict persons common day head-wear.
It is abject discrimination that extremists are now foaming at the mouth to utilize in a manner that makes “protected” sense.
While the head scarf is an expression of religious freedom it is also an affront to those of us who think the most important right of religious freedom is our freedom FROM religion.
What we are talking about here is nothing more than opinions. In many settings it is inappropriate, selfish and damn downright rude to express our opinions and spoil the day and social/business setting for others.
A lot of tee shirts serve the purpose of being aggressive, shocking, bullying, rude and to represent a chip-on–the-shoulder attitude intended to intimidate others. I’ll bet no one is brandishing any of those opinions in their job there either.