Monday, November 18, 2013

Abercrombie and Fitch's "Look Policy" & the First Amendment

Walk into any mall clothing outlet and you’ll notice that employees often conform to a distinct and often narrow style of dress. While some store employees might find the dress code annoying, what happens when some find it a strain on their religious free exercise? Two such cases were decided recently, both involving Abercrombie & Fitch. In one case, Umme-Hani Khan was fired from her position in an Abercrombie stockroom for refusing to remove her hijab, a religious headscarf worn by women in the Islamic tradition. The second case also dealt with a hijab, where Halla Banafa alleged she was not hired because of it. A third case is also cycling through the court of appeals and is identical to the latter case above.

Abercrombie has defended itself by arguing that its employees must follow its “look policy”, a strict dress code that perpetuates the company’s brand and image. It is considered an important component of their marketing strategy, and they justify its enforcement because it is constituted as “commercial free speech”.

The question at heart here is two-parted. For one, does “commercial free speech” trump individual free speech, and secondly do the religious overtones of the case indicate that a violation of the free exercise clause has occurred? To address the former concern first, Abercrombie’s look policy dictates that no headgear may be worn by any employee. That is a generally applicable policy that appears neutral. However, as pointed out by the dissent in Oregon v. Smith, a generally applicable law does not protect the minority and does not automatically make it immune to amounting to religious discrimination. Banning headgear in general is acceptable commercial free speech, but not accommodating an individual because of their religion appears as a blatant violation of free exercise. Wearing the hijab is a fundamental religious practice to the plaintiffs, and thus this case more closely deals with free exercise and accommodation.

The ninth circuit court utilizes two tests in order to determine religious accommodation cases:

A plaintiff must first establish a prima facie case. If successful, the burden then shifts to the employer to show that it “initiated good faith efforts to accommodate reasonably the employee’s religious practices or that it could not reasonably accommodate the employee without undue hardship.” (Peterson v. Hewlett-Packard Co., 358 F.3d 599, 606 (9th Cir. 2004).

The plaintiff accomplished the first facet by establishing that they would incur significant burden by complying with Abercrombie’s dress policies. Accommodation was not made as the employer fired the plaintiff for non-compliance. Abercrombie could only claim undue hardship, but ultimately that was found to be unsubstantiated. The court did not find the “look policy” to be so crucial to the company’s marketing success as they were unable to provide any evidence that the wearing of the hijab bore any detriment to the store’s sales. Abercrombie also argued that its employees are “living advertisements” and thus they have a right to force conformity amongst their employees’ dress. The court argued that since the plaintiffs in this case amounted to stockroom workers, they were not in the public eye and thus could not be classified as “living advertisements”. Subsequently, judgment was in favor of the plaintiffs.

Is this the correct decision? The argument that supports Abercrombie is that businesses are allowed to discriminate based on characteristics that would be considered “bona fide occupational qualifications”. This loophole in the employment discrimination law dictates that otherwise discriminatory practices can be overlooked if they would prove undermining to a particular business model. Companies such as Hooters or Catholic colleges utilize this practice when hiring female waitresses or Catholic faculty members, respectively. The latter example shows that religion can be used to legally filter employees. I ultimately agree with the Court in that both the “undue hardship” and “living advertisement” arguments seem weak. In Wilson v. Southwest Airlines, bona fide occupational qualifications were analyzed and it was determined that customer satisfaction alone cannot be a determination in cases utilizing the law as a defense. In essence, this is the core precept of Abercrombie’s argument and thus is invalid through precedent. The plaintiff, or rather anyone, should have an equal opportunity to work wherever they want, and by refusing to accommodate a hijab Abercrombie is practicing religious discrimination under the free exercise clause. Looking at the broader implications of these cases, do you think a private business has a right to tailor their policies to this extent, even if it excludes certain religious groups? Keep in mind that they only believe they are doing what is best for their economic success and survival (although I personally disagree with that belief).

Here is the full complaint.


Maddie C. said...

I agree with Ben that the plaintiffs should be given the accommodation to wear their hijabs at work. The court denied Abercrombie and Fitch’s argument that they were “living advertisements” because they were stockroom workers and would not be seen by the customers. I think that even if these employees were working in the public eye of the company, they still should be allowed to wear their hijabs. I don’t think the company would suffer a large enough burden as a result that could override the employees’ right to free exercise of their religion.

Jennie M. said...

I agree with Ben that employees should be given accommodations to wear religiously-mandated headgear while working, especially because those who work behind the scenes in stockrooms. I think Maddie was right to take this case a step further and argue that all employees should be accommodated regardless of the position in which they work, behind the scenes or visible to the public.

Having a rule stating that no employees can wear headgear seems neutral and Abercrombie & Fitch can control the appearances and looks of their employees to some extent. But this rule does not treat people equally in practice and unconstitutionally prevents free exercise.

Cori T said...

I agree with everyone thus far: the employees should be given the accommodation. I understand that Abercrombie sees its employees as "living advertisements" but agree with the court that the point is moot if Abercrombie cannot show how employees wearing hijabs negatively affects sales. I do not know how much business goes on in the stock rooms either...

Sayeh B said...

I agree with Ben and the above comments in this case that the woman should be accommodated. Especially because the worker was not visible to the public eye and only working in the stockroom, there was no way she could negatively influence sales by wearing her hijab. What I would be interested to see is what the court would decide if the woman was working in the actual store (and visible to customers) and fired because she was wearing a hijab. I'm not completely sure how this would go because on the one hand, the store has the right to discriminate against who they hire (not necessarily based on her religion, but on various factors) but the woman also has her right to exercise her religion and wear her hijab. I think in that case though I might side with the store and say they do not have to hire her as they are trying to sell a product, and if they don't believe she can adequately do that (whether it's because she's wearing a hijab or not), then they are not obligated to hire her.

Mike Spear said...

I feel that this employee was never given a fair shake and was certainly discriminated against due to her religious obligations. A&F has no right to infringe on their employees rights to free exercise if it effects the "look" they are trying to generate. I really cant imagine the company losing a significant amount of business because of religious head wear. I am confident that we will see very similar outcomes in these particular cases.

Yessica M said...

I agree with everything that has been said so far. Sayeh brings up a very good point. If a specific store is seeking a particular individual to sell their product then they can refuse to hire someone who does not fit their image. Although, I must admit that this can be very murky since you can technically say that these people will be discriminated against. I can't help but think about models! Many fashion designers seek someone who strictly fits their image so that the general public can be more inclined to buy their products. And Ben mentioned Hooters and how they are highly selective of their waitresses. I can see the business side in selecting an individual over another but then again is this a legitimate reason to discriminate against? And I still don't know how to answer that.

Tyler J said...

I agree with the above comments that the women in all of these cases should be allowed to wear their religious garb. Like Maddie, I don't believe the hijab places a big enough burden on Abercormbie to allow them to tell her she cannot wear it. As Jennie pointed out, the policy may seem nuetral, but the courts have often dismissed facially neutral policies and laws. One thing I dissagree with, however, is whether it matters that the employee works in a visual capacity. This, to me, seems irrelevant - the woman should be allowed to wear her hijab no matter what.

Gabby D. said...

I am in agreement with Ben and the rest of the commentators. These women's free exercise was clearly violated and I think that they should both be protected from being fired. It is one thing for Abercrombie and Fitch to make a dress code for work in order to create a professional environment. However, they must be sensitive when it comes to religion and different religious customs.

The part I'm a little confused about is that the women had to have been wearing their hijab's when they were hired; so why are they suddenly being fired from their job? Also, the reason A&F provides for firing the women is that the company has a certain look that they want to keep up by why is this relevant if they are working in the back rooms?

I have a feeling a lot of cases like these will be arising for Abercrombie and Fitch