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 (9^th 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.