Blissful Ignorance: Abercrombie Can’t Pretend They Didn’t Know They Were Discriminating
By Dana Martin
All fashion enthusiasts will agree that the way we dress is an important aspect of our self-expression. For many people, clothing choices go beyond a way to express their personal style and become a part of their religious, cultural, or gender identity. However, in the working world, an employer has the legitimate right to impose a dress code on his or her employees to convey a sense of professionalism or uniformity in that business. What happens when the right of an employer to enforce a dress code conflicts with an employee’s right to dress in accordance with his or her beliefs? The recent Supreme Court decision, EEOC v. Abercrombie and Fitch Stores, Inc., highlights the importance of preserving the rights of the individuals even when they may conflict with dress code policies.
Title VII requires that any dress code imposed by an employer not be discriminatory towards any one group and be enforced consistently and evenhandedly. This does not necessarily mean that the dress codes may not be discriminatory in effect. For example, the Abercrombie policy in question, banning any “caps” while at work, is not outwardly discriminatory in that it targets one group over another. Rather, no employee, regardless of religious background, was permitted to wear a cap. The effect, however, was discriminatory against women who wore a headscarf for religious reasons. When a policy is not outwardly discriminatory but still has a discriminatory effect, the employer must allow accommodations and exceptions when requested by employees whose beliefs are contrary to the dress code, unless the accommodation would cause “undue hardship” on the employer. An example of an undue hardship would be a safety or health issue caused by the accommodation for which there is no other reasonable alternative. (EEOC v. Grand Central Partnership – sanitation workers with dreadlocks could not be terminated for refusing to cut their dreadlocks for religious purposes so long as they could reasonably be tied up neatly).
In the Abercrombie case, Samantha Elauf applied for a job at one of the retail stores in Oklahoma. She impressed the assistant manager at the interview, however, was not offered a job because her headscarf conflicted with Abercrombie’s controversial “look policy.” The assistant manager did not ask about Elauf’s religious practices, rather, she assumed she wore the scarf for faith-based reasons and assumed that she would wear it every day. Abercrombie contended at trial that Elauf never requested an accommodation and the manager did not actually know whether or not her headscarf was a religious observance. Therefore – they claim – they did not discriminate by denying her the job since all they knew was that this applicant was violating their look policy. They assert that any suspicions about her religious beliefs were irrelevant without actual knowledge or a request for accommodation. The Court ruled against Abercrombie and held that you cannot deny a prospective employee a job out of fear that they might request an accommodation. Title VII only requires that the adverse employment action be at least motivated in part by religious discrimination. Even though the manager was not positive that Elauf wore a headscarf for religious purposes, she admittedly at least suspected that to be the case and did not hire her because of it. This is sufficient to conclude she was motivated by religious discrimination even without actual knowledge of Elauf’s religion.
The Court recognized that this ruling may require employers to ask prospective employees about their religious beliefs and whether they would need an accommodation. This could potentially lead to stereotyping and uncomfortable conversations. After all, if Elauf did not wear a headscarf for religious purposes but rather as a personal fashion choice, Abercrombie would have been justified in requiring that she take it off in compliance with their policy or risk being terminated. However, the interest in preventing discrimination before the prospective employee has even had a chance to request an accommodation outweighs this potential for awkward conversations.
Abercrombie is no stranger to discrimination law suits. In 2004, they settled a case in which they were accused of keeping minority employees in back-room, stocking positions and reserving the sales floor spots for white workers. The result was a $40 million settlement and an agreement on Abercrombie’s part to hire diversity recruiters at the corporate level. Even more similar, in 2011 the company settled a suit in which a Muslim woman was fired for refusing to remove her headscarf. Allowing headscarves was determined to be a reasonable accommodation, and “distracting from the brand” was not considered an “undue hardship” on Abercrombie. Here, Elauf’s case was a great victory in taking protections for an individual’s right to dress according to their religious beliefs in the work place one step further. The effect of this case is that employers will not be able to use “I didn’t really know” as an excuse to cover up discriminatory motives in hiring practices. It is important that the court continue to recognize how important clothing choices can be to one’s sense of self and protects that right in the work place and beyond.
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