October 3, 2014

The Supreme Court will hear the case about Abercrombie & Fitch's rejection of a sales person who wore a headscarf for religious reasons.

The Muslim woman, Samantha Elauf, who wore a headscarf in her interview, was not hired. 

The company has changed its dress code since then, but it's fighting this case on the ground that it didn't deny her a religious accommodation because she didn't ask for a religious accommodation. That is, it had a dress code that applied to everyone, and she violated it, so she was treated like anyone else who fails to comply with the dress code, not subjected to discrimination based on religion.

If she'd asked for an accommodation based on religion, the company would have had to make some conscious decision about whether an exception to the usual rule could be made. Without having been given that chance, the company argues, there's no discrimination, the company says. The EEOC, which brought the case on behalf of Elauf, doesn't want the burden to bring up religion to rest entirely on the employee. The 10th U.S. Circuit Court of Appeals sided with Abercrombie.
[T]he EEOC says Elauf never requested an accommodation because she didn't know about the "look policy." The agency also claims that Abercrombie was clearly on notice that Elauf needed to wear the headscarf for religious reasons, or else it wouldn't have denied her a job.

Abercrombie's lawyers say the law is clear that an employer must have actual knowledge that a religious conflict exists before any accommodation is offered. The company argues that job applicants "are not permitted to remain silent and to assume that the employer recognizes the religious motivations behind their fashion decisions."
It's not surprising that a job applicant wouldn't want to bring up religious needs during the hiring process, and it's hard to see how the employer is supposed to be expected to bring up something that might have to do with religion. If the EEOC is saying the company should see itself as "on notice" of the need to wear religious garb, that seems to conflict with other things we might want the employer to do, like not bring up religion in a job interview. How proactively religion-conscious do you want employers to be?

ADDED: Here's the PDF of the 10th Circuit opinion (EEOC). I'll extract some highlights:

The company refers to its salespeople as "models" and expects them to exemplify the brand, which it describes as "a classic East Coast collegiate style of clothing" and "preppy" and "casual." The models aren't allowed to wear black, and they can't wear "caps." "Abercrombie expends a great deal of effort to ensure that its target customers receive a holistically brand-based, sensory experience," the court wrote, quoting one of the depositions:
"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...."
Abercrombie claims to hire its "models" to represent this brand, to inform them of the "Look Policy," and not to ask applicants about religion.
If a question arises during the interview regarding application of the Look Policy, or if a prospective employee requests a deviation from the policy (for example, based on an inflexible religious practice), the store manager is instructed to contact Abercrombie’s corporate human resources department (“HR”), or his or her direct supervisor. HR managers may grant accommodations if doing so would not harm the brand.
There's a question in the case about whether Elauf's wearing of the scarf is genuinely religious or simply a form of personal or cultural expression. Even among Muslims, according to the court, citing the EEOC's expert, some think it's not required but choose to wear it "to demonstrate a personal rejection of certain aspects of Western-style dress."

AND: Elauf, according to the court, had a friend who worked for Abercrombie who had told her that there was a Jewish employee who wore a yarmulke — a white one. The friend thought the headscarf therefore wouldn't be a problem — as long as it's not black. Oddly enough, Elauf went to the interview in a black hijab.

The woman who conducted the interview went to her superiors to ask about whether the scarf would be a problem, particularly the black scarf. She testified in her deposition that her district manager advised her to lower Elauf's interview score so she would not qualify for the job. So the interviewer lowered the appearance score from 2 out of 3 to 1. Elauf's friend told her she wasn't hired because of the headscarf.

MORE: The district court granted the EEOC a summary judgment in this case, saying that "it is undisputed that Elauf wore her head scarf at the interview with assistant store manager Heather Cooke, and Cooke knew she wore the head scarf based on her religious belief," and that it didn't matter what Cooke actually said to the district manager (who contradicted her testimony), "because the knowledge of Cooke—who had responsibility for hiring decisions at the Abercrombie Kids store—is attributable to Abercrombie." There was also no issue about any "bilateral, interactive process of accommodation," because Elauf never was told that the headscarf was the problem.

The 10th Circuit said that not only was the district court wrong to grant the summary judgment to the EEOC, but Abercrombie was entitled to a summary judgment simply because it was undisputed that Elauf had never asked for a religious accommodation.

The 10th Circuit looked at the language in the EEOC Compliance Manual, which requires accommodation when there is "a conflict between religion and work" and interpreted it to apply only where the employee has an "inflexible" belief that something is "required" by his or her religion. I question whether that's a good interpretation. There are some religious needs that are serious and could easily be accommodated where there's not any sense of inflexible requirement. (And wearing a headscarf is probably one of these things.)

And I think the 10th Circuit really goes wrong when it looks at other cases where the person is already an employee. It's one thing to say that an employee should come forward and ask for an accommodation and give the employer a chance to figure out how to handle that, but it's quite another thing to allow an employer to reject a candidate specifically because of what it perceives as a need for a religious accommodation and to leave that candidate with no recourse.

rejected because she didn't meet the "look policy," when she showed up for work in the hijab (which she'd worn during the job interview).

CORRECTION: In the original version of this post, I said that Elauf was hired, then fired when she showed up for work in the hijab. That was wrong. Elauf was never hired.

134 comments:

William said...

There's nothing in the Koran that mandates the wearing of scarves, veils, hijabs, etc. I'm not an Islamic scholar, but I believe the instruction is for women to dress modestly. She's not wearing a scarf to act in accordance with her faith but rather for the acclamation of her faith. Jehovah Witnesses do not have permission to pass out leaflets while working.

Writ Small said...

At my company you cannot ask about a person's religion as part of a selection process.

Anonymous said...

I am under the strong impression that the EEOC would have sued them if they had inquired about her religion.

Now they are being sued because they didn't?

Anonymous said...

exactly Writ Small

but I had to type more :)

Alexander said...

1. A private company ought to be able to decide for itself what it's dress code is, and if anyone has a problem with it - don't work there. Even if it's a religious issue, not someone else's responsibility to cater their business to you. But that I grant is more a personal opinion that what the law is or isn't.

2. Why would a devout Muslim want to work at such a place as A&F anyway? Short answer, she doesn't. Just one more chip at the foundation of western nations, demanding that westerners prostate themselves to the desires of Muslims.

Good luck, A&F.

Matt Sablan said...

"it's hard to see how the employer is supposed to be expected to bring up something that might have to do with religion."

-- I thought it was flat out illegal to ask about things like that?

Anonymous said...

I like the work women who pray to the God of Cleavage and show their piety with low-cut tops and push-up bras. They are practically swelling with love for their God.

Lyssa said...

It seems like there's a bit of willful ignorance on the part of the employer here. If, for example, an employee had refused to wear some part of a costume or uniform, but didn't say why, but it turned out to because of, say, the limitations of that underwear that Mormons wear, I would be sympathetic to the employer on the "she had to say that she needed religious accommodation" argument. But you can't expect us to believe that any fully functioning member of modern society doesn't look at a woman in a headscarf and understand that it's likely to be a religious requirement.

(I hate the headscarf thing and see it's requirements as dehumanizing of women, and think that retailers that specialize in fashion should probably be able to forbid them, but that's not the issue as Althouse is describing it.)

Oso Negro said...

Question - Have the Supremes ever defined what constitutes a "religion"? Can an individual simply make stuff up and declare it a religious belief? Or does it have to have been made up a long time ago and have some minimum number of adherents?

Lyssa said...

"I thought it was flat out illegal to ask about things like that?"

A lot of people think that sort of thing, but it's not (the only times it's actually illegal to ask revolve around disabilities). It's only illegal to discriminate, but it's not a good idea to ask in most cases, as it can be used as evidence that you were discriminating (that you cared enough about the issue to ask about it, that you had knowledge about it, etc.)

Unknown said...

How's this?

She can wear her hijab if I don't have to pay for her birth control.

Todd said...

If the "dress code" is really "classic East Coast collegiate style." could she not have just claimed that it was not a Muslim headscarf at all but was in fact a Palestinian keffiyeh that she just wears over her head? That is (or at least was) all the rage at "east Coast Collages"...

MayBee said...

I have a hard time even getting to the legal issues because in general, I want to do as much to discourage the forcing of women to wear these headscarfs as possible in the US.

Bob Boyd said...

@Lyssa

Politcal Correctness is all about willful ignorance.

MayBee said...

Whenever I see (in the US or Europe) a couple with the woman wearing the headscarf, I can't help but think to myself the guy is a dick.

Anonymous said...

Sometimes I hang out at Victoria's Secret and offer women I don't know encouragement and support.

For instance, I might say "I know you didn't ask, but that thong does NOT make your ass look fat."

See? Encouragement.

George M. Spencer said...

She should have applied for a job at Hooters.

Michael K said...

Well, with a president raised as Muslim and with the Muslim Brotherhood devising policy, what did they expect ?

Anonymous said...

Sometimes I will take photos of them, just to show them how an item looks on them. Or to just keep for myself; it depends on the circumstances.

Anonymous said...

I applied for a job at Victoria's Secret -- I wanted to be in charge of handling returns. I still get goosebumps. I didn't get the job, though: I think it was discrimination.

Todd said...

If it is their religious belief to wear it, I don't see an issue. I do have an issue with demanding an accommodation for their religious beliefs. I have seen women in fast food places wearing the ḥijāb without the veil and as it does not impact the business image nor interfere with the performance of their duties, who cares.

An extreme example of this case would be if a woman applied for and was hired to be a bikini model and showed up to work wearing a niqab (I know not quite a match as it is hard to mistake what a niqab implies but you get my point). The business can not be expected to make an accommodation for that.

Fernandinande said...

Alexander said...
1. A private company ought to be able to decide for itself what it's dress code is, and if anyone has a problem with it - don't work there.


That would be true in a country of free citizens, but the EEOC types consider us as subjects, not citizens. The fact these cases exist show that they are correct.

Pastafarian politician takes oath of office wearing colander on his head

The guy looks pretty silly - should A&F be forced to hire people wearing colanders?

Anonymous said...

Sometimes I follow the women with their purchases leaving Victoria's Secret as they go to their car: I want to make sure they don't accidentally drop an item on their way. Many of these women drive fancy stylish cars; I bet the seats smell wonderful.

Ann Althouse said...

"There's nothing in the Koran that mandates the wearing of scarves, veils, hijabs, etc. I'm not an Islamic scholar, but I believe the instruction is for women to dress modestly. She's not wearing a scarf to act in accordance with her faith but rather for the acclamation of her faith."

Courts don't look at what the correct interpretation of some religion is, but only what the individual sincerely believes.

Also, there are religious burdens that we might want to be accommodate even wear the person could forgo the activity without violating her religion.

For example, a Christian might want to wear a cross, even though it's not a violation of her religion to fail to wear a cross.

Anonymous said...

Sometimes when I follow them home they leave their car doors unlocked: the seats DO smell wonderful.

Todd said...

It also says "a Muslim woman who was denied a job because her headscarf conflicted with the company's dress code, which the clothing chain has since changed." so does that mean that they would hire her today, all things being equal because their new policy allows the headscarf? If so, why is this still an issue? The EEOC suit would be to press them to remove the restriction which it appears they already have done. If the woman still wants to work there she should re-apply. Why would the EEOS continue with the suit now if the issue that originally caused the suit is no longer relevant? If the women wishes to bring her own suit OK, but why is the government still involved?

Anonymous said...

I have gotten to the point where I can smell a car seat and determine whether the woman was wearing a thong versus bikini panties. The seat retains the excitement of thongs.

Shanna said...

I hate the headscarf thing and see it's requirements as dehumanizing of women, and think that retailers that specialize in fashion should probably be able to forbid them

I actually think the just a headscarf can be very stylish. If it's not a full hijab, I can see why maybe they thought she just wore it because she wanted to. Like I might wear a hat.

If they don't allow you to wear hats or other headgear, they should have stated that in the interview, though. They probably just didn't want to deal with it.

MayBee said...

For example, a Christian might want to wear a cross, even though it's not a violation of her religion to fail to wear a cross.

Yes, but if she wore it to sell fashion and the employer asked her to tuck it under her shirt, is that something the EEOC should get involved in?

I don't think so.

Anonymous said...

There are few things better in this world than the smell of Mercedes leather coupled with fresh thong.

Don't get me wrong: I don't lick the car seats or anything: I am not a freak.

tim maguire said...

What was the EEOC doing in this lawsuit in the first place? If Ms. Elauf felt she was discriminated against, it should have fallen to her to file suit. How many taxpayer dollars were spent on it?

Doubly so now that the Professor has updated to note she was never hired. The EEOC staffers who filed this suit should be personally sanctioned.

Anonymous said...

Okay, Okay: sometimes I lick the seats. I am compelled by powers I do not understand.

Ann Althouse said...

"I am under the strong impression that the EEOC would have sued them if they had inquired about her religion. Now they are being sued because they didn't?"

I'm still reading the 10th Circuit opinion, but I think the problem is that Elauf was originally scored as qualified, then her score was lowered after some internal discussion of the scarf. The case went to trial, and Elauf won.

But she lost the appeal because of this legal question that the Supreme Court will address: whether the claim of discrimination must always fail when the employee/applicant hasn't asked for the accommodation.

So what if the evidence is clear that the employer saw the scarf, assumed she'd want an accommodation, and didn't hire her because it didn't want to make the accommodation?

Should the applicant automatically lose the case at that point, or can we go on to other issues like whether the employer could have decided that the accommodation was reasonable? (Abercrombie could still have its chance to argue that it needs preppy-looking salespeople for its branding and therefore it would be unreasonable.)

Bob Boyd said...

At Babushka and Frump the dress code is much more liberal.

Ann Althouse said...

"A private company ought to be able to decide for itself what it's dress code is, and if anyone has a problem with it - don't work there. Even if it's a religious issue, not someone else's responsibility to cater their business to you."

Would you say the same thing about a private company that wanted employees to express the brand by being all the same race or the same sex?

MayBee said...

I actually think the just a headscarf can be very stylish.

It can be, it depends how it's arranged.

I can see how Abercrombie thought she was wearing her own style to the interview, but would wear their style while on the job. That's the requirement. They tell the employees what to wear ("this month, we are wearing jeans with white or blue shirts without collars")

Anonymous said...

Women's car seats have more flavors than Baskin-Robbins. No one complains about people sampling ice cream.

Sometimes there is an intersection with pistachio.

Mrs. X said...

Todd @9:31
I read that changed dress code to mean that A&F has likely explicitly banned headscarves, not that they have decided to allow them. You may be right, though.

Anonymous said...

While I am at Victoria's Secret I sometimes see the same guy hanging out at the women's shoe store. Foot fetish people -- now there are some freaks.

tim maguire said...

Know what I'd like to see? An interview with the person who was hired by A&F.

I want to hear this person's thoughts on our government spending her tax dollars to argue she should be unemployed and to punish A&F for hiring her.

Todd said...

Ann Althouse said...
Would you say the same thing about a private company that wanted employees to express the brand by being all the same race or the same sex?
10/3/14, 9:39 AM


Is it acceptable that a Dallas Cowboy Chearleader must be a woman? Or could a man sue for discrimination?

Birches said...

As much as I'm loathe to side with A&F, I think they're right. If the EEOC wins, we're entering thought police territory.

PB said...

So, the plaintiff would have us believe that anyone wearing a hijab (or other religious garment) can't be denied a job because that's prima facie evidence of discrimination?

MayBee said...

Would you say the same thing about a private company that wanted employees to express the brand by being all the same race or the same sex?

I've been to lots of Japanese or Thai restaurants where the waitstaff appeared to be entirely Japanese or Thai.

Hagar said...

Would you say the same thing about a private company that wanted employees to express the brand by being all the same race or the same sex?

Yes.

tim maguire said...

Ann Althouse said...Would you say the same thing about a private company that wanted employees to express the brand by being all the same race or the same sex?

Some people would say yes, that it should be up to the customers to punish the company. If you don't like it, don't shop there. If enough people don't like it, it won't happen. Government busybodies not needed.

It's worth noting that you make an apples and oranges comparison. She can take off the headscarf.

My own view is that employers should have complete discretion in issues relevant to the job and should have no discretion whatsoever in issues irrelevant to the job.

Anonymous said...

A&F just needs to say that their religious beliefs forbid women from wearing headgear and they should then be immune from such lawsuits.

They should also claim that their religion forbids women from assuming leadership roles as well as earning as much as a man does, in case they end up getting sued for that later too.

Anonymous said...

My own view is that employers should have complete discretion in issues relevant to the job and should have no discretion whatsoever in issues irrelevant to the job.

The boss just said it is totally relevant to the job that he gets a BJ every day, because otherwise his mind just isn't into the work. So he'll need to see you in his office first thing every morning.

Oh. It is also his religious beliefs. And yes, they are sincere beliefs. VERY sincere.

chillblaine said...

I would like to apply for a job at a Planned Parenthood clinic. After I am turned down for the position, I will then go to the EEOC and say it was because I am a practicing Christian.

MayBee said...

chillblane-
Just wear a "Choose Life!" tshirt to the interview.

Todd said...

madisonfella said...
A&F just needs to say that their religious beliefs forbid women from wearing headgear and they should then be immune from such lawsuits.

They should also claim that their religion forbids women from assuming leadership roles as well as earning as much as a man does, in case they end up getting sued for that later too.
10/3/14, 9:49 AM


That might just work as long as the founders of A&F hold those beliefs but you may actually mean your comment as sarcasm so I will ask that you please clarify what rights do you think a business or business owner has over who they hire (and why) and what they can / can not require of those they hire (if any)? Thanks.

Ann Althouse said...

I should note that the case went to trial only on damages. (Elauf won $20,000.)

On the merits, the case was decided on cross-motions for summary judgment. That is, the court looked at the depositions and found no triable issue of material fact.

Alexander said...

Ms. Althouse,

Yes, I would. Because I believe in the right to free association.

I believe a person running a private business has every right to do or not do business with anyone he so chooses, for any reason.

If someone's business model means that I can't get a job there because I am white or male or have brown eyes, then that is their decision and I have no right that they provide me with a job and an income.

Real world example: A year ago I was looking at charitable organizations I might join and I saw there was a group doing some stuff in town called Junior League. I inquired with a friend to find out more about them and said friend was amused to point out it was a women's group...

My response was to laugh, make a comment about how that was a bonus(!), and then move on to a more appropriate forum. Not to throw a legal bitchfit.

Jim Howard said...

But you can't expect us to believe that any fully functioning member of modern society doesn't look at a woman in a headscarf and understand that it's likely to be a religious requirement.

Excuse me, but most people do not have your psychic powers.

You can't expect us to believe that a person applying for a sales job at a fashion retail store with a strict dress code should know to mention that he or she needs to wear some kind of special headgear for religious reasons.

The employer interviewing a person in the United States simply cannot ask about or assume anything about an individual's religion. The opposite is not not true.

Beloved Commenter AReasonableMan said...

MayBee said...
I've been to lots of Japanese or Thai restaurants where the waitstaff appeared to be entirely Japanese or Thai.


That's because all asians look the same to you. They are generally all chinese.

n.n said...

MayBee:

The conclusion we can draw is that it doesn't matter until it matters. The exploitation of equal protection to create leverage should be considered in this case. It is known that people and groups will manufacture controversy in order to reap political, financial, or social return. If the company is on trial, then so too is the woman filing suit.

Ann Althouse said...

"Some people would say yes, that it should be up to the customers to punish the company. If you don't like it, don't shop there. If enough people don't like it, it won't happen. Government busybodies not needed."

Which is what happened to Abercrombie anyway in this case. They changed the policy because it made customers think ill of them. No lawsuit was needed… other than that the lawsuit brought the publicity that moved the company.

MayBee said...

That's because all asians look the same to you. They are generally all chinese.

I think you are trying to be funny here, but I have to tell you this isn't true.
I've lived and traveled in Asia. I know traits and more than that, I know accents.

Anonymous said...

I would like to apply for a job at a Planned Parenthood clinic. After I am turned down for the position, I will then go to the EEOC and say it was because I am a practicing Christian.

You may "like" to do so, but you never will actually act on it.


n.n said...

AReasonableMan:

No, it's because the businesses are often family affairs with hiring practices favoring relatives and friends. So, in Chinese restaurants the staff is largely Chinese; in Thai restaurants largely Thai; etc. It's the same phenomenon in Hispanic businesses, where many employees may only speak Spanish.

Anonymous said...

That might just work as long as the founders of A&F hold those beliefs but you may actually mean your comment as sarcasm so I will ask that you please clarify what rights do you think a business or business owner has over who they hire (and why) and what they can / can not require of those they hire (if any)? Thanks.

A company should be allowed to do anything it wishes in regards to its employees as long as it is done in the name of religion. Doesn't matter what it is, nor what the religion is, just so long as the belief is "sincerely" held by the corporation. If the employee doesn't like it then they can find work elsewhere.

What limits would you put on how a corporation decides to practice its religious beliefs?

Anonymous said...

And why does it matter what the founders believe? Can a corporation not be "born again" into a new faith?

n.n said...

chillblaine:

Unless you share Planned Parenthood's faith in spontaneous conception, and that human life is a commodity with arbitrary value, then it's beneath a rational and moral human being to sink to their level of degeneracy. Maybe your plan is worth it in order to expose their degenerate religion, but it will not be realized without sacrifice.

chuck said...

Oh, employers should definitely consider race, gender, and religion. The government, media, and universities do. Who can dispute the example set by our betters?

The Cracker Emcee Refulgent said...

Given that A&F's clientele is primarily hypocritical liberal douchebuckets who would be tickled to condescend to the little Muzzie serving wench, A&F should have hired her, hankie and all. She probably would be their best salesperson.

FullMoon said...

betamax3000 said...

Sometimes I will take photos of them, just to show them how an item looks on them. Or to just keep for myself; it depends on the circumstances.

Miniature spy cameras available thru Althouse Amazon Portal

Michael said...

This is the very thing we should be spending our time on, especially at the Supreme Court. We have gone beyond the comical to an entirely new level that is beyond laughing or even crying or even being totally cob smacked at what rises to the level of being considered important.f

If we could just have a rule that common sense is disqualified all this would be easier to stomach.

MadisonMan said...

People aren't mind-readers. Someone wearing a scarf might have had a bad hair day, or a bad dye job.

I think the Company should not be expected to ask what accommodations all of its potential employees may need.

CatLover said...

If you look carefully, its not just the headscarf. Muslim women are all covered up. You will not see one in anything less than long sleeve shirt, long dress or pants. They show their hands and feet and face only.

Todd said...

madisonfella said...
What limits would you put on how a corporation decides to practice its religious beliefs?
10/3/14, 10:09 AM


The same limits I would put on any individual. Nothing illegal. Nothing that was not directly consented to. Nothing that negatively impacts others rights (not feelings but actual rights). Once you get past that, I really don't care.

To use part of one of your earlier posts, if a business in Nevada wanted to make a requirement of hiring, boss BJs, so what. As long as it was part of the negotiation and not illegal, by what right does anyone else interfere in that transaction / contract?

Todd said...

madisonfella said...
And why does it matter what the founders believe? Can a corporation not be "born again" into a new faith?
10/3/14, 10:10 AM


You are right, I said founders but what I meant was the owners. Be that the actual owner(s), board of directors, employees (if employee owned), whoever. I meant the people. I do not think you could have a business that was proclaimed to be Wiccan but no one that was involved in the business was Wiccan. A business is people. A business is not a person.

DanTheMan said...

OK guys, here's the plan.
1) Dress in a burqa for your next interview... with only a slit for your eyes.

If you don't get the job, you have an instant trifecta lawsuit:
1) Religious discrimination, as you were clearly dressed in a way unique to devout Muslim women
2) Sexual discrimination, as they assumed you were female under all that covering
3) Sexual discrimination, if they guessed you were male, but didn't hire you as a cross dresser who identifies as female

Krumhorn said...

Would you say the same thing about a private company that wanted employees to express the brand by being all the same race or the same sex?

I imagine that you would be reasonably short with a student in your class who tried to equate race or sex discrimination with an accommodation for wanting to let out their inner freak. It's one thing to discriminate because the applicant may be part of a freak protected class. It's another to discriminate because you don't want the freak to sniff the ladies' thongs.

- Krumhorn


chillblaine said...

madisonfella said, "you never will actually act on it."

Did I just hear a double dog dare?

Nah, you're probably right. I actually have a life. Luckily I was conceived before 1973.

Beloved Commenter AReasonableMan said...

MayBee said...
I think you are trying to be funny here, but I have to tell you this isn't true.
I've lived and traveled in Asia. I know traits and more than that, I know accents.


It does depend on where you are. In NYC the restaurants are probably more authentic. Out where I am the Thai restaurant turns into a Chinese restaurant and the Chinese restaurant turns into a Hibachi/Sushi restaurant with the same personnel each time. I know one of the local restaurateurs and he develops Asian restaurants based solely on what he thinks is currently fashionable and the staff come from the same group of immigrant Chinese. Not many people out here can tell the difference.

MayBee said...

I don't think I've been to a place where I didn't see people wearing Abercrombie. It's ubiquitous.

Last year, my husband was in Paris and saw a line going down the block. He thought there must have been a new art exhibit or museum opening. But no. It was the A&F store.

MayBee said...

ARM- yeah, and I think it depends what community you can draw from.
But still, the Asian restaurants seem to have Asian waitstaff. Is it EEOC worthy?
Althouse seemed to equate that kind of hiring to A&F.

Michael K said...

"What limits would you put on how a corporation decides to practice its religious beliefs? "

No cutting off of heads.

Alexander said...

Unless, of course, cutting off heads is a belief sincerely held.

A right to keep your infidel head is a euro-centric concept. Privilege: check it.

William said...

Argument by analogy is imprecise, but suppose the Pope had a hot girl friend. It would be permissible for her to work at A & F , but it would be a step too far for her to take a job at Planned Parenthood.There are limits and all lines are finally arbitrary......A devout Muslm should dress modestly and live chastely. It's my understanding that such a lifestyle is not the goal of those who wear A&F clothes. Isn't "classic east coast collegiate" just another way of saying pre marital sex and threesomes in the dorm?

William said...

Here's an interesting, little known fact. The veil was not part of Islamic practices. They picked it up from Byzantium. So you can say that they're wearing the veil for Byzantine reasons.

MayBee said...

It would be entirely supportable for the EEOC to get involved if they had some evidence A&F were refusing to hire Muslims, even women who did not wear head covering.

As it is, this seems like the EEOC looking for trouble or for a way to send one of Obama's pet messages.
Didn't they sue for a young teacher to be able to take off time to go on her pilgrimage?

cubanbob said...

Ann Althouse said...
"A private company ought to be able to decide for itself what it's dress code is, and if anyone has a problem with it - don't work there. Even if it's a religious issue, not someone else's responsibility to cater their business to you."

Would you say the same thing about a private company that wanted employees to express the brand by being all the same race or the same sex?

10/3/14, 9:39 AM

Gender and race are factors beyond a person's control. Wearing a headscarf is something a person can control and if it means not getting a job at one particular employer for a certain of position, so what. If one is the firm in their beliefs they shouldn't seek employment with an employer in a capacity that would require them to compromise their beliefs. Does Hooters have to employ fat,ugly and flat-chested woman as waitresses? Do modeling agencies have to hire ugly people? The problem with legalizing everything is that commonsense and practical solutions are thrown out the window. A practicing observant Jew or Muslim probably would apply to work as a sales clerk at A & F to begin with but if they did it would be in an other position that wouldn't require them to compromise their beliefs and the employer would almost in all likelihood accommodate those beliefs in another department such as accounting, logistics etc.

Anonymous said...

Ann asked:

"Would you say the same thing about a private company that wanted employees to express the brand by being all the same race or the same sex? "

I've said this on this blog before and I'll say it again.

Yes, absolutely!

The government ought to stay out of the discrimination business.

However, private companies ought to be able to discriminate.

If you want to have only female employees, or only black employees, go for it. If you want only young employees, or only old employees, go for it.

We consumers can make up our own minds based off the decisions you've made.

Big Mike said...

She went there looking for a fight. I'd make her pay Abercrombie's court costs out of her pocket.

Shanna said...

Does Hooters have to employ fat,ugly and flat-chested woman as waitresses?

A new restaurant called Twin Peaks opened last year and we were looking at the facebook page, which listed 'casting calls' for 'model's', which I guess is how they get around discrimination laws? (for those who don't know, Twin Peaks is basically mountain hooters).

Also, they get a tanning package as part of their benefits.

Shanna said...

If you want to have only female employees, or only black employees, go for it.

What does the NAACP do?

Unknown said...

What about if a male insisted on wearing a backwards baseball cap every day, or ten-gallon cowboy hat, or lucky hat with antlers, or a constant fedora? Or even, sans headgear, a pink or blue mohawk?

None of those might be an effective image for presentation to the public. But you can speciously justify anything if you really try. Like having to clutch a tiny white "thera-poodle" to your chest everywhere you go. Your psychiatrist agrees this is necessary for your mental health.

Ahhh. Your "beliefs."

Brando said...

I know it's different from Hobby Lobby because there the religious principle ran against government rather than private action, but I wonder how many people who scoffed at Hobby Lobby's objections are going to sympathize with this woman.

Seems to me if the company's decision had nothing to do with religion, there's no case here. I'd have to read the decision though and can't do that during the O's game.

Ignorance is Bliss said...

Twin Peaks is basically mountain hooters.

I hope they at least have really good cherry pie.

Unknown said...

What if you tattooed an X between your eyes, in sympathy with the persecution of Charles Manson? There were some who alleged his trial was "the second crucifixion of Christ." Charles' Will Is Man's Son.

It's your belief.

MayBee said...

but it's quite another thing to allow an employer to reject a candidate specifically because of a what it perceives as a need to a religious accommodation and for that candidate to have no recourse.


But there is no law that you *have* to hire any one candidate. Yet.

Hagar said...

It is not about fighting "discrimination."
It is about finding something that some group strongly objects to, and then forcing that on that group.
It does not matter much what or who; it is the attntion and the power that counts.

MayBee said...

ISTM "allowing" a company to reject hiring someone they think will require a religious accommodation is exactly the right way to go about things. Especially if that religious accommodation- wearing a headscarf- is against the carefully managed corporate identity, which the employee is supposed to represent.

If she had been applying for the stockroom, she would have come under different selection criteria.

Bruce Hayden said...

It does bother me, that the Obama Administration is wasting resources on something like this. I believe in the free market, and when a company discriminates in this way, its customers should be the ones determining whether the discrimination was justified or not. Apparently being a company that caters to eastern progressive prats, this was not acceptable, and the company changed their policies. I expect the result would have been much different at a Hooters.

I will say that I am discomforted by TSA women wearing this sort of head scarves. The avowed purpose of the TSA screenings that we have to endure in order to fly commercially is to protect us from another 9/11 type terrorist act, which was, of course, perpetuated by Muslim terrorists, in the name of their religion. Whenever I see a woman so dressed, I ask myself (since asking anyone else might end up with my detention) whether they are going to provide their co-religionists sufficient scrutiny to prevent the next terrorist attack, and that leads me to the further thought that it is likely all security theater, not intended to actually make us safer,but rather to make the less knowledgeable among us merely feel safer.

Ann Althouse said...

Some of you want to reargue whether the Civil Rights Act of 1964 should have been passed -- the old libertarian issue.

This isn't really the place for that. This case is about how to apply it. There is a law against private discrimination in employment and it covers discrimination based on religion (as well as race and sex).

Avoiding discrimination against religion has the special problem of needs for accommodations. This case deals with that.

I think a more sharply focused discussion would be helpful here.

Julie C said...

At the rate things are going for Abercrombie (business-wise)this may all be moot. The cool kids shop at J. Crew and Lululemon now.

Fernandinande said...

Fall Look Book 2013
by Samantha Elauf
11 months ago
561 views
Two hijabi fashionistas on a mission to share their favorite fall looks. Details in Video. Be sure to watch and share!

Todd said...

Brando said...
I know it's different from Hobby Lobby because there the religious principle ran against government rather than private action, but I wonder how many people who scoffed at Hobby Lobby's objections are going to sympathize with this woman.10/3/14, 11:22 AM


Sorry but I don't think they are different in the way you are thinking. In both cases a business is being compelled (or sued) to do something it does not want to do. In the first case, it ran against the business owner's religious beliefs. In the second, the compulsion ran against their image goals.

No one was trying to force the woman to work at A&F. In effect she wanted to force them to hire her.

In both of these cases, in my opinion, reasonable people would side with the business. No one is being forced to work at Hobby Lobby nor at A&F. Don't like the corporate culture or job requirements? Look elsewhere.

That "reasonable accommodations" [subjective] standard is a lawyer's wet dream.

Brando said...

Bruce--I'd rather see them wear the scarf so it is clear to others that they may have those religious beliefs and any conflict of interest is on the table.

Though I think a Muslim TSA guard may actually be more vigilant about co-religionists because s/he doesn't have to worry about being called bigoted the way many non-Muslims might. A Muslim American also may have more personal incentive to foil an attack by Muslim extremists, the way a lot of Italian Americans feel about the Mafia.

Brando said...

Todd--the difference I mean is that the law in play in Hobby Lobby doesn't apply here because it applies to government action infringing on people's religious liberty, and here it is whether the company is violating the Civil Rights Act by not hiring this woman. But my point was that a lot of people who mocked Hobby Lobby's religious objections are probably not mocking this woman's religious need to wear the scarf.

Hagar said...

SShould a store specializing in ladies' hygienic supplies be required to hire a male applicant as sales clerk? Particularly one that just gave the lady in HR an uneasy feeling?

Should a store specializing in hair straightening and skin bleaching products be required to hire a "blonde Viking" type?

Fernandinande said...

eric said...
The government ought to stay out of the discrimination business.

However, private companies ought to be able to discriminate.


Funny (Ha and ha!) how it's become the exact opposite: private companies harassed over trivia involving a self-described "hijabi fashionista" looking for conflict, yet the government, at all levels, discriminates by race and sex whenever possible.

'Cuz subjects don't have the same rights as their masters.

richard mcenroe said...

"Would you say the same thing about a private company that wanted employees to express the brand by being all the same race or the same sex?"

You mean like Virago Press, for example, the women's publishing imprint that will not publish men's writing?

Personally, I think Abercrombie & Fitch has gone downhill from the days when you could buy an elephant gun there, but it's their business...

Anonymous said...

"If you want to have only female employees, or only black employees, go for it.

What does the NAACP do?"

The civil rights act for thee, but not for me!

Mary Beth said...

She had a friend who worker there. They discussed another employee wearing a yarmulke but she didn't know about the "look policy"?

I don't shop there and I'm old enough that my first thought when hearing the name is "sporting goods" but I knew there was a policy on how the employees should look.

It would be funny if they really rejected her for another reason but told the friend that it was because of the black headscarf, because being rejected for what she wore would be less hurtful than for being fat or ugly.

Hagar said...

What if Adrian Peterson or Richie Incognito, now unemployed, apply for a position as restroom attendant at the UW-Madison law school faculty ladies lounge?

Jupiter said...

"I think a more sharply focused discussion would be helpful here."

Althouse, you are the one who dragged race and sex into the discussion.

donald said...


"A private company ought to be able to decide for itself what it's dress code is, and if anyone has a problem with it - don't work there. Even if it's a religious issue, not someone else's responsibility to cater their business to you."

Would you say the same thing about a private company that wanted employees to express the brand by being all the same race or the same sex?



I would, it's their company.



Fernandinande said...

"In the tumultuous world of fashion, only the people who have the audacity to push limits and constantly take risks are the ones who stand out and stay ahead of the rest. Samantha Elauf, 22-year-old fashion blogger from Oklahoma, is one such unapologetic champion of fashion.

Rosalyn C. said...

I wouldn't assume that the job applicant would need a religious accommodation just because she was wearing a scarf. She may have been planning to stop wearing a scarf if she got the job. She should have brought up the issue if she needed an accommodation, then sued.

The bigger goal of Muslim women applying for jobs in businesses with established dress codes is some normalizing of the hijab in American culture.They went too far with A&F. How is a symbol of modesty not in conflict with a brand which flaunts sexuality? But somehow this case is not too dumb for the EEOC and the DOJ to get involved.

Rusty said...

MayBee said...
I don't think I've been to a place where I didn't see people wearing Abercrombie. It's ubiquitous.

Last year, my husband was in Paris and saw a line going down the block. He thought there must have been a new art exhibit or museum opening. But no. It was the A&F store.


I quit caring about A&F after they quit being a premium sporting goods store, back in the 70s or 60s. I met the man who bought their last cane fly rod.
I don't think he wore a scarf.

Michael said...

Rusty

I used to test their cane rods in their casting pool on the roof of their then headquarters on Madison Ave.

Was a great sporting goods store.

Jupiter said...

"MayBee said...
I don't think I've been to a place where I didn't see people wearing Abercrombie. It's ubiquitous."

Really? I have never noticed that someone was wearing something from Abercrombie and Fitch. How can you tell? Check their labels?

I sometimes get the feeling that I occupy the same volume of space as other people, but we do not live in the same world.

The Crack Emcee said...

"It's not surprising that a job applicant wouldn't want to bring up religious needs during the hiring process, and it's hard to see how the employer is supposed to be expected to bring up something that might have to do with religion."

Really?

In every interview I've been apart of, across this country and over the last few years, depending on the location, the interviewer has either brought up their religion or sexual inclination, as a pre-warning or threat. Nobody cares about the law. Call them, on it and - unless you recorded them - they'll deny it. (It's the same game whites play with civil rights law - they could give a shit about being racists. Black lives are a game to play with to them.) There is NO reluctance of any kind.

Except on my part.

Because, job offer or no job offer, I always immediately want to get as far away from all of them as humanly possible,...

cubanbob said...

Ann Althouse said...

Some of you want to reargue whether the Civil Rights Act of 1964 should have been passed -- the old libertarian issue.

This isn't really the place for that. This case is about how to apply it. There is a law against private discrimination in employment and it covers discrimination based on religion (as well as race and sex)."

You are right about that. It's time to modify and limit the Civil Rights Act of 1964. Congress can do that and it ought to.

eddie willers said...

I applied for a job at Victoria's Secret -- I wanted to be in charge of handling returns.

I was a buyer of little girl's underwear. I pulled down 400 a week.

Ignorance is Bliss said...

The Crack Emcee said...

In every interview I've been apart of, across this country and over the last few years, depending on the location, the interviewer has either brought up their religion or sexual inclination, as a pre-warning or threat.

You live in a very strange world. I've interviewed for 14 jobs over the past 25 years, and neither religion nor sexual orientation has ever come up. In three of the jobs I've had I've been involved in interviewing job applicants, and again, neither religion nor sexual orientation has ever come up in conversation.

The Crack Emcee said...

cubanbob,

"It's time to modify and limit the Civil Rights Act of 1964."

First the racists went to limit voting, and now they're gearing up for the CRA:

I think somebody's about to get hurt,...

Todd said...

Ignorance is Bliss said...
You live in a very strange world. I've interviewed for 14 jobs over the past 25 years, and neither religion nor sexual orientation has ever come up. In three of the jobs I've had I've been involved in interviewing job applicants, and again, neither religion nor sexual orientation has ever come up in conversation.
10/3/14, 3:37 PM


Me neither but I guess it may depend on what sort of jobs you are interviewing for...

Todd said...

eddie willers said...
I applied for a job at Victoria's Secret -- I wanted to be in charge of handling returns.

I was a buyer of little girl's underwear. I pulled down 400 a week.
10/3/14, 3:36 PM


Eddie, I had more than a few different replies typed out but just could not bring myself to press the publish button...

CatLover said...

Also, in my limited experience. I never see young muslim women dressed in stylish long sleeve shirts and pants or stylish skirts. Their scarf may be nice, but the rest of their clothes are always frumpy. Not good for any retailer.

William said...

Welcome to the snark dome. There's something about the juxtaposition of A&F and chaste Muslms that seems unworthy of the attention of the many high minded constitutional scholars who post here.. As I recall, A&F got in trouble a few years back for featuring lots of nudity in their catalogue. Nothing sells clothes faster than nudity. And then there are Muslims who wish to show their displeasure with the materialism and overt sexuality of western culture. Never the twain shall meet except under the auspices of the DOJ......I think both parties are equally militant and self righteous in the causes they espouse. And I'm not 100% certain of the DOJ''s ability to impartially arbitrate the case. I have a certain amount of repugnance to all parties in the case. It would take superhuman reserves of wisdom and tact not to be snarky about this case.

damikesc said...

If she really was a devout Muslim --- why the Hell would she choose A & F to work at?

Would you say the same thing about a private company that wanted employees to express the brand by being all the same race or the same sex?

I'd dislike it, but the market would kill them far faster than the government could.

UNLESS the race was "not white" and the sex was "female", then it'd be celebrated.

And betamax is KILLING it on this thread.

Jupiter said...

"This case is about how to apply it. There is a law against private discrimination in employment and it covers discrimination based on religion (as well as race and sex)"

OK, let's address that. The law, like hate crime laws, purports to outlaw behavior on the basis of intent. Unlike hate laws, it does not further criminalize acts that are already crimes. It creates new crimes, based upon supposed intent. Since the supposed violators of these laws are almost always corporations, it is factually impossible for them to possess, let alone exhibit, intent. So, the law must either be without any impact whatsoever, or else it must be enforced capriciously, on the basis of clear evidence for what cannot exist. Wherefore, like the insane drug laws, it will necessarily contribute to the growing contempt most Americans feel for the laws, and for the courts, lawyers and law professors who enrich themselves by pretending to administer them.

Now, can we revisit the CRA?

Jupiter said...

It was with the passage of the CRA, that the federal government claimed that private property used for commercial purposes is no longer private property. Since the abuses the CRA purportedly addressed were the work of laws and governments, it was not necessary for the federal government to seize private property to correct them. The laws mandating segregated schools, for example, could have been struck down without seizing any private property. You will note, however, that we still have segregated schools, but the rights of private property have been grossly restricted.

It is my observation that power, granted for whatever reason, will soon be used for other purposes entirely. Power corrupts, and our government is very powerful.

MayBee said...

Jupiter:
Really? I have never noticed that someone was wearing something from Abercrombie and Fitch. How can you tell? Check their labels?

I see the big "Abercrombie" or "AF" on the front of the shirt.

Jupiter said...

I see the big "Abercrombie" or "AF" on the front of the shirt.

I don't recall ever seeing that. I see people with writing on their shirts all the time, but I don't recall seeing that. Weird.

Dave Schumann said...

There's a very interesting aspect to this which is, what if the applicant or employee is *wrong* about the religious requirement?

That's the thread that makes the whole sweater start to unravel. So she shows up and says "my religion, Islam, requires me to wear this headscarf." As part of its rebuttal, A&F cites fatwa X, Y, and Z that say "no it doesn't." [I don't pretend to know whether or not that's the case; this is a hypothetical. Works equally well if a Catholic shows up claiming that her religion requires the headscarf.] So of course the obvious rebuttal is, my INTERPRETATION of Islam says I need to wear the headscarf.

And that's perfectly reasonable. But once everyone's a Pope, then where does it end? Everyone gets to invent FSM-like religions with weirddress and ritual requirements.

In this way it seems like laws and regulations requiring religious accomodation must inevitably become "laws respecting an establishment of religion," because if the State doesn't get involved with defining (and thus Establishing) religion, then these laws are wide-open to abuse.

Bruce Hayden said...

Dave - I would suggest that Roman Catholicism, along with Mormonism, are really the exceptions here, with top down theology. Much of Protestantism, along with Judaism and Islam are not that rigid, or at least there is a lot of theological sorting by congregation. Indeed, 17th and 18th century New England was notorious for this, with each community often picking their (Protestant) clergy to match their theology (or visa versa).

Fernandinande said...

Jupiter said...
...It creates new crimes...


And therefore more job security for lawyers.

Roger Zimmerman said...

As to "that old libertarian issue" about the validity of the CRA:

I believe the vast majority of libertarians support titles I, III, and VI, which ban government discrimination. I do.

It is titles II and VII that substitute coercion for free choice in private employment and service decisions. I'm sure that it is those titles to which the professor refers and which she would prefer this discussion focus on, but not at a fundamental level. She wishes we would only consider their "application" to this case.

Sorry, but the problem with these titles is that they cannot be applied justly at all. Their attempt to separate out crucial from non-crucial business requirements is inherently restrictive of the beliefs (and therefore the 1A rights) of the business owner(s). To the extent that the owners are acting peacefully (and, refusing a job, product, or service to another individual is not acting un-peacefully), the government - or the majority, acting through the government - has no constitutional power to interfere with their behavior.

It does not matter if the owners are stockholders, acting through their managers and employees. The contracts - explicit and implicit - that establish the inter-owner and owner/employee relationships are sufficient to connect all corporate actions back to individuals and their 1A rights. As with many libertarians, I do not believe that "corporations have rights." But, the individuals that have contracted to form corporations sure do.

As others have pointed out, there are numerous ways that unreasonable and/or hateful behavior on the part of a corporation may be sanctioned by free people in a free society. Indeed, the professor asserts that this has happened in the case at hand. The government need not be involved to solve the social problem. But, the government should not be involved anyway, as a matter of justice.

Dave Schumann said...

@Bruce -- I think that's the point. There are lots of "real" religions -- hell, practically all real religions -- where there doesn't exist an authority who can tell the State "yes, our adherents do/do not need to wear headscarves."

That's exactly the problem with these laws. You don't even need to get into obvious hoaxes like FSM. If some micro-flavor of Protestantism shows up and says "our religion requires we wear head-to-toe black" then what? Do you say it's not a religion? But it plainly is.

So the minute that the government passes a law about religious accommodation, it gets into the business of defining religion which is EXACTLY what it's not allowed to do under the 1st amendment.

Jim Howard said...

In every interview I've been apart of, across this country and over the last few years, depending on the location, the interviewer has either brought up their religion or sexual inclination, as a pre-warning or threat.

CMC, I'm going to try and suspend disbelief and assume you are not just lying to us.

What kind of jobs are you applying for?