Saturday, September 4, 2010

Scarf Wearers Need Not Apply

I have what on the surface seems like a simple question. Should a retail company be able to set a dress code that forbids its sales employees from wearing head coverings? But, as is often the case, the real-life example is a bit more complicated.

Abercrombie & Fitch, the casual-luxury clothing retailer, is being sued by the EEOC for discrimination based on religion. A young woman in California claims she was denied employment at an A&F store because she wore a Muslim headscarf.

The retailer has a dress code that bans head coverings of any kind, including everything from Yarmulkas to Red Sox caps. Is this woman being denied the right to practice her religion under the First Amendment?

Within reasonable limits, I think a retailer (or any place of business) has a right to project the image it wants in order to best market its product to the target audience. Federal law requires employers to accommodate their workers' religious practices unless they would cause an undue hardship. Would making an exception to its no-hats policy be an undue hardship on A&F? The complainant certainly thinks not:
"The interview crushed me, because I never imagined anyone in the Bay Area would reject me because of my headscarf," the applicant said in a statement released by the civil rights agency. "They didn't just miss out on a hard worker. They lost a customer."
Before you leap to the conclusion that this is a simple case of Islamophobia on the part of the poorly trained HR manager, bear in mind that no single religion is prohibited from wearing head coverings at A&F.

Notwithstanding how poorly the company handled this matter, I say A&F should be able to set reasonable rules on workplace attire and this strikes me as wholly within the bounds of reason. If you feel — for religious or any other reasons — that you cannot remove your head covering, then perhaps A&F is not a good place for you to work.


  1. i agree. A&F is at-will employment. They can fire you. You can quit. You don't have to work there to begin with. If you choose to work there, you must abide by their dress code. intended to project the image of what you look like when wearing their clothes. They have standards on what their employees where and how they wear it, because they want it to be attractive to the buyer. Sell Sell Sell. and the head scarf could negate all of that, possibly create undue hardship. That's all. if you can't take it off for 6-8 hours a day, just don't work THERE.

  2. So much I left out of my book about the psych unit I should have put in. We had a female patient, a Muslim, who of course wanted to wear her head scarf on the unit. Some said she shouldn't be able to do this. She could hang herself with it. My take was that she could hang herself with a robe belt, or a towel. Where there's a will there's a way on a locked ward. She was finally allowed to wear it.

  3. The question here is what constitutes "reasonable." This is not in the same category of a requirement to wear a hair guard or plastic gloves at a restaurant, for example, which has a clear function to protect the public's health. And comparing a religious headdress to a baseball cap is not a valid argument; one is religious in nature, one isn't (though Red Sox fans might disagree).

    The only "image" A&F projects to its customers in this case is one of religious intolerance and insensitivity. The EEOC is correct, and A&F will lose in court.

  4. What's "reasonable" is almost always the question in court actions such as this one. The operable phrase in this case is "undue burden." But where do you draw the line?
    How about a nun looking for part-time work in a nightclub (or at A&F, for that matter)? Should she be allowed to wear her fabric and wimple? A Mormon who wants to work in a bar and grill but is prohibited from being around alcohol? Would he have the right to insist that no booze come within 20 feet of him?
    What if it can be demonstrated that A&F will lose business if their salespeople wear religious headdresses of any kind? Would that be OK with you? I think the company has to be allowed reasonable latitude in determining what their employees wear -- particularly in retail clothing sales. And this strikes me as "reasonable."

  5. Clearly we draw the line in a different place. I'm not seeing how allowing a woman with a head scarf to work in the store could be interpreted as "undue hardship." It's not as if the store has to make any difficult adjustments, as in the other hypotheticals you give. The idea that the store would lose business on the basis of an employee wearing a symbol of her religion is both difficult to prove and based on an underlying assumption that shoppers would be offended by the display of religious affiliation. Even if it could be proven, do we want to encourage that kind of behavior? I think not, and as I said, I predict that any court will easily find against the store.

  6. I don't think this case will ever be litigated. A&F will settle it as a nuisance and the 18-year-old will surely accept.
    I am troubled by the idiotic HR guy asking her if she was a Muslim. I think that's illegal and it might have given her the opening she needed to move forward with her complaint.