Human Resource (HR)

But what if she had worn a mini-skirt with her hijab?

Tiffany G. Hildreth Hits: 1801

alt By now, who hasn’t heard about retailer Abercrombie and Fitch getting in trouble for allegedly requiring their employees to wear less, rather than more, clothing? All summer, reports kept popping up about the EEOC taking action against Abercrombie for purportedly terminating an employee who refused to remove her hijab. Allegedly, Abercrombie did not accommodate the employee’s religious beliefs and allow her to wear her hijab on the job.

Various sources define a hijab as the traditional covering worn by Muslim women that hides their hair and neck. A hijab has also been defined as the Islamic practice of dressing modestly in clothing that covers most of the body.

Abercrombie sells clothes, but its commercial success arguably derives not from what it sells, but the way that it sells. A visit to the official Abercrombie website at 12:30 pm on September 29th revealed, um, quite a bit about Abercrombie’s business philosophy. The home page for this clothing retailer features the face and naked torso of an attractive young man, and absolutely no clothes at all!

The screen then skipped to an advertisement for Abercrombie’s “New Perfect Butt Yoga” pants featuring images of lithe legs and (of course) butts in skin tight-yoga pants, topped by bare torsos. A click onto the “Experience A & F” tab led to an image of a shirtless boy and tousled-hair girl kissing. The “A & F Looks” tab highlighted what appears to be classic fall attire – button down shirts with v-necked sweaters – but the female model also just happened to be bare-legged and sporting a pleated, plain mini-skirt short enough to make an LA Laker Girl blush.

Now, how is it that a young woman who professes to religious views exhorting modesty in clothing and appearance wants so badly to work for a company that, by all appearances, promotes a “less is more” approach to attire? One could certainly question the authenticity of her beliefs, if not her true motives for working at Abercrombie, when the whole concept of Abercrombie seems to violate the very reason she wears the hijab in the first place.

Where a hijab symbolizes modesty, Abercrombie emphasizes sexuality. While one may wear a hijab to diminish the impact of appearance, others shop at Abercrombie solely for the sake of appearance.

It’s easy enough to denounce Abercrombie’s practices and promotion of its “look” comprised of clothing and accessories strategically worn (or not worn), but consumers apparently want to attain the Abercrombie “look” and are willing to pay to do so. Paying customers means more profits for Abercrombie which, if trickle down theory prevails, more money for Abercrombie to support more jobs. Thus, Abercrombie can very well argue that its much-maligned “Look Policy” has a “legitimate business purpose” in aligning its employees’ dress requirements with its marketing strategy.

In fact, most businesses enforce their own “look policies” in support of similar legitimate business purposes. How often do you stand at the counter in a fast food restaurant staffed by employees in day-glo polyester uniforms with hair pulled back out of their face? But, when you reserve a table at a five-star restaurant, you expect to be served by a waiter in understated attire befitting your willingness to pay $20.00 for a cup of soup. One can easily envision the fast food worker being terminated for refusing to wear the uniform or pull back the hair, or the upscale restaurant waiter being let go for insisting on wearing a frayed tie.

So, why can’t Abercrombie enforce the Look Policy at least in regards to the attire it wants its employees to wear (or not), so that its employees visually conform to the very product that Abercrombie sells?

The answer is - it can. It can terminate employees who refuse to conform to the policy for various reasons and it won’t violate Title VII, so long as it enforces the policy in a non-discriminatory manner and it has a legitimate, non-discriminatory business reason for having the policy. BUT, when it comes to employees’ religion, Abercrombie has to reasonably accommodate good faith religious beliefs and practices, even if they contradict the employer’s legitimate business policies.

The EEOC has plainly stated that, when it comes to employer policies, religious practices are simply different than other Title VII protected categories. As noted in Section 13 of the EEOC’s Compliance Manual on "National Origin Discrimination:”

A significant difference between Title VII's coverage of national origin and religion relates to accommodation. Title VII only requires accommodation of religious practices. Pursuant to this requirement, an employer must modify workplace policies that conflict with religious practices unless doing so would result in an undue hardship to the operation of the employer's business. For example, an employer would be required to provide an exception to a dress code to accommodate an employee's religious attire unless doing so would result in undue hardship. If the modification imposed only a minor financial or administrative burden on the employer, it would not impose an undue hardship.

Thus, although Abercrombie may have argued that it is unreasonable to allow an employee to wear attire so contrary to the customer atmosphere that Abercrombie spends millions of dollars to create and promote, the EEOC simply does not care about such notions. It considers only whether the employer will suffer an “undue hardship” that must exceed a “minor financial or administrative burden.”

It’s hard to argue that uber profitable Abercrombie was financially or administratively burdened by allowing a single employee to wear an extra item of clothing that holds such religious significance to her. The argument is even harder to make when she worked as a “stocker” in the stockroom as opposed to a “model” that routinely interacts with customers.

The lesson learned is that, unlike other Title VII protected categories, religious belief/practice has an “accommodation” component that employers themselves must be prepared to accommodate. The only good reason for not accommodating is if the employer would have to spend an undue amount of money, or take on an undue level of administration, to meet the accommodation. Bending a policy on an ad hoc basis does not appear to meet these “undue burden” standards.

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BIOGRAPHY

Tiffany G. Hildreth is a Board Certified labor and employment attorney who represents business clients in labor and employment matters at the firm STRASBURGER & PRICE, LLP. In the administrative law arena, Tiffany represents motor vehicle manufacturers in licensing matters and contested case hearings before the Motor Vehicle Division of the Texas Department of Transportation and in appellate matters before the District, Appellate and Supreme Courts of Texas. Tiffany has also represented clients in a wide variety of commercial litigation and appellate issues. Tiffany mediates employment disputes.

Tiffany's employment practice encompasses all areas of employment counseling, training, transactions and litigation involving federal and state employment laws such as Title VII, TCHRA, ADA, ADEA, Pregnancy Discrimination Act, FLSA, FMLA, Equal Pay Act, Section 1981, Whistleblower Act and Chapter 451 workers compensation retaliation, as well as employment agreements, contracts, stock option plans, noncompete, nonsolicitation, nondisclosure and severance agreements. She counsels and trains employers in navigating complex employment issues from start to finish, including the preparation, negotiation and enforcement of employment contracts, noncompetition and nondisclosure agreements, employment handbooks, HR policies, and employee performance issues. Tiffany also regularly defends employment discrimination, harassment and retaliation claims before administrative agencies and in court. In the noncompete and trade secret protection arena, she has handled TROs and Temporary Injunctions to enforce and also to challenge noncompete and nonsolicitation agreements, and has negotiated resolutions to disputes involving such agreements.