Abercrombie & Fitch is struggling. Its brand isn’t what it used to be. Its CEO, Mark Jeffries, is kind of ridiculous. In 2013, ANF’s stock declined by 30%, a staggering figure many have attributed to the media’s negative perception of the company, due in part to Jeffries’ comments about how his company thrives on its exclusionary values—the company wins the undying loyalty of its target consumer base by not catering to outsiders. Firing Jeffries from the chairmanship did little to help the company, which is about to go before the Supreme Court against the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing workplace discrimination laws.
Samantha Elauf, a Muslim teenager, had been wearing a hijab, or headscarf, since she turned thirteen. She applied to work as a model in one of ANF’s stores but was rejected because ANF didn’t allow hijabs in the workplace. The store doesn’t sell headscarves, and wearing one would supposedly distract from its brand. The “look policy,” as it is commonly known, requires employees who interact with customers to dress in a manner that reflects the company’s brand. The idea is that if you walk into a store and see a bunch of good-looking people wearing a certain style of clothing, you’ll be more likely to purchase that clothing. ANF’s “all-American” style leaves little room for cultural diversity, so when Elauf wore a hijab to her interview, she was rejected on the grounds that her personal style did not suit ANF.
The Civil Rights Act of 1964 (CRA) forbids workplace discrimination on the basis of religion. ANF, of course, contends that it rejected Elauf not because she was a Muslim but because she wore a hijab. Company policy dictates that interviewers cannot question a prospective employee about her religion. Since Elauf didn’t notify her interviewer that she wore a hijab for religious reasons, ANF believes it can’t be held accountable under the CRA.
Title VII of the CRA states that it is illegal for a company to not hire an individual on the basis of their religion. Title VII defines the term “religion” as “includ[ing] all aspects of religious observance and practice, as well as belief.” Unless ANF can show that Elauf’s hijab places an “undue hardship” on its ability to conduct business, it cannot be the sole reason for not hiring her. I specifically mention the word “belief” because part of ANF’s argument is that since wearing a hijab is not mandatory in Islam—many Muslim women choose not to wear one—Elauf cannot claim it as a required religious practice.
That reasoning displays a fundamental misinterpretation of religious rights. Just because Christianity doesn’t require you to go to church every Sunday doesn’t mean going to church isn’t an exercise of a sincerely held religious belief. The mere existence of sincere belief in a practice and its value to religious observance is enough for it to be protected by the CRA. Rights—including the right to religion—are rooted in the individual and cannot be governed by one Islamic Studies professor’s interpretation of the Koran.
The main point of dispute before the Supreme Court will be that, with the understanding that the CRA prohibits employment discrimination based on religion, to what extent must the employer be informed of the particular religious accommodation for it to be liable? This is a tricky question because, as the federal government contends in its suit, many employees are not aware that their religious beliefs conflict with company policy. In fact, Elauf was told by a friend who works in the same store that hijabs were acceptable as long as they were not black. It is logical then that, assuming the hijab was not a problem, Elauf would go into the interview and make no mention of her Islamic faith. Aren’t we encouraged to leave religion at the door unless it is absolutely relevant? To Elauf, it was not relevant.
Turns out, it was not even necessary. The woman who interviewed her testified that she “assumed” Elauf was a Muslim because of the hijab that she wore to the interview. Yes, EEOC guidelines specify that employers shouldn’t make assumptions about employees’ religious beliefs, but in this case, Elauf believed she was communicating her need to wear the hijab by wearing it to the interview. The headscarf is hardly considered secular anymore, especially since banning headscarves has become a tool of promoting secularism. The post-9/11 resurgence of the hijab has fueled growing awareness of cultural appropriation. The headscarf is now viewed as a symbol of Islamic identity, rather than any old accessory.
It is very likely that had Elauf mentioned her religion at the interview, it would have been viewed as superfluous at best, radical at worst. The interviewer did not tell Elauf that hijabs were not allowed in the store. If she had, perhaps Elauf would have disclosed that she wore it for religious reasons, and this conflict would have been avoided. But it was against ANF’s interest to explicitly ban hijabs when doing so would violate the CRA. Rather, it informally banned them by having prospective employees rejected for not having the “right style.” (Although, since settling a lawsuit last year, ANF has officially allowed hijabs in its stores; the current conflict precedes this decision.)
Clearly, ANF believes its ideal customers are popular, outgoing, “cool,” and most importantly, all-American—in other words, white. So if a competent racial minority decked out in catalog-perfect ANF style applied to work in the store and was rejected, wouldn’t that be racist, even if the rejection was all in pursuit of cementing the company’s brand? The fact is we have laws against discrimination. There are people—myself included—who believe the Civil Rights Act goes too far in restricting the rights of private businesses. But as long as the CRA exists, corporations must operate within its bounds.
ANF’s narrow interpretation of the CRA renders the CRA useless in preventing discrimination against religious minorities. So far, three Circuit Courts have held that an employer only needs “enough information about an employee’s religious needs to understand the existence of a conflict between the employee’s religious practices and the employer’s’ job requirements” (Brown v. Polk County, 1995). The interpretation above does not demand an explicit communication of that conflict but merely the knowledge of a conflict, which obviously existed since the employer knew Elauf was a Muslim and that the hijab presented a religious conflict with the job requirements, rather than a deficit in personal style. The employer must have understood that the hijab posed a religious conflict since it was what alerted her to Elauf’s Islamic faith in the first place.
At stake here is ANF’s right to operate its business the way in which it wants. Broad restrictions placed on businesses are burdensome on their growth and prosperity. The harder it is to profitably conduct business, the less of an incentive you have to do so. That’s why it’s important not to read the CRA too broadly; a rigorous interpretation of the text will provide citizens with the rights granted by the law while ensuring a minimal burden placed upon private businesses.
A rigorous interpretation is enough to rule in Elauf’s favor. The text of Title VII makes no mention of an explicit verbal communication requirement. Supposedly that was a rule created by judges that can now be overruled by the Justices. The rule might have been born out of a conservative judiciary hesitant to extend civil rights legislation to yet another minority, but judges should remember that they do not make the law—they only interpret it—and however much they dislike it, the CRA is here to stay. They ought to get used to it.