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Balancing Act: On Compromise Between Businesses and Workers

By Zoe Almeida, 2015 Religious Liberty Essay Scholarship Contest winner

Click here to watch Almeida read her essay to the BJC Board of Directors

Americans take great pride in describing our nation both as a free society and as a free market. The United States government has always tried to balance the rights of businesses with the rights of the individual. This conflict has been the basis for landmark legislation over and over again, from the Square Deal to the New Deal and beyond. The relationship between workers and management in the United States has radically shifted over time, and is poised to shift once more as the Supreme Court attempts to make a decision in the milestone case brought against Abercrombie & Fitch by Samantha Elauf.

In 2008, a 17-year-old Muslim woman named Samantha Elauf applied for a sales position at an Abercrombie & Fitch store in Tulsa, Oklahoma. After initially receiving a high score during her interview with the store manager, she was ultimately rejected on the grounds that she didn’t fit the Abercrombie company’s “look policy.” Elauf, who wears a hijab, was told by manager Heather Cooke that Abercrombie & Fitch employees are not permitted to wear “hats” at work. Religion was not discussed during the job interview, though Cooke later admitted she had assumed that Elauf wore the scarf for religious reasons; regardless, Cooke declined Elauf for the job. The U.S. Equal Employment Opportunity Commission (EEOC) has taken up a lawsuit on Elauf’s behalf, arguing that the actions of Abercrombie employees amount to religious discrimination.

The EEOC’s case is based on Title VII of the Civil Rights Act of 1964, which states in part that “It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.” According to the EEOC, Title VII applies to “any practice that is motivated by a religious belief” including the wearing of religious garb and symbols and that accommodation for such practices must be made insofar as doing so does not place “undue hardship” on employers. Undue hardship is defined as anything greater than a de minimis cost on the operation of the owner’s business.

At first glance, the legislation seems cut and dry; but upon closer inspection, one can spot numerous ambiguities in the law. For example, what constitutes a religious belief? Must employers really tolerate anything an employee does, if he claims he does it for a religious reason? Returning to the Civil Rights Act, the term “religion” “includes all aspects of religious observance and practice as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship.” The EEOC also defines religious beliefs as “all aspects of religious observance and practice,” both those of organized and obscure faiths. The Commission expands the definition within its own documentation to even secular beliefs on morals and ethics “which are sincerely held with the strength of traditional religious views.” The sincerity of religious and moral beliefs are usually not called into question in religious discrimination cases, as there is no clear protocol to determine it; the EEOC recommends employers who question the sincerity of an employee’s belief “ask an applicant or employee for information reasonably needed” to evaluate any requests for religious accommodation. If all this seems vague, it’s because the law is vague; the law is, after all, written to accommodate every possible rights violation. The application of the law depends on careful and judicious interpretation.

One can fairly interpret the law as requiring that an employee’s very strong beliefs — moral or religious — must be accommodated, provided doing so does not place undue hardship on the company. But what constitutes “undue hardship” remains unclear. There is no solid answer found in the Civil Rights Act, beyond that it must be greater than a de minimis cost upon the operation of the business. One might argue that misrepresentation of the image of a company should qualify as an undue hardship upon an employer. One could argue that distorting a company’s image alienates its fan base and in this way may place a profit hardship upon the company. Abercrombie & Fitch turned down Elauf for a position at their store because her headscarf broke with their “classic East Coast collegiate style.” Whether or not the concept of this look is logical — do Muslims not exist on the East Coast? — the Abercrombie company absolutely has the right to try to create and enforce a dress code it feels reflects this look. But here we find the crux of the issue: does Abercrombie & Fitch’s right to cultivate a brand image outweigh the rights of its workers to express their beliefs? Is it asking too much of a company whose livelihood depends on its “look” to accommodate deviations from that look, even on religious grounds?

Any resolution to the conflict between Elauf and Abercrombie must include a compromise between the interests of both parties. Private companies have the right to establish the environment of their own stores, down to the dress code. But Samantha Elauf’s headscarf could not significantly change the image of the entire Abercrombie & Fitch organization; claiming that the detail of an individual’s uniform threatens the image of the entire franchise is not credible. Therefore, the burden upon the company to accommodate is not an undue hardship. Abercrombie & Fitch could have accommodated dress code by requesting Elauf don a headscarf in company colors, or perhaps in a style altered slightly to represent their brand of “collegiate” style. Or they could expand that image to appeal to a more diverse, realistic, and representative, group of college students.

To let the image of the brand trump Elauf’s rights to religious expression would set a negative precedent, one which lower courts and subsequent Supreme Court cases would be required to follow (a concept called stare decisis). If the Supreme Court decides in favor of Abercrombie, it trivializes religious belief; deciding in favor of Abercrombie says that businesses can ask an individual to act against what are often their very deepest convictions in the service of a brand concept. If Abercrombie can succeed in lawfully banning hijabs, where does it end? Couldn’t it also then ban turbans, crosses, the Star of David? Further, if Abercrombie is allowed to screen out job applicants based on religious garb, there is no reason why other companies won’t adopt the same method. This could make it harder for members of minority faiths in America to get jobs at all.

Letting the scales tip in favor of Abercrombie opens a Pandora’s box of legal and moral issues surrounding expression of faith. In order to fairly balance the interests of the company with that of the individual, a compromise should be made which allows for religious expression which does not stray too far beyond the set dress code. Balance is key to keeping our country a free society: between private practices and public interaction, between private business and individual rights.

Note: This essay was written before the U.S. Supreme Court’s June decision in EEOC v. Abercrombie. Visit BJConline.org/Abercrombie to learn about the case and decision.

To learn more about the Religious Liberty Essay Scholarship Contest, visit BJConline.org/contest.

Civil Right Act of 1964, §§ Title VII-701-718 (1964). Print.

Totenburg, Nina. “High Court Leans Toward Religious Protection In Headscarf Case.” NPR. NPR, n.d. Web. Feb. 2015.

U.S. Equal Employment Opportunity Commission. “Questions and Answers: Religious Discrimination in the Workplace.” Questions and Answers about Religious Discrimination in the Workplace. U.S. Equal Employment Opportunity Commission, n.d. Web. Feb. 2015.

From the September/October 2015 Report from the Capital. Click here to read the next story.