Friday, October 11, 2013

129.4 - Update 3: Hijab = no job

Update 3: Hijab = no job

One last update and I have to tell you, this is the one that's really got me steamed. Four weeks ago, I told you about the case of Hani Khan, a 20-year-old Muslim woman who got a job at a Hollister Co. store - Hollister is wholly owned by Abercrombie & Fitch - in San Mateo, California only to be fired four months later because of the hijab, the head scarf, that her religion requires her to wear.

This hadn't been an issue when she was hired, it hadn't been an issue during the time she worked at the store, not until some district manager, some higher-up, said she couldn't wear it because it violated the company's "Look Policy."

The Equal Employment Opportunity Commission agreed this was discrimination and sued on her behalf, leading to, on September 3, a victory in federal district court.

The update here is that it turns out that Khan was not the only Muslim woman to get shafted by Abercrombie & Fitch's creepy obsession with its "look" and the results aren't always as good as hers.

On October 2, the Court of Appeals for the 10th Circuit dismissed a suit by an Oklahoma woman named Samantha Elauf, who charged she was not hired by an Abercrombie & Fitch store in Tulsa, Oklahoma because of wearing a hijab.

As in Khan's case, the EEOC sued on her behalf and as in Khan's case, she won in district court. But the appeals court has now reversed that decision.

It's reasoning revealed why the 10th Circuit Court of Appeals is regarded as one of the most reactionary courts in the entire country. The decision made note of the "Look Policy" and said it is intended to promote and showcase the Abercrombie brand, which "exemplifies a classic East Coast collegiate style of clothing." The court completely embraced A&F's contention that the policy is critical to the health and vitality of its "preppy" and "casual" brand.

By contrast, in Khan's case, the court found that the claim that allowing floor staff to wear a hijab would somehow hurt the company's "brand image" did not "raise a triable issue" - that is, the evidence was so weak that it wasn't even worth the court's time to consider it.

But the 10th Circuit Court didn't care. What A&F says it must have to protect its profits, well, it must have, religious freedom, the Constitution, and the First Amendment be damned.

Descending from the outrageous to the farcical, the court also said that Elauf "never informed Abercrombie prior to its hiring decision that she wore her headscarf or 'hijab' for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie's clothing policy," even though she was wearing the headscarf during her interview.

Well duh of course she was wearing it; it's required by her religion. What kind of fools are these judges?

What's more, it's reasonable to think that as the job applicant she may have been unaware of the details of the "Look Policy" or even that a "Look Policy" existed or even if it did that a hijab would be an issue. It is also reasonable to think that any basically competent interviewer, with this woman wearing a hijab sitting opposite them, would have been aware of a potential conflict and asked if this would be a problem for her - unless, that is, as is also reasonable to think, the interviewer deliberately did not bring it up in order to have a basis for not hiring her, a basis that would be stripped away if she were asked the question and raised the issue of a religious accommodation.

In any event, the whole thing stinks. Abercrombie & Fitch stinks and the 10th Circuit Court of Appeals, looking for any way it can to advance a pro-corporate, anti-worker agenda, stinks even more.

Now, I have to acknowledge to be accurate that A&F changed its policy on this three years ago even as it continues to fight suits so it doesn't have to pay penalties for a policy it now in effect has admitted was wrong. That change does not change the fact that Abercrombie & Fitch stinks.


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