An update on the California headscarf litigation I discussed earlier this month. Abercrombie & Fitch has settled the lawsuit and agreed to allow Muslim employees to wear headscarves while on the job. A federal district court in California recently ruled that A&F’s refusal to allow headscarves on the job violated US employment discrimination law. A&F has agreed to pay the plaintiff in the case, Hani Khan, $48,000 and unspecified attorneys fees. The Guardian has the full story, as well as information about other headscarf litigation against A&F.
Here’s an interesting case that reveals much about the way American mass marketers view religion and “diversity.” This week, a federal district court in California ruled in favor of Umme-Hani Khan, a Muslim teenager who sued her employer, the retailer Abercrombie & Fitch, for religious discrimination. A&F fired Khan, whose job required her to restock clothes on the sales floor of an A&F store in San Mateo, because she insisted on wearing a Muslim headscarf, or hijab, on the job. The headscarf, A&F told her, was inconsistent with the firm’s “Look Policy,” a set of grooming and clothing requirements for employees.
The Look Policy is meant to project a consistent A&F identity to consumers who favor the brand–mostly kids between 18-22. You can see an illustration in the photo above, from A&F’s London store. Head coverings are out; shirts, apparently, are optional. A&F occasionally grants exemptions from the policy to employees who wish to wear religious garb or symbols, but only if the garb or symbols are not visible to others. Just judging by the outfits in the photo, that can’t be the case very often.
But back to Ms. Khan. A&F obviously fired Khan because of her attempt to exercise her religion. Under federal and state employment laws, though, a firm can fire an employee if accommodating the employee’s religious practice would create an undue burden for the firm. Here, A&F argued, allowing Khan to wear her headscarf would create such a burden. Allowing departures from the Look Policy would confuse customers and detract from their in-store experience. And consumer confusion would injure A&F’s brand identity and detract from sales. Simply put, allowing Khan to wear the headscarf would cost A&F money.
The problem was that A&F didn’t show that it had lost any sales because of Khan’s hijab. A&F speculated that consumers would be confused or irritated by the sight of Khan in a headscarf, but could point to no actual incidents. Nor did A&F offer convincing evidence about the negative effect employee headscarves had on sales at other clothing firms. On the record presented, the court ruled, there was no reason to believe that allowing Khan to wear her headscarf would pose an undue hardship for A&F . So Khan prevailed on her claim.
All this is straightforward employment discrimination law. What makes the case interesting is what it reveals about the mindset of mass-market retailers like A&F. Like many such retailers, A&F makes a big deal about its commitment to “diversity,” including religious diversity. According to its website, A&F recognizes the “25 different dimensions of diversity that make up who we are” (only 25?), such as “race, gender, family, sexual orientation, work experience, physical ability, and religion.” So it’s a little strange that A&F would fire a teenage stocking clerk who did nothing more offensive than wear a headscarf to work for religious reasons, and compound the PR mistake by litigating the case in federal court. What gives?
I can think of three possibilities. First, the people at A&F are clueless. Other recent PR disasters for A&F–like the suggestion that the firm doesn’t want heavy women wearing its clothes–render this explanation somewhat plausible, but I doubt it. You don’t become a successful retailer by being clueless. Second, the people at A&F are hypocrites. They talk a good game about tolerance and diversity, but are secretly bigots. This explanation is more plausible than the first, but still unsatisfying. I expect the people at A&F, especially the marketers steeped in our media culture, have internalized the diversity imperative. They really do wish to be “inclusive” and would be shocked to find out they’re not.
So here’s a third explanation. In our mass-market culture, “diversity” means something very specific: the right to purchase and wear (but principally purchase) the same products as everybody else. Wherever you come from, whoever your parents are, whichever God you pray to–whatever the precise mixture of those “25 different dimensions of diversity” that make you who you are–you have a right to the Abercrombie Look. To hold that diversity means something more than that, that it might require people to tolerate religious garb and symbols in the workplace, could be divisive and bad for business. And who knows where it would lead? Someone might actually try to wear a visible cross to work.
The case is Khan v. Abercrombie & Fitch, 2013 WL 4726137 (N.D.Cal. 2013)).
An update on an earlier post about an English appellate court decision on the right of Christian employees to decline to work on Sundays. The decision was released to the public last week, and it turns out that initial press reports were a bit misleading.
The case involved Ms. Celestina Mba, a caregiver in a children’s home who wished to abstain from work on Sundays for religious reasons. When her employer told her she would have to work Sundays, Ms. Mba sued for religious discrimination. A lower court held for the employer and, last month, an appellate court affirmed.
Under English law, employers can require Christian employees to work Sundays if there is a legitimate need and the work requirement is proportionate to that need. Press reports, particularly this one in the Telegraph, made it seem like the appellate court had ignored that balancing test and held categorically that Sunday observance is not a core Christian belief and that Christians could be required to work.
As it turns out, the appellate court did discuss the balancing test. The facts of the case were these. The center had accommodated Ms. Mba for two years, but had ultimately determined that allowing her to stay home Sundays put too great a strain on other staff and threatened to disadvantage the children. These were surely legitimate business needs. And the center had only required Ms. Mba to work some Sundays — roughly two out of three. This seemed a proportionate response to that need.
So where did the language about Sunday observance not being a core Christian belief come in? The lower court had reasoned that, because many Christians do not feel an obligation to abstain from Sunday work, abstention could not be considered a core Christian belief. The appellate court criticized the lower court’s language on this point, but basically agreed with the lower court’s reasoning. In determining whether a work requirement were proportionate to a legitimate business need, the appellate court explained, one had to consider what percentage of a faith community the requirement would affect. If the requirement would affect a large segment of the community, that would suggest that the requirement were disproportionate. If, by contrast, the requirement would affect only a small percentage, that would suggest the opposite. Here, the appellate court reasoned, in requiring Sunday work, the center could take into account the fact that many Christians would have no objection at all to working Sundays.
This is all a bit complicated, the way legal opinions often are. Frank Cranmer at the Law and Religion UK blog has a good description of the opinion, if you’re interested in more details. The bottom line is that the appellate court’s decision was narrower and more subtle than the Telegraph’s report conveyed.
Why did the Telegraph get it wrong? The appellate court’s judgment was announced on December 13, but the opinion was not released to the public until January 10. The Telegraph reported the story at the end of December, before the opinion was available. Apparently the reporter relied on lawyers’ accounts of the case.
Today in Strasbourg, a chamber of the European Court of Human Rights heard oral argument in four consolidated cases from the United Kingdom: Chaplin v. UK, Eweida v. UK, Ladele v. UK, and McFarlane v. UK. The applicants in these cases argue that UK courts failed to protect their Article 9 and Article 14 rights by allowing their employers to discipline them for practicing Christianity. Chaplin, a nurse, and Eweida, a British Airways employee, were forbidden by their employers from wearing cross necklaces at work. Ladele, a public registrar, lost her job when she declined, on the ground of religious conviction, to register same-sex civil partnerships. McFarlane, a psychotherapist, lost his job when he expressed doubts as a Christian about the morality of homosexual conduct.
For an American watching the webcast on the ECtHR’s website, today’s hearing offered some surprises. First, the argument was about two hours long, and the judges waited patiently to the end before asking any questions. A note to our readers in Europe: in an American courtroom, the judges would have interrupted in two minutes! Substantively, the counsel for the UK, James Eadie, made some claims that strike an American lawyer as remarkably broad. For example, he argued that Article 9 does not even cover the practice of wearing crosses. Article 9, he argued, only protects religious practices that are “generally recognized” within a religion, and there is no consensus in Christianity that adherents must wear crosses. I’m not aware of any analogous principle in American law. In response to Eadie, Eweida’s attorney, James Dingemans, scoffed at the idea that a practice must be “generally recognized” or “scripturally Continue reading
Here’s an interesting approach to church autonomy. This week, a chamber of the European Court of Human Rights ruled that clergy (and lay employees) of the Romanian Orthodox Church have a right to unionize, notwithstanding the Church’s objections. In 2008, clergy in a Church diocese formed a union to defend their “professional, economic, social and cultural interests” in their dealings with the Church. When the Romanian government registered the new union, the Church sued, pointing out that Church canons do not allow for unions and arguing that registration violated the principle of church autonomy. A Romanian court agreed with the Church, and the union challenged the court’s judgment in the ECtHR. The union argued that the decision not to register it violated Article 11 of the European Convention, which grants a right to freedom of association.
In this week’s decision, the chamber reasoned that, under Article 11, a state may limit freedom of association only if it shows “a pressing social need,” defined in terms of a “threat to a democratic society.” Romania had shown no such need here. The chamber faulted the Romanian court for considering only church traditions and ignoring other important factors, such as domestic and Continue reading
An Orthodox Christian nun in Canada is suing her former convent for wrongful constructive dismissal. The ex-nun alleges that she worked for the convent for 14 years, providing services that included sewing, caring for elderly sisters, and hosting guests, until she quit, allegedly because of mistreatment by the other nuns. She now seeks back pay and damages. The convent argues that nuns are not “employees” in the civil-law sense, but volunteers who vow to live with other nuns in poverty, chastity, and obedience. “Monastic work is for God and not for people,” the convent argues. “It is not a career.” An article from a Toronto newspaper about the lawsuit is here.
Ian Batrum has posted Religion and Race: The Ministerial Exception Reexamined. The abstract follows. — MLM
This essay is a contribution to the Northwestern University Law Review’s colloquy on the ministerial exception, convened following the Supreme Court’s decision to hear arguments in Hosanna-Tabor v. EEOC. I take the opportunity to consider the (sometimes) competing constitutional values of racial equality and religious freedom. I offer historical, ethical, and doctrinal arguments for the position that race must trump religion as a constitutional value when the two come into conflict. With this in mind, I suggest that the ministerial exception should not shield religious employers from anti discrimination suits brought on the basis of race.