The Supreme Court yesterday decided a case we’ve discussed here at CLR Forum (including in this podcast), EEOC v. Abercrombie & Fitch, concerning the department store’s decision not to hire a job applicant because her head scarf conflicted with the store’s “look policy,” which prohibited all “caps.” The rejected applicant sued pursuant to a federal nondiscrimination provision that prohibits “disparate treatment” on the basis of religion, among other categories. There was a dispute in the case about what the employer knew about the applicant’s reasons for wearing the headscarf and about whether the prospective employee must so inform the employer before bringing a claim.
The decision is short and not especially interesting. In an opinion by Justice Scalia, the Court held (8-1, with Justice Alito concurring only in the judgment and Justice Thomas concurring in part and dissenting in part) that in order to prevail on a disparate treatment claim under the “disparate treatment” provision of Title VII, a plaintiff need not show that a defendant had “actual knowledge” of the plaintiff’s need for a religious accommodation. The plaintiff need only show that the need for an accommodation was a “motivating factor” in the decision. Much of the rest of the majority’s opinion was consumed with interpreting the meaning of “because of” in the statutory phrase, “fail or refuse to hire…any individual…because of such individual’s…religion….” According to the Court, the provision prohibits certain motives, irrespective of the actor’s state of knowledge. The decision accords with what many scholars believe is the primary function of antidiscrimination statutes–to smoke out and punish illicit motivations, irrespective of what is known or not known as a factual matter.
One mildly interesting section of the opinion responds to Abercrombie’s claim that a religion-neutral policy like the Look Policy cannot “intentionally discriminate” against religion. As in the case of the Religious Freedom Restoration Act, Title VII, said the Court, requires more than a neutral policy:
But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not “to fail or refuse to hire or discharge any individual . . . because of such individual’s” “religious observance and practice.” An employer is surely entitled to have, for example, a no- headwear policy as an ordinary matter. But when an applicant requires an accommodation as an “aspec[t] of religious . . . practice,” it is no response that the sub- sequent “fail[ure] . . . to hire” was due to an otherwise- neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.
Justice Alito concurred only in the result, arguing that the statute does impose a knowledge requirement but that there was sufficient evidence in the record to defeat summary judgment on the question whether Abercrombie knew that the applicant needed a religious accommodation. Justice Thomas dissented on the ground that application of a religion-neutral policy cannot constitute “intentional discrimination.”
Over the past few years, secularism has become an intrinsic component of discussions on religious freedom and religious governance. The question of whether states should restrict the wearing of headscarves and other religious symbols has been particularly critical in guiding this thought process.
Refashioning Secularisms in France and Turkey documents how, in both countries, devout women have contested bans on headscarves, pointing to how these are inconsistent with the ‘real’ spirit of secularism. These activists argue that it is possible to be simultaneously secular and religious; to believe in the values conveyed by secularism, while still remaining devoted to their faith. Through this examination, the book highlights how activists locate their claims within the frame of secularism, while at the same time revisiting it to craft a space for their religiosity.
Addressing the lacuna in literature on the discourse of devout Muslims affected by these restrictions, this book offers a topical analysis on an understudied dimension of secularism and is a valuable resource for students and researchers with an interest in Religion, Gender Studies, Human Rights and Political Science.
Next month, Stanford University Press will publish The Headscarf Debatesby Anna C. Korteweg (University of Toronto) and Gökçe Yurdakul (Humboldt University of Berlin). The publisher’s description follows.
The headscarf is an increasingly contentious symbol in countries across the world. Those who don the headscarf in Germany are referred to as “integration-refusers.” In Turkey, support by and for headscarf-wearing women allowed a religious party to gain political power in a strictly secular state. A niqab-wearing Muslim woman was denied French citizenship for not conforming to national values. And in the Netherlands, Muslim women responded to the hatred of popular ultra-right politicians with public appeals that mixed headscarves with in-your-face humor. In a surprising way, the headscarf—a garment that conceals—has also come to reveal the changing nature of what it means to belong to a particular nation.
All countries promote national narratives that turn historical diversities into imagined commonalities, appealing to shared language, religion, history, or political practice. The Headscarf Debates explores how the headscarf has become a symbol used to reaffirm or transform these stories of belonging. Anna Korteweg and Gökçe Yurdakul focus on France, Germany, and the Netherlands—countries with significant Muslim-immigrant populations—and Turkey, a secular Muslim state with a persistent legacy of cultural ambivilance. The authors discuss recent cultural and political events and the debates they engender, enlivening the issues with interviews with social activists, and recreating the fervor which erupts near the core of each national identity when threats are perceived and changes are proposed.
The Headscarf Debates pays unique attention to how Muslim women speak for themselves, how their actions and statements reverberate throughout national debates. Ultimately, The Headscarf Debatesbrilliantly illuminates how belonging and nationhood is imagined and reimagined in an increasingly global world.
Hilal Elver offers an in-depth study of the escalating controversy over the right of Muslim women to wear headscarves. Examining legal and political debates in Turkey, several European countries including France and Germany, and the United States, Elver shows the troubling exclusion of pious Muslim women from the public sphere in the name of secularism, democracy, liberalism, and women’s rights.
After evaluating political actions and court decisions from the national level of individual governments to the international sphere of the European Court of Human Rights, Elver concludes that judges and legislators are increasingly influenced by social pressures concerning immigration and multiculturalism, and by issues such as Islamophobia, the “war on terror,” and security concerns. She shows how these influences have resulted in a failure on the part of many Western governments to recognize and protect essential individual freedoms.
Employing a critical legal theory perspective to the headscarf controversy, Elver argues that law can be used to change underlying social conditions shaping the role of religion, and also the position of women in modern society. The Headscarf Controversy demonstrates how changes in law across nations can be used to restore state commitments to human rights.
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.
At the Becket Fund’s blog, Mark Rienzi has an interesting analysis of the Abercrombie & Fitch case I discussed last week:
The decision is important for two reasons. First, it is a reminder that, in a religiously diverse country, people of different faiths will have different needs. Some workers need to wear headscarves, some need Saturdays off, some cannot assist with abortions or capital punishment. The sensible response to most of these differences is to accommodate them—to recognize that our society is filled with wonderful differences, and to find ways to work around those differences without kicking people out of their jobs.
The case is also important for arguments the Administration chose not to make. It did not argue that Ms. Khan had forfeited her religious freedom rights when she voluntarily went to work for a profit-making company. It did not say that she would only have religious liberty if she cabined her job search to Muslim religious organizations. It did not say that because she was earning money in the commercial marketplace she had somehow forfeited her right to conduct herself in accordance with her religion.
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)).
My St. John’s colleague, Rosemary Salomone, has written an essay on proposals to ban religious dress in French universities, “Should the Veil Be Banned in Higher Education?” Here’s a synopsis:
The piece discusses competing approaches to the uniquely French concept of “laicite,” a form of secularism, and the current debate in France over a proposal from the High Council for Integration to ban ostensible religious signs or clothing from French public universities. Though the proposal does not mention Islam, Professor Salomone argues that the target clearly is the wearing of the Islamic “hijab” or headscarf. Professor Salomone questions the reasons offered for the ban, based on alleged incidents of religious conflicts in universities, which the Minister of Higher Education and Research and the president of the Conference of University Presidents refute. She warns that banning the veil would unjustly deny some Muslim young women their only option for higher education and further isolate them culturally and religiously. She further suggests that the debate ignores the forces of globalization, transnationalism, and European integration, the consequent rise of “world citizens” among the younger French population, and the gradual integration of Muslims into French society that inevitably will loosen the French approach to “laicite,” and perhaps sooner than the current debate would lead us to believe.
