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The Abercrombie Look

Staff at Abercrombie & Fitch Store, London (BBC)

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)).

Posted on by Mark Movsesian

Religion in Russia

My friend and St. John’s colleague, Peggy McGuinness, alerts me to a worthwhile review essay by the Berkley Center’s Irina Papkova, “Believing in Russia,” on a religion and media blog called The Revealer. Papkova reviews Geraldine Fagan’s Believing in Russia–Religious Policy After Communism (2013). Here’s an excerpt:

Without being iconoclastic, “Believing in Russia” is based on impeccable research, and brings a useful corrective to many widely held assumptions about religion in Russian society.  Journalists writing about Russian politics for major news outlets like the New York Times and the Washington Post usually present a cozy relationship between the ROC and the Putin regime, suggesting that this relationship is detrimental to religious minorities and non-religious Russians. There is some truth to this view but, as Fagan’s work demonstrates, the marginalization of minority faiths has as much to do with bureaucratic incompetence and the weakness of the rule of law in Russia as with the ROC’s plan to obliterate competition from other religions. Fagan tells the story of how religious policy is created and applied across the Russian Federation.  In doing so, she brings to light the role of personalities and personal convictions of bureaucrats in creating guidelines for how the state should deal with religion, and the efficiency with which they are applied.

You can read the whole review here.

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Conference: “Religious Freedom and Equal Treatment: An International Look” (Oct. 11-12)

Brooklyn Law School will host a symposium, “Religious Freedom and Equal Treatment: An International Look,” on Oct. 11-12. Details are here.

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Pearson on Article 9 and the Eweida Judgment

From Oxford’s Human Rights Law Review, an essay by Megan Pearson (PhD Candidate, LSE) on Article 9 of the European Convention on Human Rights, particularly its prohibition on state interference with religious freedom:

Freedom of conscience and religion is probably unique in its potential to challenge almost every area of law. Since society contains a multitude of religious and moral beliefs, many religious people will constantly be faced with practices with which they disagree and will in a myriad of ways be constrained from living an ideally religious life. Not all of this can constitute an interference with the right under Article 9 of the European Convention on Human Rights (ECHR) to manifest belief ‘in teaching, practice and observance’. However, the European Court of Human Rights’ (‘the Court’) approach has historically been unnecessarily restrictive in considering whether an interference under Article 9(1) exists, thus shutting out cases at an early stage of reasoning and before justification is considered under Article 9(2). This approach has been narrowed even further by the British courts.

Article 9 has therefore been of limited use to claimants. The first full case to be heard on it by the Court was not until 1993 as earlier cases were ruled inadmissible by the European Commission of Human Rights. However, the Court’s approach is currently in a state of flux, as demonstrated by Eweida v United Kingdom and is moving to a broader approach that correctly moves the attention to the justification stage.

This article focuses on Article 9(1) and the question of interference. It does not consider when interferences will be justified. The first part will consider various proposals for deciding ‘where rights begin’. It will then address specific questions arising from ECHR and English case law on the topic, considering in particular whether it should be possible to claim an interference where the conflict could be avoided by resigning from employment or taking other similar action. The third section will consider the change brought by Eweida and discuss some remaining issues that have not yet been resolved.

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Lecture: Can Public Reason Accommodate Conscience? (Sept. 4)

The International Center for Law and Religion Studies at BYU will host a lecture by Dean Brett Scharffs, “Can Public Reason Accommodate Conscience?”, on Wednesday, September 4, 2013:

Public reason as a framework for political dialogue has come to have a force in American and European political thought that might have come as a surprise even to its most articulate contemporary defender, John Rawls. But as religious and other minority or dissenting voices are increasingly pushed to the margins of public discourse, a serious philosophical, political, and practical question has arisen about the extent to which public reason can accommodate claims of conscience.  The basic problem can be presented starkly:  if public reason rules inadmissible reasons that are not publicly accessible, is there any reason to respect conscience at all, since by its very nature the claims of conscience may be private and only partially accessible or explicable?  If public reason reigns supreme as a model of public discourse, are claims of conscience doomed?

A live Web broadcast will be available. Details are here.

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ICLARS Panel: Is Religion Special?

Along with my St. John’s colleague, Marc DeGirolami, and other law and religion scholars from around the world, I spent part of last week at the biannual ICLARS Conference, hosted this year at William and Mary and the University of Virginia. Kudos and thanks to the indefatigable Cole Durham and other conference organizers for an exceptionally helpful  and fun event!

I spoke at Friday’s afternoon session, on a panel, “Is Religion Special?”, moderated by Edward Gaffney of Valparaiso. My co-panelists were Barry Bussey of the Canadian Council of Christian Charities and Micah Schwartzman of the University of Virginia. Bussey presented a paper titled, “Does Religion Merit Special Protection in the Law? (Within the Canadian Legal Context).” Early Canadian Supreme Court cases stressed the country’s Christian heritage, he explained. Over time, however, the Court moved to a concern with religion in general. Now, equality often trumps freedom of religion in the Canadian case law–religious freedom is often the “loser.” I presented my working project on the rise of the Nones–the group of people who claim no religious affiliation–and what it might mean for the definition of religion in American law. As an example, I used the recent “Psychic Sophie” case, in which the Fourth Circuit held that “following one’s inner flow” does not qualify as a religion meriting constitutional and statutory protection. Schwartzman closed the panel with his draft, “Religion as a Legal Proxy.” He addressed the argument that, even if religion as such doesn’t merit special legal protection, religion is a proxy for other comprehensive values that do. Schwartzman is skeptical of this argument. For one thing, he said, interests besides religion–conscience, for example–might also serve as effective proxies for other comprehensive values, without raising religion’s particular concerns.

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Zucca on Freedom of Religion as an International Human Right

Lorenzo Zucca (King’s College London) has published Prince or Pariah? The Place of Freedom of Religion in a System of International Human Rights, as part of the Working Paper Series produced by the ReligioWest project at the European University Institute. The abstract follows:

The human right to freedom of religion (HRFR) at the international level is a deeply contested concept and is interpreted in radically different ways in the respective historical constitutional instruments of the US and Europe. It is, for example, embedded in the First Amendment of the American
Constitution, but finds no explicit recognition in the French Declaration of Rights. The question that emerges from this simple starting point is: what is the place of freedom of religion in a system of protection of international human rights? Is there a single answer to this question, or is it a deeply contingent matter that depends on discrete constitutional histories? This paper attempts to unravel this deeply contentious issue, which goes to the very core of disagreement about the nature of the human
rights to freedom of religion. Lacking agreement as to what constitutes freedom of religion, international intervention should limit itself to the bare minimum in this area. This renders freedom of religion a pariah at the international level.

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Fox, “An Introduction to Religion and Politics”

This April, Routledge published An Introduction to Religion and Politics: Theory and Practice by 9780415676328Jonathan Fox (Bar-llan University, Israel). The publisher’s description follows.

An Introduction to Religion and Politics offers a comprehensive overview of the many theories of religion and politics, and provides students with an accessible but in-depth account of the most significant debates, issues and methodologies. Fox examines the ways in which religion influences politics, analyses the current key issues and provides a state of the art account of religion and politics, highlighting the diversity in state religion policies around the world.

Topics covered include:

    • Secularism and secularization
    • Religious identity
    • Religious worldviews, beliefs, doctrines and theologies
    • Religious legitimacy
    • Religious institutions and mobilization
    • Rational and functional religion
    • Religious fundamentalism
    • Conflict, violence and terror

This work combines theoretical analysis with data on the religion policies of 177 governments, showing that while most of the world’s government support religion and many restrict it; true neutrality on the issue of religion is extremely rare. Religion is becoming an inescapable issue in politics.

This work will be essential reading for all students of religion and politics, and will also be of great interest to those studying related subjects such as comparative politics, international relations and war and conflict studies.

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Crimm & Winer on Tax Laws and Political Speech by Houses of Worship

Our St. John’s colleague, Nina Crimm, has published “Tax Laws’ Ban on Political Campaign Speech by Houses of Worship: Inappropriate Government Censorship and Intrusion on Religion”  (with Laurence Winer (Arizona State)) in a symposium issue of the Bar Ilan University Journal of Law, State and Religion. The abstract follows:

To ensure their legitimacy, western liberal democracies depend on the fullest protection for freedom of political and electoral speech. Governments should not interfere with or chill these fundamental rights of democratic participation without overwhelmingly compelling reasons to do so.  In the US, however, despite the majestic protections of the First Amendment, anomalously there remains a large class of nonprofit entities that are statutorily precluded from this type of crucial political involvement, and this exceptional restriction on speech is incongruously based in the federal tax code. In particular, spiritual leaders who might feel theologically compelled to speak out on critical moral and political issues of the day risk the tax exempt status of their houses of worship if they cross an amorphous line into explicit or implicit political campaign speech. Both freedom of expression and religious freedom are at stake, and the tax system is a particularly inapt and inept mechanism for restricting speech and influencing the political activity of houses of worship.

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Ferrari & Cristofori, “Freedom of Religion and Belief”

Next month, Ashgate will publish a new volume of Freedom of Religion and Belief by Silvio Ferrari (University of Milan) and Rinaldo Cristofori (University of Milan). The publisher’s description follows.

The essays and articles selected for this volume analyze what is generally understood by freedom of religion and belief in today’s world. The different aspects of this fundamental right are considered from the contents of freedom of religion, to the possible limitations of this freedom; and from the freedom of, or freedom from, conundrum to the question of the collective or individual right. This volume reflects legal, philosophical and international perspectives, addresses numerous unanswered questions and offers an effective overview of the current literature and debate in this aspect of the discipline of law and religion.