Discrimination Laws: Advantages and Disadvantages for both Employees and Business

This discussion assignment requires you to submit at least four posts: an initial post, two reply posts to fellow students in threads other than your own, and a revised post.

Prepare: In your first post in this discussion, you will become familiar with the case of Abercrombie & Fitch by means of the relevant material in the Required Resources this week. There is also a specific media feature located at the end of Section 5.3 of the textbook titled Workplace Discrimination: Abercrombie & Fitch. In order to be prepared for this task, you will need to complete the required readings and media listed.

Reflect: There are two sides to consider in the Abercrombie & Fitch case. On the one hand, we have the job candidate’s side. She went to the job interview wearing a hijab. The interviewer did not remark on the hijab, and the candidate also did not volunteer that her religious beliefs required her to wear a hijab. She was subsequently not hired based on the perception that her appearance was incongruous with the company’s look policy. For example, caps are not permitted and the male sales associates (referred to as “models” in the company’s corporate language) are often shirtless and in sweatpants in order to create the mood at the stores for the aesthetic for which Abercrombie & Fitch has become known: young, preppy, and hormonally charged. When she was notified that she was not hired for the position, she filed a complaint with the Equal Employment Opportunity Commission that, in turn, filed a lawsuit on her behalf alleging a violation of Title VII.

On the other hand, we have Abercrombie & Fitch’s side. As a company doing business in the United States, Abercrombie & Fitch is legally permitted to hire those employees who fit its look policy. This is no different from the look requirements for the Dallas Cowboys Cheerleaders, the Chicago Bulls, the New York City Ballet company, or for jockeys hired by thoroughbred owners to race them at the Kentucky Derby. In all of these cases, there are height, size, and other look requirements for employment that are justified by the particular demands and aesthetics of the position. She was found to be qualified for the job but her dress was clearly in conflict with Abercrombie & Fitch’s look policy. Yet, the job applicant knowingly sought employment at this retailer.

According to the law, should a special accommodation be required due to a religious practice, then Title VII dictates that the look requirements give way to the religious requirement in order not to be considered an act of religious discrimination.

The EEOC prevailed in the District Court, but this judgment was reversed by the Tenth Circuit on the ground that failure-to-accommodate liability only attaches when a job candidate provides the potential employer with knowledge of the need for an accommodation due to religious practice. Once it reached the Supreme Court, the decision was made in favor of the job candidate. According to Justice Scalia,

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 subsequent “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.

The only dissenting opinion was that of Justice Thomas who wrote:

Mere application of a neutral policy cannot constitute “intentional discrimination.”…I would hold that Abercrombie’s conduct did not constitute “intentional discrimination.” Abercrombie refused to create an exception to its neutral Look Policy for Samantha Elauf ’s religious practice of wearing a headscarf… In doing so, it did not treat religious practices less favorably than similar secular practices, but instead remained neutral with regard to religious practices…Resisting this straightforward application of §1981a, the majority expands the meaning of “intentional discrimination” to include a refusal to give a religious applicant “favored treatment.”…But contrary to the majority’s assumption, this novel theory of discrimination is not commanded by the relevant statutory text.

Write: In the first part of your initial post, you will need to introduce the Abercrombie & Fitch lawsuit. In this introduction, you will also need to (1) articulate the freedoms that companies in the United States enjoy given our relatively-free market system and (2) present the Title VII regulations concerning employment discrimination. These will provide the setting for you to be able to examine how the nation’s laws affect the hiring practices of Abercrombie & Fitch and other companies whose hiring policy includes a particular aesthetic for employees.

In the second part of your initial post, present your analysis of this case in a way that identifies which entities (Abercrombie & Fitch as a corporation, the economic system in the USA, the regulatory control of the state, or all of these) have a role in the problem that led to the lawsuit under examination. In your analysis, you must assess the positive or negative effects of the interplay between business activity and one of the following: the free-market system, advertising, hiring regulations, or corporate social responsibility. Your focus must be an ethical analysis of this interplay. Be sure to clearly identify the ethical theory that you are applying in your analysis, and to support your analysis by reliable and/or scholarly sources.

Revise: Read the feedback provided by your professor to your initial post, either directly to you or to your fellow students. Use this as an opportunity to learn from your professor, especially with regard to the best ways to apply the course material and your research to your analysis. On the basis of what you have learned in this process, post an improved revision of your initial post that applies the additional knowledge that you have gained.

Remember that your grade depends on the quality of your initial and revised responses, not just on the submission of an attempt at improvement. It is thus to your advantage to post the best initial post you can and then to also improve that best effort as much as you can through revision.

Requirements for Your Initial Post:

• Your initial post should be at least 350 words in length and have citations and references in APA notation. It should address the prompt in its entirety. This means that you should not split your response to the prompt in multiple posts. Your examination should be both thorough and succinct. This is a combination that demands time and thought, so give yourself sufficient time to draft and revise.
• Please be advised that until you post, you will not see what your fellow students are posting. Once you submit your post, you will be able to view the posts from your other classmates. You can then proceed to reply to at least two different threads based on the required material for this discussion.
• Your list of references for your initial post should include not only the video and the other required material for this discussion, as well as the Instructor Guidance and any other announcements presented to you by your professor. Use all of the material presented to you in the course and by your professor, in addition to any other sources that you consulted to inform yourself about this case (but not Wikipedia or similar sources).