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.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).
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