A DISCUSSION OF LAW AND JOURNALISM

“Remove the Hijab or You’re Fired!”

Hani-Khan

By David Krisch

Twenty-year old Hani Khan, a former employee of Hollister, a clothing store owned by Abercrombie & Fitch, has sued the company in Northern California federal court alleging religious discrimination in violation of Title VII of the Civil Rights Acts of 1964. The U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that is responsible for enforcing federal laws that make it illegal to discriminate against employees, is litigating the case.

Ms. Khan, a Muslim, claims that four months into her employment, she was approached by a pair of visiting managers asking her to remove her hijab, a religious headscarf, to comply with the store’s look policy. She refused to do so and was terminated. While sources have plenty of information about Ms. Khan’s lawsuit, they have not taken a look at the merits of her case. We will.  

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating on the basis of religion. It defines religion as including all aspects of religious observance and practice, and imposes a duty of reasonable accommodation on employers unless there is undue hardship. Undue hardship, in a religious accommodation context, requires a showing that the proposed accommodation poses a “more than de minimis” cost or burden and depends on factors including type of workplace, nature of employee’s duties, and cost of accommodation in relation to the size and operating costs of the employer.

 

Typically, an employer’s reliance on the broad rubric of “image” to deny a requested religious accommodation is a violation of Title VII. In fact, the 2008 EEOC Compliance Manual provides an example of religious discrimination that nearly mirrors Ms. Khan’s lawsuit. The example discusses a woman named Nasreen, a Muslim ticket agent for a commercial airline. Nasreen wore a hijab because she is Muslim. When the employer denied Nasreen a position because the employer felt Islamic attire was an inappropriate image in an airport, the EEOC deemed it to be religious discrimination.

Even if Abercrombie claims that its look policy was not meant to be discriminatory against Muslims, the company is still liable under Title VII. In 1999 a 9th Circuit judge wrote,At a minimum, the employer is required to negotiate with the employee in an effort reasonably to accommodate the employee’s religious beliefs.” Therefore, had Abercrombie asked Ms. Khan to wear the hijab in company colors, or showed any sort of willingness to negotiate a reasonable accommodation, Abercrombie could mount a stronger defense in this case.  But it seems Abercrombie made absolutely no attempt to negotiate a reasonable accommodation with Ms. Khan, and therefore the company has clearly violated Title VII. The employer’s right to an undue hardship defense is not applicable since there was no negotiation to reasonably accommodate Ms. Khan’s religion.

Abercrombie could also argue that the 9th Circuit has ruled that an employer is not required to negotiate a reasonable accommodation if it can show that any and all accommodations would impose undue hardship. But under the undue hardship standard, Abercrombie would fail at showing any and all accommodations for Ms. Khan would pose a “more than de minimis” cost or burden.

It can hardly be said that a major company like Abercrombie and Fitch cannot afford to accommodate one Muslim female employee. In fact, when IKEA, a major company like Abercrombie was faced with reasonably accommodating Muslim female employees, IKEA successfully provided a reasonable accommodation. Embracing diversity and avoiding legal liability, IKEA launched its own uniform brand of hijabs that could be worn by female Muslim employees.

Ms. Khan has a strong federal case.  She can also bring her claim under California state law, which is identical to Title VII religious discrimination.

According to the Abercrombie and Fitch website, “diversity and inclusion” are key to the organization’s success. If that were true, Ms. Khan would still have a job.

Ryan Morrison contributed to this article.

UPDATE, August 13, 2012:  An ex-Disney employee is suing on similar grounds.  Her case seems even stronger.

UPDATE, September 9, 2013:  A court rules that the store was wrong to fire Ms. Khan.

 

Comments

10 Comments »

10 Responses

  1. [...] “Remove the Hijab or You’re Fired!” [...]

  2. Politically Incorrect says:

    The store has every right to say that employees shouldn’t be wearing hijabs, just as it has a right to say employees shouldn’t be wearing tuxedos or ballgowns. It isn’t discrimination, it’s common sense. A&F clothing is cool and young and hip and sort of revealing. How does a hijab fit with that? Does a mosque have to let people come in with bikinis? Come on, America. Stop being so politically correct and start making sense.

  3. lin says:

    Just as no tattoo in many place of employees is the same as no hijab if the employer said so. She is luck to even have a job at this economy…

  4. FUs says:

    lin – you are RIGHT. what if she was 500 lb. would she be able to sue because she doesn’t fit into the clothes and so has to wear her own clothes? crazy.

  5. [...] doing a little reading on the legal jihad being waged against Abercrombie & Fitch and came across this pre-Creeping Sharia [...]

  6. Jay J. says:

    As a devout Pastafarian (of the moderate “Pesto” branch of my faith, naturally) and a devout, pious worshipper of His Unspeakable Deliciousness – The Invisible Flying Spaghetti Monster (SBUH!! – sauce be upon him), I’d just like to point out that it is my civil right to exercise my religious freedoms by wearing a metal colander strapped on my head at all times when out in public.

    It is but one part of our eternally wise and all-encompassing Linguini Law system. It is a grave insult to my religion to forbid this, or for non-believers to even comment on it or to mock it. The penalty is death by “zuppa-boarding”!

    The fact that I work as the receptionist at the front entrance of an upscale hairstyling salon is of absolutely no consequence whatsoever.

    Members of my religion must be accommodated precisely as we see fit – at all times, in every way, and in all situations. (And that is why I am now training to work in an electro-magnetic research facility!). According to our Holy Book (written by Mario Al-Batali) we must also be allowed to take five antipasto & chianti “spiritual” breaks per day and we must ALWAYS face Tuscany when we are doing this (so signs need to be put up in every workplace pointing toward Sienna!) But I digress…

    My employer did once go so far as to offer to allow me to wear a sieve on my head or a cheese grater in front of my face instead, but my employer’s words were nothing but a grave insult against my religion.

    As those of you who have responded to my faith’s many Community Outreach programmes would already know, I am also supposed to wear the special hol(e)y pants in public that fully expose my buttocks to all and sundry (as those of the militant “Reggio Parmigiano” sect do), however I am a MODERATE Pastafarian, not one of those fundamentalist, extremist Pastafarians, so I let this latter demand pass (even though it is, of course, a grave insult to my religion).

    My faith’s comprehensive Linguini Law unequivocally compels me and all Pastafarians to convert all others on the planet to our religion (or, alternatively, drown the Unwilling in huge vats of Marinara sauce (this is also the punishment for apostates by the way!).

    Of course with our demographics (contraception is allowed ONLY using the Tagliatelli method) we WILL eventually take over the world, and all believers WILL take to wearing the Holy Colander to show their submission to the one true god – the I.F.S.M. (sbuh!).

    Do not bother to defend yourself in court if you are marked for destruction by our stealth “war-by-litigation”. Defending yourself in court is a GRAVE INSULT to our religion and you will be met by the forces of our Stealth Army – the dreaded Raviolis!. Soon we will convince you all of the harmony, superiority and above all, the PEACE – of His Deliciousness, The Invisible Flying Spaghetti Monster (sbuh!) and you will all live under Linguini Law. Not to do so would be a GRAVE INSULT AGAINST MY RELIGION.

  7. [...] was standing and modeling in front of the store. . . which makes me wonder what type of environment she wanted to work in, anyway. And I’m pretty sure I’ve heard rumors from peers and such [...]

  8. [...] “Remove the Hijab or You’re Fired!” [...]

  9. megulito says:

    so mostly every comment is by a douche bag behind a computer… we have a constitiution that outlines religious practices whether they are alien or familiar to us either a yarmulke or a hijab this is a form of bigotry you lot are dicks

  10. hijab says:

    I’m amazed, I have to admit. Rarely do I encounter a blog that’s equally educative and
    interesting, and let me tell you, you’ve hit the nail on the head. The problem is an issue that not enough folks are speaking intelligently about. I’m very happy that I came across this during my search for something concerning this.

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