“Remove the Hijab or You’re Fired!”
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.