case of Abercrombie & Fitch

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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 Icon 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 Icon 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. Discuss Icon 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 s 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). Your initial post for this discussion should be submitted no later than the end of Thursday (11:59 pm, U.S. Mountain time). Requirements for Replies to Other Threads: At least two of the four posts required should be in the form of replies to fellow classmates in threads other than your own. Each of your replies should be at least 200 words, and informed by the course material. As such, the replies must have citations and references in APA notation. Your list of references for each reply should include all of the course material that has informed your reply, in addition to any research that you have obtained on your own. Your replies should focus on the specific examination presented by your fellow student and these should include an examination of whether or not the characteristics of the ethical theory and/or economic system were identified well, and whether or not their application and analysis was also carried out successfully. Providing such an examination is not an attack on your fellow student but an attempt to work together with your fellow student toward the better understanding of the ethical theories employed, as well as their application. Requirements for Revising Your Initial Post: Submit a revision of your initial post by either replying to your own post, or to the feedback provided to you by your professor. There is no minimum word requirement for your revised initial post. But you should always explain the reasons for revising your post so that it is clear what you are doing. If you are revising only a few words, or an ethical theory, you should avoid submiting a post with vague language.As it has been pointed out in each of the past weeks, it is important to recognize that no one can read your mind so you need to provide the setting for your revision (Why? What prompted it? What course material informed you?), and it is important to write in clear language and complete sentences. Your revised initial post is your chance to correct any oversights or errors in your initial post, or show your improved understanding of the material and its applications to the case at hand. You may, for example, come to the realization that another ethical theory is better than the one that you initially chose. Accordingly, your revision should indicate that you chose another ethical theory and an explanation why you find the replacement more suitable. You may also find the need to revise any relevant portions of your analysis. Or, you might have realized that your conclusion did not take into account important factors necessary for your evaluation of the situation. You should maximize the improvement of your initial post by employing your professor’s feedback as a guide. Keep in mind that you may not always receive direct feedback from your professor. But your professor will have submitted feedback in the discussion to other posts. Read your professor’s feedback whether it is addressed to you directly or to other fellow students. This will give you much to think about and apply to your own post. If your professor or a fellow classmate responds to your revised initial post, and on this basis, you find good reason to submit yet another revision, then by all means do so. The more you improve your initial post, the more you will benefit both in terms of your learning and most likely your grade. Collins, C., & Sokolowski, J. (2015, June 12). Supreme Court sides with EEOC in Abercrombie & Fitch hijab case [Blog post]. Retrieved from http://www.laboremploymentlawblog.com/2015/06/articles/discrimination/supreme-court-sides-with-eeoc-in-abercrombie-fitch-hijab-case/ Equal Employment Opportunity Commission v. Abercrombie & Fitch. 575 U. S. 1 (2015). Retrieved from http://www.supremecourt.gov/opinions/14pdf/14-86_p86b.pdf Olson, W. (2015, June 1). EEOC v. Abercrombie: Headscarfs and judicial modesty. Retrieved from http://www.cato.org/blog/eeoc-v-abercrombie-headscarfs-judicial-modesty 5.3 U.S. Anti-Discrimination Laws Each country has its own history of both discriminatory practices and laws to combat them; we have already discussed part of the situation in India. In this section, we will look at U.S. anti-discrimination laws and the impact they have on businesses. The legal issues surrounding affirmative action policies in the United States are not always the most enjoyable things to explore. There are subtle conceptual distinctions and complex regulations, and emotions run high. However, this is precisely where nondiscrimination in the workplace is put into practice. From a practical standpoint, being ethical in non-discriminatory business practices ultimately means following government regulations. All employees in medium to large companies need to be familiar with key aspects of these laws; for many managers, mastery of non-discrimination policies will be a key part of their job. The Civil Rights Act of 1964 The story of Federal anti-discrimination laws begins with the Civil Rights Movement of the late 1950s and the Civil Rights Act of 1964. This legislation was devised to put an end to a century of racial segregation and discrimination. It was hotly contested in Congress; one Southern senator stated, “We will resist to the bitter end any measure or any movement which would have a tendency to bring about social equality and intermingling and amalgamation of the races in our states” (quoted in Spartacus Educational, 2014). Fortunately, that senator was outvoted. The Act addresses issues of discrimination in voting and segregation in public facilities and schools, but two portions are especially relevant to businesses. Title II of the act prohibits discrimination and segregation in places of public accommodation, such as hotels, restaurants, gas stations theaters, and stadiums. The critical portion of it is this: All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin. (Civil Rights Act of 1964, 1965, Section 201) Employment discrimination is addressed in Title VII, the critical portion of which is this: It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. (Civil Rights Act of 1964, 1965, Section 703) Passengers, Rosa Parks among them, sitting on a bus. Copyright Bettmann/Corbis/AP Images Rosa Parks sits at the front of a Montgomery, Alabama, bus. In 1955, Parks was arrested for refusing to vacate her seat on a Montgomery bus for a White passenger. Title VII allows for some exemptions where discrimination can be permitted, but these must involve bona fide occupational qualifications, that is, qualifications that relate to an essential job duty and are “reasonably necessary to the normal operation of that particular business or enterprise” (Civil Rights Act of 1964, 1965, Section 703, 3e). An example of this would be disqualifying a blind applicant for an air-traffic controller job, as mentioned earlier. Similarly, a theater company could disqualify a male actor who applied for a female role in a play, or an Episcopal church could disqualify an ordained Baptist preacher for a ministerial position. In both Title II and Title VII we see reference to the concept of protected classes, which are the specific groups that are protected from discrimination by law. The groups mentioned above are those of an individual’s race, color, religion, sex, and national origin. Affirmative Action: Two Laws, Two Governmental Agencies Affirmative action policies in the United States are founded on two distinct laws: Title VII of the Civil Rights Act of 1964 (just discussed) and Presidential Executive Order Number 11246 in 1965. The term affirmative action made its way into law through an earlier executive order by President Kennedy in 1961 requiring any business seeking a Federal government contract to engage in affirmative action. The order stated, “The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin” (Executive Order No. 10925, 1961). But Kennedy’s conception of affirmative action was mild, and meant essentially that contractors needed to exhibit an active concern to eliminate discrimination. Four years later, this order was revised and strengthened by President Johnson and also included gender (Executive Order No. 11246, 1965). It was in 1968 that the government first required target dates for evaluating a contractor’s affirmative action program. The regulation stated, “The contractor’s program shall provide in detail for specific steps to guarantee equal employment opportunity keyed to the problems and needs of minority groups, including, when there are deficiencies, the development of specific goals and timetables for the prompt achievement of full and equal employment opportunity” (“Affirmative Action Law and Legal Definition,” n.d.). This is the basis of the more aggressive notion of affirmative action that includes preferential treatment. In theory, the executive orders for contractors do not require every company in the United States to adopt aggressive affirmative action policies. However, since government contracts are such an important source of revenue throughout the business world, the executive orders had the practical effect of mandating this uniformly, especially for medium to large corporations. Enforcing Title VII and Executive Order No. 11246 Equal Employment Opporunity Commission Critical Thinking Questions The EEOC spokesperson states that subtle forms of discrimination will never go away until the outrageous forms of it stop. Give examples of what might be subtle and outrageous forms of discrimination. According to the video, it would be national origin discrimination to deny a person a job because of his or her accent. Might there be a job where speaking without an accent would be a bona fide occupational qualification? Explain. Pre-employment attitude tests are a common way of screening out prospective employees with traits like dishonesty, negativity, and unsupportiveness. What is discriminatory about the attitude test described near the end of the video? The task of enforcing Title VII of the Civil Rights Act was assigned to the Equal Employment Opportunity Commission (EEOC), which sets policies for dealing with discrimination complaints, holds hearings on specific complaints, and has the authority to file discrimination suits against employers. The commission’s single mission is “the elimination of illegal discrimination from the workplace” (Equal Employment Opportunity Commission, n.d.). While the EEOC oversees compliance with Title VII, the affirmative action Executive Order for government contractors is under the domain of the Office of Federal Contract Compliance Programs (OFCCP)—a branch of the Department of Labor. The OFCCP enforces affirmative action compliance in several ways. It offers technical assistance to Federal contractors and subcontractors to help them understand the regulatory requirements and review process. It conducts compliance evaluations and complaint investigations of Federal contractors’ personnel policies and procedures. The ultimate punishment by the OFCCP for violations is the loss of a company’s Federal contracts, and companies may have to pay lost wages to victims of discrimination. Each year, the OFCCP issues an “Opportunity Award” to a contractor who implements outstanding affirmative action programs; recipients have included Raytheon, Texas A&M University, and Dell. The laws and regulations that are jointly enforced by the EEOC and OFCCP are called equal employment opportunity (EEO) laws. From a business’s perspective, EEO laws mandated by the EEOC and OFCCP go hand in hand: While the one agency oversees Title VII, and the other government contracts, medium to large businesses typically need to comply with both. It is beyond the scope of this chapter to give a detailed account of the EEO laws, but there are a few important concepts relating to these laws that are central to compliance for businesses and to the debates surrounding them. One of them is the concept of a protected class, described above. Since the Civil Rights Act of 1964, the list of legally protected groups regarding employment discrimination has grown, and now the list includes (1) race, (2) color, (3) religion, (4) sex, (5) national origin, (6) age—people over 40, (7) disability, and (8) genetic information. Technically speaking, every U.S. citizen belongs to some protected class, if only by virtue of being either a man or a woman and having genetic information. However, the EEO laws aim specifically at protecting women and minority groups because of the history of discrimination against them. A minority is a subgroup of a population that differs in race, religion, or national origin from the dominant group. The EEOC designates a minority as being one of four groups: (1) American Indians or Alaskan Natives, (2) Asians or Pacific Islanders, (3) Blacks, or (4) Hispanics. The EEOC does not technically classify women as a minority. However, women are considered as having “minority status” as far as the law is concerned, because they have experienced the same kind of systematic employment discrimination as the various minorities. Compliance Guidelines and Plans The government does not simply trust that employers will embrace nondiscrimination and affirmative action practices. Rather, employers must follow complex protocols, and compliance places high demands on their personnel resources. Many consulting companies specialize in affirmative action compliance; one advertises that it can find “unique solutions to the ever-changing EEO and Affirmative Action compliance landscape” (Pinnacle, 2015). Protesters holding signs. Chip Somodevilla/Getty Images When a Muslim woman was denied employment at Abercrombie & Fitch for wearing a head scarf, the EEOC successfully sued the company in a case that went to the Supreme Court. Supporters from the Council on American-Islamic Relations protest outside the Supreme Court building in 2015. Government Protocols There are two main government protocols that most medium to large businesses must follow for proper compliance. The first is the Uniform Guidelines on Employee Selection Procedures (UGESP), which are guidelines that require employers to carefully inspect the processes they use to hire, promote, or terminate employees, and ensure that those processes are fair and nondiscriminatory. If a company’s current practices produce a deficiency of women or minority employees, the company must conduct a validity study to show that the imbalance was not discriminatory (“Uniform Guidelines,” 2010). The UGESP aims at weeding out discriminatory hiring and promotion practices. However, a second government protocol, known as an affirmative action plan (AAP), focuses more aggressively on assuring that employers implement affirmative action in their employment practices. In some cases, affirmative action plans are mandatory; in others, they are voluntary. The OFCCP requires contractors with 50 or more employees and government contracts of $50,000 to develop these plans. However, the EEOC advises all private-sector companies to devise voluntary affirmative action plans as a way of addressing deficiencies in their hiring and promotion procedures, especially as might be revealed by the Uniform Guidelines on Employee Selection Procedures. Putting the Plan Into Practice It is not enough for businesses to merely create an affirmative action plan; they must also make a good-faith effort to put the plan into practice. According to the OFCCP, “good faith efforts may include expanded efforts in outreach, recruitment, training and other activities to increase the pool of qualified minorities and females” (2002). The government recognizes the controversial nature of preferential-treatment policies and potential accusations of reverse discrimination. Accordingly, the OFCCP has stated that “the actual selection decision [for hiring or promotion] is to be made on a nondiscriminatory basis” (2002). The EEOC has stated further that “a voluntary affirmative action plan cannot unnecessarily trammel the rights of non-targeted groups, usually non-minorities or men” (1997). Supreme Court Cases on Affirmative Action Since the 1970s, the U.S. Supreme Court has heard a series of cases on affirmative action policies, and those rulings have established that some policies are legally permitted under the U.S. Constitution while others are not. The court’s decisions, though, are made on a case-by-case basis, and do not always establish clear and uniform policies. One reason is that the makeup of the Supreme Court continually changes, with some justices being more sympathetic to affirmative action than others. Another reason is that the court cases themselves significantly differ in their details, even when on the surface they seem to be about the same issue. We will look at some of the famous Supreme Court cases that have wrestled with the nuances of affirmative action practices of businesses, universities, and government offices. We will consider them chronologically. Regents of the University of California vs. Bakke (1978) The first important case, Regents of the University of California vs. Bakke (1978), involved a White man named Allan Bakke who twice applied to the school of medicine at the University of California, Davis, but was rejected both times, while less qualified minority applicants were admitted as part of a racial quota system that reserved 16 places for minorities. The court ruled that universities could take race into account when admitting students, but it was unconstitutional for them to use rigid racial quotas to increase minorities as the University of California had done. The university was required to admit Bakke. While the legal case ended there, the ruling has been continually debated by legal scholars and in the media. A case in point is the following comparison between the medical careers of Bakke and Patrick Chavis, one of the 16 minority candidates against whom Bakke was originally competing: Bakke . . . ended up with a part-time anesthesiology practice in Rochester, Minnesota. Dr. Patrick Chavis, the African-American who allegedly “took Bakke’s place” in medical school, has a huge OB/GYN practice providing primary care to poor women in predominantly minority Compton. Bakke’s scores were higher, but who made the most of his medical school education? From whom did California taxpayers benefit more? (Rice & Hayden, 1995) United Steelworkers of America v. Weber (1979) In another case, United Steelworkers of America v. Weber (1979), Brian Weber, a young White laboratory assistant at the Kaiser Aluminum and Chemical Corporation, applied for a special training program that would have resulted in a promotion. The company made an agreement with the United Steelworkers of America labor union that for every one White person accepted into such training programs, one Black person would also be accepted. The company had many more Whites than Blacks, and thus accepted some Black employees into the program ahead of White employees with more seniority. When Weber was not accepted into the program, he sued on the grounds that the decision violated Title VII of the Civil Rights Act. The court ruled against Weber and in favor of his company. Affirmative action plans were acceptable, according to the court, when they aimed to correct a statistical imbalance but did not involve quotas. Thus, Kaiser did nothing wrong, since the one-for-one system was not, strictly speaking, based on quotas. The court’s decision was controversial, and one dissenting justice stated the company’s preferential treatment of Blacks clearly violated the wording of Title VII, which prohibits discrimination for employment opportunities on the basis of race. The justice continued that, by siding with the Kaiser company against Weber, the court’s majority decision was reminiscent of “escape artists such as Houdini” insofar is it eluded the clear language of the law in Title VII and wrongly concluded that employers are “permitted to consider race in making employment decisions” (United Steelworkers of America v. Weber, dissenting opn. of J. Rehnquist, 222). Grutter v. Bollinger (2003) Another important case regarding affirmative action in universities is Grutter v. Bollinger (2003). Barbara Grutter, a White woman with strong academic credentials, was rejected from the University of Michigan’s law school. She sued on the grounds that the school had used race as a predominant factor, thus giving applicants belonging to certain minority groups a significantly greater chance of admission than students with similar credentials from disfavored racial groups. The court ruled in favor of the law school, indicating that the Constitution “does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body” (Grutter v. Bollinger, 343). The court clarified, though, that preferential-treatment policies cannot go on indefinitely: Race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. (Grutter v. Bollinger, 342) The point is that even though preferential-treatment programs serve an important social purpose, they are potentially damaging and can only be used as temporary measures. The Court explicitly stated, “We expect that 25 years from now the use of racial preferences will no longer be necessary” (Grutter v. Bollinger, 343). Wal-Mart Stores, Inc. v. Dukes et al. (2011) Betty Dukes with supporters. Karen Bleier/AFP/Getty Images Betty Dukes stands outside the Supreme Court building with supporters at a rally one year after her unsuccessful class action lawsuit against Walmart for gender discrimination. All of the Supreme Court cases we have discussed so far specifically involve questions about preferential-treatment policies and whether they violate the rights of Whites. While the rulings differ in many respects, a consistent pattern emerges regarding the permissibility of quota systems in affirmative action programs. Generally speaking, the court considers quotas discriminatory against Whites; however, the government can rightfully order companies to meet gender and minority quotas when they have repeatedly engaged in discriminatory practices. A final Supreme Court case on affirmative action is not about reverse discrimination against Whites but instead about the ability of women and minority employees to sue their employers for discriminatory practices. The 2011 case, Wal-Mart Stores, Inc. v. Dukes et al., was the largest gender-discrimination case to that point in history. Betty Dukes, a 54-year-old Walmart employee, sued the company for sex discrimination when she was denied training that would have led to a promotion. Her suit, though, was a class action lawsuit on behalf of 1.5 million female employees who, like herself, she claimed, were also denied promotion within the company because of their gender-discriminatory employment practices. Walmart argued that the class action lawsuit was unjustified, because the 1.5 million female employees had different jobs with different supervisors at 3,400 different stores nationwide, and did not have enough in common to be combined together into a single suit. The Supreme Court agreed with Walmart and threw out the case. What this means is that it may be more difficult for victims of systematic discrimination to bring class action lawsuits against their employers; they may only be able to bring suits on an individual basis. That makes a major difference in the deterrence effect that potential lawsuits could have on businesses. A class action suit like Dukes’, if successful, could have cost Walmart billions of dollars. By contrast, the damages of a lawsuit by a single individual might only be in the thousands of dollars.

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