Posted: January 31st, 2023

Discrimination Laws: Advantages and Disadvantages for both Employees and Busines

Question description

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.
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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