Constitution Daily

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Civil liberties trumped policies in Abercrombie headscarf case

September 16, 2013 by Amy E. Feldman


Contributor Amy E. Feldman looks at a recent federal court decision that ruled against Abercrombie & Fitch for firing a teenage Muslim worker for wearing a headscarf, or hijab.

Wikicommons user: Bernard Gagnon

“Laws should be like clothes. They should be made to fit the people they serve.” - Clarence Darrow

Given his quote, famed lawyer and renowned agnostic Clarence Darrow would likely have found it ironic that people the laws serve turn out to be the people who sue the people who make clothes.  That is exactly what happened when 18-year-old Hani Khan, a former employee at Abercrombie & Fitch sued the clothing retailer.

A federal judge recently ruled that Abercrombie & Fitch violated anti-discrimination laws when it fired the teenage worker for wearing a headscarf.

Constitutional scholars know that the First Amendment says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

At first glance, then, Abercrombie’s termination of the Muslim worker for wearing clothing based on her religious beliefs seems like a clear violation of the Constitution.  But it isn’t.

Because the Constitution says that “Congress shall make no law…”—it does not say that “A hipster clothing store shall make no law…”

Given that Abercrombie is neither the Congress nor any governmental body, then, it seems less clear why Abercrombie can’t fire a person for any reason it chooses, including for violation of the company’s dress code.

Most companies have dress code policies, even policies that require workers at clothing retailers to wear the clothes sold by the company. So how can Abercrombie have violated the rights of a worker who didn’t accede to the company’s “Look Policy?”

The reason that Abercrombie & Fitch now faces a jury to determine how much it will have to pay Ms. Khan is not, in fact, based on the Constitution, but on laws passed by the state and federal government that prevent discrimination on the basis of a person’s religion.

And those laws cover private companies who are obligated to accommodate an individual employee’s earnestly held religious beliefs as long as it does not cause an undue hardship to the employer.

According to the U.S. Equal Employment Opportunity Commission, an employer’s duty to accommodate an employee’s religious beliefs apply not only to schedule changes or leave for religious observances, but also to such things as dress or grooming practices that an employee has for religious reasons.

Abercrombie & Fitch had argued that the way its sales associates dressed was part of its marketing strategy, and that deviation from the policy would cause a loss of sales.

It was, however, unable to come up with any evidence that Ms. Khan’s wearing of a headscarf would or did lead to a loss of sales, according to U.S. District Judge Yvonne Gonzalez Rogers who decided the case.

Clarence Darrow was not a big fan of either religion (“I do not consider it an insult, but rather a compliment to be called an agnostic. I do not pretend to know where many ignorant men are sure”) or business (“The law does not pretend to punish everything that is dishonest. That would seriously interfere with business.”)

But he was a fan of the laws that protected the civil liberties of all people.

“You can only protect your liberties in this world by protecting the other man's freedom,” he said.

Amy E. Feldman is the legal education consultant to the National Constitution Center. She is the general counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.

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