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Abercrombie & Fitch loses headscarf bias suit and sales are plummeting

Abercrombie-CEOBy John Kruzel, Slate.com

In 1992, Abercrombie & Fitch CEO Michael Jeffries took a staid, century-old sporting apparel store, injected it with teenage hormones, and grew the rejuvenated company into a multibillion-dollar retail chain. He has also personally discouraged unattractive, unpopular, and overweight customers from shopping at Abercrombie, and during Jeffries' tenure as chief executive, the company has faced numerous discrimination lawsuits.

Abercrombie's most recent stain came earlier this month when a federal judge ruled the company had unlawfully fired a 19-year-old Muslim worker for wearing an Islamic headscarf, or hijab. Umme-Hani Khan began as a stockroom worker at Hollister, an Abercrombie subsidiary, in October 2009. Khan would spend most of her time unpacking boxes and folding clothes in the stockroom, making occasional forays onto the sales floor to display merchandise. But before starting her job, Khan had to agree to abide by Abercrombie's notorious "Look Policy," a set of rigid grooming and fashion guidelines to help employees achieve the "all-American look" the company treasures as the spirit of its brand.

Though Khan had worn a headscarf to her interview, her employment was conditioned on an understanding that she wouldn't wear it at work. She did anyway. Her supervisors at the store struck a compromise: Khan could wear the headscarf as long as it matched company colors. This arrangement continued without incident for four months until a district manager visited the store one day and reported Khan. When she refused to remove the religious headscarf, Khan was fired.

The U.S. Equal Employment Opportunity Commission took up her case in March 2010. After more than a year of failed efforts to reach a settlement agreement, the EEOC filed Khan's suit against Abercrombie in June 2011. The plaintiffs claimed Abercrombie's discrimination of Khan violated Title VII of the Civil Rights Act of 1964, which requires employers to accommodate a worker's religious belief or practice unless doing so would be an "undue hardship." Abercrombie argued Khan's headscarf undermined its in-store marketing strategy and "negatively affected the brand" by deviating from the Look Policy. In other words, the $2.83 billion retail store couldn't afford the undue hardship of letting Khan wear a hijab.

District Court Judge Yvonne Gonzalez Rogers dismissed Abercrombie's argument, saying "Abercrombie failed to proffer any evidence from those four months showing a decline in sales in the Hillsdale [Calif.] store; customer complaints or confusion; or brand damage linked to Khan's wearing of a hijab." She also slapped down Abercrombie's other argument—that its Look Policy is constitutionally protected free speech. Yes, you read that right: Abercrombie argued Khan and her co-workers were "living advertisements" and therefore their appearance is protected commercial speech. The judge politely called it a "novel argument"—with no legal authority whatsoever. (Read more)

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