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ABERCROMBIE & FITCH VS. SAMANTHA ELAUF
The case I will examine is in regards to Elauf vs. Abercombie. This case involves workplace discrimination as a woman was denied a position she applied for based on her insistence on wearing the Muslim hijab. In the free market system, the government does not interfere with business activity and if so, it is usually the result of a needed intervention. Companies that operate in this system such as Abercrombie & Fitch extract some of the disadvantages of this system as well mentioned later in this case study. The Title VII of the civil rights act of 1964 prohibits employment discrimination based on race, color, religion, sex and national origin. Sec 703 of this act states “it is unlawful practice for an employer 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” (EEOC, 1964). Title VII requires otherwise-neutral policies to give way to the need for an accommodation. Title VII’s intentional discrimination act holds “the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions” (Collins, C., & Sokolowski, 2015). On the other hand, it can be argued with less credibility that freedom of association serves the right to join or leave groups of a person’s own choosing, and for the group to take collective action to pursue the interests of its members. The relevant point is that A&F considers themselves as a private corporation even though they are open to the public. As a result, they can therefore they can choose actions on behalf of their best interest if they want too, with limited government intervention.
Per Abercrombie & Fitch’s corporate policy, all store employees must wear clothing that is reminiscent of the company’s style, in an effort to bolster the store’s brand. This policy also includes a ban on head caps. In our relatively free market system, profit motive drives businesses, but can create potential issues. As a result, poor working conditions and unethical decisions can be made as companies seek a higher profit which was the case for Elauf. For Abercrombie, it is all about the competition factor. The strict dress code requires all employees to wear brand or the like style clothing in their best attempt to show off the brand against competitors. In this case, what is best for the company is not necessarily what is best for the people. According to the Foundation for Economic Education, “A free market puts the needs of companies above the needs of consumers” (2015). This highlights a negative effect of the interplay between business activity and the free market system. Free markets make discriminators pay for discriminating because they give up opportunities to work with productive people and in turn, lose out on potential profit contributors. If freedom includes freedom of association, then that includes freedom to choose whom you work for and whom you hire. The question is, if employees are free to discriminate against employers for any reason they wish, should employers have the same freedom? The main issue here was a miscommunication between the employee and the company in terms of Elauf disclosing her needed attire accommodations in relation to her religious practices. Under A&F corporate policy, Abercrombie & Fitch is legally permitted to hire those employees who fit its “look policy”. Because of the conflict in terms of Abercrombie’s Look policy, she was not hired. Through the lens of utilitarianism, this ethical theory would argue against Abercrombie and Fitch for not hiring Elauf. Maximizing the good consequences of the actions would have been to hire Elauf, making an exception of her religious attire in exchange for her service to the company. It would have avoided such backlash from the applicant and in turn the government’s intervention and all of the costs and negative consequences in the media. Although the applicant should have disclosed her accommodation needs, the company should not have factored those needs into their decision to hire based on the regulations previously mentioned that restrict discrimination on religious factors.
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/
(2008). How Free Market Break Down Discrimination
Foundation for Economic Education Retrieved from https://fee.org/articles/how-free-markets-break-down-discrimination/
Title VII of the Civil Rights Act of 1964: SEC. 2000e-2. [Section 703]
U.S Equal Employment Opportunity Commission Retrieved from https://www.eeoc.gov/laws/statutes/titlevii.cfm