Feds Sue A & F over refusal to allow Muslim headscarves in theworkplace

Dawinder S. Sidhu dsidhu at gmail.com
Thu Sep 2 22:14:41 PDT 2010

The question whether a private employer has the right to maintain and
a certain image to the public brings to mind two cases -- the first
concerns a female Muslim who is suing Disney because Disney's strict
dress code does not allow for headscarves, religious or otherwise.
The second is that of a Sikh male who has filed suit against the New
York transit authority on the grounds that its insistence that he wear
a transit authority logo on his turban is unlawful.  In both cases,
the employer offered the employee what it deemed to be a reasonable
accommodation -- the ability to wear a headscarf or turban while
working in the employer's back area, wholly outside of public view.
The employer ostensibly contends this is a reasonable accommodation
within the meaning of Title VII because the alternative removes the
conflict between the employer's policy and the employee's religious

What concerns me is that, if courts are to rule in favor of the
employers in these Title VII cases, they will effectively allow for
workplace segregation -- the fact that employees who wear conspicuous
articles of faith will be found only in the back, hidden parts of a
company or business because they do not conform with the public image
that the employer wants the patrons or customers to see.  This does
not mean that all clothing policies are discriminatory, but it seems
that an employer not wanting Muslims or turbaned Sikhs to represent
his company may simply implement, consistent with Title VII, a neutral
clothing policy as a basis to not hire Muslims or Sikhs, or to stuff
them in the back.

As a district court judge noted:

"One has to wonder how often an employer will be inclined to cite
[Cloutier's] expansive language to terminate or restrict from customer
contact, on image grounds, an employee wearing a yarmulke, a veil, or
the mark on the forehead that denotes Ash Wednesday for many
Catholics. More likely, and more ominously, considerations of 'public
image' might persuade an employer to tolerate the religious practices
of predominant groups, while arguing 'undue hardship' and 'image' in
forbidding practices that are less widespread or well known."

I do not quarrel with an employer's general interest in controlling
its brand or public image.  What I find problematic, however, is when
that image itself either perpetuates views that only a certain group
(e.g., non-Muslims, non-Sikhs) may represent an employer or that the
public will only be comfortable with members of a certain group (e.g.,
non-Muslims, non-Sikhs), but attains legal cover nonetheless because
the image concerns clothing or applies to all employees.

Dawinder "Dave" S. Sidhu
* Co-author, Civil Rights in Wartime: the Post-9/11 Sikh Experience
* Selected research http://www.ssrn.com/Author_id=688955

"[T]o serve mankind . . . should indeed be the great aim and end of
all learning."
- Benjamin Franklin

On Thu, Sep 2, 2010 at 3:26 PM, masinter at nova.edu <masinter at nova.edu> wrote:
> <p>
> Given that Title VII obliges employers to reasonably accommodate all
> aspects of employees' religious observances and practices, why would A&amp;F
> be thought &quot;plainly&quot; to have the better of the argument over an
> observant Muslim woman who for religious reasons wears a modest head
> scarf?<br />
> <br />
> Employers regularly accommodate observant Jewish men who wear Kippahs or
> Yarmulkes; why would an employee who for religious reasons wears a modest
> head scarf be treated any differently absent evidence that her head scarf
> creates a safety hazard or otherwise prevents her from performing her
> job?<br />
> <br />
> Accommodating an employee who for religious reasons wears a head scarf
> ordinarily imposes no monetary cost on an employer.  Though the sight of a
> woman wearing a head scarf may offend some customers, longstanding Title VII
> caselaw makes customer preference a legally insufficient basis for
> discrimination.  </p><p>As for A&amp;F's desire to project a particular
> image to attract customers, recall that it paid $40 million to settle a
> previous claim that it practiced intentional race and national origin hiring
> discrimination to create that image, and that E.E.O.C. has again alleged
> intentional discrimination and not simply a good faith mistaken failure to
> reasonably accommodate.  Finally, recall the fate of Southwest Airlines'
> &quot;Love campaign&quot; to attract customers when it reached the courts in
> Wilson v. Southwest Airlines, 517 F. Supp. 292 (N.D. Tex. 1981).</p><p> One
> image campaign prevailed over religious accommodation.  Costco's policy
> forbidding cashiers from wearing facial jewelry other than earrings
> prevailed over a Church of Body Modification member's insistence upon
> wearing multiple facial piercings, Cloutier v. Costco Warehouse, 390 F.3d
> 126 (1st Cir. 2004), cert. denied, 545 U.S. 1141 (2005) but the defense did
> not fare as well in E.E.O.C. v. Red Robin Gourmet Burgers, Inc., 2005 WL
> 2090677 (W.D. Wash. 2005) (denying summary judgment to employer on its
> insistence that a practitioner of Kemeticism cover his tattoos).  EEOC may
> not prevail despite A&amp;F's checkered history, but its position is
> certainly not frivolous, and cannot be said to ignore plainly established
> law.<br />
> <br />
> Michael R. Masinter                           3305 College Avenue<br />
> Professor of Law                                Fort Lauderdale, FL 33314<br
> />
> Nova Southeastern University             954.262.6151 (voice)<br />
> masinter at nova.edu                            954.262.3835 (fax)<br />
> <br />
> <br />
> <br />
> Quoting hamilton02 at aol.com:<br />
> <br />
> &gt; Harm to the woman who must cover herself head-to-toe so no man is   <br
> />
> &gt; tempted.  I do believe these are difficult issues under our   <br />
> &gt; Constitution but I also have no question that extremist Islamic   <br
> />
> &gt; practices are as bad for women and girls as the FLDS's practices are
> <br />
> &gt;  for women and children.  And the latter need to be fought to the   <br
> />
> &gt; same extent we are fighting sex trafficking.<br />
> &gt;<br />
> &gt; A head scarf is not so clear on this axis.  Though I do think A &amp;
> F   <br />
> &gt; plainly have the better of the argument.<br />
> &gt;<br />
> &gt; Marci<br />
> &gt; Sent from my Verizon Wireless BlackBerry<br />
> &gt;<br />
> &gt; -----Original Message-----<br />
> &gt; From: Robert Sheridan &lt;rs at robertsheridan.com&gt;<br />
> &gt; Date: Thu, 02 Sep 2010 08:07:15<br />
> &gt; To: &lt;hamilton02 at aol.com&gt;<br />
> &gt; Cc: Marc R Poirier&lt;Marc.Poirier at shu.edu&gt;;   <br />
> &gt; &lt;conlawprof-bounces at lists.ucla.edu&gt;; CONLAWPROFS   <br />
> &gt; professors&lt;CONLAWPROF at lists.ucla.edu&gt;<br />
> &gt; Subject: Re: Feds Sue A &amp; F over refusal to allow Muslim
> headscarves  <br />
> &gt;  in theworkplace<br />
> &gt;<br />
> &gt;   I agree that these issues are more complicated than the issue of<br
> />
> &gt; religious intolerance, which is why I posted the article and the<br />
> &gt; reader-comment citing undefined &quot;cultural&quot; objections,
> whatever they<br />
> &gt; are, and then broadened the subject of inquiry to the burqa ban in<br
> />
> &gt; France and the publicly nursing mother in America.<br />
> &gt;<br />
> &gt; The question:  &quot;Does the Constitution require society to ignore
> obvious<br />
> &gt; harm?&quot; suggests that there is an obvious harm in these activities
> that<br />
> &gt; isn't quite yet apparent to me.  Is a publicly nursing mother
> harming<br />
> &gt; me?  Is a burqa wearing woman harming me?  Is a publicly yarmulka<br />
> &gt; wearing man harming me?  Is same-sex marriage harming me?<br />
> &gt;<br />
> &gt; Years ago, police in California cited nude-beach bathers for the
> crime<br />
> &gt; of indecent exposure, an offense registrable, for life, as a<br />
> &gt; sex-offender under California Penal C. Sec. 314.1.  The statute was
> held<br />
> &gt; unconstitutional by the California Supreme Court on the ground that<br
> />
> &gt; there was nothing necessarily obscene under Miller, nor sexual,<br />
> &gt; communicated by the nude sunbather at the beach.<br />
> &gt;<br />
> &gt; Some observers in our culture no doubt have read something sexual,
> or<br />
> &gt; obscene, into nudity, considering the general cultural taboo against<br
> />
> &gt; going &quot;too far&quot; in public, the quoted words being subject to
> vague<br />
> &gt; definition, as in &quot;I know it when I see it.&quot;<br />
> &gt;<br />
> &gt; But &quot;obvious harm?&quot;<br />
> &gt;<br />
> &gt; Obvious to whom?<br />
> &gt;<br />
> &gt; rs<br />
> &gt;<br />
> &gt; On 9/2/2010 7:47 AM, hamilton02 at aol.com wrote:<br />
> &gt;&gt; These issues are much more complicated than your religio-centric
> post<br />
> &gt;&gt; suggests. In the case of burqas, we are dealing with liberty
> issues<br />
> &gt;&gt; separate from religion -- gender equality and oppression. The
> question<br />
> &gt;&gt; is how a free society deals with such issues. Does the
> Constitution<br />
> &gt;&gt; require society to ignore obvious harm?<br />
> &gt;&gt;<br />
> &gt;&gt; The appropriate focus for A and F, by the way is not religious<br
> />
> &gt;&gt; symbols, but rather consistency of the article of clothing with
> the<br />
> &gt;&gt; store's marketing policy. A small cross or star of david
> necklace,<br />
> &gt;&gt; like a wedding ring, does not introduce the same interference as
> does<br />
> &gt;&gt; headwear.<br />
> &gt;&gt;<br />
> &gt;&gt; Marci<br />
> &gt;&gt;<br />
> &gt;&gt; Sent from my Verizon Wireless BlackBerry<br />
> &gt;&gt;<br />
> &gt;&gt;
> ------------------------------------------------------------------------<br
> />
> &gt;&gt; *From: * Robert Sheridan &lt;rs at robertsheridan.com&gt;<br />
> &gt;&gt; *Date: *Thu, 02 Sep 2010 07:11:11 -0700<br />
> &gt;&gt; *To: *&lt;hamilton02 at aol.com&gt;<br />
> &gt;&gt; *Cc: *Marc R Poirier&lt;Marc.Poirier at shu.edu&gt;;<br />
> &gt;&gt; &lt;conlawprof-bounces at lists.ucla.edu&gt;; CONLAWPROFS<br />
> &gt;&gt; professors&lt;CONLAWPROF at lists.ucla.edu&gt;<br />
> &gt;&gt; *Subject: *Re: Feds Sue A &amp; F over refusal to allow Muslim
> headscarves<br />
> &gt;&gt; in theworkplace<br />
> &gt;&gt;<br />
> &gt;&gt; Assuming that the A&amp;F store policy lawfully forbids the wearing
> of<br />
> &gt;&gt; religious symbols, I presume that employees may not wear a
> necklace<br />
> &gt;&gt; bearing a cross or a chai, nor a yarmulka, nor a tattoo of a
> religious<br />
> &gt;&gt; symbol, nor a Sikh turban, or the like.<br />
> &gt;&gt;<br />
> &gt;&gt; Broadening the question to the issue of dominant cultural mores,
> as<br />
> &gt;&gt; asserted in the reader- comment to the news article, what do you
> think<br />
> &gt;&gt; of legislation pending in France subjecting Muslim women who choose
> to<br />
> &gt;&gt; wear a burqa (a head-to-toe overgarment with openings to see and<br
> />
> &gt;&gt; breathe) to a fine?  Would ban-the-burqa legislation, if enacted
> in<br />
> &gt;&gt; the U.S., likely be constitutional as a general law only
> incidentally<br />
> &gt;&gt; affecting a specific minority, a la Smith v. Employment Division<br
> />
> &gt;&gt; claims of religious freedom in light of a ban on a narcotic drug
> used<br />
> &gt;&gt; as a sacrament?  I believe that the argument that the covering<br
> />
> &gt;&gt; conceals identity from the general public and the authorities
> was<br />
> &gt;&gt; rejected as a compelling state interest in cases involving masks
> worn<br />
> &gt;&gt; in public decades ago, if recollection serves, leaving the main
> motive<br />
> &gt;&gt; against the burqa a religious one.<br />
> &gt;&gt;<br />
> &gt;&gt; Further regarding cultural pressure, are nursing mothers<br />
> &gt;&gt; constitutionally entitled to nurse uncovered in public w/o fear
> of<br />
> &gt;&gt; citation or arrest for some form of alleged indecent exposure or<br
> />
> &gt;&gt; disorderly conduct?<br />
> &gt;&gt;<br />
> &gt;&gt; rs<br />
> &gt;&gt;<br />
> &gt;&gt; On 9/2/2010 6:22 AM, hamilton02 at aol.com wrote:<br />
> &gt;&gt;&gt; I agree with this Marc here.  And to insert some facts into
> the   <br />
> &gt;&gt;&gt; debate, A&amp;  F has a non-negotiable policy regarding what
> employees  <br />
> &gt;&gt;&gt;  wear from top to bottom.  It is not a general look-good
> policy,   <br />
> &gt;&gt;&gt; but a specific brand-based policy that goes to its marketing
> plan   <br />
> &gt;&gt;&gt; overall<br />
> &gt;&gt;&gt; There is no justification for imposing on the company a   <br
> />
> &gt;&gt;&gt; requirement that its employees have rights to water down its
>  <br />
> &gt;&gt;&gt; public image. It is a clothing company<br />
> &gt;&gt;&gt;<br />
> &gt;&gt;&gt; Marci<br />
> &gt;&gt;&gt; Sent from my Verizon Wireless BlackBerry<br />
> &gt;&gt;&gt;<br />
> &gt;&gt;&gt; -----Original Message-----<br />
> &gt;&gt;&gt; From: Marc R Poirier&lt;Marc.Poirier at shu.edu&gt;<br />
> &gt;&gt;&gt; Sender:conlawprof-bounces at lists.ucla.edu<br />
> &gt;&gt;&gt; Date: Thu, 2 Sep 2010 09:14:08<br />
> &gt;&gt;&gt; To: 'Robert Sheridan'&lt;rs at robertsheridan.com&gt;;
> CONLAWPROFS   <br />
> &gt;&gt;&gt; professors&lt;CONLAWPROF at lists.ucla.edu&gt;<br />
> &gt;&gt;&gt; Subject: RE: Feds Sue A&amp;  F over refusal to allow Muslim
> headscarves in the<br />
> &gt;&gt;&gt;      workplace<br />
> &gt;&gt;&gt;<br />
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