Debate Forum: 10/21

Debate Center: Abercrombie gets another look

By Sarah Sidlow

Illustration: Jed Helmers

The mahogany halls of the Supreme Court may smell a little more strongly of cologne this December, as the high court has decided to hear a case against apparel retailer Abercrombie & Fitch. On behalf of a young Muslim woman who was allegedly not hired because she wore a religious headscarf, the Equal Employment Opportunity Commission (EEOC) is suing Abercrombie, accusing the store and its controversial “look policy” of religious discrimination.

In 2008, then-17-year-old Samantha Elauf interviewed to be a “model” – the brand’s equivalent to a store sales clerk – at an Abercrombie Kids store located in Tulsa, Oklahoma. She got high enough marks to receive a recommendation to be hired by manager Heather Cooke, 23. But after the interview, and a conversation between Cooke and her superior, Elauf was given a low score for “appearance and sense of style” – a result of the black headscarf she wore during the interview. Elauf did not get the job.

The decision not to hire Elauf was a result of the company’s “look policy,” a strict set of guidelines for employee dress, which ensures each model upholds the appearance of what people expect from the Abercrombie brand. These guidelines specify requirements for hairstyle, makeup, facial hair, tattoos and other factors. The guidelines also prohibit store models from wearing “hats” at work – allegedly the reason Elauf was given a low score.

As a result of previous legal challenges to the store’s look policy, Abercrombie does allow religious exemptions. Cooke told her superior she assumed Elauf wore the scarf for religious reasons, but did not ask about religion during the interview, in accordance with EEOC guidelines.

The case now hinges on whether or not employees must explicitly inform prospective employers they require a religious exemption – in this case, whether Elauf should have told Cooke up front she would need a religious exemption from Abercrombie’s “look policy.” Abercrombie’s attorneys claim, “It is axiomatic that an employer must have actual notice that an applicant’s mandatory religious practices conflict with an employment requirement.” Moreover, the company stands by its controversial “look policy” as a necessary tool for the health of the brand.

The EEOC argues if “actual knowledge” of an employee’s religious beliefs is required by employers, companies could discriminate against employment candidates based on perceived religious practices, so long as they do not have explicit statements from those candidates.

This is not the first time the mall giant has been taken to court for religious discrimination. Halla Banafa, a Muslim woman who applied to work at an Abercrombie Kids store in California, was asked about her hijab during an interview, and subsequently not hired. Umme-Hani Khan was fired from an Abercrombie subsidiary, Hollister, after refusing to remove her headscarf. Banafa and Khan were awarded $71,000 in a joint settlement in September of last year.

Abercrombie is also not the only business whose model requires close monitoring of employee appearance. For example, Disney and Singapore Airlines have similar policies, outlining specific guidelines for employee hairstyle and color, tattoos, nail polish, make-up and other features that may represent the brand.

While it is likely fresh faces and toned physiques will remain on Abercrombie’s branding and packaging, the company may be poised to take another look at its corporate policies.

Reach DCP Editor Sarah Sidlow at


Debate Forum Question of the Week:

Should a business whose policies require employees to maintain a certain appearance (such as Abercrombie & Fitch, Disney and Singapore Airlines) get a “PC Pass” to exclude persons whose religious attire may conflict with those policies?

Debate Left: Chief Executive Orifice

By Ben Tomkins

Why is the Supreme Court taking this case? If you’re liberal, you already know that Abercrombie & Fitch is a filthy, discriminatory company that violates just about every hiring policy possible. If you’re a conservative, you shrug and shake your head at their filthy, discriminatory hiring policy and accept that businesses have a right to design a business model and subject it to consumer scrutiny.

Frankly, I’m ecstatic the Supreme Court took this one, because cases like this bring out the emotional idiocy of both sides of the aisle, and exposes both the media and the public at large as lemmings who are willing to take as fact anything that makes them feel righteous. I love it.

I’m also giddy because the more emotional an issue is, the more pure and objective the arguments will have to become to sway a court that doesn’t give a crap about any of that nonsense. In a lot of ways there are emotional parallels between this case and Hustler Magazine, Inc. v. Falwell (1988). We all hate the defendant’s guts, generally sympathize with the plaintiff, and none of that matters because the Supreme Court isn’t up for election.

That being said, I think Abercrombie & Fitch should be tarred and feathered for this one. While it may seem that this is a simple question of business practice to be judged by the consumer, the conservative shoulder shrug would be far too simplistic an answer. Although it sounds like an introspective tipping of the hat toward the Constitution, it’s no more sophisticated a response than saying the Church of Satan should be allowed to participate in the D.C. Christmas displays because it’s a religion. Both views are overly simplistic. This, like Roe v. Wade (1973), is not a case where extremes of emotions license dividing constitutional law with a bread knife. 

For instance, the perceived discrimination issue everyone’s pissed off about has nothing to do with the case. Abercrombie & Fitch settled two lawsuits on this subject in September 2013 for a total of $71,000 and agreed to change its policy to allow employees to wear the hijab. There is no dispute that Abercrombie & Fitch must allow their employees a religious exemption. 

That’s what’s so weird and fascinating. It’s a question of whether or not a potential employee is required to disclose his or her religious practices to the employer before being hired in order to qualify for religious exemptions. It’s actually an argument for protection of religious privacy, not overt hiring discrimination.  

An employer cannot ask you about your religion in an interview. Nor can they infer your religion based on factors in the interview. However, if an employer is perfectly willing to hire you but doesn’t know you will need certain days off or special accommodations, should it have to assume the burden of being blindsided by a religious observance when it has scheduling to consider?

That’s really the only issue at stake here; there is no dispute about the facts or the outcomes. Abercrombie & Fitch has altered policy about reasonable religious dress, and not a single person has even tried to make the argument that they should be required to hire someone who is going to wear a burka. They aren’t pretending to be a modeling agency, and they have repeatedly failed to pretend they kind of, sort of or maybe are. Their clothes are for douchey frat boys and locker-room whores. So, that right there slams the door shut.

I think the Supreme Court is going to rule, narrowly, that an employee does not have to give notice of religion prior to hiring. The whole point of making it illegal for an employer to ask about religion is exactly because they could secretly discriminate and just look for some other excuse not to hire you. It makes it too easy.

On the other hand, if you require a potential employee to disclose their religion so an employer can be prepared to make accommodations – albeit for purely practical reasons – you have effectively reinstated the right of the employer to ask job applicants about religion. It’s implied that, by making it an inescapable issue, a potential employer is requiring you to disclose your religion if you would like to actually observe its practices.  

In a way, it’s reminiscent of the jizya tax that was recently reinstated by ISIS. The jizya is a tax levied against all non-Muslims living in a Muslim state. The deal is that a Muslim state charges non-Muslim residents a protection tax because there’s no way in hell the Muslims are going to allow non-believers to participate in the military or have access to weapons. In exchange, they will allow you to reside in their state without slaughtering you like goats. 

International society generally frowns on this.

Regarding the Abercrombie case, the same general principle applies. Either you can pretend you aren’t religious and protect your right to fair hiring practices, or you can observe your religious practices at the expense of another protected freedom. Those are two foundational constitutional protections, and the resolution of the contradiction is the reason the Supreme Court exists.  

Personally, I don’t see how Abercrombie is going to prevail unless the court declines to declare a verdict.

Now, I’ve saved a few words. 

The CEO of Abercrombie & Fitch is a fetid piece of shit. If you buy their clothes, you reek of that shit too. Shop elsewhere.

Ben Tomkins is a violinist, teacher, journalist, and critically acclaimed composer currently living in Denver, Colo. He hates stupidity, and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of the issue. Reach Ben Tomkins at

Debate Right: The right to brand health

By David H. Landon

The U.S. Supreme Court has agreed to hear a case this session brought by the Equal Employment Opportunity Commission (EEOC), which is suing an American retailer, Abercrombie & Fitch, accusing the store and its controversial “look policy” of religious discrimination. The case was brought by Samantha Elauf, a young Muslim woman who, because she wore a headscarf during her interview, was given low marks for appearance on her evaluation and, as a result, turned down for employment by Abercrombie. Elauf has brought suit against Abercrombie stating they practice religious discrimination in their hiring policies.

Abercrombie & Fitch (A&F) is an American retailer that focuses on casual wear for young consumers and is headquartered in New Albany, Ohio, a suburb of Columbus. It has over 400 locations in the United States and is expanding internationally. In recent years, the company has consistently kept a high profile, primarily because of its aggressive pursuit of its “look” brand health. Through its sometimes controversial advertising campaigns, A&F has consciously pursued a brand image that its clothes are worn by the “cool” kids. In fact, in 2013, the company came under fire for comments made by the CEO, who stated his brand is only suitable for “the good-looking, cool kids,” and there are people who don’t belong in his clothes – namely, overweight people. The company has even been accused of promoting the sexualization of pre-teen girls, for example, by marketing thongs to 10-year-olds and padded bikini tops to 7-year-olds.

Over the years, Abercrombie has found itself in court over its hiring practices and how it treats employees. The company uses “brand representatives,” now called “models,” for store customer service. In the past, the models were required to buy and wear A&F clothing, but, following a company settlement with California state labor regulators, the models may now wear any no-logo clothing as long as it corresponds with the season and style of the brand. 

The question before the Court regarding Abercrombie’s hiring practices might be decided on the narrow issue of whether or not a prospective employee has a duty to bring any requirements of their specific religious practice to the attention of the employer during the hiring process. (During her interview, Elauf did not mention that a headscarf was required by her religious practice.) But perhaps the real question should be: does a company have a right to protect its brand by hiring employees who would best promote the sale of its product?

Abercrombie has invested in an image that promotes a certain look. It believes the best people to sell its clothing line are “models” who have that certain look. If you are in the business of selling merchandise to the public, a worker’s physical appearance, to the extent that it enhances customer satisfaction, is a legitimate job qualification. Can this be taken too far? Perhaps when an otherwise qualified applicant is turned down because of a physical attribute, there is a certain unfairness about the outcome. But, so long as the physical appearance factor is not based on gender, race or religious preference, doesn’t the business have the right to create its brand and let the free market determine its success or failure?

Other companies have followed this logic of marketing a “look” to enhance their brand. Disney has, since its inception, promoted a clean-cut look that it has required its employees to follow. That look is spelled out on its website for prospective employees. “The Disney Look is a classic look that is clean, natural, polished and professional, and avoids ‘cutting edge’ trends or extreme styles … Regardless of the position you hold with us, when you take pride in your appearance, you become a role model for those around you, and you convey the attitude of excellence that has become synonymous with the Disney name.”  Only recently has Disney even allowed facial hair on men. Tattoos are definitely out!

In recent years, the restaurant chain Hooters was challenged for its hiring practice of employing only attractive, “physically fit” women to work as servers for its company. This is a brand based solely upon female sex appeal. Hooters’ website explained and justified its policy stating, “The element of female sex appeal is prevalent in the restaurants, and the company believes the Hooters Girl is as socially acceptable as a Dallas Cowboy cheerleader, Sports Illustrated swimsuit model, or Radio City Rockette.” The EEOC eventually dropped its investigation, but Hooters’ challengers (men wanting to be servers) were undeterred and a class action lawsuit was brought against the company. The company settled the lawsuit for $3.75 million. Under the terms of the settlement, the company allowed males to work as bartenders and hosts, but continued to hire only women for server positions.

Based on the Hooters settlement, it would appear physical appearance can be used to help a business create a brand and image. Physical appearance in certain industries remains a legally “bona fide occupational qualification.” If Ms. Elauf otherwise fit the Abercrombie “look” – as in she was thin, had an attractive face and a sense of style, it’s unfortunate that her scarf would prevent her from employment. Over time, perhaps things will change. But I hope that I will never see a time when the EEOC demands that Radio City Music Hall hire Rockettes with hairy legs.

David H. Landon is the former Chairman of the Montgomery County Republican Party Central Committee. He can be reached at

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Sarah Sidlow
Reach DCP editor Sarah Sidlow at

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