Dreadlocks and Hijabs
An employer’s vision of a company’s “culture” can be risky business when it involves the appearance of workers.
Abercrombie & Fitch recently settled two lawsuits involving a provision of its dress code or “Look Policy” that prohibited Muslim employees from wearing a hijab (religious scarf) on the job.
Meanwhile, the U.S. Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against Catastrophe Management Solutions, a Mobile, Alabama catastrophic insurance claims company, for alleged discrimination against a black applicant for employment because she wore dreadlocks.
In both cases, the employers allegedly interpreted their culture in such a way as to exclude workers who demonstrated physical or cultural characteristics of race or religious identity. Other employers run afoul of Title VII of the Civil Rights Act of 1964 law when they interpret their culture in ageist or sexist ways.
Eliminating barriers in recruitment and hiring, especially class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities, is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan.
Chastity Jones was among a group of applicants who were selected for a group interview by Catastrophe Management Solutions on May 12, 2010. Jones, who is black, had blond hair that was dreaded in neat curls, or “curllocks.” Jones was offered a position as a customer service representative.
According to the EEOC, Jones’s offer of employment was rescinded later that day when human resources staff met with Jones to discuss her training schedule and realized that Jones’s curled hair was in dreadlocks. The manager in charge told Jones the company did not allow dreadlocks and that she would have to cut them off to obtain employment. Jones refused to cut her hair.
The EEOC argues that Catastrophe’s ban on dreadlocks discriminates against African-Americans is based on physical and/or cultural characteristics in violation of Title VII. The EEOC filed suit in U.S. District Court for the Southern District of Alabama (Equal Employment Opportunity Commission v. Catastrophe Management Solutions, Inc., Civil Action No. 1:13-cv-00476-CB-M).
“This litigation is not about policies that require employees to maintain their hair in a professional, neat, clean or conservative manner,” said C. Emanuel Smith, regional attorney for the EEOC’s Birmingham District Office. “It focuses on the racial bias that may occur when specific hair constructs and styles are singled out for different treatment because they do not conform to normative standards for other races.”
Third time’s the Charm?
The EEOC reports that three federal judges have issued rulings in different cases in recent years rejecting Abercrombie’s claim that it would create an undue hardship and/or violate Abercrombie’s free speech rights to require the company to permit employees to wear hijabs. Title VII requires employers to accommodate the sincere religious beliefs or practices of employees unless doing so would impose an undue hardship on the business.
Abercrombie & Fitch last month settled two EEOC lawsuits involving its “Look Policy” – an internal dress code that included a prohibition against head coverings.
The settlement follows a ruling by U.S. District Judge Yvonne Gonzalez Rogers ruled that Abercrombie was liable for religious discrimination in the firing of Muslim employee Umme-Hani Khan for wearing her hijab.
Khan, 19, started working in 2009 at the firm’s Hollister store (an Abercrombie & Fitch brand targeting teenagers aged 14 through 18) at the Hillsdale Shopping Center in San Mateo, Calif. As an “impact associate,” she worked primarily in the stockroom. At first she was allowed to wear headscarves in Hollister colors. Several months later, she was informed that her hijab violated Abercrombie’s “Look Policy” and that she would be taken off schedule unless she removed the hijab while at work. Khan refused and was fired on Feb. 23, 2010.
Judge Rogers rejected Abercrombie’s argument that its Look Policy goes to the “very heart of [its] business model” and any deviation from the policy threatened the company’s success. She said Abercrombie offered only “unsubstantiated opinion testimony of its own employees to support its claim of undue hardship.” That testimony, she added, demonstrated “their personal beliefs, but are not linked to any credible evidence.”
Abercrombie settled Hahn’s case along with a lawsuit by Halla Banafa, who was not hired as an “impact associate” in Abercrombie’s Great Mall outlet in Milpitas, Calif., because of her headscarf. In April, U.S. Judge Edward J. Davila dismissed Abercrombie’s undue-hardship claims on summary judgment, citing the “dearth of proof” linking store performance or the Abercrombie brand image to “Look Policy” compliance.
The settlement requires Abercrombie to create an appeals process for denials of religious accommodation requests, inform applicants during interviews that accommodations to the “Look Policy” may be available, and incorporate headscarf scenarios into all manager training. The company must make regular reviews of religious accommodation decisions to ensure consistency and provide biannual reports to the EEOC and Khan. Khan and Banafa will also receive $71,000 under the terms of the settlement.
In a third lawsuit not part of this settlement, a district court in Tulsa, Okla., ruled on July 2011 that it was religious discrimination for Abercrombie not to hire a Muslim applicant for a sales position due to her hijab. The case is pending on appeal.