Charlotte Fishman, a lawyer in private practice in San Francisco, specializes in discrimination law and was previously staff attorney for the California Department of Fair Employment and Housing.

Viewpoints: Abercrombie & Fitch doesn’t get it when it comes to diversity

Published: Saturday, Sep. 14, 2013 - 12:00 am

For a company that claims to care deeply about its image, Abercrombie & Fitch seems remarkably tone deaf. In its zeal to promote the “California beach-inspired” clothing sold at its Hollister store in San Mateo’s Hillsdale Shopping Center, the Ohio-based company overlooked a central fact about California: our state is blessed with a remarkably diverse population.

To say that the fantasy “California” of Abercrombie’s sales strategy has not kept up with our demographics would be an understatement. According to “ The Bay Area Muslim Study: Establishing Identity and Community,” a 2013 report published by Santa Clara University’s Institute for Social Policy and Understanding, an estimated 250,000 Muslims live in the Bay Area, one of the highest concentrations of Muslims in the United States. The bulk of the community lives along the Highway 101/880 corridor, within easy “shopping distance” of the Hillsdale Shopping Center.

Abercrombie requires employees to adhere to a dress code, its “Look Policy,” insisting that strict adherence is essential to creating the “in-store experience” that reinforces the brand’s “aspirational lifestyle.” Apparently, the ideal Abercrombie customer does not aspire to associate with Muslims, because the policy contains a blanket prohibition against head wear.

Umme-Hani Khan is a 19-year-old Muslim who, as an expression of her faith, wears a hijab in public. In October 2009, she began working as a stock clerk (“impact associate”) in Abercrombie’s Hillsdale store. Though her duties were primarily in the stockroom, she occasionally entered the sales floor to restock clothing. When hired, Khan agreed to abide by the Look Policy, and her local supervisors accommodated her religious beliefs by allowing her to wear a head scarf matching “company colors.”

This amicable state of affairs ended when a visiting district manager notified a senior human resources manager of the offending hijab, and asked for guidance. On Feb. 15, Khan was advised that her head scarf violated the Look Policy and was asked not to wear it at work. When Khan refused, explaining that wearing a head scarf was part of her religion, she was suspended “pending investigation.” One week later she was fired. Shortly thereafter, she filed a charge of religious discrimination with the Equal Employment Opportunity Commission.

Here’s where it gets interesting.

Both Title VII and the California Fair Employment and Housing Act prohibit religious discrimination, and mandate that an employee’s religious observances or practices must be accommodated unless the employer can prove that doing so would place “undue hardship” on the conduct of its business. California law requires proof that the employer “explored any available reasonable alternative means of accommodating the religious belief or observance.” Under federal law, the employer must show either that it initiated good-faith efforts to reasonably accommodate the employee, or that it would be an undue hardship to do so.

After failing to resolve Khan’s complaint through conciliation, the EEOC filed suit in federal district court in Oakland. Abercrombie responded as usual, claiming that the Look Policy is key to its success, and that any deviation would negatively affect its brand. Remarkably, it failed to offer a shred of objective evidence – not even one “document, survey, customer complaint, sales report or financial statement” – to support its argument.

Abercrombie also defended Khan’s firing on novel First Amendment grounds, arguing that its Look Policy is constitutionally protected commercial free speech, a position that requires accepting the incongruous claim that its “models” (salespeople) and “impacts” (stock clerks) are “living advertisements” for the brand.

Judge Yvonne Gonzalez Rogers was not amused. Noting that stock clerks are not hired as living advertisements and that their duties (processing shipping, folding clothing and restocking the sales floor) are primarily performed in the stockroom, she found Abercrombie liable for failure to accommodate Khan under both Title VII and the FEHA, leaving only two issues – injunctive relief and damages – to be decided at trial.

Personally, I think Judge Gonzalez Rogers did Abercrombie a favor. In the “real” California, firing a 19-year-old hijab-wearing fashionista out of fealty to an illegal corporate policy is what tarnishes the Abercrombie brand. Unless Abercrombie changes its tune, the stage is set for a customer backlash that, unlike Umme-Hani Khan’s head scarf, really will pose a threat to the company’s bottom line.


Charlotte Fishman is a San Francisco employment attorney whose focus is identifying and eliminating barriers to women’s advancement in the workplace..

Read more articles by Charlotte Fishman



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