I need to reply to a peer's discussion post, need a 200 word response.   Her info is below.

The Case:

There are two sides to consider in the Abercrombie & Fitch case. On the one hand, we have the job candidate’s side. She went to the job interview wearing a hijab. The interviewer did not remark on the hijab, and the candidate also did not volunteer that her religious beliefs required her to wear a hijab. She was subsequently not hired based on the perception that her appearance was incongruous with the company’s look policy. For example, caps are not permitted and the male sales associates (referred to as “models” in the company’s corporate language) are often shirtless and in sweatpants in order to create the mood at the stores for the aesthetic for which Abercrombie & Fitch has become known: young, preppy, and hormonally charged. When she was notified that she was not hired for the position, she filed a complaint with the Equal Employment Opportunity Commission that, in turn, filed a lawsuit on her behalf alleging a violation of Title VII.On the other hand, we have Abercrombie & Fitch’s side. As a company doing business in the United States, Abercrombie & Fitch is legally permitted to hire those employees who fit its look policy. This is no different from the look requirements for the Dallas Cowboys Cheerleaders, the Chicago Bulls, the New York City Ballet company, or for jockeys hired by thoroughbred owners to race them at the Kentucky Derby. In all of these cases, there are height, size, and other look requirements for employment that are justified by the particular demands and aesthetics of the position. She was found to be qualified for the job but her dress was clearly in conflict with Abercrombie & Fitch’s look policy. Yet, the job applicant knowingly sought employment at this retailer.

According to the law, should a special accommodation be required due to a religious practice, then Title VII dictates that the look requirements give way to the religious requirement in order not to be considered an act of religious discrimination.

The EEOC prevailed in the District Court, but this judgment was reversed by the Tenth Circuit on the ground that failure-to-accommodate liability only attaches when a job candidate provides the potential employer with knowledge of the need for an accommodation due to religious practice. Once it reached the Supreme Court, the decision was made in favor of the job candidate. According to Justice Scalia,

Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not “to fail or refuse to hire or discharge any individual . . . because of such individual’s” “religious observance and practice.” An employer is surely entitled to have, for example, a no headwear policy as an ordinary matter. But when an applicant requires an accommodation as an “aspec[t] of religious . . . practice,” it is no response that the subsequent “fail[ure] . . . to hire” was due to an otherwise-neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.

The only dissenting opinion was that of Justice Thomas who wrote:

Mere application of a neutral policy cannot constitute “intentional discrimination.”…I would hold that Abercrombie’s conduct did not constitute “intentional discrimination.” Abercrombie refused to create an exception to its neutral Look Policy for Samantha Elauf ’s religious practice of wearing a headscarf… In doing so, it did not treat religious practices less favorably than similar secular practices, but instead remained neutral with regard to religious practices…Resisting this straightforward application of §1981a, the majority expands the meaning of “intentional discrimination” to include a refusal to give a religious applicant “favored treatment.”…But contrary to the majority’s assumption, this novel theory of discrimination is not commanded by the relevant statutory text.

Instructions:

Each of your replies should be at least 200 words, and informed by the course material. As such, the replies must have citations and references in APA notation. Your list of references for each reply should include all of the course material that has informed your reply, in addition to any research that you have obtained on your own.

Your replies should focus on the specific examination presented by your fellow student and these should include an examination of whether or not the characteristics of the ethical theory and/or economic system were identified well, and whether or not their application and analysis was also carried out successfully. Providing such an examination is not an attack on your fellow student but an attempt to work together with your fellow student toward the better understanding of the ethical theories employed, as well as their application.

re:  monica

 Samantha Elauf applied for a position at Abercrombie and Fitch. She is a practicing Muslim who wears a hijab which is a religious head covering. Although Ms. Elauf did not disclose her religious preferences or document special accommodations for her hijab, the company was accused of discrimination. Ms. Elauf did not meet criteria of the company’s “look policy.” The Civil Rights Act of 1964 provides citizens of the United States protection against discrimination on the basis of religion. The Equal Employment Opportunity Commission (EEOC) is an agency ran by the government that investigates suspected discrimination. Filing a complaint with the EEOC should be the first course of action if you think you may have been a victim of discrimination. Ms. Elauf filed a complaint in 2009 that went to the Supreme Court. The court ruled in her favor. “Justice Antonin Scalia noted that an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” (Fieser, 2015) Companies have certain freedoms within our relatively-free market system. However, there are laws put in place to protect employees. Title VII of the Civils Rights Act of 1964 does allow employers to use religion, race, color, sex etc as grounds for hiring, firing, or promoting individuals. (Zakrzewski, 2005) There is also an Age Discrimination in Employment Act (ADEA) that prevents discrimination of individuals based on age.  Under Title VII there has to be substantiating evidence to prove that unlawful discrimination occurred. There is an exception to Title VII in which employers can use gender, religion etc when it there is a bona fide occupational qualification (BFOQ). (Zakrzewski, 2005) This means that an employer is only able to do so when they can prove that the job can only be performed safely and efficiently by a particular group. The ADEA has a similar rule of a BFOQ when it is considered “reasonably necessary” that only individuals of a certain age can perform a job. Companies can be selective with who they hire as the people they hire are a reflection of their business. A company can hire, not hire or fire without needing a reason, this is called “at will hiring.” According to Title VII, “employers generally have the right to mandate reasonable dress or grooming codes, as long as these requirements are applied equally to everyone.” (Zakrzewski, 2005) Therefore, there are no restrictions when it comes to decisions of employment based on appearance or attractiveness. I think that may have been the problem that led to the lawsuit. Abercrombie & Fitch may have thought that their no caps rule was applied neutrally across the board to everyone so they would be protected under Title VII regulations. This situation is not black and white and I can definitely see the gray in where Abercrombie & Fitch may have thought that they were in the right. Even if their no caps rule was applied to every applicant, they didn’t take into account that they were violating an individual’s personal rights of freedom and religion. I think in using the deontology approach, companies should understand that they have moral obligations to uphold. Like the Golden Rule, treat others how you would want to be treated. Using the categorical imperative we can determine if an action is right or wrong. An example from our book “I donate to charity, for example, I am thinking of the value of the needy people who will benefit from my contribution; I am not merely thinking of any benefit that I may receive through my charity.” (Fieser, 2015) Therefore, we should treat people with intrinsic value and treat them as an end, and regard them as equally as we would our own happiness or desires. Due to this incident it has caused the company to take a step back and look at their policies. They replaced their look policy with a dress code that allows people to be more individualistic. (Supreme Court rules against Abercrombie & Fitch in head scarf case, 2015) It also has decided to do away with hiring based off of attractiveness. It unfortunately took a negative situation for Abercrombie & Fitch to produce positive results moving forward for the company. 

References

Fieser, J. (2015). Introduction to business ethics [Electronic version]. Retrieved from https://content.ashford.edu/

Wall Street Journal. (2015, June 3). Supreme Court rules against Abercrombie & Fitch in head scarf case [Video file]. Retrieved from https://youtu.be/lhePN3HMHxI

Zakrzewski, K. (2005). The prevalence of “look”ism in hiring decisions: How federal law shoud be amended to prevent appearance discrimination in the workplace. U. Pa. Journal of Labor and Employment Law, 7(2), 431-461. Retrieved from https://www.law.upenn.edu/journals/jbl/articles/volume7/issue2/Zakrzewski7U.Pa.J.Lab.&Emp.L.431%282005%29.pdf