"Looks" discrimination can be a problem even if you're in retail, fashion, or marketing

Are you in retail, fashion, or marketing, and getting ready to reject a job candidate because he or she doesn't have the "look" you want?

You might want to look before you leap. Or before you have to go to trial in front of a California jury against the Equal Employment Opportunity Commission.

The apparel chain Abercrombie & Fitch is learning that the hard way.

Abercrombie was sued a while ago by the EEOC, which claimed that a store in California refused to hire a teenager for a part-time job because she wore a hijab, the Islamic head scarf. This week, a federal court denied Abercrombie's motion for summary judgment, which means the case will go to trial. (The court also granted the EEOC's motion for partial summary judgment on some of Abercrombie's affirmative defenses.) The court found that there was a "genuine issue of material fact" that the store's reasons for rejecting the teen were a pretext for religious discrimination and that the store refused to accommodate her religion. That means a jury will have to decide these issues.

Abercrombie is very conscious of its "look." According to the evidence in the lawsuit, the store does minimal advertising but tries to achieve a consistent Abercrombie "preppy look" in its retail stores.

Why can't a Muslim look preppy, you ask? Surely hijabs are available in pink and green. Or madras.

If even fire hydrants are available in "preppy," then why not hijabs?

Well, first, I have learned that my idea of "preppy" is way out of date. I went to Abercrombie's website and, after I finally found some models who were wearing clothes, I found the "look" -- well, I'm still not sure how this is "preppy," but I guess it is.

In addition to not wearing many clothes on their bodies, you will notice that the models don't wear anything on their heads. Hats, caps, lampshades, veils, hijabs are not part of the "look."

Not an Abercrombie store, apparently.

So, one fine day in March 2008, a regular Abercrombie teen customer named Halla Banafa applied for a job. She was wearing a turtleneck, a hijab, red nail polish, and a nose ring. According to the court, none of the above were consistent with the "look."

Ms. Banafa was interviewed by a manager-in-training who had been on the job only one month. (Bless her heart!) It was undisputed that the newbie asked Ms. Banafa whether she was Muslim and that the hijab was discussed. (The parties disputed some of the details of the discussion, but there is no question that the hijab and Islam came up in the interview.)

Sorority rush at an American college campus. See any hijabs? Neither do I. Abercrombie is right - hijabs and "preppy" don't mix!

According to the manager-in-training, Ms. Banafa went on to say in her interview that she could not work Mondays through Thursdays, and she was not very impressive in her interview, even in addition to the fact that she was hardly ever available to work. Nonetheless, Ms. Banafa got a high enough score to be eligible for hire. But she was rejected even though she had received a "minimally qualified"* score, and the inexperienced manager never did actually check into whether the store could make an exception to the appearance code for a hijab worn for religious reasons.

*I'm exaggerating a bit here, but the EEOC's position -- as well as the position of some federal courts -- is essentially that once a person is "minimally qualified" for hire or promotion, that person can claim discrimination if not selected. So, employers, beware of rating people "minimally qualified" when they really are not. In this case, Ms. Banafa was not available to work on the days that Abercrombie supposedly wanted her, but the manager -- maybe in an attempt to be nice? -- rated her "qualified" anyway. If her unavailability on weekdays was truly a problem, she should have been rated "not qualified."

What really cooked Abercrombie's goose -- at the summary judgment stage, anyway -- was that three guys were hired who had lower interview scores than did Ms. Banafa. Also, the manager-in-training didn't claim that "availability" was a problem until her deposition in the lawsuit. During the whole time that the EEOC charge was pending, she contended that Ms. Banafa's lackluster interview was the only reason she was not selected.

And there was one more problem with the "availability" explanation: there were witnesses who testified that Abercrombie actually needed weekend people more than weekday people. Which sounds very plausible for a retail employer.

As I've said before, it is never a good idea to change your story. That's why you should be sure that whatever you submit to the EEOC -- even on a seemingly trivial charge -- is thorough and truthful. Yes, it will cost a little more money at the beginning. But compare that with the costs associated with this case, which has been dragging on for five years. You know what Ben Franklin (or whoever) says . . .

So the court decided that a jury should have to decide whether the manager's stated reasons for rejecting Ms. Banafa were a pretext for a discriminatory motive.

Who knows what was really going on? The jury will decide, assuming Abercrombie and the EEOC don't settle before trial. But one thing is certain: it is never a good idea to ask a job interviewee about her religion (or other legally protected characteristic) and call attention to her distinctive appearance -- and then reject her for hire. If you must ask those things in a job interview (and you really should not), you had better (a) be a Muslim yourself (as in, "You're a Muslim? Me, too - eeeee! Come to mosque with me this weekend, 'kay?"), or (b) be fully prepared to hire her no matter how she does in the rest of her interview because your failure to do so will, without question, be viewed as discrimination.

Oh, and did I mention that the court is also going to let the jury consider punitive damages? All this over a part-time, minimium wage job for a teenager!

POSTSCRIPT: Later in 2008, the same year that Ms. Banafa applied for the job, she got married and moved to South Carolina with her husband . . . and she has been happily employed at an Olive Garden ever since and no longer wears a hijab at all. Read the case -- I am not kidding! She's also chair of the Women's Tuesday Morning Bible Study at the Pee Dee River Baptist Church. (OK, I did make that part up, although there really is a Pee Dee River in South Carolina.)

And, in other news:

President Obama now has a full slate of nominees to the NLRB, including two well-regarded Republicans. Will the Noel Canning "quorum" issue soon be moot? Our own David Phippen has it all!

Rutgers debacle: Do the right thing, and damn the "process"? (I agree that "process" is often overemphasized, but you usually need some process to know the right thing to do.)

Better smile when you say, "You want fries with that?"

Heavy users of Facebook are more likely to be drunk than stoned. (That explains a lot, doesn't it?)

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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