Abercrombie & Fitch case, Discussion 5, philosophy homework help

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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

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.

In the first part of your initial post, you will need to introduce the
Abercrombie & Fitch lawsuit. In this introduction, you will also need to
(1) articulate the freedoms that companies in the United States enjoy given our
relatively-free market system and (2) present the Title VII regulations
concerning employment discrimination. These will provide the setting for you to
be able to examine how the nation’s laws affect the hiring practices of
Abercrombie & Fitch and other companies whose hiring policy includes a
particular aesthetic for employees.

In the second part of your initial post, present your
analysis of this case in a way that identifies which entities (Abercrombie
& Fitch as a corporation, the economic system in the USA, the regulatory
control of the state, or all of these) have a role in the problem that led to
the lawsuit under examination. In your analysis, you must assess the positive
or negative effects of the interplay between business activity and one of the
following: the free-market system, advertising, hiring regulations, or
corporate social responsibility. Your focus must be an ethical analysis of this
interplay. Be sure to clearly identify the ethical theory that you are applying
in your analysis, and to support your analysis by reliable and/or scholarly

Requirements for Your Initial Post:

  • Your
    initial post should be at least 350 words in length and have
    citations and references in APA notation. It should address the prompt in
    its entirety. This means that you should not split your response to the
    prompt in multiple posts. Your examination should be both thorough and
    succinct. This is a combination that demands time and thought, so give
    yourself sufficient time to draft and revise.
  • Please
    be advised that until you post, you will not see what your fellow students
    are posting. Once you submit your post, you will be able to view the posts
    from your other classmates. You can then proceed to reply to at least two
    different threads based on the required material for this discussion.

Your list of references for your initial post should include
not only the video and the other required material for this discussion, as well
as the Instructor Guidance and any other announcements presented to you by your
professor. Use all of the material presented to you in the course and by your
professor, in addition to any other sources that you consulted to inform
yourself about this case (but not Wikipedia or similar sources).


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