Hijab Lawsuits Against Abercrombie & Fitch
American clothing retailer Abercrombie & Fitch has had to face several lawsuits over an item of clothing. But the item of clothing is not one of its own. The lawsuits have been about the hijab. The latest one, involving Samantha Elauf, will now be going to the US Supreme Court. Some of the issues that the Supreme Court will have to consider have been aired in a commentary by Phyllis Chesler, a psychotherapist and writer on many topics.
Samantha Elauf’s Case
Samantha Elauf had applied for a job with Abercrombbie Kids store in Tulsa Oklahoma in 2008, and was initially given a high score. She wore a hijab during the interview. However, after consultation with a district manager, the interviewer lowered the score in the “appearance and sense of style” category. Although the interviewer had assumed that Samantha Elauf wore the hijab for religious reasons, she did not ask about religion during the interview, in accordance with the US Equal Employment Opportunity Commission (EEOC) guidelines.
The EEOC sued on Samantha Elauf’s behalf. A federal judge ruled against the company but the decision was reversed by an appeals court.
The case hinges on whether job applicants must explicitly inform prospective employers that they require a religious exemption for their form of dress. Abercrombie maintains that Samantha Elauf did not make this request. The EEOC argues that if “actual knowledge” of an employee’s religious belief is required by employers, companies could discriminate against employees as long as the employees do not make explicit statements about their religious practices.
Other Cases Against Abercrombie & Fitch
Halla Banafa was asked about her hijab during her interview for a job at Abercrombie Kids store in California, but was not hired on grounds that accommodating her headscarf would place undue hardship on the business.
Umme-Hani Khan had been wearing a hijab at Hollister, an Abercrombie subsidiary, for several months, but after a visit by a district manager she was asked to remove it. She refused and was dismissed.
Both were awarded $71,000 in a joint settlement in September 2013.
Issues For Supreme Court To Consider
Phyllis Chesler is a professor emeritus of psychotherapy, and a writer on issues such as gender, mental illness, second-wave feminism, pornography, prostitution, violence against women, anti-Semitism, Islam, and honor killings. She has also called for an American ban on the burka (face and full-body covering) on grounds that it is a violation of women’s rights and a health hazard. However, she acknowledges that the case for a ban on the hijab is more difficult. It is only a head covering that poses no danger to the woman or the public.
Phyllis Chesler points out that one objection that has been raised against permitting the hijab in public places is that it may represent the “nose of the camel”, which, once it enters the tent, will lead to demands for halal food, separate classes for boys and girls, separate swimming facilities, breaks for prayer, the public recognition of Muslim holidays, tax-funded Muslim schools and so on.
However, nuns, rabbis, religious Jews,and Sikhs are allowed to wear head coverings. So why ban the hijab? According to Phyllis Chesler, some counter-terrorism experts think at “at this time in history” there is a difference between these other groups and Muslims. It is because the other religious groups do not call for supremacy over infidels or for violent jihad against infidels and against other Muslims who do not adopt extremist views. Moreover, with the notion of jihad being so widespread, permitting the hijab at work may frighten off or offend some customers. Phyllis Chelser adds, though, that she is not suggesting that a hijab-wearer would kill anyone. However, she cannot be sure that such a wearer will oppose those who exercise the right to kill under Sharia law.
Thus Phyllis Chesler concludes that “The Supreme Court will have to carefully balance the separation of religion and state; freedom of religion; the nature of public space and business bottom lines; and individual civil rights – over and against the meaning that the Islamic headscarf may have in such dangerous times”.
Think About It
Can the Supreme Court take into account the many issues that Phyllis Chesler raises? Will it be limited only to points of law? The Quran mandates modesty for both men and women, but does not specify the hijab. Is the hijab always worn for reasons of modesty, or is it sometimes to make a statement about one’s religious belief? Is making a public statement about oneself modest? Would getting the message across that wearing a hijab may not be an expression of modesty be a better way of resolving this recurring problem with hijabs?