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Abercrombie & Fitch Hijab Lawsuit is One of Several Aimed at “Look Policy”

| June 28, 2011
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Hani Khan speaks at a press conference announcing her lawsuit.

Hani Khan speaks at a press conference announcing her lawsuit. Courtesy CA CAIR

A couple of years ago, Hani Khan worked at a Hollister clothing store at San Mateo’s Hillsdale Shopping Center. When she was hired, Khan agreed to wear only white, navy, or gray headscarves, or hijabs, in order to fit the company colors of Holliser, an Abercrombie & Fitch subsidiary. But four months into her employment, Khan says, a human resource official from the company told that her head scarf violated the store’s “look policy.”

“I was completely shocked,” Khan said. “Nothing like this has ever happened to me. I was 19 at the time and no one had ever had an issue with my hijab.”

Khan refused to comply and was suspended and then fired in February. (Video interview with Khan here.) The EEOC ruled that Khan was fired illegally and filed suit (.pdf here), in conjunction with the Legal Aid Society of San Francisco and the Council on American-Islamic Relations, which are representing Khan.

U.S. law forces employers to make accommodations for religious beliefs, unless it would be an “undue hardship” in conducting business.

Unless it would be an undue hardship on the employer’s operation of its business, an employer must reasonably accommodate an employee’s religious beliefs or practices. This applies not only to schedule changes or leave for religious observances, but also to such things as dress or grooming practices that an employee has for religious reasons. These might include, for example, wearing particular head coverings or other religious dress (such as a Jewish yarmulke or a Muslim headscarf), or wearing certain hairstyles or facial hair (such as Rastafarian dreadlocks or Sikh uncut hair and beard). It also includes an employee’s observance of a religious prohibition against wearing certain garments (such as pants or miniskirts).

When an employee or applicant needs a dress or grooming accommodation for religious reasons, he should notify the employer that he needs such an accommodation for religious reasons. If the employer reasonably needs more information, the employer and the employee should engage in an interactive process to discuss the request. If it would not pose an undue hardship, the employer must grant the accommodation.

Khan is now one of three women suing Abercrombie & Fitch for either not hiring, or firing, women wearing headscarves. Samantha Elauf, a 19-year-old community college student from Tulsa, Oklahoma, filed suit in 2009, and an unnamed 18-year-old woman from Milpitas filed suit in 2010.

Official Disney hijab-substitute.

A normal hijab compared to Disney's hijab-substitute. Courtesy Unite Here Local 11

At issue is whether a violation of the “look policy” would cause the company undue hardship. Businesses have rarely been able to prove that complying with a request would cause undue hardship.

Abercrombie & Fitch have lost or settled several other lawsuits over their look policy. In 2009 the company agreed to pay $2.2 million to settle a suit with California labor regulators over allegations it forced its employees to buy and wear its clothes while on the job. In 2004, the company agreed to pay $40 million to settle a federal class-action lawsuit alleging that it promoted white employees at the expense of blacks, Hispanics and Asians. In 2009 a young British woman also sued the company, winning £136 basic compensation and £1,077 for loss of earnings after the company forced her to work in the stockroom because of her prosthetic arm.

Abercrombie & Fitch has a Diversity and Inclusion initiative and a Diversity Council, spokespeople for the company said yesterday.

Sometimes companies win discrimination suits because a jury or judge did not believe that the employee suing had a “sincerely held belief.” A woman with a nose ring sued Subway when they asked her to remove it, claiming that it was part of her Nuwaubian religion. She lost the case. Costco also won a suit brought by an employee who said that her belief in the Church of Body Modification forced her keep her facial jewelry uncovered.

Official Ikea hijab

Official Ikea hijab. Courtesy makers The Hijab Shop

Disney has been sued twice by women who wore headscarves. Both cases are ongoing. Disney also reached an agreement with an Illinois intern whom the company said could only wear a Disney-approved head covering instead of her usual hijab.

In 2005, Ikea also created a specific hijab for employees.

Listen to Hani Khan’s statement

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About the Author ()

Lisa Pickoff-White is KQED's Senior Interactive News Producer. Her work has been honored with awards from the Online News Association, Investigative Reporters and Editors, Society of Professional Journalists and SXSW Interactive. Lisa specializes in visual journalism, including photography and data. Reach Lisa Pickoff-White at lpickoffwhite@kqed.org.
  • Ramona

    • FPRIVATE “TYPE=PICT;ALT=your avatar”

    tylertxa second ago
    In the name of public safety, we cannot afford to be as tolerant as we once were. I am all for intrusive airport security.I appreciate that knowledge of some degree of safety is in place. People cannot be afforded the liberities here that other countries would not tolerate from us. I could wear an outlandish costume and declare it my religion and still be banned at work, in public because of lewdity, offense to others, intimidation and safety for others and myself slong with disrespect. . Something has to give.Companies do not allow tatoos, nody piercings long hair, etc yet every one of these could be decared part of one’s religion.
    When people come here to our country they should learn English and respect the customs of this country. Especially in the face of peoples (albeit in good part unwarranted) fear, mistrust and apprehension, after we have been attacked by terrorists and this threat is now a reality. Muslims should understand this and be respectful. They should either wear their head covering clothing in private or go live in countries where this is the norm and people who accept this. Americans are generous and tolerant to a fault. Many other religions are of course allowed their rituals, all the nuances of their religion, This is the constitution of our country. But other religions do so in their churches, plank houses, temples, etc.—quietly and privately, and the rest of the time is blending in to their fellow Americans as much as possible . The American Way–this like it or not is what defines us and we do not see people in loin cloths working at our local department stores. Even the Amish stay to themselves, and that is their desire as we would not allow horse and buggy in a major city, they realize their children would have difficulties in the public mainstream . Muslims by contrast, are absolutely DEMANDING special treatment in my opinion. We need to change our laws in the face of the times being what they are today or life as we know it is going to go by the wayside. I hope this company prevails. I have to dress a certain way at my employment. I suppose I could find a way to say my religion says otherwise and sue my employer. Dress codes. I am sure this woman was made aware of this, should have clarified this and found another job that would let her wear her Muslim clothing.

    • Yasmin

      Nobody is demanding special treatment, as said by Ramona.

      This woman is fighting for her right, and to me she is an example for all people:

      Whites, Blacks, Hispanics, Jews, Muslims, Christians, ect…

      We all have our beliefs and ways.

      -Peace be with you all

    • zeliasgrand

      This woman did not hide her use of the hijab. She wore it when she applied for the job, for heaven’s sake! The COMPANY changed the rules on her AFTER she was hired. And I bet that A & F will be found guilty of failing to provide religious accommodation in this instance. Also, I don’t buy the argument that Muslims should adapt or hide away to make (prejudiced) people in this country more comfortable. Fifty-sixty years ago employers argued that they should not have to hire Blacks, or women, because of the “discomfort” their customers would experience. The courts didn’t buy it then and they should not buy it now. This woman was obeying the dress code as it had been presented to her; why should she lose her job (especially since she is not working in the public eye) because some higher-up got nervous?

      • William

        You would make a great lawyer…
        And you made a great point!
        :)

    • Bob

      No, I think that she has a pretty good case, and might win, if justice is kept in the courtroom! But, we will just have to wait and see!

  • Emna

    I agree 100% with Yasmin!

    Good luck girls.

    Don’t let anyone tell you that you can’t believe what you want!

    ~Emna

  • Frow

    If that’s how a company wants their employees to dress that is their decision. Its long been known that ABF has a strict dress code that doesn’t allow anything like that, you have to wear sandals, store brand clothes, and be clean shaven. Last time i checked there aren’t Hijab’s for sale in any Abercrombie I’ve been to so why would the rules bend for her. Here is another example of someone trying to work over the the judicial system and get an easy buck. Stop crying about not being able to ware a hijab and get a fucking job at a store where it isn’t going to be a problem. Glad to see ABF stood their ground on this one.

    • Mathew

      You poor thing, you have all the wrong ideas in your head.
      Think about what you are saying, first.
      This lady has a good point, and if she didn’t, then they would not have made such a big deal about it.
      Also, and kind of cursing is not allowed on this website…
      But, then again, if you have the right to do that, then that woman should have the right to wear her head-scarf!

      God Bless!

      • Hira

        LIKE x9327409283758975108!!!

        • Mathew

          Thanks.

          LIKE x9327409283758975109!!!

    • Jill Burns

      I agree with Frow!

      • Amy

        I don’t!
        He just sounds racist…a lot like…YOU!
        :P

      • Kristen

        I agree more with zeliasgrand.

      • Lance M.

        I don’t at all…did you actually read anything he wrote?

      • genefredwall

        i thought that what frow wrote was just retarded!

        • Hira

          I really don’t t get why they make a big deal with hiring people with hijab, or people that are hispanic, or black…
          I mean seriously.

          SO not buying from Abercrombie again.

          • Mary

            I’m so with you. It is just plain out racism!

  • Ramona

    Again-you go to another country there are customs that we take for granted in this wonderful country that would be iulting and you could be arrested, tortured have your digits cut off for punishment for not respecting the laws of the land. Americans have been generous and in return we are being terrorized. No one would want their children to go half day to school only so the other half could be spent teaching children from other countries. There re many, many Americans who find it rude to have people speaking over them in other languages and many employers forbido to work wearing whatever I wanted. I am expected to dress professionally. I actually dislike dressing up , yet this is the look that represents this large company. Technically there are many religions and some are downright weird and scary. There has to be some implementation of a place to draw the line. It is kind of like an assistance animal when this concept was crafted. People began bring reptiles, birds, fish, monkeys saying these were their assistance animals. People would be subjected to these animals coming into hospitals, restruants, planes, blood drives. Someone finally realized a line had to be drawn. Limits with this law had to be implemented. My state allows only miniture horses and canines.now.
    This is just an example of this countries sometimes naive tolerance. And as far as being racist and times when people were barred and banned because of who they were and their skin color, This is quite different. We have moved beyond those horrors. And suffice to say most Americans are intolerant to blatant racism and things like swaztikas, buring crosses,etc. This woman has every right her fellow Americans have. She is free to wear her body covering and were she a storeowner she could wear it there. Blacks, Mexicans any other culture has integrated into our society. Some cultures find nudity normal and it could have religious implications as well. Our great country allows you to do that, but in private, on your own acreage, at nudist camps. Native Americans have many spiritual ceremonies that require fire and smoke. That doesn’t mean they are allowed to cleanse a metro bus with sage while a passenger. Fires are an important part of their rituals, yet they cannot start fires wherever in this society. Satanists have practices most people would abhor, and while they are free under our government their are limits and we demand the respect of them doing their ritualistic doings, privately. My point is that out of respect for the cultures and customs which identifies America, while we are not required, there is some adherhence to this country and our fellows that like displaying the American Flag for example, that is a very American thing to do showing our gratitude for being here and for the freedoms we all share.It is called respect, not racism, not banishment, not submission, just respect in putting your country in front of your demands. Other countries including where this dress the norm, would not be near as tolerant. Religion has it’s individual place. Be glad you are free to practice your religion. Be glad you live in a country affording you and your children many freedoms, simply show respect for the source. Look around and realize other Americans have, hold, practice their religions-they do not DEMAND to flaunt it .

  • Michael

    There are the facts: A&F said Hani could wear special headwear, then broke their word. There’s the law: Employers in California can legally require uniforms. They are also expected to keep their word. The rest is attempts to make this case to serve other agendas

  • Kristin

    The writer of this article couldn’t even spell Hollister correctly. There is a look policy and it must be abided by. I don’t know why she would even attempt to work at a store where she was aware of this. It’s not like she even got fired, she was just given a different position in the stockroom.