Equal Employment Opportunity Commission v Abercrombie & Fitch Stores Inc., (ND CA, April 9, 2013), involves the question of whether Abercrombie & Fitch violated Title VII of the 1964 Civil Rights Act when it failed to hire a Muslim teenager, Halla Banafa, as a part-time stock-room employee. Banafa wore a hijab to her job interview. Abercrombie has a "Look Policy" that governs the dress of employees, and it precludes any kind of head wear (though the company has made exceptions). A California federal district court rejected several of Abercrombie's defenses and held that triable issues of fact exist as to whether Banafa's religion was the motivating factor in her failure to be hired.
One of Abercrombie's more interesting defenses was a 1st Amendment argument that "forcing Abercrombie to grant a Look Policy accommodation to a Muslim in-store employee who wears a hijab for religious reasons would... amount to the government's compelling it to advertise a fashion inconsistent with its “East Coast” and “preppy” style...." The court said, however, that "Abercrombie cannot achieve an end-run around Title VII by elevating the appearance of its stock room employees to protected commercial speech." However it left open "the more difficult question of whether a living model, whose stated job responsibility is to advertise Abercrombie's brand, constitutes commercial speech." [Thanks to Jeffrey Pasek for the lead.]
