Freedom to Earn: Why the Abercrombie Headscarf Decision Was Wrong

Last week the Supreme Court issued a ruling in the EEOC v. Abercrombie & Fitch case that most observers are hailing as a blow for “freedom.” It isn’t. It’s simply a tradeoff where one party gets more freedom, and another party gets less. When you look carefully at who the winners and losers are, you may agree with me that we’ve made a bad trade.

The facts are simple: Abercrombie & Fitch has been selling sporting goods or clothing of one kind or another since 1892. It went bankrupt in 1976 and resuscitated in 1978. A makeover in 1988 shifted more toward a “preppy” clothing focus, and by the end of the 1990s they began to achieve greater success with a sexier, more luxurious style. Apparel is a notoriously competitive business, though; at the end of 2012, Abercrombie announced plans to close 180 of their US stores.

One of the strategies Abercrombie used that seemed to work, at least for a while, was its “Look Policy,” a rigorous dress code for sales floor employees. They wanted their employees to look good wearing exactly the kinds of clothes they sold, whether or not those clothes were actually purchased at Abercrombie. Presumably, the idea was to help put customers in the mood to buy the same type of thing. They even began calling their sales employees “models.” One of the many elements of the Look Policy was that sales employees could not wear hats of any kind on the job, ever. Whether this actually boosted sales or not, for any extended period of time, I have no idea. My guess is that it did, or else they wouldn’t have stuck with it.

In 2008, Samantha Elauf, a Muslim woman, applied for a job at a Tulsa, Oklahoma Abercrombie store. She wore a black headscarf and did not get the job. The store management assumed—correctly, but without actually asking—that she would insist on wearing the headscarf to work, which would violate the policy. Elauf never specifically asked for any accommodation for her religious belief.

Everyone involved in the case seems to agree that Abercrombie & Fitch hadn’t the slightest intention to discriminate against Muslims. They very likely have hundreds of Muslims on their payroll—though that can’t be proven one way or the other because they never ask people about their religious beliefs (as they shouldn’t). All they want to do is make money, and if they can make money with a Muslim employee, that’s fine with them. But making money, in their best judgment in 2008, meant that sales employees needed to stick to the dress code: no baseball caps, no berets, no mantillas, no headscarves.

By a vote of 8-1, the Supreme Court just announced that Elauf’s right to dress as she pleases, so long as there is some religious justification for it, trumps Abercrombie’s right to try to earn money the best way it knows how. The opinions, both at the Supreme Court level and below, are confused with the side issues of whether the company knew Elauf was Muslim or not, and whether Elauf needed to explicitly ask for a religious accommodation or not. At various points during oral arguments, Justices Kennedy, Scalia, and Sotomayor all said they were “enormously,” “very,” or “so totally” confused.  None of that matters much. What matters is that religious employees now have more special privilege, and the rest of us have less.

One of the examples given by Justice Scalia in his majority opinion demonstrates this. According to Scalia, if an employee doesn’t feel like working on a Saturday for religious reasons, he or she doesn’t have to. If I’m the nonreligious employee at the same establishment now forced to work every Saturday to cover for the person who won’t, I would be pretty ticked off. And I would be right. According to an amicus brief filed with the court, Orthodox Jews who apply for jobs are routinely advised to trick prospective employers by not telling them about their refusal to work Saturdays until after they have been hired.

Here’s another real world case. In February, a Muslim employee named Jean Camara sued Costco for refusing to accede to his demand to be removed from working the checkout line, after it suddenly dawned on him that he might occasionally have to touch products containing pork. He informed them that he would prefer to work in the electronics department. They replied there were no positions available there, and his only alternative would be to work outside, gathering shopping carts. According to Camara, “Just because you have a religious belief doesn’t give anyone the right to treat you different.” Perhaps he could get a job as a justice at the Supreme Court, since that is now the level of their thinking as well, even though Costco was actually treating Camara exactly the same as every other employee. In light of the Abercrombie opinion, it appears that Costco will have to give up the fight and move Camara to his chosen position, after paying him hefty damages for his pain and suffering. Whatever employee Camara displaces from that department will just have to suck it up, because in 2015 America, the nonreligious get shafted. As Scalia puts it with brutal candor: “Title VII does not demand mere neutrality with regard to religious practices … it gives them more favored treatment.”

The one justice whose opinion made sense was the dissenter, Clarence Thomas. Thomas reads the law as prohibiting “intentional discrimination.” If Abercrombie had a policy of not hiring Muslims, or a rule that singled out Muslim religious practices, he agrees they should be punished. A dress code prohibiting only “Muslim-looking” hijabs and allowing every other kind of headwear would not pass Thomas’ test. But a neutral dress code, adopted without the slightest motivation to help or hinder any religion, should not be punished by US law.

If there is a tradeoff of freedoms here, as seems indisputable, which freedom should prevail: the freedom to earn, or the freedom to act out supernatural belief?

Think about quantity. There are a heck of a lot more people involved in earning money than there are who demand special privilege for a religious practice. America’s dominant Christian religion, for all its faults, produces very few people who demand special privilege in the workplace. The third of us who are not religious, of course, present no religious demands at all, and wish only to earn our livelihoods on a level playing field. So by a simple headcount, there are many more losers than winners here.

Think about quality. In terms of importance to people’s overall happiness, the ability to earn the means of exchange for acquiring the material goods of life should outweigh whatever psychic anguish might be involved in running a bag of fried pork rinds across a scanner. We know that Abercrombie & Fitch is in the midst of a 180-store downsizing. If you earn your livelihood at one of the borderline stores that might or might not make the cut, scratching and clawing for every sale, and the Supreme Court says your ability to run that store in the most effective way possible to keep it going takes second place to a religious practice, in my book the harm you’ve suffered is extremely severe.

Think about philosophy. The rational should trump the irrational, not vice versa. We don’t need to bash religion at every turn, just for the sake of doing so. But when there is a clear tradeoff to be made between the rational and the magical, between a neutral dress code deriving from the “observation, experimentation, and rational analysis” of the Humanist Manifesto versus a bizarre, misogynist head covering superstition based on alleged divine revelation, reason should win. Once again, it didn’t.