“Culture” is a word activists like to deploy nowadays—there’s “rape culture” to condemn or a “culture of respect” to strive for—and sometimes it can sound like a vague or lazy way to invoke how power or discrimination work. Once in while, though, you see why that tote bag of a term makes sense—how the culture of a company or an institution matters very specifically when it comes to people’s rights. This week, that reminder came from the Supreme Court, which ruled, in an 8-1 decision, that Abercrombie & Fitch, the purveyor of pricey, preppy, body-conscious clothing for tweens and teens, had violated civil-rights law when it refused to hire a young Muslim woman who wore a head scarf to her job interview.
Samantha Elauf was seventeen when she applied for a job at an Abercrombie & Fitch Kids store in a Tulsa, Oklahoma, mall in 2008. She loved the mall, which she described as her second home, and was excited about the employee discount. The assistant manager who interviewed her deemed her qualified but worried that her hijab would violate the company’s “Look Policy,” a weirdly exhaustive rulebook that reads as though it had been dreamed up by a middle-school queen bee on a Ritalin bender. (BuzzFeed published parts of it, revealing, for example, that beards or mustaches were unacceptable on male employees, and that “sun-kissed” highlights were allowed but “no streaks, blocks or chunks or contrasting colors”; a New York article in 2014 added that strings on peasant blouses were required to remain untied and skinny jeans cuffed at one and a quarter inches.) The relevant prohibition for the assistant manager in Tulsa was one forbidding “caps.” When she consulted her district manager, he agreed that there was a problem, and Elauf was not hired, despite receiving a high rating as a potential employee.
The Equal Employment Opportunity Commission filed suit on Elauf’s behalf and a district court found in her favor, awarding her twenty thousand dollars in damages. The Tenth Circuit Court of Appeals reversed the decision, with the peculiar reasoning that an employer could not be held liable for failing to “accommodate a religious practice,” even if it had failed to do so, if an employee or prospective employee had not specifically asked for the accommodation. But as Justice Antonin Scalia, who wrote the majority opinion in this week’s decision, noted, “an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” Abercrombie managers could have asked Elauf if she’d be wearing the head scarf for religious reasons while on the job—as Justice Samuel Alito said during oral arguments, maybe she was just having a bad hair day when she came for her interview. They didn’t—they deemed it too awkward—but they did assume that Elauf covered her hair as a religious practice, and they rejected her on the basis of that assumption.
Any employer can have a dress code, of course, but it cannot use it to discriminate against an individual on the basis of his or her religious practice. If an employer fires or refuses to hire a Muslim who wears a hijab, an Orthodox Jew who wears a yarmulke, or a Sikh who wears a turban because of that religious practice, without even trying to find an accommodation, then that’s discrimination under Title VII of the Civil Rights Act of 1964. Announcing the opinion from the bench this week, Scalia declared the case “really easy.” (Clarence Thomas was the sole dissent: he argued that Abercrombie’s decision was based on a neutral anti-cap policy.)
So how was it that Abercrombie continued to fight all the way up to the Supreme Court in a case that Scalia—no pushover, even on matters of religious liberty—deemed an easy call? Maybe because the company’s culture—and the style and the attitude it marketed—persuaded it that its exclusionary policies would seem acceptable.
In 1992, Abercrombie was a hundred-year-old company known for its safari wear when a new C.E.O., Mike Jeffries, came in to update it. Jeffries had a vision, and it was not a broad one. As he told Salon in a 2006 interview, “In every school there are the cool and popular kids, and there are the not-so-cool kids. Candidly, we go after the cool kids. We go after the attractive, all-American kid with a great attitude and a lot of friends. A lot of people don’t belong [in our clothes] and they can’t belong. Are we exclusionary? Absolutely.” Under Jeffries, Abercrombie photo spreads partook of a certain Leni Riefenstahl-at-a-frat-mixer aesthetic—lots of well-toned, bare-chested young white men (at the brand’s Hollister outlets, customers were greeted by shirtless men known, in company parlance, as “lifeguards”) and, among the young women, a surfeit of “sun-kissed,” long-haired blondeness and tanned bare legs. Salespeople hired for the stores were called “models” and subjected to the rigors of the Look Policy. Abercrombie did not sell women’s clothes in sizes above ten. In his New York piece, Matthew Shaer cited a catalogue of P.R. missteps with a similar flavor: “the quickly recalled line of Asian-themed t-shirts, which featured men in rice paddy hats and cartoonishly slanted eyes; a line of thongs, marketed to girls as young as ten, with the words wink-wink on the crotch.” For a while, the whole approach worked well, and profitably, for the company, and Jeffries converted a brand known for outfitting Teddy Roosevelt and Ernest Hemingway into one with candy-like allure for suburban middle-schoolers. At its height, Abercrombie had a thousand storefronts.
The culture of the place also shaped its hiring practices in ways that got it into trouble. Elauf’s was not the first major discrimination suit against Abercrombie. In 2004, the company agreed to pay fifty million dollars to several thousand employees in order to settle a class-action lawsuit charging that it discriminated against African-Americans, Latinos, and Asian-Americans in both its hiring practices and its advertising. Among other things, the suit alleged that non-whites were regularly shoehorned into back-of-the-store jobs where customers wouldn’t see them as much.
Jeffries found it difficult to imagine that there might be cool kids who were not popular or, for that matter, blonde and white. The eventual result was a major downturn for the brand. The recession and the rise of stores like H&M, Forever 21, and Uniqlo that sell fun, stylish clothes cheaply, were factors. But there was also that aggressively conventional vibe. Erik Gordon, a business-school professor at the University of Michigan, told New York, “This generation is about inclusiveness and valuing diversity. It’s not about looking down on people.” That may be a bit hopeful, but there’s something to it: this is the era of transgender cover girls and Sikh Gap models. In the deeply if imperfectly pluralistic United States, even during moments of high anti-Muslim feeling, a policy like the misguided one in France, which forbids the hijab in public schools, would never get serious consideration. Elauf went on to be hired at Forever 21 and Old Navy, and a photo in the Wall Street Journal this year showed her working at her most recent job, as a merchandising manager at Oklahoma’s first Urban Outfitters: she’s wearing a black head scarf, artfully shredded jeans, and ankle boots, and she’s smiling. Abercrombie was out of touch.
In its marketing strategy if not its legal one, the company is trying to catch up. Last December, after protests from shareholders and many months of declining store sales, Jeffries stepped down as C.E.O. In April, the company let it be known that it would pursue “more inclusive and diverse” hiring practices and allow for a dress code that was “more individualistic.” It was clearly announcing these changes in hopes of reversing its sales slump. That might seem trivial. But if it’s no longer profitable to tout your cultural intolerance, that’s pretty cool.
