By Anne Butcher
EspañolAbercrombie & Fitch is the sort of company that makes people hate freedom. The Supreme Court recently manifested this sentiment when they ruled it was illegal for the company to use their “look policy” to discriminate against Muslims in headscarves.
Since employment discrimination is (rightfully) unpopular, it would seem that giving companies the freedom to do so is a bad idea, because they might take advantage of it. However, taking this freedom away from Abercrombie isn’t right either, because people who run businesses have rights too.
If you’re unfamiliar with EEOC v. Abercrombie and Fitch Stores, it all started in 2008 when Samantha Elauf was rejected for a job at one of Abercrombie’s retail stores, allegedly because of the headscarf she wears for religious reasons. Abercrombie’s dress code prohibits “caps” and management felt the headscarf qualified. The Supreme Court ruled 8-1 that this was a violation of Title VII of the Civil Rights Act of 1964, which says that religion cannot be a motivating factor in hiring decisions.
However, all employers have rules about what employees can and can’t wear while working. Most clothing retail stores expect their sales clerks to represent the brand: a position which most people can sympathize with.
Abercrombie executives have blatantly said that their aesthetic isn’t compatible with Islam. This should offend US Americans, but it doesn’t mean there should be a law against what they did to Elauf. Would this law also include other times when an employer’s rules contradict religious rules? What if an atheist wanted to work for a Christian bookstore? What if a restaurant wanted to demand that all employees work on Saturdays? Wouldn’t this exclude Orthodox Jews? At what point does the First Amendment stop giving potential employees the right to make employers bend the rules?
We have to understand that the First Amendment says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” rather than “Private businesses shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
At the end of the day, this decision says that Abercrombie executives aren’t allowed to make certain decisions regarding their business. It’s a ruling that says Samantha Elauf has more of a right to a job than Abercrombie does to decide who can and can’t represent their business. It’s a ruling against freedom, not in favor of it. And that’s unfortunate, because most of us still see Abercrombie as the bad guy, and we don’t want to think that being pro-freedom means being pro-Abercrombie.
The problem that arises when we use legal force to eliminate religious discrimination is that we have to have a legal definition of what a religion is. We ultimately give the courts — and therefore the government — the power to determine what does and doesn’t count as a religious belief. We all experience spiritual enlightenment differently, and with this decision, the Supreme Court is inevitably saying that some forms of spiritual enlightenment deserve more respect and protection than others.
Within this paradigm, there’s always going to be a winner and a loser: one party making more compromises than they would have otherwise. We should instead strive for a society that functions on voluntary, mutually beneficial business transactions, not forcing some people to make certain decisions for the benefit of other people.
Our inability to understand or agree with Abercrombie’s policies doesn’t automatically take away their right to have those policies. Everyone has a right to wear a headscarf, for religious reasons or not. However, no one has a “right” to work for Abercrombie. Thinking that you can demand any job you believe you’re qualified for denies the business their inherent right to only engage in voluntary business transactions.
If I were to hire a maid, would I want the government telling me whom I can and cannot hire? Why do we believe that as citizens we can buy products and services from whomever we choose, for whatever reasons we choose, but we deny this to businesses?
What’s especially great about this freedom of purchase is that we can use it to punish companies we disagree with. Abercrombie had significant losses last quarter. They may have to change their discriminatory ways to stay in business, which is great. Convincing companies to change without using government coercion is always a more ethical means of effecting change, and this is what we should always aim for.