High Court Got the Hijab Case Wrong

Before defending Abercrombie & Fitch, please know I regard the company as a bottom-feeding, scum-sucking retailer of sex to impressionable prepubescent girls.

Rick Jensen

They have as much a right to exist as people have the right to ban their children from entering their gates of sordid gluttony.

That said, this lawsuit against Abercrombie & Fitch is absurd.

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Samuel Alito, representing the intellectually conservative wing of the Supreme Court, led the majority decision that a woman whose attire does not conform to Abercrombie’s “look policy” has the right to try to sue the company for discrimination.

She claims her case is one of religious right being denied because she wasn’t hired after wearing her hijab to her interview. She was not told she was being denied employment due to her religion.

Applying for a sales position, she failed to land the job because her headscarf ran afoul of Abercrombie’s employee “look policy,” which bars hats and promotes the retailer’s preppy brand.

Abercrombie’s lawyers argued that they were unaware of her religious beliefs because she didn’t ask for any religious accommodation.

The majority of justices scoffed at the idea and reversed an appeals ruling favoring Abercrombie. They said it didn’t matter whether or not Abercrombie knew she would need an accommodation. It only mattered that her headscarf was a “motivating factor” in their decision not to hire her.

“Motive and knowledge are separate concepts,” Justice Antonin Scalia wrote. “[A]n employer who acts with the motive of avoiding accommodation may violate [the law] even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”

He’s presuming to know the mind of the employer, which, in this case, isn’t so outrageous. An Abercrombie manager reportedly had correctly assumed that the woman was Muslim, meaning she would likely wear the hijab on the job.

If a retailer decides their brand needs to be extended to the employees’ attire on the job, what is so outrageous about declining to hire someone whose attire does not extend that brand?

If one’s religious belief conflicts with the federal government’s requirement that restaurant cooks wear hair nets, there is no recourse for that individual. You’re not getting the job.

If a restaurant requires their servers to wear propeller beanies on their heads, should a Sikh be awarded a court-ordered cash prize for refusing to replace his turban with the beanie at work?

Another example is Hooters.

The Hooters brand is, indeed, represented by shapely women in skimpy attire.

When a man sued because he wanted to be “a Hooters girl,” he lost.

In 2013, Atlantic County Superior Court Judge Nelson Johnson ruled in favor of Atlantic City’s Borgata Hotel Casino & Spa in a weight-discrimination case brought by 22 cocktail waitresses known as the “Borgata Babes.”

The “babes” argued that the casino viewed them as sex objects and were forced to endure frequent weigh-ins and were even suspended when they gained excessive weight, which could not be 7 percent more than their initial weight when they were hired. The court essentially told the cocktail waitresses that they knew what they were getting into by citing the application process for future “babes,” which stated that the positions were “part fashion model, part beverage server, part charming host and hostess. All impossibly lovely.”

Yes, they were hired as sex objects. They didn’t have to apply for the job.

Judge Johnson also cited the fact that the casino’s “babes” signed statements agreeing to the 7 percent weight-gain policy.

Imagine a world in which the male cast of “Big Bang Theory” could successfully sue the Chippendales organization for refusing to hire them as muscle-bound exotic dancers.

Imagine their female customers’ race to demand refunds if that were the case.

Why is this woman even applying for a job where the company’s brand image is one of unconstrained immature sexuality while her personal image is one of religious modesty?

What is her true ambition?

The lawsuit begs such questions.

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