I’m blogging this case because it has interesting TM/branding
implications. The EEOC sued A&F for
firing Khan (also a plaintiff) because she wanted to wear a headscarf as part
of her religious observance. The court
granted summary judgment on liability to Khan and the EEOC and rejected
A&F’s undue hardship and First Amendment defenses, both based on its
claimed need to use its employees as part of the “brand.”
A&F employees who work in the stock room and on the
sales floor to restock merchandise are called “Impact” or “Part Time Impact”
employees. “Models” work on the sales
floor. A&F has a “Look Policy”
regulating employees’ appearance.
Employees have to wear clothes similar to those sold in A&F stores,
but they aren’t required to wear A&F clothing. The Look Policy banned headgear at the
relevant time. It also requires
employees to wear specific types of shoes—flip-flops, Converse sneakers, or
Vans sneakers—and bans facial hair and clothing with obvious logos from
non-A&F stores. (Just for the
record: were the court to accept A&F’s claims that employees’ appearance is
part of the store branding, it would seem that Converse and Vans would have
potential trademark/false endorsement claims.
As an exercise for the reader: how should such claims be resolved?)
A&F’s marketing strategy “seeks to create an ‘in-store
experience’ for customers that conveys the principal elements and personality
of each Abercrombie brand.” This
in-store experience is the “primary vehicle for communicating the spirit of
each brand.” “[S]ales associates . . . reinforce the aspirational lifestyles
represented by the brands” and “are a central element in creating the
atmosphere of the stores.”
Khan initially wore her headscarf for several months without
a problem, but when a higher-level employee inspected the store, she was fired. (A&F later offered to reinstate her and
accommodate her by allowing her to wear it.)
A&F didn’t dispute that the plaintiffs established a prima facie
case of a violation of Title VII, but argued that it couldn’t reasonably
accommodate Khan without undue hardship.
Undue hardship requires something more than a de minimis
cost—it’s not just any hardship. “Hypothetical or merely conceivable hardships
cannot support a claim of undue hardship.”
Employers shouldn’t make assumptions about untried accommodations; undue
hardship requires proof of actual imposition or disruption.
Taking a page from branding theory generally, A&F argued
that it didn’t need to show economic harm or offer proof with specificity or
exactitude. Instead, it sought to rely
on testimony from numerous employees, who testified that, based on their
“personal experiences,” compliance with the Look Policy is key to Abercrombie’s
success and/or that deviations from the policy “detract from the in-store
experience and negatively affect [the] brand.”
A&F argued that the Look Policy was at the heart of its business
model, so any accommodation requiring a deviation from the policy threatened
its success.
The court was unimpressed.
“[T]he evidence fails to show: (i) that Khan’s wearing of a hijab during
her four months of employment had a negative effect on sales, the brand, or any
customer’s experience; nor (ii) any tracking or correlation between Look Policy
deviations, including wearing a hijab, and a negative impact on sales.” A&F’s offer of reinstatement was also
inconsistent with a claim of hardship.
Plus, A&F had granted almost 80 Look Policy exceptions since 2005,
including (i) allowing male employees to grow facial hair or wear a yarmulke or
baseball cap; (ii) allowing female employees to wear visible jewelry (including
a cross) or a long skirt that was inconsistent with the store’s look; and (iii)
granting more than 16 exceptions for headscarves since 2006.
A&F offered only “unsubstantiated opinion testimony of
its own employees” to support its claim of undue hardship. The witnesses’ personal beliefs weren’t
linked to any credible evidence. Khan
had been at A&F for four months before she was thrown out, and A&F
failed to offer any evidence showing a decline in sales at that store, customer
complaints or confusion, or brand damage linked to the hijab. The employee who fired her testified that the
hijab violated the Look Policy regardless of how much or little time Khan spent
on the sales floor and regardless of whether it distracted customers.
The court was also not persuaded by A&F’s argument that
accommodation would threaten the “core” of its business model. A&F’s witnesses testified that they believed that deviations from the Look
Policy harmed sales or customer experiences, but couldn’t provide concrete
reasons such as reports, surveys, or complaints. Two sales executives testified that A&F
doesn’t specifically examine the effect of the Look Policy on sales. (Maybe because it’s actually creepy ideology
rather than reality-based?) Specific
instances referenced by employees were speculative and purely subjective. One person testified that the Palo Alto store
had “Look Policy issues,” but that with training on the policy, “sales
increased dramatically over time.” But
the Look Policy was only one of many problems.
The same was true of other stores identified as having Look Policy
problems. This testimony provided “only
a tenuous, potential connection” between the Look Policy and undue hardship, as
“other” store issues contributed to declining sales, rather than the required “actual
imposition or disruption.” “Abercrombie
must provide more than generalized subjective beliefs or assumptions that
deviations from the Look Policy negatively affect the sales or the brand.” Here, A&F didn’t raise a triable issue of
hardship, much less undue hardship, from allowing Khan to wear her previously
unobjectionable hijab.
A&F recast its defense in the language of the First
Amendment: its Look Policy was part of its branding, and thus constituted
commercial speech. The court turned to
the usual tests for commercial speech, but they’re really red herrings—designed
to separate commercial speech from
noncommercial speech. The real question here, as the court
ultimately recognized, is whether the Look Policy is speech at all. As many
theorists, notably Fred Schauer and Robert Post, have pointed out, there are
plenty of communicative activities (including some involving words) that we
never think rise to the level of speech at all.
The court didn’t buy that A&F employees were “living
advertisements” for the brand and therefore their appearance was commercial
speech. Plaintiffs responded that,
first, PTI employees were essentially stockroom employees, not “living
advertisements.” Second, A&F wasn’t
advertising a particular product: employees weren’t required to wear
A&F. The court agreed. “‘[R]epresenting the brand’ does not equate
to being a ‘living advertisement,’ particularly where the employees’
responsibilities consist of ensuring shipments are complete, folding clothing,
and placing/replacing clothing on the floor.”
Thus, a PTI employee’s appearance didn’t promote a particular product,
nor did it propose a commercial transaction.
(The court did not opine on the use of this defense as to Models, aka
“impact” employees who stay out on the sales floor and who are required to be
handsome and good-looking.)
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