Title VII, Affirmative Action and the Search for Common Ground

Angelo Franco


At the end of this year’s U.S. Supreme Court session, the highest ruling body in the land handed down a decision that put a major American retailer on the wrong side of the law. In 2008, a young Muslim woman interviewed for a sales position at Abercrombie & Fitch and, after being recommended for hire by the interviewer, was denied the position because she did not conform to the company’s “look policy,” which states certain rules on attire and appearance that its employees must follow. One of these rules bans the use of caps and headwear and Ms. Samantha Elauf, the young woman in question, wore a headscarf (or hijab) as an observance to her Muslim faith. The Equal Employment Opportunity Commission (EEOC) sued on behalf of Ms. Elauf on the grounds of religious discrimination, and the Supreme Court of the United States ruled in favor of the plaintiff. 


The decision made by SCOTUS had immediate effects, exemplified by the change of policies imparted by Abercrombie & Fitch. The company (which had been the center of controversies and other similar lawsuits before, and not only in the United States) has since updated it policies, including revisiting the ban on caps and headwear, changing the titles from “models” to “brand ambassadors” for their salespersons, and discouraging hiring decisions based on an individual’s attractiveness. But more so than affecting a retailer’s hiring practices, the EEOC v. Abercrombie & Fitch case brought to question the stark reality that issues on religious freedom and employment based on nondiscrimination are far from black and white, given perhaps the gamut of procedures relating to specific instances, misinformation, and the fluidity of what is protected by freedom of religion laws.


The Civil Rights Act of 1964 includes Title VII, which protects equal employment opportunities by prohibiting employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. Title VII doesn’t have a list of questions that an employer is or is not allowed to ask a potential employee, but it rather outlines what would be illegal practices. There are ways in which employers protect themselves from possible lawsuits by circumventing potentially problematic questions to which answers they believe may be important in the hiring decision. An interviewer may not, for example, ask whether an individual has or plans to have kids, under the assumption that a parent of small children may have a limited work schedule or frequent family-related emergencies – they would instead ask, for instance, if the individual is available to work overtime or travel for extended periods of time to surmise a similar answer.  If the morality of such practice may be questionable, it does point out the intricacies of remaining within the law while adhering to not only what may be the best financial outcome for the employer, but also to its integrity as an institution. 



In the EECO v. Abercrombie & Fitch case, for example, the defendant argued that, according to Title VII of the Civil Rights Act of 1964, a potential employee must inform the employer of any accommodations that must be made if employment is offered, whether it be for any of the protected clauses laid out by the law. In this case, they contended, Ms. Elauf should have made Abercrombie & Fitch aware that an exception would have had to be made to its look policy to allow her to wear a hijab because it is a religious observance. The argument stated that because of Title VII itself, the company could not ask Ms. Elauf to offer any facts regarding her religion or assume that she followed any one faith. The plaintiff claimed, in turn, that the company’s policy was already discriminatory and that it must have, indeed, assumed that Ms. Elauf’s hijab was a religious observance and that she would not be able to remove it in order to conform to the company’s look policy.


Ms. Elauf’s case is a prime example of how equal employment opportunity laws help protect employees, especially from marginalized groups, from discrimination in the workplace. It may be worth noting, however, that this case reached the Supreme Court because of a circuit split, in which a circuit court first decided in favor of the plaintiff, and then another in favor of Abercrombie & Fitch, effectively forcing the Supreme Court to intervene and render a decision. And it is this gray area, illustrated by the split of the circuit courts, in which many employers and employees find themselves.


Recently, a former Ford Motors Co. engineer filed a lawsuit against Ford and Rapid Global Business Solutions—the staffing company that placed him in his position at the automaker—on the grounds of religious discrimination. The man, Thomas Banks, was terminated after he posted a comment criticizing Ford’s stance on the inclusion and celebration of LGBT employees and their families. The automaker company had sent out a newsletter sharing its policy to promote pro-homosexual ideas, to which Mr. Banks wrote a single, public online comment on the sin of homosexual behavior, which he held based on his Christian faith. Two weeks later, Mr. Banks was terminated on the grounds of his presumed violation of Ford’s anti-harassment policy. The lawsuit, placed on behalf of Mr. Banks by Liberty Institute, claims that the termination was unlawful because it violated Title VII of the Civil Rights Act of 1964, and Mr. Banks had been discriminated against because of his deeply held religious belief.



Whether Mr. Banks’ comments, however incendiary or offensive they may be to some, are protected by Title VII remains to be seen. But this case may be particularly poignant because it calls upon the same protections imparted to Ms. Elauf. Instead of suing on the bases of freedom of expression or unlawful termination because of personal beliefs that do not impact his work performance, for instance, the complaint seeks reparations based on religious discrimination against Mr. Banks’ biblical beliefs. Ford, meanwhile, terminated Mr. Banks because of an apparent violation against its anti-harassment polices, not anti-discrimination ones (in this case, perhaps, against any LGBT employee of the company), which Ford does have in place. 


And the private sector is only one side of the coin. Companies that do business with the government must adhere to the same processes and procedures while also observing affirmative action rules. Executive Order 11246, signed by President Lyndon B. Johnson in 1965, states that federal contractors—generally those with 50 or more employees and who receive $50,000 or more in payments from the government—must produce and sustain an affirmative action plan to ensure that all individuals have an equal opportunity for employment without regard to race, color, religion, sex, sexual orientation, gender identity or national origin. And while Title VII of the Civil Rights Act of 1964 and Executive Order 11246 seem to set in place procedures to compliment one another, this sometimes reveals yet another ambiguous area, especially given cases like Mr. Banks’ and Ms. Elauf’s.


According to regulation, federal contractors must actively pursue the opportunity to employ qualified personnel from underserved groups. Further, all federal contractors that must have a written affirmative action plan in place ,as well as private employers that are subject to Title VII and have 100 or more employees, must submit yearly reports to the EEOC on their number of employees by age, ethnicity, and gender. In order to comply, companies often pose these questions to their current and potential employees as optional inquiries for the purpose of governmental reporting. And while the number of employees hired through affirmative action plans cannot be used to prove compliance (in the 1978 Regents of the University of California v. Bakke case, the Supreme Court decided that affirmative action must not be based on quotas—academic institutions funded by the government must also comply with affirmative action laws), balancing Title VII and affirmative action strategies may prove a rather delicate process.  



Federal contracts and awards sometimes require that federal contractors working on any given task order be United States citizens, predominantly those put forth by defense agencies, such as the U.S. Department of Homeland Security or the U.S. Department of Justice. Some contracts may also require contractors to have security clearance, which are almost exclusively granted to U.S. citizens except on rare exceptions when compelling reasons are in place and must be proven. Such clauses for governmental defense and security agencies may seem logical, but companies wishing to do business with them must still adhere to Title VII and affirmative action plans, which prohibit the willing discrimination of an individual based on her country of origin or ethnicity. Willingness or not, this puts federal contracting companies (which range from small businesses to multi-million dollar corporations) in precarious situations when sourcing for qualified staff, attempting to obey federal regulations which may put them at odds within their own laws.


The benefits of a diversified workplace are countless. Employers should be encouraged to broaden their hiring practices for the sake of inclusion, which is a proven policy to drive innovative and financial growth, as demonstrated by numerous studies. Abercrombie & Fitch, since the Supreme Court decision in July, has since paid Ms. Elauf a reported $25,000 as restitution, and is now in the middle of a class action lawsuit filed by approximately 62,000 employees – based on the company’s notorious look policy. Federal contractors, particularly small businesses who cannot compete with larger corporations to accommodate the conditions set by government contracts while complying with federal regulations, are left destitute of such contracts because of their inability to contest for government awards without opening themselves up to potential lawsuits.


Title VII and Executive Order 11246 present guidelines to ensure diversification and inclusion. But they are oftentimes at odds with each other, and such incongruities may, in some cases, discourage employers from actively seeking to diversify for fear of repercussions.  


Author Bio:

Angelo Franco is Highbrow Magazine’s chief features writer.

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