Once again A&F is facing criticism.

This time over its approach to the recruitment of its retail assistants (or “models” as it was wont to call them in a recent case before the US Supreme Court, a term now reportedly morphed into “brand representatives”).

Samantha Elauf, a Muslim, was denied a sales job at A&F because she wore a headscarf. A&F’s dress code (East coast college style) is strictly enforced and departures from it are grounds for disciplinary action as A&F considers it can negatively impact the company’s image and brand. But the Supreme Court decided that A&F had discriminated against Ms Elauf as US law provides that an employer may not make an applicant’s religious practice a factor in employment decisions, unless that cannot be done without adversely affecting business.

Contrast A&F’s woes in the US with the position in a recent UK decision, admittedly outside the fashion industry. Ms Begum, also a Muslim, applied for a job as a nursery assistant. She felt obliged by her religion to wear a full length jilbab, a flowing outer garment. She was asked at interview if she could wear a shorter garment as the full length version was deemed a trip hazard in the environment in which she would be working. When she declined she was not offered the job. Her discrimination claim was rejected by the UK employment tribunal, a decision confirmed by the employment appeal tribunal. The decision took account of the fact that a full length jilbab was not required by Ms Begum’s religion. She was not therefore placed at a disadvantage by the requirement. Even if she had been, the requirement was justified.

Had Ms Elauf’s choice of attire been a niqab which prevented full sight of her face by customers, A&F’s defence may well have succeeded, as may have been the case if she had insisted on wearing a full length jilbab. Both, for different reasons, could have had an adverse effect on business. Conversely, if Ms Begum’s attire of choice had been a headscarf, it is difficult to see what defence the prospective employer could have had.

The statutory positions in the US and the UK are different, but at the same time the underlying principles are similar: employers must have a good business reason, supported by clear evidence, to treat religious attire as a reason for rejecting a job application.

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