Abercrombie & Fitch at the Supreme Court


I have long argued that Title VII of the Civil Rights Act of 1964 — the part of the law enshrining prohibitions on employment discrimination — ought to be repealed. One of the great advantages of unregulated labor markets is that they lead to better fits between workers and their positions. Forced associations may require accommodations that often prove unstable in the long run. Allowing the voluntary market to work will reduce the overall cost of hiring and firing and will therefore systematically increase job opportunities across the board. Title VII provides no exception to the general rule that regulated labor markets underperform competitive ones.

The complicated thicket that results from Title VII can be seen in a case that went before the Supreme Court last week. At issue was whether an Abercrombie & Fitch store engaged in impermissible religious discrimination when it failed to hire a Muslim woman whose spiritual obligation to wear the hijab conflicted with the dress code expected of store employees. As I note in my new column for Defining Ideas from the Hoover Institution, this would have been a much easier process in a non-Title VII world:

Here is how it would go. Ms. Elauf would apply for a job. Without Title VII’s external constraints on hiring, the company would ask whether she was prepared to take off her hijab on the floor. At that point, she would have to make a decision. Decide no, and she would be told that no offer could be extended. It would be totally irrelevant whether she insisted on wearing the hijab because of religious, cultural, or personal beliefs. But if she were prepared to do without the headscarf, then she would go through Abercrombie’s normal hiring process, until a final decision were made.

At that point, any contract depends only on the joint consent of the two parties. The deal once struck would thereafter be enforced in accordance with its terms. But if Ms. Elauf refused to follow the rule, she would have to look elsewhere for a job. Abercrombie has no monopoly position in labor markets, or even in clothing stores. Other stores that wish to project different images may well be quite pleased to hire her with or without her headscarf.

You can read the argument in full here.

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  1. Misthiocracy Member

    I wager that Abercrombie & Fitch was carefully chosen as the target of this shakedown, due to its image of catering to generally awful people.

    Very few good-thinking people are going to be very eager to come to A&F’s defense in the same way they’d be willing to defend a retailer like J.C. Penney or Sears, and anybody that does come to A&F’s defense can be reliably denounced as a supporter of infantile douchebaggery.

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  2. Tommy De Seno Contributor
    Tommy De Seno

    I recall when the Borgata Casino was sued for having weight standards for their cocktail waitresses:


    How long will this nonsense take to get to casting directors on Broadway or Hollywood?

    Call me racist, but I think a hijab would ruin Catwoman.

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  3. Misthiocracy Member

    Tommy De Seno:How long will this nonsense take to get to casting directors on Broadway or Hollywood?

    You don’t actually think that this nonsense will ever be applied to Democratic Party mega-donors, do you?!

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  4. Salamandyr Inactive

    I’m reminded how certain restaurants get around this law by labeling their servers “models who serve”, because there is a carve out for models and other types of employment where personal appearance is important.

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