When faith collides with fashion

Have you ever shopped at a place called Hollister? It's part of Abercrombie & Fitch. The clothing they sell is hip and tight-fitting. Lekettra Bennett went to work as a saleswoman for them; per company policy, she had to dress the Hollister look, which consisted of (according to the U.S. District Court for the Eastern District of Missouri’s order summarizing her take on it -- you just knew there was a suit lurking here) of "ripped up jeans (or skirts), a little revealing, sporty, California beach style, laid back." But after working there a while, Bennet converted to the Apostolic religion and could only wear skirts that fell below the knee and shirts with sleeves that came to the forearm. Her duties as a saleswoman (or, as the company calls them, "models") thus conflicted with her beliefs, and the company was required to try and eliminate the conflict by offering alternatives so she could continue to work and not violate her faith. It offered her the alternatives of wearing jeans instead of skirts (when a model wore a skirt, according to Bennett, it fell just below the buttocks), wearing short skirts with leggings to cover her legs, or looking in other stores for skirts that would meet her religious requirements and be consistent with the Hollister style. She did not try the third alternative and believed the other alternatives would not be consistent with her beliefs. So she resigned, and the EEOC took up her case. In EEOC v. Abercrombie & Fitch Stores, Inc., the trial court denied summary judgment asked for by the employer, holding that while the employer did what the law requires — talking to the employee about an accommodation — it did not offer an accommodation that would resolve the conflict; thus none of the alternatives was a reasonable accommodation. I disagree with the holding. The law requires discussion but not resolution. Further the court says there was a fact issue on whether giving Bennett what she wanted would have imposed an undue burden upon Hollister. All an employer needs to show to satisfy its burden for the undue-burden defense is that doing what the employee wants would impose more than a de minimis cost. Here, I suggest, having a company change the way it sells and markets its products does impose more than a de minimis cost. The sales concept goes to the heart of what the company exists to do. We will see.