Anyone with an interest in the intersection of the First Amendment and employment law should read Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores Inc., an April 9 opinion from the U.S. District Court for the Northern District of California.
The opinion sets out the key facts: The defendant allegedly rejected a female Muslim applicant for a job, because she wore a head-covering called a hijab, which she claimed was mandated by Islam. The EEOC sued, alleging religious discrimination.
Why would the hijab be a big deal to the defendant? I don’t shop at Abercrombie (I don't think they carry anything in my size), but the opinion relates that the retailer stresses a certain hip look, its sales employees are "living models" of its clothing, and the look it strives for is “East Coast” and “preppy.” The hijab does not fit into that. (By the way, the opinion notes that the company now has adopted a policy to accomodate employees who believe they must wear a hijab.)
The company lodged an affirmative defense that enforcing Title VII would unconstitutionally violate its right to commercial speech — namely that "living models" are advertisements entitled to First Amendment protection. The EEOC moved for partial summary judgment on that issue.
The court granted the motion and did the cha-cha around the company's argument, noting that the position applied for involved receiving new merchandise into the store and stocking shelves, not as a salesperson who "lives" the Abercrombie look.
“The court leaves to another day the more difficult question of whether a living model, whose stated job responsibility is to advertise Abercrombie's brand, constitutes commercial speech,” wrote Judge Edward J. Davila.
There are — and will be — other collisions between Title VII and free speech rights. What if a manager believes that woman should stay home barefoot and pregnant, and he says that in the workplace? Can these comments provide the fodder for establishing an unlawful hostile environment, or are they protected and thus cannot? Don't forget: The First Amendment can be a defense to a Title VII claim.