Outten & Golden: Empowering Employees in the Workplace

Archive for the ‘religious discrimination’ Category

Surprise! Zara, The Brand That Brought You Swastika-Stamped Handbags, Faces $40 Million Anti-Semitism Lawsuit

Tuesday, June 9th, 2015

Jessica_GoldsteinZara, the fast-fashion retailer that brought you a children’s t-shirt that looks like a concentration camp uniform and a handbag decorated with swastikas, is facing a $40 million discrimination lawsuit. Three employees are alleging nine causes of action: according to Women’s Wear Daily, the lawsuit makes “claims on racial discrimination, in particular anti-Semitism. It is also alleging pay discrimination and retaliation.”

The lawsuit was filed Wednesday by Zara’s former general counsel, Ian Jack Miller, and lists the U.S. country manager, and Zara USA’s director of expansion for North and South American, Moises Costas Rodriguez, as the other defendants. Miller started working at Zara in January 2008 and was fired in March of this year.

Miller is Jewish and alleges the discrimination he experienced was particularly harsh as a result. Though upper management didn’t know about Miller’s faith until he’d been at Zara for five years, they routinely called Jewish landlords and real estate developers with whom they worked “los judios” (Spanish for “the Jews”), whined that it was trying to work with “those people,” and generally mocked them. Once Miller’s religion came to light, he found himself cut out of crucial meetings and email chains; his annual pay raises were cut from over 15 percent to three percent.

Miller alleges that employees are favored if they are “straight, Spanish and Christian.” Spanish employees allegedly enjoyed greater job security and higher pay raises, he claims. He also alleges that he was fired the day after his legal counsel sent a letter to Zara detailing his complaints.

From Fashionista:

The lawsuits claims are specific, lewd and no doubt embarrassing to many current and former employees. The lawsuit describes a corporate culture where visits to prostitutes are a normal part of business trips and a heterosexual lifestyle is endorsed. Miller says that former Zara USA CEO Moises Costas Rodriguez bragged about the size of his penis and having sexual relations with five female subordinates, including a director of human resources, and that he sent an email to Miller highlighting language that marriage is an institution “sanctified between a man and a woman.” The suit claims that another Zara executive, Francesc Fernandez Claramunt, sent Miller’s partner, Michael Mayberry, a pornographic image of an erect and tattooed penis and that Fernandez had been trying to persuade Miller to get such a tattoo.

It wasn’t just Miller who was the alleged target of Zara’s prejudice: emails that regularly circulated among senior management reportedly contained pictures of Michelle and Barack Obama, the former serving fried chicken, the latter on an Aunt Jemima box shining shoes and in a Ku Klux Klan hood holding a Confederate flag.

 

In response to the lawsuit, a Zara representative told WWD, “We do not tolerate any behavior that is discriminatory or disrespectful, but value each individual’s contributions to our dynamic organization.”

 

Revelations like this are always a bit shocking, not because it’s so stunning that someone could still harbor such antiquated prejudices in a modern time, but really that someone could be stupid enough to document them in a work email. As no one at Zara would be encouraged to say, dayenu.

 

And yet, for the consumer paying attention to Zara’s practices — and really, the practices of all these fast fashion retailers — there is no real reason to be taken aback by this news. This is a store that not only has stocked its shelves with easily identifiable signifiers of the Holocaust (twice!) but has also shilled blackface necklaces.

So Zara’s corporate culture shouldn’t be all that shocking, just like there is nothing particularly jaw-dropping about Abercrombie & Fitch, purveyor of all things white, blonde and preppy, would be found guilty of religious discrimination against a potential employee who wore a hijab at her job interview; just like there is nothing especially mind-blowing about Urban Outfitters, which navigates cultural landmines with all the grace of a drunk hipster, would sell a “Vintage Kent State Sweatshirt” that appears to be splattered with blood. We’ve reached a point where shopping at any of these places is, at best, a passive acceptance of the values they openly, eagerly uphold.

 

Still, would-be responsible shoppers are in a bind: it is practically impossible to know that you’re buying clothing that is not only inoffensive on its face (can’t really say enough times how easy it is to make sure Nazi regalia isn’t all over your fine fake-leather goods) but ethical in its supply chain. Stores like Forever 21, H&M and Topshop keep prices low by exploiting and endangering the lives of impoverished people, mostly women, in developing countries. Even Patagonia, probably the most high-profile advocate in the retail space for fair labor practices, can’t weed human trafficking out of its factories.

One more thing to consider: Zara founder Armancio Ortega is the second-richest man on Earth. He has a net work of $71.5 billion.

This blog was originally posted on Think Progress on June 5, 2015. Reprinted with permission.

About the Author: The author’s name is Jessica Goldstein. Jessica Goldstein is the Culture Editor for ThinkProgress. She also writes recaps for Vulture, New York Magazine’s culture blog. Before coming to ThinkProgress, Jessica was a feature writer and theater columnist at the Washington Post. Jessica holds a B.A. in English and Creative Writing from the University of Pennsylvania. While at Penn, she wrote for Seventeen and Her Campus. Jessica is originally from New Jersey.

Abercrombie Lost A Supreme Court Case. Could They Win A Retail War?

Tuesday, June 2nd, 2015

Jessica_GoldsteinLast fall, Samantha Elauf, a young Muslim who was denied employment at Abercrombie and Fitch because her headscarf violated the company’s dress code, took her case all the way to the Supreme Court. On Monday, SCOTUS ruled against Abercrombie, 8-1, declaring that A&F’s refusal to accommodate a hijab-wearing applicant was a violation of civil rights law.

Elauf didn’t know about Abercrombie’s policy against headscarves; the Supreme Court needed to determine if it was Elauf’s responsibility to inquire for an accommodation or if the burden was on Abercrombie to provide an accommodation without waiting for Elauf to ask. The final call: it was on Abercrombie to provide for Elauf, not the other way around, and failing to do so constituted religious discrimination.

In a statement, Abercrombie said the case will go on and pointed out that the justices did not specifically say discrimination had occured: “We will determine our next steps in the litigation.”

So Abercrombie lost a battle. But could this loss help the chain win a retail war? If so, it wouldn’t be the first time Abercrombie rebounded from irrelevance.

As we noted on this site last year, the “cool” look once exemplified by Abercrombie’s preppy offerings and its blonde, white and athletic aesthetic is no longer cool among young shoppers. At its modern peak (which is to say, the second era of Abercrombie, after then-CEO Mike Jeffries revived the long-dormant brand in 1992), Abercrombie was raking in almost $2 billion in annual sales, with 22,000 conventionally hot employees populating 700 stores. Abercrombie thrived on a narrow definition of beauty.

As Jeffries put it in a now-infamous interview with Salon in 2006, “We hire good-looking people in our stores. Because good-looking people attract other good-looking people, and we want to market to cool, good-looking people. We don’t market to anyone other than that… In every school there are the cool and popular kids, and then there are the not-so-cool kids. Candidly, we go after the cool kids. We go after the attractive all-American kid with a great attitude and a lot of friends… Are we exclusionary? Absolutely.”

Repulsive as this modus operandi may be, there was a time, not too long ago, when it was smart marketing: when everyone was watching The O.C., when Mean Girls in their nearly-identical pink-on-Wednesdays attire reigned supreme, when sameness was the order of the day.

But 2006, in fashion years, is ancient history. Today’s teenagers are drawn to the cheap, trendy stuff on the shelves of H&M, Forever 21, and Zara (though the human cost of such inexpensive, wear-it-then-toss-it clothes is devastatingly high). Looking like everyone else is so five years ago. And Abercrombie’s idea of utopia as, basically, an Aryan, Logan’s Run-like game of touch football that never ends doesn’t jive with the taste of the most racially diverse generation in history.

 

Sales at A&F have been on the decline for years; stores have been shuttering across the nation. So before Elauf’s case was decided, Abercrombie was in the midst of some soul-searching. (Assuming corporations are people, why can’t brands have souls?) They killed the logo. They brought light into the stores and black clothing to the shelves. The nausea-inducing amounts of perfume amid the racks was taken down by a quarter. A&F even tried to go in a hipster direction; this did not sit well with the preppy populace, Abercrombie’s core demographic. Besides, these are not the kind of seismic changes that rescue a dying brand.

Maybe, just maybe, this SCOTUS case will be a watershed moment for Abercrombie. Not only is their old mode of cool no longer cool; it is so uncool that it’s literally unconstitutional. Imagine a brave new Abercrombie where the employees — ahem, “brand representatives” — actually represent a huge swath of America’s teenage population. Imagine it being totally ordinary to stroll into an A&F at the mall and be greeted by a girl in a hijab and a guy in a yarmulke.

Or maybe Abercrombie will continue its speedy, steady fall from power. But if you happen to be personally invested in the resurgence of Abercrombie as a cultural force, consider this SCOTUS ruling cause for cautious optimism.

This blog was originally posted on Think Progress on June 2, 2015. Reprinted with permission.

About the Author: The author’s name is Jessica Goldstein. Jessica Goldstein is the Culture Editor for ThinkProgress. She also writes recaps for Vulture, New York Magazine’s culture blog. Before coming to ThinkProgress, Jessica was a feature writer and theater columnist at the Washington Post. Jessica holds a B.A. in English and Creative Writing from the University of Pennsylvania. While at Penn, she wrote for Seventeen and Her Campus. Jessica is originally from New Jersey.

Losing My Religion

Monday, October 8th, 2012

Considering how many talking points in the 2012 election have had to do with religion (Romney’s Mormonism, the morality of the Ryan budget, and Christian views on abortion and gay marriage) it’s easy to forget that in some countries, religion and party-politics are considered a private matter, not to be discussed in polite society.

The United Kingdom is one of these countries; in the land of tea and crumpets, discussing politics or religion at dinner parties is considered cheeky. And so it is surprising that religious liberties in the workplace have been brought center stage by four of Her Majesty’s subjects.

CNN’s Belief Blog brought my attention to Nadia Eweida, Shirley Chaplin, Lilian Ladele and Gary McFarlane, who allege that they were each reprimanded at work for upholding their religious beliefs. After losing on appeal in British courts, their cases were heard by the European Court of Human Rights (ECHR) on September 4. A decision could take months.

Both Ms. Eweida, a nurse, and Ms. Chaplin, a flight attendant for British Airways, wore necklaces with hanging crosses to work, were told to take them off, and refused. Ms. Eweida was suspended; Ms. Chaplin was forced into early retirement.

Ms. Ladele and Mr. McFarlane both had government jobs. Ms. Ladele was a registrar who was disciplined for refusing to process civil unions involving same-sex couples. Mr. McFarlane, who has been spearheading the legal process for all four of these cases with the support of the Christian Legal Centre, was a couples counselor paid by the National Health Service. He was fired after telling his superior that because of his Christian faith he was not willing to work with same-sex couples on sex related issues.

How would their cases fare in the U.S.? How will their cases actually fare in Europe? LASIS investigates.

A word about why the European Court heard an English case involving English people, in the first place. Britain, along with 27 continental neighbors, forms part of the European Union by giving up select parts of its sovereignty to the European government, much like our 50 states vis-à-vis our federal government. An ECHR decision will have the effect of a binding court order within Britain.

Stateside, Title VII of the Civil Rights Act of 1964 protects employees of both public and private institutions against religious discrimination in the workplace. The Act set up the Equal Employment Opportunity Commission, which evaluates discrimination claims and allows people a means to litigate them. So far, this sounds pretty similar to Britain’s employment tribunal — where our litigants lost their case.

Our Civil Rights Act states that employers must give their employees “reasonable accommodation” for their religious needs. A 2001 U.S. Court of Appeals case echoed a 1975 U.S. Court of Appeals case, and defined the reasonable accommodation standard. In the 2001 case, a police officer sued the department after being fired for not complying with uniform rules prohibiting him from wearing a gold cross pin on his shirt. He lost.

In these important cases, our courts have said that to prevail in a workplace religious discrimination case, an employee must show three things: First, that a religious belief conflicted with a work requirement; second, that the employee informed her employer of this conflict; and third, that the employee was not given reasonable accommodation and was then dismissed or sanctioned in some way.

The employer has two possible defenses. She can show that she actually offered the employee a reasonable accommodation or that after trying, no reasonable accommodation was available that wouldn’t cause the employer “undue hardship.” This “undue hardship” would constitute outlaying more than a minimal amount of money, or risking the health and safety of the workplace.

In 2004, a Christian employee was asked to sign a new diversity policy that included a provision mandating respect for homosexual co-workers. The employee considered such a requirement to be contrary to his beliefs and refused to sign – he was fired, and sued in Colorado district court on the grounds of religious discrimination. He won, with the court deciding that so long as his actions and statements were nondiscriminatory, his personal beliefs, even illogical or meanspirited ones, are protected under the law.

But for the most part, U.S. courts have dodged how we should balance individual rights to freedom of religion and the exercise of those rights sometimes being discriminatory.

In a 2012 U.S. Court of Appeals case a counselor working for a government agency was dismissed after refusing to work with same-sex couples and making her religious views clear to a woman she was paid to help. The court didn’t rule whether or not the employee’s actions were discriminatory; it simply stated that her actions did not conform to her professional standards as a licensed counselor

In the opinion of Michael J. Broyde, a law professor and senior fellow of Emory’s Center for the Study of Law and Religion, creating a discrimination exception for religious beliefs would be a “bad idea.” He believes that it would serve as a get-out-of-jail-free card for people to discriminate in the name of religion.

Organizations like the ACLU agree, and have been trying to draw the courts’ attention to this issue for years now. Many of the cases they are supporting (on the opposite side of McFarlane and the Christian Legal Centre) are still in litigation and will continue to be for some time. We can only guess as to when or how the courts will decide.

Cross-wearers Ms. Eweida and Ms. Chaplin might not like what our courts have to say on religious symbols added to uniforms of any kind. Like the British tribunal, our courts would probably not uphold the women’s right to wear crosses while at work especially if, as the defendants in these cases maintain, it was a safety issue: no hanging necklaces are allowed for either nurses or flight attendants.

As for Ms. Ladele and Mr. McFarlane, the government workers who refuse to work with same sex couples, we can probably call this one a toss-up both in the ECHR and in our own courts.

Last year, LASIS did a story about this very issue. A government worker refused to marry same sex couples. Lots of protests. But she maintained that she was just following her religious beliefs. She was reelected.

This particular area of law is still developing and the next few years on both sides of the pond should make for interesting dinner-party conversations.

EDITOR’S NOTE: An astute reader points out that the European Union’s court is the European Court of Justice. The European Court of Human Rights is part of the Council of Europe.

This blog originally appeared in New York Law School’s Program in Law and Journalism blog, Legal As She Is Spoke, on September 29, 2012. Reprinted with permission.

About the Author: José Ortiz (JD Class 2014) is a graduate of the University of Puerto Rico where he majored in Political Science. He is a classically trained pianist, organist and singer having performed with the San Juan Philharmonic Chorale and the Puerto Rico Symphony Orchestra. Other than music and law, he also enjoys heated political debate and the Yankees.

Your Rights Job Survival The Issues Features Resources About This Blog