Discrimination—or Good Business?

An article on JCKonline.com sparked a firestorm of discussion on our Web site’s Talkback forum. The article, posted July 17, outlines a discrimination lawsuit filed by the Asian Law Caucus against nationwide jewelry retailer Whitehall Jewelers. The plaintiff is Shereen Attia, 24, of Fairfield, Calif., who says she was told she would not be hired for a sales position in the retailer’s Solano Mall store because she had recently begun wearing a head scarf in accordance with her Muslim beliefs.

The American-born Attia, who is of Egyptian and Italian descent, had previously been employed by the firm as a sales associate, according to the Asian Law Caucus, an advocacy group based in San Francisco whose mission is to “promote, advance, and represent the legal and civil rights of the Asian and Pacific Islander communities” in the United States.

In late October 2006, the suit alleges, Attia received a call from a Whitehall store manager inviting her to apply for one of two open positions. Attia said in a statement that she had worked as a sales associate for the same manager and company at a second store in the same shopping mall until that store closed, but when she visited Whitehall to apply she was told she would not be hired [back] because of [the head scarf].

Some respondents spoke up in defense of Whitehall, saying a retailer has the right not to hire someone it feels might make customers feel uncomfortable. Ronnie Fink, a jeweler from Michigan, wrote that an employer should be able to establish and enforce what it deems an appropriate dress code for the business—and that potential employees who don’t want to abide by it should open their own business where they can dress any way they like.

Others said discrimination is wrong, or took a pragmatic view. Juliya White, an engineer from Nevada, wrote that in an industry that pays sales associates less than the cost of living in California, Whitehall should be happy to have a good candidate with a proven track record, regardless of dress.

JCK‘s own Bacilio Mendez addressed the issue in legal terms. He cited Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against individuals because of religion in hiring, firing, and other terms and conditions of employment. (You can read the entire text of Title VII at www.eeoc.gov/policy/vii.html.)

“Employers have the right to hire or not hire someone by any standards they see fit, fair enough,” writes Mendez. “What they do not have is the right to say ‘I’m sorry, we aren’t hiring you because. …’ If in fact the employer did expressly say to Shereen Attia ‘We’re not hiring you because [of the head scarf]’ the employer broke the law.”

What if Whitehall hadn’t mentioned the head scarf to Attia? What if the retailer had told her, “We found a better-qualified candidate,” even if better-qualified simply means an uncovered head? Is that legal?

Can some discrimination ever be appropriate? What if a candidate has a solid sales background, but the retailer feels his or her manner of speaking or personal presentation wouldn’t be a good fit with the rest of the sales team or with the store’s clientele? Is that a legitimate reason to deny employment or is it just plain snobbery?

All managers take into account how the candidate will fit with the organization. They try to avoid hiring a person whom they sense has a negative personality or one who seems to need a lot of direction in a work environment where self-motivation is important. Qualifications like these are intangible but often more important than the ones on paper. But while one can prove skill qualifications to the letter of the law, how can one prove the intangible personality?

What if a uniform is required and any religious or cultural expression through dress is equally forbidden to all? No headgear, no medallions or jewelry, no insignia, no tattoos. Is it discrimination if the same standard is equally applied to all?

What would you do? Add your thoughts to our Talkback forum (the button is next to the blogs) or e-mail your answers to me at hschupak@reedbusiness.com, and we’ll put them online or in a future issue of JCK.

Separately, speaking of Bacilio Mendez, I’d like to announce his recent promotion to senior associate editor, covering fashion and the market. His keen eye for trend spotting and his astute observations on our Style 360 blog have already made him a familiar face and voice in the jewelry community.