Store Known to Discriminate Gets Caught Up in Religious Discrimination [e101]

October 6, 2014

Nasir and Matt kick off the next 100 episodes by discussing the religious discrimination lawsuit involving Abercrombie. They also answer, “The retailer argues in its brief that job applicants should not be allowed “to remain silent and to assume that the employer recognizes the religious motivations behind their fashion decisions.”

Full Podcast Transcript

NASIR: Welcome to our podcast where we cover business in the news and answer some of your business legal questions that you, the listener, can send in to This is Nasir Pasha.

MATT: And this is Matt Staub.

NASIR: Returning to our Episode 101 after our big 100. That was fun. I miss San Diego already. I already left.

MATT: Yeah, you should. It’s nice here today. It’s probably not as nice where you’re at.

NASIR: It’s terrible here. It’s like I’m in a swamp.

MATT: It is much hotter here than normal. So…

NASIR: Wow. That sucks.

MATT: It’s probably still hotter where you’re at, but that’s fine.

NASIR: So, what do we have today to launch our next hundred episodes? More football?

MATT: More football? No. I mean, we talked about this earlier in the week – you and I, off podcast – how we basically could do a football story – an NFL story – every single episode, just the way things have shaped up. We haven’t even gotten to – I think I mentioned this before – there’s always something in college football that pops up at some point during the season so you know there’s going to be something big that we’re going to be able to discuss then as well. So, I don’t think we have any football lined up for this whole week. We’ll see. But what do we have? Abercrombie. So, this is a clothing store, apparel store, though I know of that because I long, long ago shopped there but I haven’t shopped there in at least three weeks.

NASIR: What’s funny is I never shop there and I felt like I was missing something because all the cool kids were wearing that and I never… I don’t think I have one shirt or anything from them. I feel missed out.

MATT: Well, maybe I’ll get you one. I didn’t even know they were even still around. If you go to the mall, you can tell who they are because it’s the store that’s pumping out very loud music and it’s like just dumped bottles of cologne on the ground because it’s very strong.

NASIR: Exactly, yeah.

MATT: It’s pretty weird.

NASIR: I was going to say pumped out cologne outside. Yeah, you walk by and you smell really nice afterwards.

MATT: Like most of the stories we deal with businesses, it’s usually some sort of employment issue and that’s exactly the case here. This is dealing in Oklahoma and someone who had applied to a job at a kids’ store of Abercrombie, and I don’t know if that really makes a difference but it’s a little bit tricky because she basically is claiming that she wasn’t given this position for religious reason s and Abercrombie’s stance is that, well, you have to specifically ask for the special – I don’t want to say special treatment.

NASIR: Accommodation.

MATT: Accommodation, yes, that’s the word.

NASIR: I’ve been paying attention to this story quite a bit and here’s what I believe are undisputed facts – or if they’re not undisputed, at least what’s alleged – is that, okay, Abercrombie & Fitch, they have a specific dress code policy. It doesn’t really matter what it is thoroughly but one specific thing that they have is you’re not supposed to wear any kind of head gear or hats or anything like that. And so, this particular woman who’s interviewing wears a head scarf over her hair and she wore it at the interview and, even previously, she had asked her friends who work there. It’s like, “Yeah, I know somebody that used to wear a Yarmulke who work there so I’m sure yours is fine, too.” And so, she went there and one thing it has to be is she can’t wear any black. None of the employees can wear any black. They have to wear white or other colors. And so, she happened to be wearing a black one that day and the interviewer called corporate or called middle management and asked, like “Okay, this person wears this, is that okay?” and they were told to decline the applicant. So, those are the facts that I believe are pretty much undisputed because Abercrombie is not saying that that didn’t happen. From what I understand, they’re saying that, well, if you wanted a religious accommodation, you’ve got to be specific that you’re wearing this scarf because of some religious basis. And so, what do you think? If, in fact, they see her with the headscarf – and she didn’t find out about this until later, of course – and then goes back, calls corporate or calls some kind of manager and says, “Okay, this is what she’s wearing, is that okay?” and they come back and they say no and they don’t hire her, well, what did they think? Did they think that she was required to wear because of some non-religious reason? And, even if that is the case, what reason could it be that you shouldn’t accommodate? Like, what if it is some kind of I don’t know, because it is a bandage on her head because she has to or she’s handicapped in some way, right? There could be a disability accommodation there too as well.

MATT: Yeah, and that’s the tricky thing with this whole story. It is indirectly that she’s actually wearing it, but that’s not what the underlying issue is – that she failed to specifically ask for the accommodation – that seems to be the actual lawsuit that’s involved. So, it’s kind of trick but, you know, like I said, indirectly, it’s still going to whether she can wear this or whether the store can prevent it because it’s clear that she’s doing it for a religion reason. So, did they want to do something that’s discriminatory based on her religion? Obviously not but I think they’re just trying to find a creative argument to get around this.

NASIR: That’s what I’m trying to figure out. I know they’ve already changed their policy because they have to give a religious accommodation. But what they’re saying is that – just to play their side, I’m not on their side in this but just to play their side, they’re saying that, well, how are we supposed to know? I mean, if all of a sudden, we can be sued because we didn’t give a religious accommodation when we didn’t even know we were supposed to give a religious accommodation, then how is that fair? And I think that’s an established law. Like, even when you have a disability and you need an accommodation for that, there’s something of a process that works from both the employee and the employer. But I think the difference here is that the retailer – again, according to the facts that I’ve vaguely read and assuming that they’re true – is that Abercrombie & Fitch, they didn’t give an opportunity for that prospective employee to necessarily ask for a religious accommodation because she wasn’t hired because she was wearing the head scarf. So, when should she have asked that question?

MATT: That’s a good point. Does she have to go into every interview and, when they ask it at the end of the interview if you have any questions, it’d be way too awkward just to ask that. I mean, it’s…

NASIR: I’m going to go, you know, every job interview, I’m going to advice… you go in there, you just list out all your demands. “I demand to be paid this. I need breaks every five minutes because I smoke or whatever.” That’s how you start an interview or end an interview. I don’t know how old she was but I assume they don’t hire necessarily older people for that kind of position which may be a different issue.

MATT: She’s 17.

NASIR: Yeah, she’s 17. How do you expect a 17-year-old to kind of ask those kinds of questions? But I don’t know. There has to be some burden on the employer.

MATT: I don’t know why she’d even want to work there in the first place. But I guess that’s its own question.

NASIR: That’s a different issue – don’t work there as well. That store is very weird though. You have to admit. Everything from their catalogs to just the whole cologne thing throws me off as well.

MATT: Yeah, and, like I said, it’s been a while. I don’t even remember… I guess I don’t go to the mall very often but I don’t remember seeing one these stores around so I didn’t know they still existed.

NASIR: I go to the mall pretty much every other day as an avid shopper. And I’ve seen one pretty much at every mall that I’ve been to in the last five years, I should say.

MATT: Interesting.

NASIR: Very.

MATT: Well, I don’t know if this will be a story that we will update on our 200th episode when we can go back and do the updates like the 100th episode.

NASIR: Well, it could be because the decision will probably come out next year in June or July. So, maybe 300th? Or I don’t know. I can’t do my math. A year from now is a while.

MATT: It’d be less than that.

NASIR: Oh, less than a year. Yeah, nine months or so.

MATT: Ah, all right. Well, glad the math portion of the podcast is still consistent.

MATT: Question of the day.
“I recently had a high-paying employee leave. Money is tight so I was trying to delay payment to them as much as possible. Do I have to pay them immediately or can I wait until the end of the pay period?” From: Fresno, California.

NASIR: Oh, this is California, right? I’m trying to think about other states. I mean, California is pretty easy but I’m pretty sure most states kind of follow the same rules with some exceptions but there’s a strong public policy to make sure that those employees that leave employment are paid their full wages as soon as possible.

MATT: Right.

NASIR: So much so that there’s actually a waiting time penalty which I think is… it’s every day that they haven’t paid the full wages up to thirty days and the penalty has to do with how much you make, I believe, if I recall. Am I correct?

MATT: Oh, I hope so because that’s the question.

NASIR: Well, the question is whether they can or not. The answer is that you can’t. There’s different rules as to when you have to pay. If you terminate them, then it’s pretty much right away. But, if they resigned without notice, then I think it’s within 72 hours?

MATT: Yeah, and that’s the key here because we don’t know about… it sounds like they resigned but we don’t know if they gave 72 hours’ notice or not because that kind of changes the situation. So, 72 hours, if they give the notice, then, yeah, you’re going to have to pay them when they leave because that’s giving your employer enough notice to pay them upon exit. But, if they don’t, it’s a little bit different. So, unfortunately, we don’t know the answer to this one or how long 72 hours is.

NASIR: Yeah, 72 divided by 24 is 3.0000, so three days.

MATT: I think that was their question. How long is 72 hours in days? So the answer is three. We got that.

NASIR: Yeah.

MATT: I mean, is it the same thing in Texas?

NASIR: Yeah, so Texas is similar. If the party is terminated, it’s within six days. And then, if the person quits, it’s just the next pay day – the regular pay cycle. It doesn’t even distinguish between whether you quit or you’re fired. It’s just the next pay day. So, it shows you how strict California is and how much of a public policy it is to make sure that the employees are paid on time. And I think the reason is because, you know, employers play some fun and games when someone leaves, you know. They’ll use the pay check as a bargaining chip to withhold funds because they know it’s very difficult for an employee to fight something like that. I mean, I don’t know how many times that I’ve seen not even through our law firm but just kind of tangentially through friends and family where they may know an employee that may have been ill-treated but, you know, they feel kind of hopeless and, even if the law’s behind them, they’re like, “You know, I just want to put it behind me and move forward,” and I think a lot of employers, they have taken advantage of that in the past.

MATT: All right. Well, I think we answered the question – hopefully.

NASIR: Yeah, did we? Do I have to pay them immediately or can I wait until the pay period? The answer is pay them immediately assuming that you fire them. Or, if you didn’t…

MATT: The answer is three days.

NASIR: Or 72 hours – whichever comes first.

MATT: It could be one of those turn back the clock or turn forward the clock days and make it tricky.

NASIR: Yeah, what happens then? That’s a good question. That should be the whole case.

MATT: Who knows? I guess if you getting people at 1 am or 2 am or whenever the time changes, it wouldn’t really make sense anyways.

NASIR: But I think it’s 72 hours from the time that they quit. Like, if they quit at 5 pm or let’s say 8 am, that might change some things. But, if you hit the Daylight Savings Time over the Sunday, then I’d still think that they would count it as actual time, not the time of the clock. That’s just my legal analysis.

MATT: That’s the question we’d submitted for Friday’s episode. So, now we have to come up with another question.

NASIR: Oh, okay. Well, thanks for joining us. This Wednesday, we have a Mark Faggiano joining us as a guest, from TaxJar so listen in to that one.

MATT: Yeah, listen, it’s a good episode. We haven’t recorded yet and I hope it’s good.

NASIR: It will be. Sales tax that we’re be talking about. All right, have a good one.

MATT: Keep it sound and keep it smart.

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Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.
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