Fact Situation

Bottega Veneta, Inc. is an Italian luxury fashion line of clothing and accessories. It operates retail stores in the New York City metropolitan area in high end shopping centers. Consistent with the image Bottega Veneta seeks to project in each store, the company imposes a Look Policy that governs its employees' presentation and dress. The company expects its employees to reflect luxury fashion and the sales staff to be models for its designs. In the hiring process, the sales staff are vetted to determine if the applicant possesses the Bottega Veneta "look."

The Look Policy requires that sales staff wear the company's clothing and accessories. All sales staff are provided with a stipend to purchase clothing and accessories to wear at work. The sales staff are also given a substantial discount on additional items they purchase from the company. The Look Policy specifically prohibits wearing "caps"a term the Policy does not definewhile at work. The company does sell one style of winter hat. Other than that one item, the company does not sell hats or head coverings.

Salima Halim is a practicing Muslim who, consistent with her understanding of her religion's requirements, wears a headscarf. Ms. Halim applied for a position with a Bottega Veneta store, and was interviewed by Halle Juniper, the store's assistant manager. Using Bottega Veneta's routine system for evaluating applicants, Juniper gave Halim a rating that qualified her to be hired; Juniper was concerned, however, that Halim's headscarf would conflict with the store's Look Policy.

Juniper sought the store manager's guidance to clarify whether the headscarf was a forbidden "cap." When she received no answer, Juniper turned to Randy Waters, the district manager. Juniper informed Waters that she believed Halim wore her headscarf because of her faith. Waters told Juniper that Halim's headscarf would violate the Look Policy, as would all other headwear, religious or otherwise, and directed Juniper not to hire Halim.

When Ms. Halim was informed thatshe would not be hired, she was very surprised. She thought the interview went very well and she has three (3) years of experience in sales at Macy's Department Store. Juniper would not tell Halim why she was not hired. Halim suspected that it had something to do with the fact that she wears a headscarf, although the headscarf or her religion never came up during the interview.

Halim has filed a complaint against Bottega Veneta of religious discrimination based on a 1964 Civil Rights Act violation. You are the Human Resources

Director and responsible for responding to the complaint. You must determine if he company has engaged in religious discrimination by not hiring Ms. Halim, specifically, and more generally by the requirements in the Look Policy. If it has, the claim needs to be settled before there is any negative publicity and the Look Policy may need to be revised. If not, the company needs to justify he refusal to hire Ms. Halim.

Using the IRAC structure, in the Analysis explain the basis for a complaint of employment discrimination and what the company's response would be. In responding for the company, address how the Look Policy is job related and a business necessity.

The project is an analysis of a current human resource issue. The analysis follows the IRAC structure----Issue, Rule, Analysis, and Conclusion

RULES:

Title VII of the Civil Rights Act of 1964 prohibits two categories of employment practices. It is unlawful for an employer:

"(1) to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin [disparate treatment]; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. [disparate impact]" 42 U. S. C. 2000e-2(a).

DISPARATE TREATMENT: RELIGION

The 1964Civil Rights Act states that the term religion" [i]includes all aspects of religious observance and practice, as well as belief, unless an employer

demonstrates that he is unable to reasonably accommodate to a 'religious observance or practice without undue hardship on the conduct of the employer's business.' " 2000e(j).

DISPARATE IMPACT

The 1964Civil Rights Act 2000e (k) explains the burden of proof in disparate impact cases as follows:

"(1) (A) An unlawful employment practice based on disparate impact is established under this subchapter only if-

(i) a complaining part demonstrates that a respondent [employer] uses a particular employment practice that causes disparate impact on the basis of race, color, religion, sex, or national origin and the respondent [employer] fails to demonstrate that the challenged

practice is job related for the position in question and consistent with business necessity;"

OUTLINE TO APPLY THE 1964 CIVIL RIGHTS ACT:

DISPARATE

TREATMENT APPLICANT'S COMPLAINT:The employer discriminated against the applicant in a term or condition of employment based on, or because of, being a member of a protected group (i.e.) Muslims.

EMPLOYER'S RESPONSE: (1) Employer had a non-discriminatory reason for failure to hire; AND/OR(2) An affirmative defense to disparate treatment. The "employer demonstrates that he is unable to reasonably accommodate to a 'religious observance or practice without undue hardship on the conduct of the employer's business.' "

OUTLINE TO APPLY THE 1964 CIVIL RIGHTS ACT:

DISPARATE IMPACT

APPLICANT'S COMPLAINT:A "complaining party demonstrates that a respondent [employer] uses a particular employment practice

that causes a disparate impact on the basis of race, color, religion, sex, or national origin.

EMPLOYER'S RESPONSE: "[A] nd the respondent fails to demonstrate that the challenged practice is job related for the position in question and

consistent with business necessity;"