IS HIRING ON THE BASIS OF “LOOKS” UNFAIR OR DISCRIMINATORY? According to an attractive young…

IS HIRING ON THE BASIS OF “LOOKS” UNFAIR OR DISCRIMINATORY?

According to an attractive young woman, a student at Northwestern University, the same thing happens to her every time she goes shopping at Abercrombie & Fitch. On at least three occasions, store managers have approached her and offered her a job. This young woman, Elizabeth, measures in at five feet six inches tall and has long blond hair. She has an attractive, stylish appearance. Elizabeth looks like she belongs in an A&F catalog.1

Does this happen to her by coincidence? Apparently not. A former assistant manager for A&F said that it has been, in fact, company policy that managers approach attractive people and ask them if they wanted a job. The store philosophy has been that if you have the best-looking college kids working for you, everyone would want to shop there.2 Nothing New? Hiring on the basis of “looks,” appearance, or physical attractiveness is nothing new.

Certain industries have been doing it for years. In recent years, however, it has become part of a growing trend on the part of merchants who want to project a particular image. A&F is not the only store to engage in this practice. Retail chains, such as the Gap and Benetton, take pleasure in employing attractive people, often from different backgrounds and races. Allegations against A&F, however, have been that their classic American look is narrowly defined by such traits as blond, blue-eyed, and preppy. A&F finds these workers by recruiting on certain college campuses, sororities, and fraternities.3

Provocative Strategy. According to a CBS News report, the image of A&F is “party-loving jocks and bare-naked ladies living fantasy lives.” A&F wants its sales reps to reflect what is up on its walls—cool and seductive. Elizabeth, mentioned before, says that “the skirts are getting shorter. The tops are getting smaller. That seems to be the trend and Abercrombie is going with that.”4 A&F once had a reputation for the clean-cut, classic look, but that is apparently gone now. In its place is a provocative new strategy targeted toward teens and twenties. Apparently, the more parents get outraged by their approach, the larger their sales. With more than 600 stores and annual sales in excess of $1 billion, the company has become the leading teen retailer.5

LAWSUITS ALLEGE DISCRIMINATION

In recent years, some discrimination experts, as well as individuals who believe they have been excluded because of looks, have been raising the question of whether hiring employees on the basis of their “looks” is discrimination of some kind. In fact, a coalition of four organizations filed an employment discrimination lawsuit against A&F. The coalition filing the lawsuit included the Mexican American Legal Defense Fund, the Asian Pacific American Legal Center, the NAACP Legal Defense and Educational Fund, and the law firm of Lieff Cabraser Heimann & Bernstein, LLP. The nine Hispanic and Asian plaintiffs to the lawsuit claimed that A&F discriminates against people of color, including Latinos, Asian Americans, and African Americans, in its hiring practices, job assignments once hired, compensation, termination, and conditions of employment.6 Allegations. The young adults who comprised the plaintiff group have alleged that they were qualified to work at A&F but were either not hired or terminated because of their race, color, and/or national origin. The lawsuit asserted that A&F enforces a national, corporate policy of showing preference to white people for sales positions, desirable assignments, and favorable work schedules. The lawsuit details some of the practices claimed to be illegal, including recruiting, hiring, and maintaining a disproportionately white workforce, systematically discouraging minority applicants, and refusing to hire qualified minorities for positions working on the sales floor. The lawsuit alleges that when minorities are hired, they are channeled into less prominent positions— the stockroom, overnight shift positions—and out of the public eye.7 The “A&F Look.” The grievance goes on to claim that the company implements its discrimination in part through a detailed and meticulous “Appearance Policy” that requires all brand representatives to exhibit the “A&F Look.” The lawsuit maintains that the company rigorously maintains the “A&F Look” by vigilant scrutiny and monitoring of its stores by managers from the region, district, and national office. In addition, as part of the monitoring policy, stores have to submit a picture of their brand representatives who fit the “look” to the corporate office each quarter. Then, the corporate office selects about 15 stores’ pictures and holds them up as exemplary models and distributes them throughout their national network of stores. The pictures, it alleges, are almost invariably of white, young people.8 Specific Complaints. A representative for the Mexican American Legal Defense and Educational Fund said, “If you look at the material they put out, they are cultivating an all-white look.” He went on: “It is difficult to understand why, given that their target age demographic is even more heavily minority than the rest of the population.”9 One recent graduate of Stanford University, a Filipino American, said he applied for a position at a store at which he previously worked but was told, “We’re sorry, but we can’t rehire you because there’s already too many Filipinos working here.”10 Second Lawsuit. A&F was then named in a second lawsuit alleging discriminatory practices. This lawsuit, which was seeking class-action status, was filed on behalf of a woman who alleged that her application was denied because she is an African American. This suit was filed by Jesse Jackson’s Rainbow/Push Coalition and three Philadelphia-area law firms.11 According to AbercrombieLawsuit. com, a new consolidated classaction lawsuit was formed bringing the previous two lawsuits into one consolidated suit.12

Questions for Discussion

1. What are the legal and ethical issues in this case?

2. What is your evaluation of the concept of the “A&F look”? Have you personally observed this concept in practice?

3. Are the employment practices of A&F discriminatory? Are they unfair? What ethical principles or precepts guide your analysis? Given that Abercrombie did not admit guilt, does the settlement bring closure to this issue of “looks” discrimination?

4. What could A&F and other retailers be doing that they are not doing now that would make its hiring practices less controversial?

5. Carefully read up on relevant laws and other cases to decide how you think a judge or jury would decide in the A&F case.