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

THE A&F POSITION HAS SUPPORTERS

Representatives from A&F say that the company does not discriminate. A&F’s director of communications said that the company likes hiring sales assistants, who they call “brand representatives,” who look great. He said that the brand representatives are ambassadors to the brand, and the company wants them to look great, project individuality, project enthusiasm, and make the store a warm and inviting place to shop.13 Related Opinions. Some retailers defend the approach to hiring used by A&F insofar as it attempts to identify and use brand enhancers. For example, one senior industry analyst said, “Being able to find a brand enhancer, or what I call a walking billboard, is critical. It’s really important to create an environment that’s enticing to the community, particularly with the younger, fashionable market. A guy wants to go hang out in a store where he can see good-looking gals.”14 A New Orleans lawyer who represents many hotels and restaurants said: “Hiring someone who is attractive isn’t illegal per se. But people’s views on what’s attractive may be influenced by their race, their religion, their age.”15 One former sales manager for L’Oréal said that she had perceived intense pressure to hire attractive saleswomen, even if they were not competent. She said that company managers tried to force her out when she ignored a directive to fire a woman that her top manager believed was not “hot” enough.16

RELEVANT LAWS AND SETTLEMENT

There are no federal laws that say you cannot discriminate on the basis of appearance. It is also acceptable for employers to have certain “grooming” (appearance) guidelines. However, it is against the law to discriminate based on a number of different personal characteristics, such as gender, race, age, color, disability, and other legally protected personal features. The debate arises when someone suspects they were discriminated against because of a “protected characteristic,” such as color, age, national origin, and so on, but the employer claims that this was not the case. Therefore, a plaintiff wishing to challenge the legality of “appearance” discrimination somehow has to link or associate appearance to discrimination on the basis of gender, race, age, disability, or some other legally protected characteristic.17 The two most likely laws someone might find relevant to “appearance” discrimination would be Title VII of the Civil Rights Act and the Americans with Disabilities Act. It should be added, however, that at least one state law (District of Columbia Human Rights Act) does make it unlawful to hire on the basis of personal appearance.18

Therefore, a careful study of federal, state, and local laws is necessary to help judge these cases. Settlement. The class-action lawsuit described earlier was finally settled, but A&F did not admit any guilt. A federal judge in San Francisco approved the class-action settlement, and the two sides announced an agreement that calls for the company to pay $40 million to several thousand minority and female plaintiffs. A&F also agreed to hire 25 diversity recruiters and a vice president for diversity and to pursue benchmarks so that its hiring and promotion of minorities and women reflect its applicant pool.19 The agreement also stipulates that A&F is to increase diversity, not just in hiring and promotions, but also in its advertisements and catalogs, which have for many years highlighted models who were predominantly white and who seemed to have just stepped off the football field or out of fraternities or sororities. 20 Issue Never Goes Away. After considering the practices of A&F and other employers, we are left with several questions: Is it legal to make employment decisions based on “looks” or appearance? If so, under what circumstances? Is it ethical to take such actions? If so, under what circumstances? Is it unethical to deny a person a job because of his or her appearance? A&F decided to settle its case rather than to reach conclusive answers on these questions.

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.

Case Endnotes

1. Steven Greenhouse, “Going for the Look, but Risking Discrimination,” New York Times (July 13, 2003), 10YT.

2. Ibid.

3. Ibid.

4. “The Look of Abercrombie & Fitch,” CBSNews.com (December 5, 2003).

5. Ibid.

6. “Discrimination Lawsuit Filed against Abercrombie & Fitch Co.,” AFjustice.com, 2003–2004.

7. Ibid.

8. Ibid.

9. “Abercrombie & Fitch Faces Discrimination Lawsuit,” USA Today (July 14, 2004).

10. Ibid.

11. “Business Brief—Abercrombie & Fitch Co: Discriminatory Hiring Practices Are Alleged in a Second Lawsuit,” Wall Street Journal (November 20, 2003), 1.

12. AbercrombieLawsuit.com, January 6, 2004.

13. Greenhouse, 10YT.

14. Ibid.

15. Ibid.

16. Ibid.

17. Gerard Panaro, “Is Hiring on the Basis of Appearance Illegal?” BankersOnline.com (July 8, 2004).

18. Ibid.

19. Steven Greenhouse, “Abercrombie & Fitch Bias Case Is Settled,” New York Times (November 17, 2004), http://www.nytimes.com/ 2004/11/17/national/17settle.html, retrieved October 3, 2007.

20. Ibid.