Are the employment practices of A&F intended to be discriminatory?

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Looks Discrimination at A&F*
When then-Abercrombie & Fitch (A&F) CEO Michael Jeffries said the following in a Salon interview, relatively few took notice:
Candidly, we go after the cool kids. We go after the attractive all-American kid with a great attitude and a lot of friends. A lot of people don’t belong [in our clothes], and they can’t belong. Are we exclusionary? Absolutely.*
Years later, Business Insider unearthed the quote and included it in an article about A&F’s unwillingness to make clothing for larger women.* In the words of Robin Lewis, that 2006 spark then became a 2013 conflagration.* The quote went viral through social networks, Twitter, YouTube, and blogs. As a result, A&F stores around the country found themselves to be targets of boycotts and protests.* This time the issue was A&F’s unwillingness to carry larger sizes, but that is not the only “exclusion” for which A&F has been called to task. Over many years, A&F has been charged with bias and discrimination for its attempts to promote a consistent A&F look.
Looksism, also referred to as Lookism, refers to discrimination or prejudice based on a person’s appearance.* It has long been regarded as an ethical issue, but when it begins to affect protected groups, it can be a legal issue as well.* Over a decade ago, 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 plaintiffs to the lawsuit claimed that A&F discriminated 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—they settled the case for $50 million minus attorney fees and costs.*
In 2009, an Oklahoma teen, employed by A&F, filed suit against the company, claiming she was told her hijab, a headscarf she wore in keeping with her Muslim beliefs, was not consistent with the A&F “look.”* More recently, a corporate jet pilot who claimed A&F fired him and then replaced him with a younger man charged A&F with age discrimination.*
Later, a Denver judge ruled that the entrances to A&F’s surfing-themed Hollister stores violated the Americans with Disabilities Act (ADA)’s requirements for accessibility.* In 2011, the firm managed to insult the Jersey Shore cast by offering to pay them if they would stop wearing A&F clothing.*
Retail consumer expert Robin Lewis pondered why a 2006 quote, which was largely ignored after its utterance, would create such a firestorm seven years later.* Of course, the speed with which messages can go around the world is a factor, but he also wonders if a change in societal values could be a factor as well. Might the backlash be due to an increased sensitivity toward exclusion and a desire to be more inclusive in an increasingly diverse world?* Celebrities such as Miley Cyrus publicly joined the boycott and comedians like Ellen DeGeneres made the A&F issue part of their routines.* Greg Karber, an L.A. filmmaker, created a short video called “Fitch the Homeless” in which he drives to poor areas to give A&F clothing to poor people to “rebrand” the product.*
Some observers question whether A&F has now lost its cultural relevance. In a post-economic recession world, is elitism something that A&F’s target demographic no longer values? Abe Sauer of Brandchannel draws a comparison to the 2012 movie 21 Jump Street, in which two young police officers go undercover in a high school, thinking that what was cool in 2000 is still cool today.* They are confused when the students they meet find the officers’ year 2000 conception of “cool” to be offensive. Those students value compassion, environmentalism, and earnestness instead. Sauer asks if A&F might be about to learn the same lesson as the officers did.*
Returning back to the Oklahoma teen who did not conform to the A&F “look,” this case, involving Samantha Elauf, resulted in a discrimination suit being filed on her behalf by the Equal Employment Opportunity Commission (EEOC). The EEOC thought A&F should have accommodated her religious beliefs and not held this against her. A&F said they could not have made such an accommodation at the time because Elauf did not request one.*
A court ruled in A&F’s favor, but this decision was appealed to the U.S. Supreme Court. In June 2015, the Supreme Court ruled that A&F “may” have discriminated against Elauf, and they sent the case back to the lower court for further consideration. The Supreme Court held that management cannot make employment decisions based on an applicant’s religious practice. A&F was quick to respond that the ruling did not conclude that it had discriminated against Elauf but that she may continue pursuing her claim in court.* A&F appealed the Supreme Court’s decision and lost. Soon after, A&F announced a $25,000 settlement of the lawsuit with Samantha Elauf.*
In an announcement on its Web site regarding employment practices that may violate Title VII of the Civil Rights Act, the EEOC has stated that employers should be particularly sensitive to potential discrimination against individuals who are, or are perceived to be, Muslim Arab, Afghani, Middle Eastern, or South Asian.*
In December 2014, Michael Jeffries, A&F’s CEO, was forced to step down. One reason was the controversial remarks he had made about the brand’s exclusivity. Jeffries’ departure signaled a new era in the company, and soon after his departure the company began a rebranding process, which is still underway. The company overhauled its strict look policy, decided it should no longer hire employees based on their physical attractiveness, and softened its dress code to permit employees to be more “individualistic.”* Store employees would now be renamed to be “brand representatives” instead of “models,” and the company planned to stop featuring sexualized marketing, sell black clothing, and add larger sizes.*
Questions for Discussion
What are the legal and ethical issues in this case?
What is your evaluation of the concept of the “A&F look?” Have you personally observed this concept in practice? Have other retailers used this approach?
Are the employment practices of A&F intended to be discriminatory? Are they unfair? What ethical principles or precepts guide your analysis?
Did the EEOC go too far in naming specific groups about whom employers should be particularly sensitive? Could this have been a political decision?
What could A&F and other retailers be doing, that they are not doing, to make their hiring practices less controversial? Are the changes being made in A&F’s “brand” enough to help it to grow again?
Will A&F be able to be “cool” again? Would you work at the company or invest in the company?
Are there other companies that promote a particular look? Are they being discriminatory? Where do you draw the line?

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