Can you hire for ‘looks?’ Abercrombie case offers a lesson

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in Discrimination and Harassment,Employment Law,Hiring,Human Resources

Issue: Whether a marketing strategy can, or should, dictate your organization's hiring practice.

Risk: Any hiring strategy that appears to discriminate against a protected class is fair game for EEOC complaints and lawsuits.

Action: Point hiring managers to the following case as more reason to avoid all race, sex or age bias in hiring.

Your hiring managers should know that simply saying that their sales force must preserve a certain appearance as part of a brand-marketing strategy doesn't shield them from race- or sex-bias claims.

Case in point: In what the Equal Employment Opportunity Commission is labeling a "landmark" settlement, retailer Abercrombie & Fitch is being forced to shell out $50 million to settle three job-discrimination lawsuits.

The suits claimed Abercrombie encouraged its 700 stores to hire white, male sales reps, dubbed "brand representatives." The company mandated that sales reps maintain the "A&F Look" of white, male and preppy, the lawsuits charged.

Employees who didn't have the look were demoted, moved to backroom jobs or fired, the complaints said. The Abercrombie cases targeted the company's brand-marketing process through its hiring: a kind of "image" discrimination.

"Businesses cannot discriminate against individuals under the auspice of a marketing strategy or a particular 'look,'" the EEOC said in its ruling. "Race and sex discrimination in employment are unlawful."

Bottom line: Very few jobs satisfy the requirement that "looks" are a bona fide occupational qualification (BFOQ) necessary to perform the job. One exception: modeling. But if your hiring managers are simply trying to make employees fit part of a marketing image, don't allow that goal to trample on age-, race- or sex-bias laws.

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