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Who’s hot? Who’s not? Should it matter on the job?
Published Thursday, 07-Aug-2003 in issue 815
BEYOND THE BRIEFS
by Rob DeKoven
Let’s face it, the Abercrombie & Fitch (A&F) catalog has more male-to-male action than “Will & Grace.” For that matter, so does “The Simpsons.”
But a group of former A&F employees are suing the Ohio-based clothing chain because they contend that A&F’s idea of “hot” means young, sleek and white.
In Gonzales v. A&F, a group of Asians and Latinos filed suit in San Francisco accusing the 600-store chain of hiring only white people.
According to the Los Angeles Daily Journal, Jennifer Lu accuses A&F of firing her after someone from the corporate office visited her store in Costa Mesa and told the manager to hire employees who look like the (nearly all white) ones featured in life-size posters on store walls and in the catalogs.
A&F denies the charge and its CEO, Michael S. Jeffries, told the New York Times that A&F is a “lifestyle brand, projecting inside the store and outside the store the lifestyle of a very specific target customer, the 18- to 22-year-old American college student.”
Yet, some claim that this doesn’t allow A&F to refuse to hire some of the 30 to 90- year-old gay men who love the clothes.
The suit alleges that A&F execs want good looking college students to run its cash registers and stock its shelves. Executives, they contend, order store managers to recruit from select colleges and sororities and fraternities.
The suit alleges that some applicants to Southern California stores must submit a professional headshot with their application.
And retail clothing experts agree that A&F’s focus on youth and sex pays off for the company. In a sagging economy, A&F posts better-than-expected sales and its stock is soaring.
A&F is unusual also in that it attracts not just the female shopper, but the hard-to-reach young male shopper (and it is refreshing to see ostensibly straight high school and college men leaving A&F stores clutching shopping bags featuring shirtless males).
The suit alleges that A&F execs want good looking college students to run its cash registers and stock its shelves.
Employment laws typically allow employers to prefer an employee of a particular race when it is a “bona fide occupational qualification” (BFOQ). National origin can be a BFOQ in cases where, let’s say, an ethnic-themed restaurant wants employees who look like they know something about the food they’re serving.
In 1996, the owner of the Mondrian, a hotel in Hollywood, settled a suit for close to $2 million. Nine employees claimed that the hotel fired them because of their race. In fact, a memo surfaced from the owner of the hotel, who indicated that employees hired under the previous owner were “ethnic looking.”
In 1997, Hooters paid three men $3.75 million rather than have a court decide whether Hooters needed to add males to its big-breasted wait staff.
Most job requirements based on race or gender have been stricken down over the years. And sexual orientation will be next on the list, as more states add sexual orientation to their non-discrimination laws. A hot issue emerging is whether gays and lesbians can serve as physical education coaches. Parents contend that would give a gay coach of boys’ P.E. class access to naked, male students in locker rooms. They contend that this is the same as having a straight male coach walk into a young females’ locker-room.
But, aside from race and gender issues in hiring, a broader issue that the courts have to address is whether simply being “hot” is a BFOQ.
First, being “hot” should not involve matters of ethnicity or national origin. Delores Y. Leal, an employment attorney with Gloria Allred’s firm, put it best: “You can be pretty or hot and be of Latin descent or Asian descent or any ethnicity. As long as it doesn’t result in the exclusion of protected persons, that’s okay.”
But often “hotness” is in the mind of the employer. And usually “hotness” means the person applying for the job is young, slim, and straight (or conforms to his or her gender stereotype). Job bias laws prohibit bias based on age, obesity and gender. Yet, the law is truly evolving in these categories.
So, in hiring “hot” people, employers can easily run afoul of bias laws. Courts might say that an employer may decide it wants only “hot” people to model its clothes, but “hotness” is not appropriate for selling its clothes, or serving food.
The issue will soon be before our California Supreme Court. Earlier this year, an appellate court ruled that a woman who served as a L’Oreal regional sales manager, Elysa Yanowitz, could sue L’Oreal. She refused to fire a member of her sales staff and replace her with “someone hot.” She was reportedly fired for refusing to do so.
The appellate court saw this as a gender related issue because the employer would not have imposed the same “hot” standard for its male sales staff.
Of course, if the court rules that businesses like A&F cannot show bias based on looks, this could mean the start of affirmative action for people deemed unattractive by societal norms. So I urge you to buy some clothes from A&F — I may have a future there yet….
Rob DeKoven is a professor at California Western School of Law located in San Diego
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