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Tuesday, July 21, 2015

Abercrombie Settles: Interesting Consumer Discrimination Issue Avoided

Abercrombie settled the EEOC claims on behalf of the Muslim woman denied a job because her hijab conflicted with the store’s look policy. As you’ll recall, just last month the Supreme Court ruled 8-1 that the EEOC could go forward on its Title VII disparate treatment claim by showing that the need for an accommodation was a motivating factor in the employer’s decision. Actual knowledge that the applicant would need such an accommodation is not required. 

The settlement means we won't see whether on remand Abercrombie would again raise its undue hardship defense. And, with it, evidence that Abercrombie shoppers are less likely to buy stuff if the sales-floor employees (or in Abercrombie’s jargon, “models”) are wearing hijabs. Imagining for a second Abercrombie customer shopping patterns are negatively influenced by the presence of hijab-wearing workers, would potential consumer religious discrimination be enough to constitute an undue hardship? What would a reasonable accommodation involve in such a case? An attempt to educate consumers about their own biases?

 The law’s treatment of consumer discrimination (that is, discrimination by consumers) is uneven. It is virtually never directly regulated. There’s no law prohibiting an Uber customer from seeing that the driver coming is a woman, canceling the ride, and trying again until she get a man. Instead, the law at best regulates consumers indirectly, through the regulation of company actions. How we decide which sorts of discrimination are left on the table is curious. 

 As raised again in a NYT op-ed the other week, Las Vegas hotels hire only model-looking women as pool-side waitresses and then require them to meet exacting (and gender stereotype reinforcing) grooming standards, all while walking around in tiny bikinis. (Male waiters are in polo shirts and knee-length shorts.) And why? Because we think it acceptable to sell a mostly male clientele the sort of sexual fantasy they want to buy. But then think of consumer racist or sexual orientation preferences. A restaurant cannot deny service to a black woman, even if it were the case that serving her meant losing potential revenue from racists. Not so for refusing service to a lesbian couple on that same basis. If your customers don't like fat people, no problem excluding them either. 

With the settlement we won’t know how an undue hardship defense would go, but comparing Abercrombie’s policy to other areas where consumer preferences for what may be invidious discrimination is interesting food for thought. 

Posted by Heather Whitney on July 21, 2015 at 12:01 PM | Permalink


Sorry to bust the PC mentality here but let me offer a different version. What about women who want to dress up in a way that makes them look sexy and desirable (i.e., most women)? Should laws be enacted to stop businesses from dress requirements that most females fantasize about being able to model and fit into in order to attract male attention? Isnt that discrimination? Strip clubs and bachelorette parties for women will hire muscular, well built and (if discernable well hung) guys - should they be forced to hire pot bellied or gaunt men or men that don't pack it? What about adult films? Should the producers be forced to hire (fill in) rather than the (fill in) that are the desirable actors/actresses?
The well-based requirements of non racial, ethnic and sex discrimination in hiring are adequate. To start tinkering with "looks" is getting absurd.

Posted by: JR | Jul 23, 2015 1:46:20 AM

So is there any coherent way to tell the difference between 1, prostitution, 2, strip clubs, 3, Las Vegas swimming pools, 4, Hooters, and 5, Delta Airlines?

Posted by: TM | Jul 22, 2015 2:37:32 AM

Yes, Ann (though I didn't realize it was up on SSRN)! Katharine presented the paper at the workshop on Regulating Family, Sex and Gender here this past year. I thought it was incredibly interesting -- and certainly got me thinking about some of these issues.

Posted by: Heather Whitney | Jul 21, 2015 1:51:13 PM

Dunno if you've seen, but Katharine Bartlett and Mitu Gulati posted a paper on customer discrimination: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2540334

Posted by: Ann Lipton | Jul 21, 2015 1:48:01 PM

There was a recent Freakonomics episode somewhat closely related to this. They discussed restaurants engaging in racial discrimination by hiring people only of the same ethnicity as the cuisine (though not necessarily the same nationality).

Posted by: Derek Tokaz | Jul 21, 2015 12:25:30 PM

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