Look Policies: Can employers discriminate based on their physical attractiveness?

Author: Stephanie Scott, Associate Member, University of Cincinnati Law Review

Companies with mandatory grooming or appearance standards for their employees have been under fire from society, celebrities, and the law for many years. One of the companies most known for discriminating against unattractive or overweight applicants is Abercrombie & Fitch. Consumers have been outraged that the company only hires conventionally attractive people, requires those employees to follow a strict “look policy” with certain appearance restrictions, and only markets their clothes for “popular,” physically fit, and conventionally attractive consumers.[1] Recently, the United States Supreme Court got involved when Abercrombie failed to hire a young Muslim girl because her religiously-mandated headwear violated the company look policy.[2] The Supreme Court ruled against Abercrombie, and society applauded the decision. However, while the Supreme Court did rule in favor of the applicant, the opinion is not the victory that many popular news sources are reporting it to be. The Supreme Court did require an exception to look policies for protected classes under Title VII (such as religion); but the Court explicitly noted that, in general, look policies were acceptable. While society may resist companies that require their employees to maintain a certain “look,” the law has not and should not forbid companies from doing so.

Background

Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits two categories of employment practices.[3] It is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.”[4] Further, it is unlawful for an employer to “limit, segregate, or classify his employees or applicants for employment in any way which deprive[s] … any individual of employment opportunities … because of such individual’s race, color, religion, sex, or national origin.”[5] The word “religion” is defined to include all aspects of religious observance practice and belief unless an employer demonstrates that he is unable to reasonably accommodate a religious observance or practice without undue hardship on the conduct of employer’s business.[6]

Look Policies

Look policies are a list of guidelines that a company gives to its employees that mandate certain aspects of their physical appearance. Released excerpts from Abercrombie’s look policy guidelines (as of 2013) include a pictorial chart demonstrating what hair color and highlights are acceptable for their employees.[7] The policy requires, in part, that all hair colors and highlights must appear natural.[8] Further, the look policy guidelines require that makeup look “natural” and match skin tone, limits any color of nail polish other than a natural color, and restricts employee facial hair, amount of jewelry, and hair style.[9]

EEOC v. Abercrombie and Fitch Stores, Inc.[10]: requiring “Look Policy” exceptions for Title VII protected classes

Abercrombie seeks to project a certain image for each store, and in order to achieve that image the company imposes a look policy that governs it employees’ dress.[11] The look policy prohibits “caps” (a term undefined by the policy) because “caps” are too informal for Abercrombie’s desired image.[12] Samantha Elauf is a practicing Muslim who wears a headscarf for religious purposes.[13] Elauf applied for a position in an Abercrombie store, and the interviewer gave Elauf a rating that would have qualified her to be hired.[14] However, the interviewer was concerned that Elauf’s headscarf would conflict with the store’s look policy.[15] The store and district manager informed the interviewer that Elauf’s headscarf would violate the look policy, as would all other headwear, religious or otherwise, and directed her not to hire Elauf.[16]

The EEOC sued Abercrombie on Elauf’s behalf.[17] The EEOC claimed that Abercrombie’s refusal to hire Elauf violated Title VII.[18] The district court granted the EEOC summary judgment on the issue of liability and awarded $20,000 in damages.[19] The court of appeals reversed.[20] The court concluded that “ordinarily an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant (or employee) provides the employer with actual knowledge of his need for accommodation.”[21]

Under Title VII, an employer cannot discriminate against hiring an individual because of their religious practice or belief[22] unless an employer can prove it is unable to reasonably accommodate a religious observance or practice without undue hardship on its business.[23] Abercrombie’s main argument was that Elauf could not show disparate treatment without first showing that an employer has “actual knowledge” of the applicant’s need for an accommodation.

The Supreme Court disagreed with the appellate court, and held instead that an applicant for a job need only show that their need for an accommodation was a motivating factor in the employment decision.[24] Title VII limits an employer’s actions, regardless of actual knowledge.[25] A request for accommodation, or the employer’s certainty that the practice exists, may make it easier to infer motive, but is not a necessary condition of liability.[26] Further, Title VII does not demand mere neutrality with regard to religious practices; rather, it gives them favored treatment.[27] Title VII affirmatively obligates employers’ to not deny employment because of such individual’s “religious observance and practice.”[28] The Court noted that an employer was “surely entitled” to have a no-headwear policy as an ordinary matter.[29] However, when an applicant required an accommodation due to religious practice and the employer failed to hire them because of their otherwise neutral policy, this was still a violation of Title VII.[30] Title VII “requires otherwise-neutral policies to give way to the need for an accommodation.”[31]

Whether Companies Should Have Look Policies

The Supreme Court decision has been viewed by the general public as a victory “slapping down” companies that have look policies.[32] One Washington Post article stated that, “…the Supreme Court added itself to the long list of people who aren’t fans of Abercrombie’s look policy.”[33] Further, the article determined that the takeaway from the Supreme Court’s decision in EEOC was “the final nail in the coffin for the company’s much-criticized look policy.[34] The article mentions some of Abercrombie’s other look policy requirements, such as fingernail length and hair color.[35] However, the Supreme Court concluded that companies can have dress codes. The Supreme Court noted in EEOC that a company could “surely have” a no-headwear policy.

Abercrombie has been taking criticism for years now on their look policy.[36] It has been subject to numerous discrimination lawsuits but has settled many of those claims outside of court.[37] Further, body image activists have been fed up with the company’s emphasis on serving only “popular” and thin customers.[38] But the question remains: are they doing anything illegal by requiring their employees to have a certain look? The Supreme Court did not outlaw a company having a look policy in EEOC; they expressly acknowledged them as acceptable (as long as the policy makes exceptions for protected classes under Title VII).[39]

Title VII only prohibits discrimination against an applicant’s race, color, religion, sex, or national origin. Outside the established limits set by state and federal statutes, employment remains on an “at-will” basis, which means employers can choose to not hire someone for “a good reason, a bad reason, or no reason at all.”[40] Abercrombie refusing to hire an employee because they are unattractive should not be unlawful, as long as the company policy can see attractiveness in all races, colors, religions, genders, and national origins. Not hiring a qualified candidate because she does not meet the company’s standards of “attractiveness” may be a bad reason not to hire, but just because it is a bad employment decision does not mean it is an unlawful one.

Selling clothes can be equated to selling appearances to consumers. A person’s clothes often demonstrate their style and their personality, and people often spend a lot of money and time in branding their own personal image. Companies and consumers are both aware that many purchases are brand-name motivated. People are usually willing to spend more money on clothing simply because a certain name or trademark is displayed, regardless of the quality of the apparel. Because of this, it is apparent why a company is very concerned with the image they portray to customers. While people may disagree with Abercrombie’s desired image of a thin, attractive, and popular brand name, nothing about portraying that image to consumers is illegal. Regardless, the way Abercrombie has gone about achieving this image has angered the public and hurt their sales and business in the long run.[41]

While the Supreme Court held that Abercrombie violated the law when refusing to hire Elauf because of her headwear, it was because Elauf’s headwear was religiously motivated. Religion is a protected class of Title VII. Many of the look policy’s restrictions that have historically angered the public (such as hair color, nail length, and weight) do not fall within a protected class under Title XII. As long as Abercrombie treats hair color equally across gender, race, color, and national origin, it could likely require an applicant’s hair to be one of their chosen colors without violating the federal statute.

In an at-will society, the private market and not the law, should determine what an acceptable look policy should be; and the private market has already expressed its discontent. Consumer’s disapproval of Abercrombie’s brand image and look policy have caused their sales to drop drastically in the past decade.[42]

However, the law may soon disrupt companies’ look policies as a result of society and the law’s changing view on gender roles and sexual orientation. If a look policy mandates that men are not allowed to wear makeup but allows women to wear makeup basics like lipstick, eyeliner, and blush, a man who identifies as a woman would have a strong argument that the look policy would have to make an exception based on his gender protection under Title VII. While this may be an adequate and legally cognizable argument, it may lead to a dangerous trend and unfavorable outcomes. Employers will probably be less likely to have any look policy in fear that there may be a gender implicated stereotype.

Conclusion

Clothing lines maintain an interest in look policies because they are selling their consumers an appearance. Abercrombie’s business strategy for selling its clothes involves their employees modeling the brand or image of their product. Because so many expensive apparel purchases are motivated by the name and image a company maintains, the company should have the ability to control their appearance. Companies should be able to promote different brand images that do not require thin, attractive, and sex-driven images; but their look policies should not be less restricted because their brand embraces more favorable societal values. The private market should determine what brand images are acceptable. As long as the company defines attractiveness across all gender and races and makes exceptions to their look policies for protected classes, consumers should control whether they choose to shop at a store that only hires individuals that can maintain the company’s look.

[1]The Washington Post, The Rise and Fall of Abercrombie’s ‘Look Policy’, June 2, 2015, https://www.washingtonpost.com/news/morning-mix/wp/2015/06/02/the-rise-and-fall-of-abercrombies-look-policy/

[2] EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (U.S. 2015)

[3] Id. at 2031.

[4] 42 U.S.C. § 2000e-2(a) (Lexis Nexis current through PL 114-86, with a gap of 114-81, approved November 5, 2015)

[5] Id.

[6] EEOC, 135 S. Ct. at 2032.

[7] BuzzFeed, Exclusive: The Hairstyles Abercrombie Has Deemed “Unacceptable,” September 3, 2013, http://www.buzzfeed.com/sapna/exclusive-abercrombie-hairstyle-rules-add-to-strict-look-pol#.dbgLq36eB

[8] Id.

[9] Id.

[10] EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (U.S. 2015)

[11] Id. at 2031.

[12] Id.

[13] Id.

[14] EEOC, 135 S. Ct. at 2031.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] EEOC, 135 S. Ct. at 2031.

[20] Id.

[21] Id.

[22] Id. at 2032.

[23] Id.

[24] EEOC, 135 S. Ct. at 2032.

[25] Id.

[26] Id.

[27] EEOC, 135 S. Ct. at 2034.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] See The Washington Post, The Rise and Fall of Abercrombie’s ‘Look Policy’, June 2, 2015, https://www.washingtonpost.com/news/morning-mix/wp/2015/06/02/the-rise-and-fall-of-abercrombies-look-policy/ (last visited Jan. 7, 2016).

[33] Id.

[34] Id.

[35] Id.

[36] The Washington Post, The Rise and Fall of Abercrombie’s ‘Look Policy’, June 2, 2015, https://www.washingtonpost.com/news/morning-mix/wp/2015/06/02/the-rise-and-fall-of-abercrombies-look-policy/ (last visited Jan. 7, 2016).

[37] See e.g., USA Today, Muslim Case Takes “Look” At Abercrombie, February 4, 2015, http://www.usatoday.com/story/news/nation/2015/02/24/supreme-court-abercrombie-muslim/23882405/ (“[Abercrombie] settled a lawsuit brought by black, Hispanic, and Asian-American college students for $40 million a decade ago and pledged to diversify its hiring, promotion, and marketing practices”).

[38] Id.

[39] EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2034 (U.S. 2015)

[40] Id.

[41] The Washington Post, The Rise and Fall of Abercrombie’s ‘Look Policy’, June 2, 2015, https://www.washingtonpost.com/news/morning-mix/wp/2015/06/02/the-rise-and-fall-of-abercrombies-look-policy/ (last visited Jan. 7, 2016).

[42] Id.

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