Bona Fide Occupational Requirement
Store Image and Job Discrimination
By:
Bryon Gaskin,
Erika Quarles,
Thomas Schrier
Contact Person: Thomas Schrier
Telephone Number: (765) 285-8238
Email Address: trschrier@bsu.edu
Summer 2004
MBA 671
TABLE OF CONTENTS
TABLE OF CONTENTS .................................................................................................... 2
Abstract....................................................... 3
Introduction................................................... 3
Purpose of Study............................................... 4
Product Positioning............................................ 4
Positioning and Company Image ............................................................................................ 6
Marketer’s Role ...................................................................................................................... 7
Bona Fide Occupational Requirement............................ 11
Sex v. Gender ........................................................................................................................ 17
Sexual Titillation................................................................................................................... 18
Privacy Based Sexual Discrimination ................................................................................... 20
Religion ................................................................................................................................. 21
Weight ................................................................................................................................... 21
Appearance ........................................................................................................................... 23
Discrimination................................................ 25
Methods Used.................................................. 29
Analysis of Data.............................................. 29
Company Overview .............................................................................................................. 29
Abercrombie Associate Handbook ....................................................................................... 30
A&F Quarterly ...................................................................................................................... 31
Other Hiring Practices and Procedures ................................................................................. 32
Abercrombie and Fitch and Allegations of Discrimination .................................................. 33
Research Findings............................................. 36
Managerial Implications ....................................................................................................... 36
Conclusions................................................... 38
Recommendations for Future Research........................... 40
References and Sources........................................ 42
Page 2
Abstract.
This paper explores bona fide occupational requirements and discrimination as
they relate to product positioning. Many companies use employees as extensions of their
corporate image. The scope of the paper includes an examination of the various controversial
practices that some companies use to achieve this end and the legality of their actions. In order to
examine these concepts, data collected for this study was obtained from various secondary
research sources. Through this examination it was determined that in order to gain a competitive
advantage, corporations must determine an exact market position of their image and align it with
customers’ perceptions. To this end, it is important for managers to understand the implications
of their hiring practices.
Introduction
The issue of employment discrimination is an intense topic. This paper is an exploratory
study which investigates the factors that organizations use to justify certain hiring practices.
Most companies utilize their store image as a marketing tool for their products and
services. Many organizations, particularly those who require high customer contact, use the
appearance of their employees to represent their image in the minds of consumers. As a result,
many of these organizations have experienced an increase in the number of discrimination
charges brought against them. Not only has this created a huge expense for companies, but such
charges affect the perception of the company in the minds of its consumers and the general
public.
There is a fine line between legal and illegal when discussing the issue of discriminatory
hiring practices. Many organizations find themselves overwhelmed. Organizations must be
careful when describing their true business and essential functions of jobs within their
organization. Moreover, managers must be mindful of their hiring practices and procedures.
This paper examines the hiring practices of companies in several industries including the
travel, entertainment and retail industries. Also included are some of the legal disputes that have
defined what is legal and illegal. Additionally, this paper provides a more detailed examination
Page 3
of Abercrombie & Fitch, one of the companies currently in legal turmoil over their desire to
project a specific public store image through their employee’s appearance.
Purpose of Study
The objective of this study is to examine organizational hiring practices. More
specifically, we wish to examine how organizations use their company image in order to justify
bona fide occupational requirements and whether or not this can lead to discrimination. We will
also discuss the legal ramifications that result from such practices. Finally, we will outline
potential methods to avoid discriminatory practices.
In order to accomplish the above stated objective, key terms must be defined and
discussed. We will first focus on the concept of company image as it relates to market
positioning. Next, we will look at the topic of bona fide occupational requirements and how they
can or cannot be applied to sexual titillation, sexual discrimination, religion, weight, and
appearance. Finally, we will examine the issues of discrimination and their legal ramifications.
Product Positioning
The concept of product positioning dates back to 1969. It was in this year Jack Trout
wrote an article which focused on product positioning. The word became popularized in 1972
when Ries and Trout published a series of articles in Advertising Age called "The Positioning
Era." Shortly thereafter, advertising agencies began to develop positioning slogans for their
clients and positioning became a key aspect of marketing (Quick MBA, 2004)
The concept of positioning can be applied to almost anything. The basic idea of
positioning is making products or services occupy a place in the mind of the consumers in a
specific target market (Sink, 2003)
Page 4
Positioning is a marketing concept that managers have control over. As a result,
positioning is a significant element and the foundation of the marketing plan. Several factors
must be taken into consideration when planning a product’s position. Some of the factors are the
company’s competitors, how its products are perceived, the needs and desires of the target
market, and the element of mystique or drama that the product naturally has (Obringer, 2004).
Positioning must also be approached from the aspect of how a company wants their
consumers to perceive their products. One barrier companies must overcome is the variety and
the quantity of products in the market that consumers can choose from. The primary objective of
positioning is to make consumers believe that there are one or more reasons why a specific
product fits their exact needs. For example, Macintosh computers are a distant number two in
the desktop computer market, but they have positioned themselves to be number one among
graphic designers (Sink, 2003).
In 1981, Al Ries and Jack Trout wrote a book entitled, Positioning: The Battle for your
Mind. In this book the authors describe how positioning is used as a communication tool to
reach target customers in a crowded marketplace (Quick MBA, 2004). In order to be prominent
in crowded markets, it is very important to position products correctly. Products must have a
clear position in the minds of their consumers in order to survive (Obringer, 2004).
According to Ries and Trout, while positioning begins with a product, it is essential to
develop and maintain a firm position of that product in the mind of the customer. This is
necessary because consumers are constantly bombarded with messages and advertisements
everywhere they turn. Consumers react to this huge volume of advertising by accepting only
what is consistent with their prior experiences (Quick MBA, 2004). When faced with this
Page 5
constant barrage of advertising, consumers are likely to shut out anything inconsistent with their
knowledge and experience.
In an over-crowded market an advertiser should present a simplified message. The
presented message must also be consistent with what consumers already believe. Once
consumers have formed impressions about particular products, they are difficult to change.
Hence, it is best to focus on the consumer’s perceptions of the product rather than the company’s
perception of the product (Quick MBA, 2004)
Positioning and Company Image
Positioning can be broken into two groups: product positioning and market positioning.
Product position is defined as the attributes of a product that differentiates it from the
competition. For example, Ben & Jerry's is considered a premium product in the ice cream
industry. Their ice cream is made with high quality. As a result, their products will sell at a
premium price. Ben & Jerry’s is not, however, the only premium ice cream available on the
market. Therefore, Ben & Jerry’s product position among premium ice creams is less
differentiated than is its product position among all ice creams (Small Business Administration,
2001).
Market position is defined as the attributes of an entire entity, be it a company, a single
store, or what have you, which differentiates itself among competing entities. Take for example
Wal-Mart. This retailer offers thousands of products at each of its stores. Each of the products
the store offers has their own product position. As an entire entity, however, Wal-Mart holds a
market position both among discount retailers and department stores, in general (Small Business
Administration, 2001).
Page 6
It is impossible to discuss the concept of positioning without including its relationship to
a company’s image. Both product and market positions influence a company’s image.
However, they are not the only components of a company’s image. Customer service, hiring
practices, advertising, marketing materials and many other factors combine to create an overall
company image. Company image can be defined as the combination of the thoughts, feelings,
beliefs, opinions and visions people have about products and services of a specific company. It
is important to remember that company image is what consumers think and feel about the
company (their perceptions), not what the executives think or what the marketing materials say
(Small Business Administration, 2001).
A company image determines how receptive the target market will be to that company’s
products and/or services. Reputation is often confused with company image. They are in fact
two very different ideas. A company’s reputation is only one component of an overall image.
Take the following example. A company may have a reputation for delivering quality products
on time, but the company image may also include the advertising and the pricing (Small
Business Administration, 2001).
Marketer’s Role
Company Image and Marketing
The marketing efforts of a company can be greatly affected by the company’s image. For
example, if a local retailer has a long-established history of offering low prices, and that is its
competitive advantage, an advertising campaign focused on the quality of its products might not
be as effective as the same type of campaign for a retailer with an established reputation for
high-quality products (Small Business Administration, 2001). When a company’s image is used
Page 7
as the foundation for all marketing efforts, a consistent message between what consumers
perceives and what the company says will be communicated to the consumers.
Inconsistency can create problems for established companies and the products or services
they offer. Serious problems can arise if there is a difference between the position the company
wants to project and the position that the company already has in the minds of its consumers. If
a specific position already exists in the mind of consumers, a marketer’s primary responsibility is
to try to understand why consumers have such a perception. If a marketer tries to project a new
position that is different than what consumers perceive, the target market will be confused.
Customers will have difficulty believing the new position because their perceptions of that
company have all ready been established.
When formulating a positioning approach, marketers must ask themselves how they want
the product to be perceived by its consumers. For example, marketers may want to be perceived
as "the fastest” or "the easiest." Perceptions may also be more broadly defined. Examples can
include, "the best" or "the number one" product. After the attributes have been determined the
next step for the marketer is to determine how to explain what the product is to consumers. In
order to be certain that the product is well received; a position which already exists in the mind
of the consumers in the target market should be chosen (Sink, 2003). The conventional
technique used to do so is with a perceptual map.
A perceptual map is essentially a graph that helps determine what market a product is in.
The methods used to develop the graph can range from extremely complex to very simple. The
easiest way to create a perceptual map is by selecting two attributes that are believed to be the
most significant, from the customers’ point of view. One of these attributes is placed on a
Page 8
horizontal axis of a four quadrant graph. The other attribute is placed on the vertical axis
(Freeman, 2003).
If a marketer does not accurately analyze the perceptual map, for example places the
product in the wrong quadrant or tries to create an entirely new category for the product, the
marketer has chosen a position which does not exist. For example VA Software describes their
product SourceForge as "the leading development intelligence application.” The primary
problem of this description is that particular type of application category is undefined and
uncommon. Moreover, there are no other products that define themselves in such terms. In a
recent article one author writes, “As far as I can tell, VA is trying to claim a position which
doesn't actually exist (Sink, 2003).
How a Company Identifies Attributes of its Position
In order to determine the position a company should pursue a marketer should determine
the exact demographics of the target market (Sink, 2003). This determination should include
researching consumers’ preferences. Moreover, marketers must determine how consumers will
react to the product and if their reactions are consistent with how marketers want the product to
be perceived. The goal of the marketer is to create an image that will stay in the minds of
consumers. While there are many ways to do this the easiest way is to be the first producer of a
product or provider of a service. Most consumers do not have difficulty remembering the first
product of a specific type. However, they find it difficult to remember who was second
(Quick MBA, 2004).
Even still, it is possible for a product that is not the first of its kind to secure a positive
position in the minds of consumers. If the product can claim a unique feature about itself,
consumers will often perceive that product as significantly different. Take for example, Miller
Page 9
Lite. It was not the first light beer produced. Nevertheless, it was the first beer of its kind that
was actually positioned as a light beer. The producer took one step further and included its
position in the product’s name. As a result, the product’s name supports that position (Quick
MBA, 2004).
A marketer must also be aware of consumers’ product preferences and where consumers
rank their product. If consumers do not rank a product as number one, then to be successful the
marketer of that product must somehow relate their product to the number one product. A
campaign that pretends that the market leader does not exist will more than likely fail. A perfect
example of such a scenario can be found in the rental car industry. Avis tried unsuccessfully for
years to win customers, pretending that the number one rental care company, Hertz, did not exist.
Finally, Avis saw the error in its ways. Avis began using the advertising campaign, “Avis is No.
2 in rent-a-cars, so why go with us? We try harder.” Whether Avis actually tries harder or not is
not actually relevant. What is important is that through the campaign, consumers were able to
relate Avis to the rental car company that was number one in their minds, Hertz. After launching
the campaign, Avis quickly returned to profitability (Quick MBA, 2004).
In order to be successful, companies must design their products to fit the market position
that the company wants the product to have. If the product does not include the features and
attributes that consumers are expecting, the product probably will not achieve the well-known
position the marketer desires. Marketing is not just telling the world about a product. It is also
deciding what product to build (Sink 2003). Once it has been determined exactly what
consumers want, the challenge for marketers comes in trying to show consumers that the product
is perfect for them.
Page 10
As previously mentioned, companies often try to project a specific image to attract
business. Companies must be constantly aware of their actions as they attempt to project as a
specific image. There can be many legal consequences in attempting to market an image that
can not be proven to be specifically related to a company or product.
The legal ramifications can be especially stringent when it comes to employment
practices. When companies attempt to project a specific image through its hiring practices, the
organization must be able to prove that the features the employee possesses are a bona fide
occupational requirement. The next section will discuss in detail exactly what can and cannot be
classified as a bona fide occupational requirement.
Bona Fide Occupational Requirement
Principally, there are two laws that form the foundation for businesses having a sound
bona fide occupational requirement (more frequently cited as bona fide occupational
qualifications, BFOQ) argument. These laws are the Civil Rights Act of 1964 and the Age
Discrimination in Employment Act of 1967. These laws provided for the protection of specific
groups from discriminatory practices. Protection was increased through the passage of the Equal
Employment Opportunity Act of 1972. This act amended the Age Discrimination in
Employment Act of 1967 and Title VII of Civil Rights Act of 1964. Whereas the ADEA
allowed for BFOQ on the basis of age, section 703(e) of Title VII makes provisions for a BFOQ
on the basis of sex, religion, and national origin. (Hill 1983)
Bona fide occupational requirements serve as exceptions to the law. Essentially a bona fide
occupational requirement is a “true” requirement. The gray area is determining what
requirements are true and what requirements are merely strong preferences. Bona fide
occupational qualifications serve as a shelter of protection for employers and there hiring
Page 11
practices and procedures. There is certain job specifications were discrimination law does not
apply. Section 1625.6 of the ADEA act states:
Whether occupational qualifications will be deemed to be ``bona fide’’ to a specific
job and ``reasonably necessary to the normal operation of the particular business,’’
will be determined on the basis of all the pertinent facts surrounding each particular
situation. It is anticipated that this concept of a bona fide occupational qualification
will have limited scope and application. Further, as this is an exception to the Act it
must be narrowly construed.
The authors of the act also include, the employer who uses the BFOQ defense has the burden of
proving the legitimacy of the defense. Governmental agencies may also use the BFOQ defense
as it relates to the limitation or minimization of employment opportunities based on one of the
protected classes. In the case where the governmental agency is in violation of the law, their
actions will be rescinded by ADEA.
The Americans with Disability Act of 1990 (ADA) protects individuals with disabilities
against discriminatory practices. The ADA acts as the legal anchor in discrimination cases based
on an individual’s weight. In fact, discriminating on the basis of weight is completely illegal,
unless the employer can prove the requirements of the job meet prevent someone above a certain
weight from performing the duty (The Law, 2004). The BFOQ defense cannot be used to shield
against the discrimination of a member of a protected class. As a result, the applicability of the
BFOQ defense is very narrow. Likewise, the scope of exceptions is very limited (Hill, 1983).
The law has very little tolerance for companies using the BFOQ as a shield. Companies
wishing to use the BFOQ shield as defense have a tough road ahead of them. To use the defense,
the company must pass what is known as the “essence of the job test” (Burstein 1998). This is
Page 12
the test that is used to evaluate a business’s claim that some aspect of a person such as sex, age,
weight, can be used as a bona fide occupational requirement. For a company to successfully pass
the test, it must demonstrate that its hiring decisions based on otherwise prohibited reasons, are
essential to the business.
The “essence of a job test” can be determined by answering three main questions. In
order to pass the test, the company in question must pass all three questions. If the company does
not, it will fail to meet the criteria of the provisions set forth by BFOQ. The three questions are:
(1) is the basis for discrimination essential to the business?; (2) have all of or reasonably all the
members of the group allegedly being discriminated against unable to perform the requirements
of the position without changing the products core characteristics and as a result its market?; and
(3) are there no other reasonable approaches that exist, except those that would cause the
company to change markets or cause the company to fail. (Cantor, 1999)
Take for example, a hospital that hires nurses on the basis of sex. The hospital uses this
practice because they believe they are respecting the privacy rights of patients. The BFOQ
defense can be applied in this case. In order to do so, the hospital must prove that the privacy
interest of the patients is essential to the running of a hospital. (Cantor, 1999)
One of the most famous and descriptive cases involving a company using the BFOQ
shield as it relates to consumer preference is that of Diaz vs. Pan American World Airways in
1971. The defendants in the suit tried to make the case that women were more capable of
performing the non-mechanical aspects of the flight attendance position. These aspects included
proving reassurance to anxious passengers. Even though the defense’s claim was supported by
expert testimony, the court found that sex was not a BFOQ for the position of flight attendant
because the primary function of an airline is to transport passengers from one location to another.
Page 13
Additionally, the court maintained that sex was not “reasonably necessary” to the normal
operations of the business. The court noted BFOQ exceptions provided for in Title VII were
placed in the Act with great care. The exceptions were included in order to prevent employers
from having the ability to discriminate solely on the basis of consumer preference (Cantor,
1999).
Another example is Southwest Airlines creation of a company called Love Air. Southwest
promoted the image of Love Air as “feminine spirit, fun and sex appeal.” Love Air’s ads
promised to deliver “tender loving care” to its target market which was primarily composed of
men. In Love Air’s first advertisement the slogan read, “At last there is somebody up there who
loves you.” (Cantor, 1999) Southwest took great pains to create a certain image and cater to its
target segment, male passengers. Its commercials promised clients attractive female attendants
who wore hot-pants and served passengers “love bites” and “love potions.” Patrons could
experience this even before boarding the plane. On their way to the concourse, patrons could
stop at Southwest’s ticketing system that featured a “quickie machine” that was to provide
“instant gratification” (Burstein, 1998)
Southwest Airlines argued that sex was a bona fide occupational requirement on the
grounds it was at the core of their marketing strategy. The judge in the case, Patrick
Higginbotham, recognized Southwest’s clever marketing scheme of using only attractive female
flight attendants. The planes for Love Airlines based in Dallas’s Love Field. The judge
acknowledged this practice had been adopted by Southwest Airlines as a survival tactic. This
practice was necessary to attract customers who would make the airline economically viable.
Even still, the judged concluded that Southwest’s marketing strategy did not “transform the
Page 14
essence” of Southwest’s business, which is the transportation of passengers from one location to
another. (Bona Fide Body, 2003)
The most damaging statement made towards any company attempting to use the sex as the
foundation of a BFOQ defense is a result of the conclusion of the case:
Recognition of a sex BFOQ for Southwest’s public contact personnel based on the
airlines “love” campaign opens the door for other employers to discriminate by
tacking on sex or sex appeal as a qualification for any public contact position where
customers preferred employees of a particular sex (Wilson vs.
Southwest, 2004).
Essentially the implications of that statement are that businesses cannot use sex as a BFOQ
defense for hiring only members of one sex or another. Moreover, customer preference cannot
be the basis of such practices.
The basis of this case was not to determine whether or not Southwest was practicing
discrimination. In fact, Southwest admitted to doing so. The true question of this case was
whether or not discrimination was justified (Wilson vs. Southwest). From this case we can learn
that when using BFOQ as a defense, the defendant must first admit that they are indeed
performed some sort of discriminatory practice. Contrary to what most people might think, the
more the central focus of the business is tied to the sexualization or the objectification of women
or men, the greater the justification the business has in using discriminatory practices (Only Girls
Wear, 1994).
The urge for companies to use sex as a qualification for hiring in response to consumer
preference is not a practice limited to companies in the United States. In November, 2003,
Skynet Airways made its inaugural Men’s Flight. This was a round trip flight from Tokyo to
Page 15
Miyazaki in the south of Japan. The flight featured in-flight service provided only by handsome
male flight attendants. The flight was intended to be a one time only phenomenon. Due to
popular demand, Skynet has made plans to repeat the service in February and April, 2004.
(Letter from Tokyo, 2004)
Discrimination on the basis of national origin is at the heart of much of the controversy
surrounding Abercrombie and Fitch. While national origin is one of the protected classes, it is
difficult to define discrimination based on national origin. In fact, there are many unclear areas
as it relates to discrimination and national origin. The Equal Employment Opportunity
Commission (EEOC) provides the following statement regarding discrimination based on
national origin:
The Commission defines national origin discrimination broadly as including, but
not limited to, the denial of equal employment opportunity because of an
individual’s, or his or her ancestor’s, place of origin, or because an individual has
the physical, cultural or linguistic characteristics of a national origin group.
Because national origin is a protected class, it can be used as a BFOQ, but with caution. It
is very difficult for a company to demonstrate this. Employers must walk a tight line when
looking at this issue.
Oftentimes laws and acts will contradict one another. For example, in 1970, California
and twelve (12) other states enacted state statutes that prohibited the employment of aliens who
were “not entitled to lawful residence in the United States.” This appears to be in conflict with
Immigration and Nationality Act, a national act which allows a select group of aliens who are not
entitled to permanent residence to work in the United States. If the abovementioned state acts
were upheld, they would also be in conflict with Title VII of the Civil Rights Act. The issue of
Page 16
conflict was addressed in the case of Espinoza vs. Farah Manufacturing Corporation. The focus
of this case was national origin, its definition and who was included in this protected class. Until
the Espinoza case, many United States employers narrowed the meaning of national origin by
requiring employees to be a United States citizen. The EEOC revised its guidelines and the
citizenship requirement was explicitly prohibited.
According to the EEOC, employers may base hiring requirements on the ability to speak
English. As with all BFOQ defenses, the employer must be able to justify the use of those
selection procedures by demonstrating that the ability to speak English is essential to the
position. For example, the ability of a sales person to speak English could be related to the
function of selling shoes to customers who only speak English. However, if the employer set
certain levels of fluency in English, or mandated that employees spoke without an accent, and if
these requirements had a negative effect on national origin, it would be up to the employer to
establish the job-relatedness of these requirements in order to find protection under the BFOQ
(Panaro, 2003).
Up till now, only examples of practices that do not illustrate selection processes that meet
the criteria set forth by the BFOQ have been presented. There are several instances in which
BFOQ has been successfully used by employers to justify its discriminatory practices.
For argument for sex as a bona fide occupational requirement falls into one of two
categories. Either a company will make the case that sex is a BFOQ for privacy reasons or it will
make the case that it is for sexual titillation.
Sex v. Gender
It should be noted that no discussion about sex as a bona fide occupational requirement is
complete without first differentiating between the concepts of gender and sex. The two concepts
Page 17
are often used interchangeably in every day talk, mainstream media, law, and even in some
academic papers; however, this is incorrect usage of both concepts.
Sex is biological. Sex can be described as “what is.” Social scientists use sex as the
biological division between male and female. There are differences in a man’s DNA and that of
a female. A man’s DNA is usually described as XX. A woman’s is described as XY
(Encyclopedia Freedictionary.com, 2004).
The definition of gender is quite different. Gender can be defined as one’s identity as it
is experienced with regard to his or individuality as male or female. According to Encyclopedia
Freedictionary.com, a person’s awareness of gender normally begins in infancy and is reinforced
during adolescence. Gender is used by social scientists to refer to a certain status, identity, and
myriad of roles, that are frequently determined on a person being male or female, but the basis of
being male or female is not an exclusive factor. (Encyclopedia Freedictionary.com, 2004)
Sexual Titillation
The issue of sexual titillation was addressed in the case, St. Cross vs. Playboy Club. In
this instance the courts found that sex could be used as a bona fide occupational requirement for
the position of stripper.
Take for example Hooters and Southwest Airline’s Love Air. What does each of those
companies sell? What is their product? There are similarities between the two companies. To
begin with, both companies use attractive females who serve as, for lack of a better term, “eye
candy” for heterosexual males. This “eye candy” is a part of the image that both companies
explicitly attempt to promote. Both companies sell other products: Hooters sells food and
Southwest sells transportation of people. However, there is one significant difference between
the two companies that allows one to use sex as a bona fide occupational requirement and
Page 18
prevents the other company from using it. The significant difference is the primary business or
product. As you may remember, Love Air, its love bites and quickie machines, are some of the
products or services Southwest offers. These products or services do not represent Southwest’s
primary product or business. In fact, the primary product is the transportation of passengers. On
the other hand there is Hooters. In this case, the company’s primary product is its sexualized
environment (Yuracko, 2004).
Courts essentially view sex discrimination cases are decided in two different ways, they
are decided on the basis of being “sex businesses” or “non-sex businesses.” The classification
that a business falls into will have a major influence on its ability to successfully employ a
BFOQ defense as it relates to its hiring practices. If a business is purely selling sexual titillation,
it may do so only in the sex industry, which is highly stigmatized. Trouble arises for business
that attempt to bring sexual titillation to environments that are not purely sexual in nature. When
a business attempts to combine non-sexual goods and services with sexual titillation, the courts
will, as in the case of Southwest’s Love Air, redefine the business as a non-sex business,
resulting in the business not being able to claim sex as a bona fide occupational requirement
(Yuracko, 2004)..
There is legitimate reasoning for the labels of “sexual business” and “non-sexual
business.” As with most law, the intended purpose of this distinction is the “public good.” This
distinction helps to establish boundaries for what are acceptable behavior, expected roles, and
attitudes for a given position. By keeping sexual and non-sexual business separate, this allows
the general public to be more knowledgeable about its rights. Moreover, the limitations for
businesses as it relates to their hiring practices and procedures are clearer. The sexual
discrimination laws were created with the intent to create a definite separation between the
Page 19
“cognitive” and the “sexual” requirements of a job. Sexual discrimination law attempts to
minimize jobs that purposely combine sexual and cognitive components (Yuracko, 2004).
To understand how a company’s primary product determines its ability to use sex as a
bona fide occupational requirement. Take the case of Hooters Air. Hooters Air positions itself as
an airline that sells sexual titillation while traveling by air to heterosexual. Hooters Air is very
similar Love Air. However; Hooters Air was able to dodge the problem that plagued Love Air.
Instead of making the flight attendants the sexual object, Hooters Air placed two Hooters girls on
each flight. The primary purpose of the females was to model, instead of serve as a flight
attendant. In other words, the primary job functions required of he Hooters Air models was not
the same as the Love Air flight attendants. Through the careful use of job descriptions and titles,
Hooters Air has separated the “sexual” from the “non-sexual.” It is the danger of role confusion
that is at the heart of sexual discrimination law, and a company’s ability to use sexual titillation
as the basis for bona fide occupational requirement (Yuracko, 2004).
Privacy Based Sexual Discrimination
Sexual discrimination on the basis of personal privacy has been accepted by the courts as
a valid bona fide occupational requirement (BFOQ). In the case Fesel vs. Masonic Home of
Delaware, Incorporated, the court’s opinion stated that sex as BFOQ was indeed such for the
position of nurses’ aides that care for the elderly (Yuracko, 2004). Additionally, in the EEOC v.
Mercy Health Care Center, sex was successfully argued to be a BFOQ for employees who were
required to work in delivery rooms at the hospital (Yuracko, 2004).
It is interesting to note that in the abovementioned cases concerning sex discrimination
based on privacy, the courts were greatly influenced by consumer’s preference. For example, in
the Fesel case, nine out of twenty elderly women objected to male nurses and male nurses’ aides
Page 20
providing care to them. In the EEOC case, the court’s decision was based in part on a written
survey that stated sixty seven percent of the mothers and an even larger percentage of fathers
objected to male nurses in and around the delivery and labor areas (Yuracko, 2004).
Religion
In rare circumstances employers may discriminate on the basis of religion because it is a
bona fide occupational requirement. Normally this is a requirement found in religious
organizations that look to hire priests who practice the particular religion of that organization.
For example, a Catholic church may discriminate against a Jewish Rabi for the position of
Catholic priest. The other, although more rare circumstance, occurs when businesses operate on
a multinational level. The problem arises when there is a conflict between United States law and
that of a foreign country. For example in Kern vs. Dynalectron Corp, the employer successfully
defended its discriminatory practice of hiring only Muslims or requiring its current helicopter
pilots to convert to the Muslims religion for positions located in Saudi Arabia. Certain areas of
Saudi Arabia are completely off limits to non-Muslims. In fact, Arabian law calls for the
beheading of those who violate this law. In instances similar to this Title VII of the Civil Rights
Act does not extend to United States companies that operate in foreign locations. In these
situations, foreign law takes precedence over Title VII of the Civil Rights Act guidelines
(Enforcement Guidance, 2004).
Weight
As stated before, discriminatory practices based on weight are technically illegal in the
majority of circumstances. The Americans with Disabilities Act (ADA) provides some recourse
for obese persons. According to the ADA and Rehabilitation Act 1973, a person with a disability
Page 21
is defined as one who has a present physical or mental impairment that substantially limits one or
more major life activities, or one that has a record of the impairment or is regarded as having the
impairment (Kristen, 2002). However, there is a caveat in that the ADA only provides protection
for “morbidly obese” persons. This provision leaves many overweight people without a clearly
defined method of legal recourse. In the opinion of the courts, overweight is considered to be a
physical characteristic, whereas morbid obesity considered a physiological disorder. For a
plaintiff to successfully claim discrimination under the Americans with Disabilities Act (ADA)
or the Rehabilitation Act, that individual must prove that he or she has an impairment or
“perceived disability (Kristen, 2002).”
For the most part, the ADA limits the use of obesity as a disabling impairment, except in
rare circumstances. It is the opinion of the courts that a person’s weight alone cannot be
considered an impairment. For this reason, seeking protection under the present impairment
clause of the ADA, the person must prove that he or she is obese due to another impairment that
is covered by the ADA. An excellent example of a medical condition that is covered by the
ADA is a thyroid dysfunction (Kristen, 2002).
Likewise a plaintiff may choose another approach -- the “perceived disability” approach.
This approach is also difficult for a plaintiff to demonstrate if they are fat yet not morbidly obese.
In Smaw vs. Virginia Department of State Police, the court rejected the claim brought by an
obese individual. According to the case, Smaw had been hired as a state trooper “with the
understanding that she would reach the appropriate weight during her employment.” Smaw
failed to lose the weight. As a result, she was terminated from her position as a state trooper.
Smaw was, however, allowed to preserve her employment with the State Police as a dispatcher.
Page 22
The court held that the plaintiff, Smaw, failed to demonstrate that her employer found her
incapable of performing duties in her chosen profession (Kristen, 2002).
In Andrews vs. Ohio, state patrol officers brought an ADA suit against the state because it
required mandatory weight limits. Again, the court held that being overweight without being
obese was not physiological disorder; instead it was only a physical characteristic (Kristen,
2002). Indeed it appears that in certain circumstances, the courts do uphold an employer’s
discriminatory hiring practices and procedures on the basis of weight as a bona fide occupational
requirement.
Appearance
Clearly, there are some instances when there are true bona fide occupational requirements
are legitimate for employment positions. On the other hand, there are other cases where the
prerequisite is a reflection of consumer preference rather than of a true requirement. A gray area
between these two different divisions is the legitimacy of the appearance requirement. What does
the law say about discrimination on the basis of appearance? Moreover, can appearance act as a
legitimate bona fide occupational defense?
The answer appears to be a definite “maybe”! As of the completion date of this research,
the courts have not seemed to address the question of the validity of appearance as a legitimate
bona fide occupational defense (Appearance). Title VII of the Civil Rights Act, nor any of the
amendments to the Act, mention anything specifically in regards to appearance. In cases
including an appearance defense, the appearance of an individual is directly related to a
prominent characteristic of a protected class. Take for example, the recent legal disputes that
involve the retailer, Abercrombie and Fitch. The company’s employees, or as they call them
“brand representatives,” are said to be the “All American boy” or the “All American girl.” This
Page 23
title is not based on appearance per se; instead it is based on race and national origin
discrimination. (The Look, 2003) So far what case law has set fourth is that for a plaintiff to
successfully establish based on appearance it has to do so by tying the discrimination to sex,
race, age, disability or some other legally protected class (Kristen, 2002).
From a legal perspective, it is essential for employers to understand that the federal law
does not prevent discrimination on the basis of appearance alone. As with many instances, the
majority of people who have been discriminated against usually have the least recourse. As a
result they fall into the middle; they are neither at one extreme nor the other. The morbidly
obese population has more recourse than an individual who is merely overweight. The smaller
population of severely obese individuals can find protection under the Americans with
Disabilities Act (ADA). One the other hand, an employer cannot deny employment to an
individual solely on the fact that the individuals is perceived to be “ugly” or “plain”
(Appearance).
A majority of the cases, professional journals, and news reports that were reviewed for
this paper; confusion seems to be at the core for many companies and its employees. Some
businesses like Hooter’s and Hooters Air have discovered and utilize a viable method for
meeting its business needs without violating the law. By clearly defining the role of the flight
attendant and differentiating it from that of a “Hooters girls,” the company has been able to
legally justify its discriminatory hiring practices. Clothing retailers like Abercrombie and Fitch,
Hollister, the Gap, Pac Sun, and others, might be able to dodge the legal bullet of discrimination
by using methods similar to that of Hooter’s. Instead of hiring sales associates or “brand
representatives,” these retailers may consent to soliciting models. Quite often the consequences
of bona fide occupational qualifications (BFOQ) lead to discriminatory practices. Therefore,
Page 24
BFOQs can better be understood when one has a firm grasp of the conceptual meaning of
discrimination.
Discrimination
Discrimination is often used to mean illegal discriminatory acts. Discrimination means
noticing the difference between things or people that are otherwise alike, and making decisions
based on those differences (Webster-dictionary.org). We discriminate when we buy one product
over another, when we choose our friends and when we make personnel decisions based on
merit-related factors. All these forms of discrimination are legal and can be considered
necessary.
However, some types of discrimination in employment have been made illegal. Illegal
discrimination is the unfavorable treatment of a person by category, class, or group rather than
objective treatment on the bases of merit. The purpose of employment discrimination laws is to
prevent discrimination based on race, sex, religion, national origin, physical ability and age by
employers. Discriminatory practices can include bias in hiring, promotion, job assignment,
termination, compensation, and various types of harassment. Discrimination can be intentional
or unintentional.
In an effort to deter discriminatory practices, the United States Congress has ratified
several different laws and acts. The following is a brief listing of such laws and acts, according
to the Equal Employment Opportunities Commission:
1. Equal Pay Action of 1963. This Act prohibits wage discrimination between men and
women who work jobs that require equal skills, effort, and responsibility, in the same
establishments and under similar working conditions.
Page 25
2. Civil Rights Act of 1964. Title VII of this act prohibits discrimination in
compensation, terms, conditions, or privileges of employments, because of race,
color, religion, sex or national origin.
3. The Age Discrimination in Employment Act (ADEA). This protects employees from
discrimination based on age if they are at least 40 years old, but less than 65 years
old.
4. The Rehabilitation Act of 1973. Section 501 and 505 of this Act prohibits
discrimination against qualified individuals with disabilities who work in the Federal
government. This Act also includes firms who hold sub-contracts with the federal
government in excess of $2,500.
5. Americans with Disabilities Act (ADA). Titles I and V of this act prohibits
employment discrimination against qualified individuals who have disabilities,
because of their disabilities. This law also expanded the protected classes as defined
by Title VII.
When these laws were enacted, Congress assigned enforcement duties. In the majority of
cases, the Equal Employment Opportunity Commission (EEOC) and the Department of Justice
are responsible for enforcing the above mentioned laws and acts. Employers are also required to
post information regarding employees’ rights under such laws. These notices are required to be
accessible to all individuals.
These laws and acts also define what is known as protected classes. Protected classes are
groups protected from employment discrimination by law. These groups include men and
women on the basis of sex; any group that shares a common race, religion, color, or national
origin; people over the age of 40; and individuals with disabilities. Every United States citizen is
Page 26
a member of some protected class and is entitled to the benefits of the Equal Employment
Opportunity (EEO) law. It is important to note that these laws were passed to correct history of
unfavorable treatment and hiring practices and procedures of women and minority group
members.
While this legislation has been established by the United States Congress, these acts are
continuously being interpreted. The United States Supreme Court has the task of interpreting
them. Interpretation of the law includes defining the protected classes (i.e. race, color, sex,
national origin, disability or age). It is through the Courts’ interpretation that the acts are
“weakened.” For example, many advocates for people with disabilities believe the Courts have
narrowed the definition of disability to the point where the ADA is diluted. Moreover, there are
state constitutions, statues and municipal ordinances provide further protection of civil rights.
These are then interpreted by a judicial branch of the particular level of government.
The central issue of these cases is whether the employer’s actions were motivated by
discriminatory intent. Intent can be established by direct or indirect evidence. In most cases,
employers do not openly discriminate. For this reason, indirect evidence is used to prove
discriminatory practices. In 1973, the Supreme Court decision, McDonnell Douglas Corp vs.
Green, set a precedent for analyzing this cases that depend on indirect evidence.
To begin with the plaintiff must establish a prima facie cause of discrimination. There
are five primary elements of a prima facie case. First, the plaintiff must be a member of a
protect class. As stated earlier, the protected classes are race, color, sex, national origin,
disability and age. The plaintiff must be qualified for the position. Thirdly, the plaintiff must
have applied for that position. Fourth, the plaintiff’s application was denied. Finally, the
position must have remained open after the plaintiff’s application was denied.
Page 27
Once the prima facie elements have been satisfied, the burden shifts to the defendant. In
many cases this is as simple as the defendant articulating a legitimate, non-discriminatory reason
for the action. After this statement, the burden shifts again to the plaintiff. The plaintiff must
prove that the defendant’s reasons are pretext (or otherwise unworthy of belief). Moreover, the
plaintiff must provide sufficient evidence to infer bias. Such evidence can include comparative
evidence, statistics, or direct evidence of discrimination.
The terms disparate treatment and disparate impact describe the effects of individuals
who have been discriminated against. Disparate treatment is the inconsistent application of rules
and policies to one group of people over another (HR Guide.com, 2004). Discrimination may
result when rules and policies are applied differently to members of protected classes. An
example of disparate treatment is disciplining Hispanic and African-American employees for
tardiness, while ignoring tardiness among other employees. Such inconsistent application of
rules often leads to complaints.
Disparate impact is much different. The Equal Employment Opportunity law (EEO) has
simply defined disparate impact as a less favorable effect for one group than for another. It is the
systemic practice of discrimination in a firm. A disparate impact results when rules applied to all
employees have a different and more inhibiting effect on women and minority groups than the
majority (HR Guide.com, 2004). For example, nonessential educational requirements for certain
jobs can have a disparate impact on minority groups looking for work, as they have often been
limited in their access to educational opportunities. Another relevant example is that of physical
appearance. An “all-American look” will exclude some individuals of a race because of their
ethnic features.
Page 28
Methods Used
The data collected for this study was through various secondary research sources. In an
effort to completely cover the areas of positioning, image, bona fide occupational requirements,
and discrimination we used a wide variety of sources including but not limited to journal articles,
contemporary books, periodical articles, legal cases, and various corporations’ marketing
materials covering topics within the retail industry as well as outside of the industry.
Analysis of Data
Company Overview
The Abercrombie and Fitch (A&F) that we know today has evolved throughout the years.
A&F was established in 1892 by David Abercrombie. Later joined by, Ezra Fitch, the two
created a thriving company that retailed high-end outdoors equipment. The company’s clientele
list included Theodore Roosevelt, Ernest Hemingway, Charles Lindberg and Richard Byrd. The
décor of the retail stores included log cabins and mounted animal heads. A&F’s primary
products were lures (15,000 types) and shotguns (700 types). The company continued to thrive
through the 1960s.
A&F’s environment began to change during the 1970s. The country was becoming
concerned with the extinction and endangerment of wild animals. As a result, demand for the
company’s products considerably declined. Moreover, the company was not sure how to
identify new markets. A&F filed bankruptcy in 1977.
A&F was purchased by other retailing companies before eventually being purchased by
The Limited in 1988. In 1992, a significant decision was made by Michael Jefferies –
Abercrombie and Fitch would become a clothing retailer whose target market would be college
Page 29
students. Within three years, the company returned to profitability. In 1996 the company went
public.
According to A&F’s 2003 Annual Report, “Abercrombie and Fitch is a specialty retailer
of high quality, casual apparel for men, women and kids with an active, youthful lifestyle.”
(A&F Annual Report 28). The company’s stores include: Abercrombie and Fitch; Hollister (teen
store concept based on the West Coast lifestyle); and Abercrombie (children’s store). The
majority of the company’s sales are produced at the 700 US stores (mostly in malls). Sales are
also generated through the catalog and online.
Many relate the profitability of A&F to the management and guidance of Michael
Jefferies. It was Jefferies who carefully shaped and crafted A&F’s image through the
Abercrombie Associate’s Handbook, A&F Quarterly magazine and its hiring practices and
procedures. These tools have made this national retailer an excellent paradigm of how
companies utilize the bona fide occupational requirement (BFOQ) in an effort to secure their
store and brand image and how it may lead to discrimination.
Abercrombie Associate Handbook
One of the major ways A&F crafts its image is through is employees. The employees’
looks have been carefully mandated by the Associate Handbook. In essence, the work
environment becomes a runway.
The following is an example of rules included in the handbook:
Makeup: Makeup must be worn within the guidelines, and must be worn to
enhance natural features and create a fresh, natural appearance…Eyebrow pencil,
eye liner and eye shadow are acceptable in natural color. Lipstick should be very
natural in color and applied to compliment the associate’s appearance.
Page 30
Tattoos: Inconspicuous tattoos are acceptable, as long as they represent that
Abercrombie look as determined by your manager.
Clothing and footwear: Clothes and footwear should be clean and neat at all times.
Choices should reflect body types so that associates look attractive and classic, not
provocative. (Paynter, 2003)
According to a suit currently pending against the retailer, the appearance policy is an excellent
example of how Abercrombie and Fitch (A&F) includes discriminatory employment policies. A
lawyer for the plaintiff stated, “The fact that the company so narrowly focused on looks and what
is an attractive look offends a lot of people in a lot of ways” (Paynter, 2003).
A&F Quarterly
A&F published its first catalog in 1909. Like traditional catalogs, it included the
description, prices and pictures of merchandise. Approximately 50,000 copies were distributed.
As the store evolved, so did its catalog. For many years, the catalog included the A&F
Quarterly. This section of the catalog did not focus on merchandise. Instead, the A&F
Quarterly was similar to a magazine. Inside included interviews, articles and advertisements.
In 1997, A&F began publishing A&F Quarterly separate from its traditional parent
catalog. For example, the winter 2002 edition of A&F Quarterly, “The Christmas Guide,” was
280 pages. The first 121 pages include nothing but photographs of models. Of the models
included in the spreads, the overwhelming majority are Caucasian. In fact, A&F has only
employed about 10 “ethnic-looking” models, since the inception of the separate A&F Quarterly.
The middle 100 pages are dedicated to merchandise. The last sixty pages consist of interviews,
articles and advertisements (Reines, 2002). Every year, the catalog is available for customers to
purchase in stores or by subscription.
Page 31
The catalog has served its purpose. In fact, the company attributes much of its increase in
net sales to the A&F Quarterly. In 1997, the approximate net sales for A&F were $513 million.
This amount nearly increased by 166%. In that year, approximate net sales for Abercrombie and
Fitch (A&F) were $1,365.
Other Hiring Practices and Procedures
A&F utilizes unique recruiting methods. Mangers and sales clerks (or brand
representatives) are encourages to go out to visit nightclubs, bars and other popular sites
throughout the week. During these visits, employees are strongly encouraged to wear (A&F)
clothing. Essentially, they become advertisements outside of the store. Their late-night antics
blend perfectly with the company philosophy, which is to hire as many good-looking people as
possible, give them discounts on clothes and send them out into the world (Paynter, 2003).
In fact, a majority of A&F stores have an entire section (usually a wipe off board)
dedicated to recruitment. Included is the company’s three-point recruitment mantra – “Recruit
every day. Have a sense of urgency. Don’t be average.” Also included is a list of potential
recruits and their names and telephone numbers. How are potential recruits determined? A
potential recruit usually knows many people and is involved in clubs, sororities or fraternities at
college. In fact, a certain number of recruits are expected to be Greek. The reasoning behind
this preference, is good-looking people usually associate with equally or more-attractive
individuals. Moreover, a student who belongs to a fraternity or sorority knows other individuals
who could join the store.
The interviewing process is also subjective. Interviews are usually done in a group
setting. Each interview includes the potential recruits identified and a store manager. Managers
ask a series of questions covering a wide range of topics that ultimately do not have anything to
Page 32
do with the position or its expectations. Questions included “What king of music do you like?
What is your favorite CD? What’s in your CD player right now? If you could be a superhero,
who would it be and why?” (Payner, 2003). One purpose of the questions is to get the group
talking and observing how they interact with one another. Another purpose of the interview is to
give the manager an opportunity to compare the participants’ attractiveness.
Once an individual becomes an employee, the company still keeps an eye on each of its
stores and their brand representatives. One way it does this is through corporate blitz days.
These are days when district managers visit individual stores. Corporate blitz days are more
common for lower-end stores (Abercrombie and Fitch has “mark down stores”) that are known
to employ individuals who may not necessarily fit the all-American look. During these visits,
store managers have been know to give average looking employees the day off. In honor of the
visit, the store’s “hotties” are called into work. If average or unattractive employees are
discovered at stores, they often become the scapegoat for decreasing sales. For example, one
store manager was told by district managers that her daily sales were suffering because she had a
“Brace Face,” working on the floor. District mangers also have the authority to make schedule
corrections, as needed. Many of these “corrections,” included the omission of brand
representatives that do not embody the company’s image.
Abercrombie and Fitch and Allegations of Discrimination
While Abercrombie and Fitch (A&F) has experienced profitability, the company has
experienced negative claims and allegations as it relates to discrimination and racial insensitivity.
In 2002, many Asian-American groups complained about an A&F t-shirt design. The t-shirts
depicted two slant-eyed men in conical hats and the slogan “Wong Brothers Laundry Service –
Two Wongs Can Make it White” and “Pizza Dojo…You Love Long Time” (AP, 2003). As a
Page 33
result of the outrage, A&F pulled the shirts from the racks. A similar situation resulted from a tshirt that promotes a false stereotype of West Virginia. A year prior, parents nationwide were
outraged because of a children’s thong underwear produced by Abercrombie and Fitch (A&F).
On the underwear the words, “eye candy” were printed on the front.
In late 2003 a lawsuit was filed by twelve individuals. The plaintiffs were either black,
Latino or Asian-American. All the individuals applied and were turned down for sales positions
or were terminated because that said they did not live up to the standards of beauty demanded by
Abercrombie and Fitch management (Smiley, 2003). In the opinion of the plaintiffs those
standards required that salespeople be, by and large, white, tall and middle class.
One of the plaintiffs of the case is Anthony Ocampo. Ocampo was an employee of A&F
for four years. He continued to work at a store during breaks from college. Upon returning
home from school for a summer, Ocampo was notified that he had lost his job. According to
Ocampo, a manager told him, “We can’t rehire you because we already have too many Filipinos
working at this store” (The Look, 2003). An Asian-American plaintiff claimed “a corporate
official had pointed to an Abercrombie poster and told our management at our store, ‘You need
to have more staff that looks like this.” A Caucasian male was on that poster.
In the claim, the plaintiffs did not allege that the company did not hire racial minorities.
According to the plaintiffs, racial minorities worked in the back, in the stockrooms. A&F
customers were not able to see them there. Some worked after store hours. One plaintiff stated,
“When I did get scheduled, I would have to come in at closing time and wash the front window
and vacuum and wipe off mannequins” (The Look, 2003).
Lawyers for the plaintiffs believed tools such as Abercrombie Associate’s Handbook,
A&F Quarterly magazine, hiring practices and procedures, A& F Look Book and the A & F
Page 34
Look video have been created in an effort to maintain what the company has described as “the
Classic American Style.” Moreover, the employees are expected to uphold those same
standards. The result of this situation, the Equal Employment Opportunity Commission (EEOC)
has attached a letter of determination stating it has found evidence that Abercrombie and Fitch
(A&F) denied employment to at least one Latino based upon his race and that “Latinos and
blacks, as a class, were denied permanent positions, denied assignments and treated in an unfair
manner with rearguard to recruitment.
Additionally, the company’s image is being redefined by their customers. This is perhaps
that most troubling result of the recent events. Customers, especially members of Generation Y,
are challenging A&F. Many believe the all-American look does not mean all-white. In fact
many of members view the United States now as a salad bowl. In this view, Americans are
proud of their different ancestry, features and other differences. The beauty of this way of
thinking is that no one is expected to assimilate to the majority. The beauty is in the diversity of
the people who make up the country. Such a line of thinking may cause A&F to reposition its
store and brand image. According to one researcher, marketers need to address their priorities
from a cross-racial and cross-cultural approach: “If companies do not look at this, they are going
to completely miss the boat. It is a competitive disadvantage that could put you right out of
business” (Smiley, 2003). Such a process will be expensive and use many human and financial
resources. Of course, if such a project is taken on and the expenses are made, there will be an
affect on the company’s bottom line.
Page 35
Research Findings
Managerial Implications
We believe that there are several implications that can be drawn from our examination of
image, discrimination, and bona fide occupational requirements. An important note for the
reader to understand is the framework for which to view these implications. The implications
presented are written from the viewpoint of “Managerial Egoism.” Under this model, we utilized
a legal approach to understanding how discrimination and the use of bona fide occupational
requirements defense will affect how a company manages its brand image. As a result, we did
not examine the ethical or social components of discrimination, their affect on companies and
what the long run implications would be.
First, what the research tells us is that from a legal standpoint, as harsh as it may sound,
companies and managers may participate in discriminatory employment practices as long as the
discriminatory practices and procedures do not infringe upon the rights of protected classes as
defined by governmental laws and acts. The question that a firm or its managers may be
considering is, “can we legally hire only attractive people in and effort to build our brand
image?” The answer is, yes. A necessary follow-up question the company or its manager may
ask is, “can we hire only attractive women in order to build our brand image?” The answer is
maybe. If the reasoning behind hiring only attractive women is a result of customer preference,
the answer becomes no. If the reason for hiring only attractive women directly relates to the
company’s primary business activity (which in this case would most likely be sexual titillation),
then the answer to the question becomes yes.
The pivotal and exterminating factor is whether or not the activity in question is truly a
business activity. An activity that is extremely important to the success of the business is not
Page 36
necessarily the primary business activity. If the hiring practices and procedures are not directly
related to the company’s primary business activity, then the employer cannot engage in
discriminatory practices. Legally, companies and their managers can conduct employment
practices that discriminate on the basis of physical attractiveness so long as the physical
attractiveness is not based on membership in one of the protected groups. To date, physical
attractiveness is not a protected class defined by the legislation.
Secondly, we found that if a company or their managers have a certain store or brand
image that it wants to present, the policies and producers the company undertakes in order to
achieve that image are likely to be challenged in a court of law on the basis of discrimination.
As a result, managers should look outside traditional employment practices and procedures.
Moreover, managers must be clear and concise when defining occupational roles and
responsibilities for employment.
To illustrate this point, take a fictitious car wash company called Sexy Suds. The
managerial staff wanted to hire only very beautiful bikini clad women to interact with the
patrons. Sexy Suds could lessen its likelihood for legal exposure by hiring general staff to
perform the functional duties of the company such as taking money, washing and waxing the
vehicles, and administrative functions. The managers should then hire female models whose
primary job function is the sexual titillation of heterosexual males. The research shows that a
similar strategy worked for Hooters Air when, in the court’s opinion, the company had not
participated in discriminatory employment practices and procedures as they related to the
position of flight attendant. On the other hand, the company created positions for Hooters Girls.
As you may recall, the primary purpose of the Hooters Girls was to provide sexual titillation of
heterosexual men on their flight.
Page 37
Third, just because there are situations in which companies can legally engage in
discriminatory practices and procedures, this does not give companies license to internally
encourage such practices. Ethics aside, the very heart of product positioning relates to the
concept of perception. A consumer’s perception is a company’s reality. In product promotion,
perception is everything. If a company engages in legal discriminatory practices those practices
could be upheld in the court of law. Even still, the brand image can be deteriorated as a result of
being involved in such legal proceedings. Therefore, before a company engages in legally
discriminatory employment practices and procedures it must investigate the costs and the
benefits of doing so. Mangers must be mindful that costs include legal fees as well as the
potential cost of loosing the brand’s positing in the minds of its consumers.
In an effort to examine this particular managerial question, a company can ask itself, “If
we conduct employment practices in a legal way in an effort to promote a company’s store or
brand image, is the payoff greater than any damage to the image that may result from those
practices?” The answer to that question will vary depending on company, industry, and the
target audience. As a result, it is impossible to offer a hard, fast rule that all companies should
follow. We can only suggest companies should fully investigate the costs and benefits that
would result from a particular hiring practice or procedure. Not doing so, is a plan for failure.
Conclusions
Discrimination can take many forms and covers a wide range of topics. In this paper we
have only discussed how discrimination relates to store or brand image. The reader must keep
this in mind. The purpose of this paper is not to present a comprehensive discussion of
Page 38
discrimination. In fact, the very nature of brand image and discrimination naturally limits the
discussion to primarily discrimination based on the physical appearance of an individual.
Based upon our research we have found that there is a fine line between what can be
considered legal discrimination and illegal discrimination. Companies must be very careful
when attempting to use bona fide occupational qualification (BFOQ) as a rationale for
discriminating against a specific group. In most cases, if the group is considered a protected
class, as defined in Title VII of The Age Discrimination in Employment Act, the Civil Rights
Act or the Americans with Disabilities Act (ADA), more than likely that business is participating
in discriminatory employment practices and procedures.
The one potential exception (in relation to store image) is when the organization can
prove that there are certain qualifications that are essential to the primary function of the
business. If a company does attempt to discriminate for whatever reason the company must be
certain it has completely followed all legal requirements in doing so. Companies still must be
careful even in these types of situation as there is still a potential for a rejected applicant or a
disgruntled employee to take legal action against the company.
Because this paper primarily focused on the physical attributes and appearance of the
store staff as it relates to brand image and possible discriminatory practices; the subjects of
sex- based discrimination and discrimination on the basis of national origin are the most
frequently mentioned as it relates to bona fide occupational requirements. Obesity falls outside
this category because obesity in and of itself does not require the protection of a bona fide
occupational requirement in order for a company utilize discriminatory employment practices.
Obesity is covered by the ADA.
Page 39
Companies such as Abercrombie and Fitch and other retailers are free to promote their
brand image using somewhat controversial, but none the less legal, discriminatory employment
practices. Abercrombie and Fitch openly admit to doing so. It recruits the majority (75%) of its
salespeople or “brand representatives” from college campuses. The visual appeal (physical
appearance) is an essential component in promoting the “right in-store-environment.” According
to one Abercrombie and Fitch representative, “We’re not interested in salespeople or clerks. We
are interested in finding people who represent the band’s lifestyle, which is the college lifestyle,
leaders who have charisma, who portray the image of the brand” (Goodman, 1999). There is no
law that prevents such companies from hiring thin, attractive people, so long as those hiring
practices are not based on one of the protected groups; however, if they are, then the company
must prove that the reason it is discriminating is essential to the primary activity of the business.
Recommendations for Future Research
We have several recommendations for future studies that could be done on this specific
situation as well as the broader overall topic for research. They are as follows:
1. At the time of this paper, there were several lawsuits in progress involving bona fide
occupational qualification (BFOQ) and discrimination. An examination of these cases
following their verdicts may prove interesting and valuable to future research.
2. The main focus of this study involved the hiring practices of organizations employing
mostly Caucasian staff members to represent the image they wished to project. We
recommend a comparison study of organizations projecting an image with employees of
other races and the implications.
Page 40
3. Researchers project that the United States Caucasian population will become the minority
in the future. An examination of this shift in population and their effect on store and
brand images may prove useful.
4. Due to the changing demographics of the United States, it would be useful to research
whether or not companies, such as Abercrombie and Fitch, change their hiring practices
as a result of a change in store or brand image.
Page 41
References and Sources
“ADEA.” EEOC.gov. <http://www.eeoc.gov/abouteeoc/35th/thelaw/adea67.html>.
Abercrombie and Fitch 2003 Annual Report.
“Abercrombie and Fitch, Co.” Hoover’s Company Profiles. LexisNexis Academic. Austin:
2004.
Associated Press. “Abercrombie & Fitch Faces Discrimination Lawsuit.” USAToday.com. June
2003. <http://www.usatoday.com/money/industries/retail/2003-06-17abercrombie_x.htm>.
Bona Fide Body. LexisNexis. Jan 2003. <https://web.lexisnexis.com/universe/document?_m=84526b8b2695bd1ff3f09838da37173c>.
Burstein, Joshua. “Testing the Strength of Title VII Sexual Harassment Protection: Can It
Support a Hostile Work Environment Claim Brought by a Nude Dancer. Review of Law
and Social Change. 24 N.Y.U. Rev L. & Soc. Change 271. Retrieved at LexisNexis on
May 26, 2004.
Cantor, Rachel L. “Consumer Preferences for Sex and Title VII: Employing Market Definition
Analysis for Evaluating BFOQ Defenses. The University of Chicago Legal Forum. 1999.
Retrieved at LexisNexis on May 26, 2004.
“Center Developing Your Company Image.” . Small Business Administration, Women’s
Business. August 10, 2001 < http://www.onlinewbc.gov/docs/market/mk_co_image.html>.
“Civil Rights Act of 1991.” EEOC.com.
<http://www.eeoc.gov/abouteeoc/35th/thelaw/cra_1991.html>.
“Civil Rights Act of 1964.” EEOC.gov
<http://www.eeoc.gov/abouteeoc/35th/thelaw/civil_rights_act.html>.
Enforcement Guidance on Application of Title VII and the Americans with Disabilities Act to
Conduct Overseas and to Foreign Employers Discriminating in the United States. Equal
Opportunity Employment. <http://www.eeoc.gov/policy/docs/extraterritorial-vii-ada.html
“Employment Discrimination Laws.” Jobsearch.com. June 21, 2004.
<http://jobsearch.about.com/library/weekly/aa060302-2.htm>.
“Equal Employment Opportunity Act of 1972.” EEOC.gov.
<http://www.eeoc.gov/abouteeoc/35th/thelaw/eeo_1972.html>.
Page 42
Espinoza v. Farah Manufacturing Corporation CO., 414 U.S. 86 (1973). Retrieved at,
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=414&invol=86
Federal Laws Prohibiting Job Discrimination. EEOC.gov. Retrieved at
<http://www.eeoc.gov/facts/qanda.html>.
Freeman, L. Neal. “Perceptual Maps Look at Market with Mind for Growth.” Ophthalmology
Times July 15, 2003. Vol. 28, Issue 14, p11.
“Gender.” Encyclopedia Freedictionary.com. June 20, 2004
<http://encyclopedia.thefreedictionary.com/gender>.
“Gender Identity.” FreeDictionary.com. June 20, 2004
<http://www.thefreedictionary.com/Gender%20identity>.
Goodman, Abigail. “Store Most Likely to Succeed.” Los Angles Times. April 3, 1999
“Guidelines on Discrimination Because of National Origin.” Equal Opportunity Employment
Commission. 29 CFR P 1606. 1980.
Gwin, Carl R. and Carol F. Gwin. “Product Attributes Model: A Tool for Evaluating Brand
Positioning.” Journal of Marketing. Spring 2003.
“HR Guide to the Internet: EEO: Disparate Impact.” HR-Guide.com. June 21, 2004.
<http://www.hr-guide.com/data/G702.htm>.
Hill, Marvin. “Aging and Employment:” Labor Law Journal. Dec, 1983.
Kristen, Elizabeth. “Addressing the Problem of Weight Discrimination in Employment.”
California Law Review. January, 2002. Retrieved from LexisNexis on May 26, 2004.
“The Law.” EEOC.gov.< http://www.eeoc.gov/abouteeoc/35th/thelaw/index.html>.
Lepley, Lesley. “Controversial Clothier: Abercrombie and Fitch Marketing, Hiring Often Under
Fire.” Anchorage Daily News. 13 February 2004. Retrieved from LexisNexis on June 6,
2003.
“Letter from Tokyo: Where the boys are.” Newsweek. Feb 9, 2004. Retrieved at
http://www.msnbc.msn.com/id/4113778/
Obringer, Lee Ann. “How Marketing Plans Work.” How Stuff Works
http://money.howstuffworks.com/marketing-plan21.htm>.
“Only Girls Wear Barrettes: Dress and Appearance Standards, Community Norms, and
Workplace Equality.” LexisNexis. Aug, 1994.
Page 43
Panaro, Gerard. “Is Hiring on the Basis of Appearance Illegal?” Fair Employment Practices
Guidelines. October 1, 2003. Issue 581: p1-4.
Perreault, William D., Jr. and E. Jerome McCarthy. Basic Marketing: A Global-Managerial
Approach. Boston: Irwin McGraw Hill, 1999.
“Positioning: As Popularized by Al Ries and Jack Trout.” Quick MBA.
<http://www.quickmba.com/marketing/ries-trout/positioning>.
Ryan, Joan. “Retailer’s Image Problem: Racism.” San Francisco Chronicle. 9 December 2003.
Retrieved from LexisNexis Academic on June 7, 2003.
Reines, Dan. “Abercrombie and Fitch: The Naked Truth.” Nerve.com. December 2, 2002.
<www.capitolhillblue.com>.
St. Cross v. Playboy Club, Appeal No. 773, Case No. CFS 22618-70 (New York Human Rights
Appeal Board, 1971) (dicta).
“Sex.” Encyclopedia Freedictionary.com. June 20, 2004.
<http://encyclopedia.thefreedictionary.com/Sex>.
Sink, Eric. “Marketing is not a Post-Processing Step.” June 6, 2003.
<http://software.ericsink.com/Positioning.html>.
Smiley, Tavis. “Kimberly West Faulcon and Luke Visconti Discuss the Class-Action Suit
Against Abercrombie and Fitch.” National Public Radio. 9 December 2003. Transcript
retrieved from LexisNexis Academic on June 7, 2003.
“The Look of Abercrombie and Fitch.” CBS.com. December 5, 2003.
<http://www.cbsnews.com/stories/2003/12/05/60minutes>.
“Title 29.” United States Department of Justice.
<http://www.usdoj.gov/osg/briefs/1984/sg840037.txt>.
“Title VII.” EEOC.gov. <http://www.eeoc.gov/policy/vii.html>.
Weber v. Playboy Club, Appeal No. 774, Case No. CFS 22619-70 (New York Human Rights
Appeal Board, 1971) (dicta).
Wilson v Southwest. LexisNexis. Jun 12, 1981. June 1, 2004.
<http://proxy.bsu.edu:2059/universe/document?_m=0eb6b08d8872a4d184cb689210bee2
c3>.
Yuracko, Kimberly A. “Private Nurses and Playboy Bunnies: Explaining Permissible Sex
Discrimination. California Law Review. January, 2004. Retrieved at LexisNexis
Academic on May 26, 2004.
Page 44