Is it legal to employ only good looking staff ?

The French Watchdog Defenseur des Droits recently announced that they were investigating the Ohio-based chain store Abercrombie & Fitch over concerns that it was employing staff based solely on appearance. The chain which specialises in clothes popular with younger customers , is known for its dimly lit shop floors, loud music and attractive staff. Male employees ,known as “topless greeters” stand at the entrances of the largest stores, including the flagship stores on The Champs Elysees in Paris and London’s Old Burlington Street.

Dominique Baudis, the spokesman for Defender of Rights, said that solely employing handsome people not only discriminates against the aesthetically challenged but sends out the wrong message to those buying Abercrombie & Fitch’s products. Mr Baudis highlighted comments made by Mike Jeffries the Abercrombie & Fitch CEO : “We want to market to cool, good looking people. We don’t want to market to anyone other than that.” Mr Jeffries has also been quoted as saying he “doesn’t want larger people shopping in his store.” The chain has indeed been criticized for its sizing policy, the biggest size it sells is equivalent to a UK size 14.

In the U K under sections 39 and 40 of the Equality Act 2010 it is unlawful to discriminate, victimise or harass a person during the recruitment process based on any of the nine specific “protected characteristics” which are:

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

Indeed compensation in a discrimination case is uncapped and can include an award for injury to feelings.

Whilst Abercrombie & Fitch may not be acting unlawfully in terms of European Union discrimination law, their recruitment policy attracts a lot of interest for moral reasons and certainly leaves the company open to many potential legal pitfalls. For example , if a black person or an older person were not employed, as they were deemed not attractive enough they may be able to claim indirect discrimination on the grounds of race or age.

Abercrombie & Fitch is no stranger to controversy. In 2009 a law student called Riam Dean who has a prosthetic arm was awarded compensation of £8,000 by a London employment tribunal when she complained that she was made to work in the stockroom because she did not fit the brand’s “all-American” image. She was not allowed to wear a cardigan in summer to cover her arm as this breached the strictly applied “look policy”.  If another such case was brought the company may put their reputation at risk which could cause massive problems.

Whilst I appreciate the objections to a sizing policy and a recruitment policy excluding all but the physically blessed I can see no way of enacting legislation to make the lack of beauty ( such a subjective and amorphous concept) a “protected characteristic” in terms of Equality Legislation. That is going too far.