The Mediation Times


The conflict between branding and employment law

by Amanda on August 16, 2009

A report in the British press this week tells the story of a law student, Riam Dean, who won an Employment Tribunal claim against her employer, US firm Abercrobie and Fitch for unfair dismissal and harassment on the grounds of her disability. The case raises some interesting questions about the conflict between the employer’s right to choose how they present themselves (branding) and the rights of employees as enshrined in employment law. Disability discrimination is a key area for disputes at the moment.

The account describes how a young woman, born without her left forearm, was banished to the stockroom because she wore a cardigan to cover the join on her arm and in doing so her “look” breached a rigid policy on presentation, a policy which by accounts ran to 45 pages.

Screen Grab from the Abercrombie & Fitch Web Site

Screen Grab from the Abercrombie & Fitch Web Site

On the Abercrombie & Fitch website you will find a very clear statement on diversity. Any young person reading this might reasonably think that there is a policy of inclusion. On the other hand a critical mind might see the discrepancy between that and the overwhelmingly clear message communicated on every other page of the web site that only perfect bodies “need apply”. Employees are even encouraged to enter a modeling competition to feature in the company’s 2010 calendar. (see above)

The diversity statement boasts training activities and clear policy guidelines which ensure that all staff are aware of the need to include people who have disabilities or who are challenged in some way. They tick the boxes and with well crafted words.

This conflict was experienced first hand by the supervisor that banished this young woman to the storeroom. Instinctively, she made the choice between the professed policy of inclusion and the more compelling policy of looks. In my view her actions were the more “truthful” and authentic if wrongheaded.

So I wonder why a law student would apply for a job here? Was it optimism or something else?

And I wonder why the interviewer gave her the job knowing the existence of the policy on looks, unless it was out of fear that not to do so would expose the company to a claim of disability discrimination?

There was a claim for disability discrimination which in the end failed as the tribunal found that she was not treated any differently from any other employee. She did get home on the harassment claim and unfair dismissal which cost the company a few thousand pounds but who knows how much in lost reputation.

Personally, I am a strong supporter of diversity and I believe that organisations should make adjustments to allow disabled people to participate fully. We are a diverse society and the richness of that society and how we treat people is a demonstration of our civility.

On the other hand, as an employer and business owner, I understand that employers should have the freedom to say how the company should be presented and how staff should represent the brand. I do not subscribe to the perfect body/perfect look idea and that most probably has something to do with me not being a size 00! I am, however, struggling to argue against the right to employ people who are a good fit with the brand and the target market or to argue for enforcing a diversity policy which is clearly incompatible with the company ethos when it is so extreme.

The cynic in me says: a law student with a disability has done herself no harm in the job market by pursuing a claim for disability discrimination and winning (although not well as it happens).

The business owner in me says: a company has a right to decide how their brand is portrayed.

The human being in me says:  the pursuit of perfect looks to the exclusion of everyone else is deeply unpleasant and even dangerous.

The marketing director in me says: A&F: this is a PR disaster and the cost to you will be much more than £9000 plus legal expenses – you should have mediated the dispute! And given similar problems in the US, you really do need to do some work on your recruitment procedures and sort out how you include people who are disabled.

The mediator in me says: Amanda you don’t know all the facts and you certainly don’t know all the circumstances! And the burning question is: why did the supervisor want her off the shop floor and in the storeroom? Was it because she was wearing a cardigan and breaching the dress code or something else?

Debra Healy
Debra Healy

Thank you for your thoughtful article, Amanda.

As a paralegal in employment law and a mediator, I so appreciate your mixed feelings on this issue.

For me, this issue is not a matter of fact-finding, evidence or legal rights.

It is a matter of mutual satisfaction of needs and interests.

For me personally, the question becomes pretty simple: "What kind of world do I want to live in?"

I hope more people respond to your article - it definitely calls for reflective thinking, which is not always one of my strong points!

Thank you again.
Debra Healy


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