Second Abercrombie Lawsuit

The recent news about Abercrombie and Fitch being sued by an African-American customer for discrimination has caused quite a stir. Some have accused the company of a “setback” in their business. Others have blasted Racheal Muhammad, the man who brought the class-action lawsuit against Abercrombie and Fitch, as a “disgracing fool.” While both statements are certainly extreme, both should not be too much of a stretch to consider as some sort of victory for the company. To begin with, a company has to settle any complaints or claims made in a legal agreement before they can win a lawsuit.

So, what was the basis of the lawsuit? According to the complaint, an Abercrombie representative told the man he did not want a job because his accent was too heavy. The man claimed that he responded to an online posting from an Australian company inquiring about a position by telling the representative that he was from Australia and that he spoke “a lot of American English.” This is the basis of the lawsuit. An employer cannot use language that majority ethnicities do not speak when they are hiring people for a job, according to the Fair Labor Standards Act (FLSA).

If the company could show the man was not native American when he applied for the position, then there would be a civil rights violation, according to attorneys who have reviewed the complaint. Since the complaint did not mention where the man was born, as a native American might not automatically be considered an American citizen according to the FLSA, and could sue for discrimination, there is no doubt the man would have a case. In addition, there are several employees of Abercrombie and Fitch who are actually of different races. If all-americans discriminated against all Caucasians when interviewing potential employees, then there would be a pattern of discrimination.

The complaint further claims that the company sends all-American T-shirts with American themes to employees who wear them. Even the cover of one of the all-American T-shirts depicts an American flag, which is used in the fashion industry to distinguish between styles of clothing. The case was filed by an African-American man who wears an American for comfort reasons, and not as a fashion statement. The complaint further states that Abercrombie and Fitch have a policy that all employees must wear all-American T-shirts. Even though the policy says that it applies to all employees, the policy is being enforced to minorities in the clothing company according to the complaint.

It is highly doubtful that an all Caucasian company would be subjected to a civil rights lawsuit for forcing an all-American employee to wear an American-themed T-shirt that has a white background. This is much less likely to occur if an all Caucasian company was the subject of the discrimination lawsuit. However, the mere existence of an alleged discriminatory hiring practice may show a lack of consideration for diversity issues among some companies. Thus, any such lawsuit may indeed represent another step forward in the fight for increased racial equality in the United States.

An additional development in the case involves the possibility that Abercrombie and Fitch have violated federal law when it comes to their current policy on hiring. According to the complaint, the company had engaged in a pattern and practice of unlawfully discriminating against prospective employees on the basis of their race when applying for jobs. In addition to a refusal to include applicants on the basis of their race, the policy also requires that applicants provide proof that they are American citizens by producing a valid passport and birth certificate. The current interpretation of the Fair Labor Standards Act (FLSA) dictates that an applicant cannot be discriminated against on the basis of his or her race, color, nationality, or gender if he or she can show that race, color, nationality, or gender were the motivating factors behind the decision to hire him or her. Thus, while the current FLSA interpretation does not require that an applicant have proof of these three elements, it does bar an employer from discriminating against applicants on the basis of race absent other compelling reason.

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