July 30, 2013 at 10:38 AM ET
U.S. retailer Abercrombie & Fitch, famous for its shirtless male models, should brace itself for more discrimination challenges in Europe related to its recruitment practices, lawyers told CNBC, following a French probe into the company.
France's human rights body, Le Défenseur Des Droits, announced last week that it was investigating the Ohio-based chain over concerns it was hiring staff for its stores based solely on appearance.
Abercrombie, which specializes in preppy 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 by the entrances of Abercrombie's largest stores, including its flagship shops on Paris' Champs Elysees and London's Old Burlington Street.
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In a written statement, an Abercrombie spokesperson said, "Our intent is to comply with the laws of every country in which we operate, and we are committed to diversity and inclusion across our workforce."
The company added it had yet to speak with Le Defenseur Des Droits about their inquiry and declined further comment at this point.
Leon Glenister, a barrister specializing in discrimination law at Hardwicke chambers in London, told CNBC that growing public interest in the company's hiring process could lead to more challenges against the company.
"The reason the company's recruitment attracts so much interest is for moral reasons rather than legal ones," he said on Monday. "But if a company says it only wants to hire good-looking people, they are in dangerous water."
While it isn't illegal to hire people for their looks, potential challengers could use U.K. or European Union (EU) discrimination law, which bars companies from discriminating over certain "protected characteristics"—such as age, race or disability.
"I wouldn't want to say that Abercrombie has broken the law, but this policy opens the company up to lots of potential legal pitfalls," Michael Scutt, an employment solicitor at Excello Law told CNBC. "For example, if a black person or older person is not hired because they are not 'attractive', they could be more likely to bring a discrimination case against the company on race or age grounds."
Hardwicke's Glenister agreed, saying that although a direct discrimination case against Abercrombie would be hard to prove, an indirect case—arguing, for example, that a policy to only hire attractive people could have an adverse effect on older applicants—might be more likely.
"In this case, the defendant can say it's justified because they have a business image to protect, which would be quite interesting," Glenister added.
In a 2006 interview with news website salon.com, cited by France's human rights body, Abercrombie's CEO Mike Jeffries admitted it deliberately recruited attractive staff for marketing reasons.
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"That's why we hire good-looking people in our stores," he said in the interview. "Because good-looking people attract other good-looking people, and we want to market to cool, good-looking people. We don't market to anyone other than that."
Linda Jones, an employment partner at law firm Pinsent Masons, said it was a challenging area for retailers. "They want to attract their target audience, who don't want to buy products from someone who looks like their mum. They want to buy things from someone who looks like their trendy best friend."
The French watchdog said Abercrombie's hiring policies could be discriminatory, and raised concerns that the people hired as models for its stores were also being used as sales staff.
"Though physical appearance may legitimately be a key and determining professional factor for models, that's not so for sales staff," France's Commissioner for Human Rights Dominique Baudis, said in a statement.
Reputation at risk?
Abercrombie is no stranger to controversy, and has already lost one lawsuit in Britain.
In 2009, law student Riam Dean, who has a prosthetic arm, won an employment tribunal against the company after claiming she was made to work in the stockroom because she did not fit the brand's "all-American" image. A London employment trial ordered Abercrombie to pay Dean around £8,000 ($12,300) in compensation.
Excello Law's Scutt said that if another case was brought against Abercrombie, it could seriously damage the company's reputation.
"If there was another case like this it would really focus the growing public interest on Abercrombie and its processes," he said. "Reputation management is everything for companies, and if a company gets it wrong it can cause massive problems for them."
The chain has also been criticized over its sizing policy, which campaigners argue discriminates against larger customers. Almost 80,000 people have signed an online petition on Change.org calling on the company to offer larger sizes.
The biggest size of women's clothing sold by the company is a large, equivalent to a U.S. 10 or U.K. 14. By comparison, Abercrombie's rival H&M sells sizes up to an extra-large.
—By CNBC's Katrina Bishop. Follow her on Twitter @KatrinaBishop.
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