I wrote a post a few weeks ago about Riam Dean, the young British woman who was reassigned from her job as an Abercrombie & Fitch store clerk because her prosthetic arm didn’t comply with the chain’s “look policy”. A U.K. employment tribunal recently ruled that she had experienced unlawful harassment and awarded her £8,000 in damages. It also ruled that she did not experience disability discrimination. I don’t know enough about British employment law to know the standard of proof for establishing a claim of disability discrimination, but I’m puzzled as to how the tribunal could find that that she was harassed without experiencing discrimination. The facts seem to indicate that her harassment is the direct result of her employer’s discriminatory attitude regarding her disability. Perhaps some solicitor from across the pond can explain the distinction to me.
Nevertheless, it’s good to see that Dean received some compensation for the horrible treatment she received. Hopefully, A&F’s higher-ups will do a better job of keeping it’s more clueless employees in check.
Thanks to Rose for the tip.
Perhaps they didn’t want the holding to be applied simply in cases where there was “disability harassment”. “Look” policies sound like the sort of thing that would apply to more than just people with prosthetic limbs, like fat people or short people or the like.
Very interesting point Charles. Can retail = theater? I think of what Hooters “Look” policy might be. Then I quickly rush to erase the image.
One of the problems with America’s employment harassment policies is how they arose from discrimination law rather than becoming a tort on its own. I’m not sure how this compares to the UK, but I do know that in the past, you could treat your employees appallingly and they couldn’t sue you for harassment so long as they couldn’t demonstrate that you were discriminating against them. This led to absurd but consistent decisions like a boss being able to slap his employees on the ass, and because he didn’t discriminate by gender, it wasn’t considered actionable. There was also a Supreme Court case some years ago (which I should really look up) about a slightly built man being viciously harassed as weak and a homosexual (even though he wasn’t a homosexual), who needed to prove that he was being discriminated against because he was a man (which the lower courts said he wasn’t) in order to claim relief. The hostility simply wasn’t enough by itself.
It’s possible that the UK has avoided this linkage, and as such, doesn’t view employment harassment as solely a discrimination issue.