CARDWARE: Case Study Did CARDWARE have genuine BFOQs (Bona Fide Occupational Job Qualifications) in its ad?

Do not forget to review the company's slogan as given in the above facts.

Be sure to discuss Petunia's point-of-view as well as CARDWARE's position and defenses.

Use legal authority to support your position as well.

In general, it is illegal to discriminate against a job applicant based upon characteristics pertaining to "race, religion, gender, national origin, age or other protected status" ("BFOQ," 2015). However, in certain limited circumstances, if an employer can demonstrate that "no member of the group" he or she is discriminating against could perform the job, he or she may do so, under an exception known as Bona Fide Occupational Job Qualifications ("BFOQ," 2015). For example, airlines may have mandatory retirement ages for pilots because of safety concerns; religious institutions may favor candidates of a particular religion; and modeling and talent agencies may select individuals based upon gender ("BFOQ," 2015). However, in this instance, the slogan for the Sporty One is: "you don't have to be an athlete to look and feel like one," which means that the fact that Noah had more experience as a college athlete would not be considered a BFOQ.

On the other hand, CARDWARE would likely argue that Noah looked more like an athlete and this was keeping in line with the product's image, much the way Abercrombie & Fitch had a very specific 'look' policy regarding its sales staff. "The company sought to recreate that image in its stores, hiring salespeople, called 'models,' who were stylish, conventionally attractive and often scantily clad as the models in the photos. Male employees were hired specifically to work shirtless -- a job position called 'lifeguard' at the company's Hollister brand stores" (Kaplan 2015). CARDWARE might argue that it is part of its branding to project a sporty image and weight and a lack of apparent athleticism are not a protected characteristics under the law. Furthermore, the advertised position specified that the company was looking for someone who was "energetic, youthful, athletic, and able to 'sport' the clothing lines of The Sporty One with style," and it is not clear that Petunia would be even able to wear the clothing line, given its youth oriented focus. On the other hand, the position states that the company is an Equal Opportunity Employer, which specifically means that it does not discriminate based upon race, ethnicity, gender, or age. CARDWARE would likely counter that it would not discriminate against an employee based upon chronological age but this still means that the employee should project a youthful demeanor and seem athletic.

Furthermore, the company would likely argue that it is attempting to attract male customers. Noah is a male and Petunia is a female; to encourage identification with the current target customer Noah might seem to be the more desirable choice. However, from Petunia's point-of-view gender is still an essential and protected characteristic under employment law and there is no clear evidence that hiring male employees was critical to improving the company's bottom line. While marketing to males is not illegal, engaging in employment-related discrimination is.

Appearance-related discrimination is a controversial aspect of the modern workplace and is still evolving in terms of current jurisprudence. "There has been a significant increase in appearance-based discrimination claims addressing makeup, dress codes, body weight, body art, and grooming in the past several years" but appearance-based discrimination is not necessarily always forbidden (Perkins, 2014, p.1). For example, employers may prohibit employees from exposing tattoos in the workplace and require them to maintain a certain appearance. Petunia would likely counter that maintaining a professional appearance as a requirement is acceptable but changing fundamental characteristics such as weight and athleticism is not, unless it is specifically required for the position (such as a job that requires intense physical effort like a policeman or lifeguard). What is to stop other employers in a wide variety of industries from engaging in similar forms of discrimination, further limiting the ability of workers, particularly women to advance, simply because they are not deemed to be conventionally attractive? Also, given the extent to which beauty standards are more rigorously enforced against women of a certain age, allowing discrimination based upon appearance could become a covert way to allow ageism and sexism to be used when selecting employees.

PART II:

If Petunia brings a lawsuit based on negligence against CARDWARE and The Sporty One, will CARDWARE be responsible for Noah's behavior? If so, under what theory?

What defenses might CARDWARE assert? If Hetty Whitestone's estate claims that CARDWARE should be responsible for Hetty's death, will it? What defenses might CARDWARE utilize?

The legal concept of "respondeat superior" holds that under some circumstances an employer can be held responsible for the conduct of its employees...

For example, if a Domino's pizza delivery driver is instructed to get to the customer's home within 30 minutes or less and gets into an accident as a result of his reckless driving, the company may be held liable ("Employer liability for an employee's bad acts," 2015). However, in this instance, Noah did not appear to be acting according to any orders he had been given by the company and was merely venting his personal frustrations. There is also no evidence of negligent hiring or retention -- i.e., nothing in Noah's background indicated he was unstable ("Employer liability for an employee's bad acts," 2015).
Hetty's estate might claim negligence given Hetty's unfortunate accident when Petunia crashed into her due to Noah's pursuit. Such a charge seems unlikely to hold weight. Negligence rests upon the notion that there is the "existence of a legal duty to exercise reasonable care; a failure to exercise reasonable care; cause in fact of physical harm by the negligent conduct; physical harm in the form of actual damages; and proximate cause, a showing that the harm is within the scope of liability" ("Negligence," 2015). The store exercised reasonable care in terms of its design (i.e., there were no puddles to slip on and fall) and the cause of Hetty's death was due to Noah's actions, not to any failure to exercise reasonable care (unless it could be shown that the clothing racks were somehow precariously arranged). Unless there is evidence that Noah was a likely liability as an employee, Hetty's estate has no case.