CARDWARE Case Study: BFOQs, Negligence, and Business Law

BFOQ Analysis: Was CARDWARE's Job Advertisement Lawful?

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 being discriminated against could perform the job, he or she may do so under an exception known as Bona Fide Occupational Qualifications (BFOQ) ("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 Noah's greater experience as a college athlete would not constitute a valid BFOQ.

CARDWARE would likely argue that Noah looked more like an athlete and that this was consistent with the product's image, much the way Abercrombie & Fitch maintained 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 that weight and a lack of apparent athleticism are not 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 entirely clear that Petunia would be 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 that the employee should nonetheless project a youthful demeanor and appear athletic. Furthermore, the company would likely argue that it is attempting to attract male customers. Noah is male and Petunia is female; to encourage identification with the current target customer, Noah might seem the more desirable choice. However, from Petunia's point of view, gender remains 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-Based Discrimination and Petunia's Claims

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 that changing fundamental characteristics such as weight and athleticism is not — unless it is specifically required for the position, such as a job that demands intense physical effort like a police officer or lifeguard. What is to stop other employers across 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 conventionally attractive? Moreover, 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 means of permitting ageism and sexism in the employee selection process.

Employer Liability: Respondeat Superior and Noah's Conduct

The legal concept of respondeat superior holds that, under some circumstances, an employer can be held responsible for the conduct of its employees, but only if "the employee is acting within the course and scope of employment" ("Employer liability for an employee's bad acts," 2015). For example, if a pizza delivery driver is instructed to reach the customer's home within thirty minutes and causes an accident as a result of 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 given by the company; he was merely venting his personal frustrations. There is also no evidence of negligent hiring or retention — that is, nothing in Noah's background indicated that he was unstable or prone to erratic behavior ("Employer liability for an employee's bad acts," 2015).

References

Bona Fide Occupational Job Qualifications. (2015). FindLaw. Retrieved from http://smallbusiness.findlaw.com/employment-law-and-human-resources/bona-fide-occupational-qualification.html

Business entity types. (2015). The Company Corporation. Retrieved from https://www.incorporate.com/business_structures.html

Employer liability for an employee's bad acts. (2015). Nolo. Retrieved from http://www.nolo.com/legal-encyclopedia/employer-liability-employees-bad-acts-29638.html

Kaplan, S. (2015). The rise and fall of Abercrombie & Fitch. The Washington Post. Retrieved from https://www.washingtonpost.com/news/morning-mix/wp/2015/06/02/the-rise-and-fall-of-abercrombies-look-policy/

Moseley v. V Secret Catalogue, Inc. (2002). Retrieved from https://www.oyez.org/cases/2002/01-1015

Mote, S. (2014). Trademark considerations in choosing a business name. KC Sourcelink. Retrieved from

Negligence. (2015). LII. Retrieved from https://www.law.cornell.edu/wex/negligence

Perkins, E. (2014). Regulating appearance in the workplace: An employer's guide to avoid employment discrimination lawsuits. The National Law Review. Retrieved from http://www.natlawreview.com/article/regulating-appearance-workplace-employer-s-guide-to-avoid-employment-discrimination