By Raquel Harrah
Sued by former employees, The Wet Seal Inc.’s legal issues reinforces discrimination and disparities in retail.
The teen “fast fashions” retailer, Wet Seal, joined a slew of retailers tied to racial discrimination cases after a class action suit seeking compensatory damages was filed in an Orange County federal court in July.
According to the plaintiffs, policies of discrimination that included repeated requests to “lighten up” and “diversify” the workforce by firing African American workers led the three plaintiffs to file a complaint that Wet Seal Inc. discriminated against African Americans in the hiring, pay, termination, and promotion into store management positions at Wet Seal and Arden B. stores nationwide.
In Cogdell et al. v. The Wet Seal, Inc., the three plaintiffs, Nicole Cogdell, Kai Hawkins, and Myriam Saint-Hilaire, represent over 250 class members citing racially discriminatory practices and policies against African Americans at the Wet Seal stores under the highest corporate officials, including the company CEO, senior vice president, and vice president of Store Operations for the sake of “brand image.”
In an email sent from former Senior Vice President Barbara Bachman to other corporate officials and employees including the plaintiffs, Bachman wrote under the subject heading “Global Issues,” “Store Teams– need diversity/ African-Americans dominate– huge issue.” The lawsuit also alleges that Bachman stated to Philadelphia District Manager that former Regional District Manager M. Davey, who filed an EEOC complaint, “must be out of her mind” to hire an African American store manager and that she wanted someone with “blond hair and blue eyes.”
The company vehemently denied these allegations in a statement in July. “Wet Seal is an equal opportunity employer with a very diverse workforce and customer base. We deny any and all allegations of race discrimination and will vigorously defend this matter,” a representative said.
Wet Seal is known to have a diverse workforce with a majority of African American, Asian American, and Latina workers in the stores targeted by Bachman. Subsequently, this litigation surfaces several questions concerning diversity. Could there ever be a presence of too much racial diversity and could Bachman’s request be protectedby equal employment to include white workers?
“Let me make clear that our laws protect everybody—whites are protected from race discrimination, men are protected from sexual harassment, Americans are protected from national origin discrimination, etc.,” said Justine Lisser, senior attorney-advisor for the Office of Communications & Legislative Affairs under the Equal Employment Opportunity Commission (EEOC).
“In response to the controversial term ‘reverse discrimination,’” Lisser said, “there is no such thing legally as ‘reverse discrimination,’ it is plain discrimination.”
Although discrimination is unlawful in all work environments and industries, the retail fashion industry in particular continues to face issues with diversity. When image is for sale, a certain “look” is associated with profitability.
In 2003, the retail fashion chain Abercrombie & Fitch encountered a federal lawsuit in Gonzalez v. Abercrombie & Fitch Co. when minority workers claimed the clothing company discriminated against blacks, Hispanics, and Asians who didn’t fit the blond, blue-eyed, white American prototype. The plaintiffs contended that the company favored white employees in hiring practices, and delegated minority workers to supply rooms or stocking where they would be out of sight from customers.
The lawsuit was settled through a consent decree requiring the company to pay $50 million to the class action. The company also agreed to set up an office of diversity to aid in education and recruitment of more minorities.
EEOC’s Policies on Racial Discrimination
No matter a company or client’s preference for a certain look, discriminating based on appearances and race is un-lawful, said Lisser. All-American does not equal all-white, and an employer’s request for tall, blond, fair-skinned employees denies other Americans fair and equal opportunities.
“An employer may request that employees have certain skills relevant to the position in question, but the preference for having a certain ‘American’ prototype or ‘look’ is not a viable job requirement when it serves to deny people employment opportunities on the basis of race, sex, national origin, color, religion, age, disability, or family medical history,” Lisser said.
In very few cases, such as a home health aide who will be providing intimate customer care, a request for a certain sex may be allowable. The EEOC refers to this as a bona fide occupational qualification (BFOQ) and are only taken into account for narrowly drawn situations that supersede a customer’s preference.
“Customer preference is never a defense to race discrimination. There is no BFOQ merely because customers might feel more comfortable with one sex over another,” Lisser asserts.
In cases when a retail employer only hires or fires an individual based on the color of their skin for the presumed preference of the customer, that employer is committing unlawful actions.
Harassment, such as racial slurs or derogatory remarks, is also outlawed in work situations. Teasing or ribald joking can be offensive and contribute to a hostile work environment. In Cogdell v. The Wet Seal Inc. the plaintiffs included harassment in their complaint alleging that Director of Human Resources Patricia Sprowell made racially derogatory comments about female African American employees to a newly hired regional manager, saying that these employees will get pregnant “if they touch the counter.”
Discrimination isn’t a new phenomenon, and its numerous forms stem from several elements. Racial discrimination can originate from personally held stereotypes to policies and practices embedded in institutions or organizations.
Cultural racism is recycled through society, associating a certain person’s customs or race as superior to another, said Dr. Tawanda Greer, associate professor of psychology at the University of South Carolina and published author of discrimination studies. Cultural racism can feed into institutional racism, especially within the retail industry. Messages from television shows, magazine articles, and advertisements can reinforce superiority of one culture, particularly a white Western ethnicity, which can influence internalized messages and lead to discriminatory policies within an institution.
“It really comes down to socialization. Race, in and of itself, from a biological standpoint doesn’t mean anything,” said Greer. “But [because] race is more of a social construct, we’ve attached meanings to race.”
According to Greer, even young children are bombarded with messages about race, creating a basic understanding and construction at an early age. By the time today’s population are adults, racism and discrimination seem almost automatic and natural.
Greer has served as a psychology professor for ten years, and within that time, has focused her studies on discrimination. In 2009, she published the study, “Gender as a Moderator of the Relation Between Race-Related Stress and Mental Health Symptoms for African Americans.” In 2011, she further expanded her results to research coping strategies for the psychological impacts of discrimination on African American women in The Journal of Black Psychology.
Her studies concluded that African American women face harsher psychological symptoms than men from discrimination, including chronic stress. The anxiety and stress that African American women face can be so pervasive and overwhelming that over time, if not dealt with, can result in health problems, said Greer.
“Nobody can change their race, and often you can’t cope with it. It’s almost as though the person feels trapped in his or her own body. There is not much to be done other than understand it; it is a constant struggle,” Greer said.
While the journey may be long and tedious, eliminating discrimination in the workplace is possible. According to Greer, it requires a multicultural understanding that must be a personal choice. One must expose themselves to different cultures and challenge themselves to rescind their former stereotypes. Investing the time and effort into learning about other people, whether it is their language, neighborhood, or customs, is key.
“A number of companies are taking steps to increase diversity. You can increase diversity all you want but having a multicultural understanding is a very different process,” Greer said. “The actual working relationships and multicultural appreciation is a very different process than saying we have a diverse workforce. It’s beyond numbers.”