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Case of the Month: September 2009

Abercrombie & Fitch ordered to pay $115,264.42 after Administrative Law Judge finds its Mall of America store discriminated against 14-year-old customer with autism

Case 48190, closed 7-24-09

Charging Party

Elizabeth Maxson on behalf of minor daughter
Apple Valley, MN

Respondent

Abercrombie & Fitch
6301 Fitch Path
New Albany, OH 43054

UPDATE: Abercrombie & Fitch Appeal Dismissed

In an opinion signed by the Chief Judge Toussaint, the Minnesota Court of Appeals has dismissed an appeal by Abercrombie & Fitch of the damages awarded by an Administrative Law Judge. The Court of Appeals ruled that Abercrombie & Fitch failed to submit its appeal in the manner and within the time required by Minnesota law, and that the Court was therefore required to dismiss the appeal. "It is the responsibility of counsel, rather than the clerical staff of the office of the clerk of appellate courts, to ensure that a certiorari appeal is perfected in compliance with the applicable statute," Judge Toussaint wrote in the decision. Because the appeal has been dismissed, Abercrombie & Fitch will be required to pay the $115,264.42 ordered by the Administrative Law Judge, to post signs near the fitting rooms in its Minnesota stores, and to make other policy changes previously ordered.

Summary of Case

On August 23, 2005, a 14-year-old girl with autism went to the Mall of America Abercrombie & Fitch store with her 17-year-old sister, who was serving as the younger sibling’s personal care assistant. The older sister accompanied her younger sister to the fitting room, but was told by a store associate that only one person could be in a fitting room at a time, per store policy. The older sister explained that the 14-year-old had a disability, and required her assistance in the fitting room, as a reasonable accommodation. The store associate refused to allow the 17-year-old to accompany her sister.

The mother made numerous attempts to contact Abercrombie & Fitch regarding the incident and the need for an accommodation for her daughter, but never received any response. Finally, the mother filed a charge with the Minnesota Department of Human Rights (MDHR) on behalf of her daughter.  After attempts to remedy the issue through persuasion were not successful, MDHR sued Abercrombie & Fitch and brought the case before an Administrative Law Judge. At the end of a trial, the judge found that Abercrombie & Fitch had discriminated against the then 14-year-old daughter, in violation of the state Human Rights Act. The court found the violation to be serious, and ordered Abercrombie & Fitch to pay a total of $115,264.42, including $25,000 to [the 14-year-old daughter] for mental anguish and suffering, $25,000 as a civil penalty, $41,069 in attorneys’ fees,$20,441.98 to MDHR for its expenses, and $3,753.44 in other expenses.

Findings of Fact: The events that led to a $115,264.42 court order

(The facts in this case, as determined in a hearing before an Administrative Law Judge, are summarized below.)

On August 23, 2005, Elizabeth Maxson's 14-year-old daughter went shopping for back-to-school clothing at the Mall of America with her 17-year-old sister, Brittany Maxson, and her mother. Eventually the girls decided to go into the Abercrombie & Fitch store, while their mother finished shopping in a nearby department store.

When the 14-year-old attempted to enter the fitting room with her sister to try on some clothing, the Abercrombie & Fitch sales associate told the girls that only one person could enter the fitting room at a time. Brittany Maxson explained to the sales associate that her sister had a disability and they needed to stay together. The sales associate said he was sorry, but the store policy was aimed at preventing theft and only one person could use a fitting room at a time. Brittany Maxson then told him that her sister had autism and could not be left alone. He again said he was sorry, and asked them to step aside so that others could use the fitting room. The girls complied with his request. Then Brittany asked why she could bring shopping bags from other stores into the fitting room, but not her disabled sister; the sales associate politely repeated that the store policy was one person per fitting room. Brittany's sister became agitated, and began bouncing on the balls of her feet and talking to herself. She asked Brittany several times why they were not allowed to use the fitting room when it was their turn.

Brittany Maxson then used her cell phone to call her mother, and asked her to come meet them at the Abercrombie & Fitch store. When Elizabeth Maxson arrived, she found her daughters waiting near the fitting rooms. The younger daughter was upset and kept saying, "It's my turn, Mom. It's my turn." Elizabeth Maxson explained to the sales associate that Brittany was a caregiver for her younger daughter, who had a disability. The sales associate explained again that corporate policy was one person per fitting room and that he had to follow corporate policy. He advised her to call customer service if she wanted more information about the policy.

Elizabeth Maxson obtained the customer service telephone number and stopped outside the store to make the call. She explained that she wished to file a complaint because her disabled daughter was not allowed to use a fitting room with her sister. The customer service person characterized her complaint as, "So, you think our fitting room policy is ridiculous." Maxson believed this response was flippant and rude. The customer service employee offered no further assistance.

Elizabeth Maxson returned to the Abercrombie & Fitch store and asked to speak with a manager. When an assistant manager arrived, she asked for a copy of the fitting room policy. The assistant manager said he could not find a copy of the policy, but that they could not deviate from the one-person-per-fitting room policy. He apologized and offered to let the Maxsons buy as many items as they wanted, try them on at home, and then return the items that did not fit. He did not offer to let them use a fitting room. Elizabeth Maxson then left the store.

A few weeks later, having received no response to her telephone complaint, Elizabeth Maxson summarized the incident in writing and sent it to the Customer Service Department at Abercrombie & Fitch headquarters in New Albany, Ohio. She requested that the company respond to her complaint. She received no response to her letter.

In April 2006, Elizabeth Maxson telephoned customer service again to ask for records pertaining to her telephone complaint. She was told that the records were for company use only and would not be provided to her.

On May 12, 2006, Elizabeth Maxson sent another written complaint to the customer service department, by certified mail. She summarized the incident and her efforts to obtain a response from the company. She alleged that the company had failed to provide reasonable accommodation for those with special needs and failed to teach employees to make modifications to corporate policy for those with disabilities. She again requested a response, but received none.

On July 21, 2006, Elizabeth Maxson filed a charge of discrimination on behalf of her younger daughter with the Minnesota Department of Human Rights. The Department investigated the charge and found probable cause to believe Abercrombie & Fitch had violated the Minnesota Human Rights Act.

Findings of Fact: How the experience at Abercrombie & Fitch affected a 14-year-old girl with autism

Background: Autism is a developmental disorder characterized by impairments in social interaction and communication. Elizabeth Maxson's younger daughter was diagnosed with the disorder at age 2. Because of the many interventions implemented by her family and teachers, Maxson's younger daughter does well in school, but because of difficulties resulting from her disability, she has compromised social judgment. She will volunteer, in conversations with strangers, information that should be kept private or confidential. She requires the assistance of an aide at school. She does not stay home by herself, she does not shop by herself, and has never gone into a fitting room at a store by herself.

In the course of legal proceedings, the younger daughter was examined about the incident at the Mall of America store by a psychologist hired by Abercrombie & Fitch. The psychologist described her responses, in part, as follows:

[Elizabeth Maxson's younger daughter] states that during the incident she "felt bad," "felt scared" and "felt nervous." She states "… people were looking at me. Pointing to me. Whispering." "I don't ever go back to Abercrombie again." "I am a misfit at Abercrombie."

The Administrative Law Judge found that the younger daughter "was embarrassed and humiliated by the incident and suffered mental anguish as a consequence of it. She frequently refers to the incident when she is upset about the way other people treat her. She will no longer shop at Abercrombie & Fitch, although her mother has encouraged her to do so in order to put the incident behind her.

The Administrative Law Judge's Conclusion and Order

The judge found that Abercrombie & Fitch committed an unfair discriminatory practice on August 23, 2005, when it failed to make a reasonable accommodation to the known disability of [Elizabeth Maxson's daughter].

"The violation proved in this case was serious" and "the underlying failure to train sales associates and managers to understand the company's obligations suggests the public harm may have been broader than this single case," the judge noted.

The judge also found that Abercrombie & Fitch "continued to deny that [the 14-year-old daughter] was a disabled person until the first day of the hearing... The Respondent's prolonged refusal to accept a diagnosis that has been with [the 14-year-old daughter] since the age of 2, in conjunction with the Respondent's failure to follow its own written policies on the accommodation of disability, further illustrate the seriousness and extent of the violation and the need for a reasonable penalty."

Abercrombie & Fitch "failed to respond at all to Elizabeth Maxson's multiple attempts to obtain an acknowledgment of the violation," the court noted. "And although the Administrative Law Judge does not believe the Respondent intended to keep a disabled person from trying on clothing, it is clear that the Respondent's employees did not believe that [the 14-year-old daughter] was disabled because her disability could not be visually confirmed."

The Administrative Law Judge ordered Abercrombie & Fitch to pay:

  • $25,000 as a civil penalty;
  • $25,000 to [Elizabeth Maxson's 14-year-old daughter] for mental anguish and suffering;
  • $41,069 in attorneys’ fees;
  • $20,441.98 to the Minnesota Department of Human Rights for its expenses in the case;
  • $3,753.44 in other expenses

In addition, Abercrombie & Fitch has been ordered to cease and desist from engaging in unfair discriminatory practices based on disability, and to:

  1. Review and revise its policy on providing reasonable accommodations to disabled persons, submit its policy to the Commissioner of Human Rights for review, and upon approval by the Commissioner, submit its policy to all current and future Minnesota employees;
  2. Provide at least one hour of training to all current Minnesota employees who interact with the public on how to implement the fitting room policy when customers with disabilities request reasonable accommodations;
  3. Post signs near the fitting room in all Minnesota stores stating the Respondent's policy is to allow only one person in a fitting room at a time, and that individuals with a disability should speak to a sales associate to request an exception to the policy.

Abercrombie & Fitch asked the judge to reconsider the amount awarded in attorneys' fees, arguing that it was excessive. In denying the request for reconsideration, the Administrative Law Judge noted that it was Abercrombie & Fitch's conduct that "transformed this case from a relatively simple matter into the expensive proceeding it has become. The Respondent repeatedly declined to respond to Elizabeth Maxson's request for an accommodation of her daughter.

"Only after making multiple unsuccessful attempts to obtain a response did Mrs. Maxson file a charge of discrimination with the Department. And after the Commissioner of Human Rights found probable cause to believe a violation had occurred, the Respondent adopted a litigation strategy of 'admit nothing,' refusing to admit the existence of [the 14-year-old daughter's] disability until the outset of the hearing and denying even the possibility that she had suffered from the experience at Respondent's store.

"The Respondent (Abercrombie & Fitch) should not be heard to complain so vehemently about the expense caused by its own strategy," the judge stated.

After the Administrative Law Judge denied Abercrombie & Fitch's appeal of the amount awarded in attorneys' fees, Abercrombie & Fitch appealed those fees and damages to the Minnesota Court of Appeals. That appeal is pending.

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