The lawsuit Gonzalez, et al. v. Abercrombie & Fitch Stores, Inc., et al. (No. C03-2817), filed in June 2003, alleged that the nationwide retailer Abercrombie & Fitch "violated Title VII of the Civil Rights Act of 1964 by maintaining recruiting and hiring practices that excluded minorities and women and adopting a restrictive marketing image, and other policies, which limited minority and female employment."[1][2] The female and Latino, African-American, and Asian American plaintiffs charged that they were either not hired despite strong qualifications or if hired "they were steered not to sales positions out front, but to low-visibility, back-of-the-store jobs, stocking and cleaning up."[3] The case generated national press coverage, including a profile on the television program 60 Minutes.[2]
In April 2005, the U.S. District Court approved a settlement, valued at approximately $50 million, which requires the retail clothing giant Abercrombie & Fitch to provide monetary benefits to the class of Latino, African American, Asian American and female applicants and employees who charged the company with discrimination.[3][4]
The settlement, rendered as a Consent Decree, also requires the company to institute a range of policies and programs to promote diversity among its workforce and to prevent discrimination based on race or gender.[1][4] Implementation of the Consent Decree continues into 2011. Abercrombie did not admit liability.[3]
"The young men and women who applied to work at Abercrombie should have been judged on their qualifications, and not their skin color or gender. The class action settlement compensates class members for being subjected to the challenged practices and ensures that Abercrombie will improve its employment practices and diversity efforts nationwide," commented Kelly M. Dermody of Lieff Cabraser Heimann & Bernstein, which represented the plaintiffs along with the Mexican American Legal Defense and Education Fund, the Asian Pacific American Legal Center and the NAACP Legal Defense and Educational Fund, Inc.[5]
In 2008, Dermody and other attorneys who represented plaintiffs in the Gonzalez v. Abercrombie & Fitch class action lawsuit received the Community Justice Award from Centro Legal De La Raza for their work.[6]
In April 2008, despite such praise from "Centro Legal De La Raza Honors Lieff Cabraser Attorneys", a controversy arouse concerning the terms agreed under the consent decree. Specifically, Abercrombie's media and advertising campaign in principle was to include and reflect a diverse population. However, attorneys at Lieff Cabraser failed to delineate the specific circumstances under which circumstances or what specific benchmarks were to be achieved to reflect diversity in Abercrombie's media and advertising campaigns.
Consequently, in choosing to leave this area broad as not to encroach on Abercrombie's "artistic control," raises question as to the consent decree's viability and serious doubt to its enforceability. Realizing their peril, Plaintiffs attorneys unsuccessfully made submissions to the U.S. District Court Judge Susan Illston who supervises the case throughout after the Plaintiffs attempts to have the mediator & Special Master, Hunter Hughes of Atlanta Georgia, resolve the matter.
Mr. Hughes refused; he clearly indicated Plaintiffs attorneys were fully aware and cognizant the language utilized and declined his involvement or mediation pointing out it was not his place to initiate a dispute resolution or be the one in-charged for handling alleged violations to the consent decree. In response to this set back, Plaintiffs attorneys then requested Mr, Hughs to recuse himself and filed moving papers in Court without his knowledge, claiming plaintiffs agreed to limit when they could independently assert a violation of the marketing diversity requirement and limit the remedies they could obtain based upon such a violation, nothing in the Consent Decree limits the Court's authority to enforce the Decree's marketing diversity requirement.
Lieff Cabraser pointed out the Court possesses such authority both by virtue of specific language in the consent decree, which provides that the Court shall retain jurisdiction for the purpose of issuing orders "that may be necessary to implement the relief provided," and also due to the special nature of the Consent Decree, which is akin to a Court order since it was approved by the Court.
The Court Disagreed:
[T]he Court is not persuaded by plaintiffs' arguments. As the Special Master found, the parties carefully negotiated the language of the Consent Decree to (1) impose a marketing diversity requirement on Abercrombie (Section X.C.1); (2) delineate the two circumstances under which plaintiffs could initiate the dispute resolution process in the event of an alleged breach of that requirement (Sections X.C.1.a and b); (3) authorize the Monitor to review compliance with the objectives of the Decree (Section X.C.2); and (4) state that no one has the authority to alter or seek to alter Abercrombie's marketing materials (Section X.C.2). The Court notes that the Consent Decree does not contain any specific benchmarks concerning marketing materials, such as the use of census data which plaintiffs ask this Court to approve. Similarly, while the Consent Decree empowers the Monitor to evaluate Abercrombie's marketing, it does not authorize the Monitor to initiate the dispute resolution process or otherwise seek relief for alleged violations of the marketing diversity requirement. Although the Court agrees with plaintiffs that the Court possesses the inherent authority to enforce the terms of the Consent Decree, allowing plaintiffs to initiate the dispute resolution process in the face of these provisions would, as the Special Master found, "vitiate the bargain the parties struck." Accordingly, the Court DENIES plaintiffs' motion and AFFIRMS the Special Master's decision. WL2008 WL 3540205 (N.D.Cal.) - Not Reported in F.Supp.2d, 2008 WL 3540205 (N.D.Cal.)
|
|||||||||||||||||