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Abercrombie and Fitch fined for discrimination against girl with autism

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Abercrombie and Fitch has been fined $115,264 for discrimination, four years after employees at the Mall of America store refused to allow a family member to accompany an autistic girl into a fitting room.

Judge Kathleen Sheehy, an administrative law judge, found that the retailer had discriminated against the 14-year-old girl, in violation of state statutes. Sheehy ordered the fine this month, after the retailer repeatedly refused to respond to the daughter's mother's request for an apology and denied engaging in discriminatory practices. 

The retailer has appealed, charging that the fine is excessive. 

The judge found that the girl, whose name has not been identified, suffered mental anguish as a result of the incident.

A psychologist who interviewed the autistic girl said she reported feeling "bad," "scared," and "nervous." The girl told the psychologist, "It's all my fault. I hate autism." She added, "I am a misfit at Abercrombie."

A spokesperson for Abercrombie and Fitch declined to comment, citing pending litigation. 

The girl had been shopping for school clothes with her 17-year-old sister at the Bloomington store in August 2005. Her sister requested to accompany her into the fitting room, and told an associate that her sister has a disability and can not be left alone. 

The associate then told the sister that corporate policy mandated that only one person be allowed in the fitting room at a time. He refused to let the sister accompany the autistic girl, even when the sister provided information about the girl's disability.  

The sister then called her mother, who had been shopping at a nearby store in the mall. The mother, Elizabeth Maxson, arrived and questioned the associate about the policy. She explained that her 17-year-old daughter was a caregiver and asked that she be allowed to accompany the autistic girl into the fitting room.  

Maxson asked to see a copy of the store's policy, but employees said they could not locate it. She then asked for the customer service phone number, and left the store to call the company. 

The mother said a customer service employee told her, "So, you think our fitting room policy is ridiculous," according to court documents. Maxson asked to file a complaint about the incident, but the employee offered no further assistance. 

She then returned to the store and asked to speak with a manager. An assistant manager said he could not deviate from the policy. He offered to let the Maxsons buy as many clothes as they wanted, try them on at home, and then return the items that did not fit. 

Maxson sent two letters to the retailer, but received no response. She called customer service again to ask for the record of her telephone complaint. A customer service representative declined to provide records, and stated they were for company use only.

She then reported the incident to the Minnesota Department of Human Rights, which began an investigation. 

The company's associate handbook states that only one person is allowed in a fitting room at a time, but adds, "Some exceptions to this rule include parents with their kids and a disabled person's assistant." The company designed the policy to reduce theft.

However, the employees interviewed by the department said that since the girl did not have a visible disability, they could not confirm that she needed reasonable accommodations. 

The associate manager later changed his testimony, and said that the sister never told him that the girl had a disability. The judge found that the employee's original testimony was more accurate. 

Rita Shreffler, the executive director of the National Autism Association, said discrimination against people with autism is common, although she has not heard of other incidents involving fitting rooms. 

"The attitude is kind of pervasive out there that because you can't see the disability, an assumption is made that something else is off," Shreffler said. 

"This breaks my heart," Shreffler said, adding that she thinks the fines should have been higher. 

Sheehy ordered the company to pay the girl $25,000 for mental anguish, and cover $41,069 in attorney fees. The company also had to pay a $25,000 fine, as well as other expenses totaling $24,194. 

The Office of Administrative Hearings filed a document arguing that Abercrombie and Fitch bore responsibility for the steep fines. 

The company "adopted a litigation strategy of 'admit nothing,' refusing to admit the existence of [the girl's] disability until the outset of the hearing, and denying even the possibility that she had suffered from the experience at Respondent's store. These decisions escalated the cost of this proceeding for all parties," Office of Administrative Hearings officials wrote. 

The company has been ordered to post signs near the fitting rooms in all Minnesota stores stating the fitting room policy, and explaining that disabled customers can request an exception. 

The company must also provide additional disability training to employees, and review and revise its policies related to customers with disabilities.