Abercrombie loses appeal in discrimination case

Abercrombie & Fitch
Abercrombie & Fitch's appeal was dismissed on procedural grounds, as the court found that the retailer's attorneys had submitted paperwork incorrectly.
AP Photo/Paul Sakuma

A psychologist hired by Abercrombie and Fitch described the store's refusal to allow a teenage girl with autism to bring a family member into a fitting room as "a desirable outcome of active community involvement," in a court hearing this year.

The psychologist, whose name has not been released, issued his report during a disability discrimination case against Abercrombie and Fitch.

Molly Maxson, who was 14 at the time, had been shopping for school clothes with her then-17-year-old sister at Abercrombie and Fitch's Bloomington store in August 2005. Her sister asked to accompany Molly into the fitting room, telling a store associate that her sister has a disability and cannot be left alone.

The associate 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 Molly, even when she provided information about the girl's disability.

Abercrombie and Fitch lost its appeal in the disability discrimination case on Wednesday, several months after the retailer was fined $115,264.

The psychologist hired by the retailer argued that the incident helped the girl learn to negotiate social situations.

His report said, in part:

"This dispute and the activity surrounding it are also typical of everyday disputes that consumers will occasionally have with businesses, and as such are also part of the natural learning that benefits girls such as Molly.

"As such, it is unrealistic to expect to shelter Molly from such disputes occurring in the future, and therefore this experience is best considered to be a desirable outcome of active community involvement.

"It offers the parents the opportunity to model social problem solving and coping skills to their daughter, as they have done so well throughout her life, and thus prepare her for such future natural community experiences."

Elizabeth Maxson, Molly's mother, said she was in "disbelief" when she heard the report read in court earlier this year.

"All I wanted them to say is, 'Oh, my gosh. [We] made a mistake.'"

"I literally couldn't believe what I was hearing," she said.

A family-appointed psychologist who interviewed Molly Maxson said the girl 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."

Molly refused to go to shopping malls for a year, her mother said. The family bought Molly a cell phone and a purse to try to increase her confidence, but the efforts did not work.

"I think she thought that she would be taken away from us, like she couldn't stay with us," Elizabeth Maxson said. "She was terrified."

When the family talked about going to a store, Elizabeth Maxson said her daughter would become upset.

"She would say, 'No, no, can't go. I want to be with you,'" said Elizabeth Maxson. "We'd get into the store and she'd hang on real tight, and she'd say, 'Mommy's got you. Mommy's got you.' It was just the most heart-wrenching thing we went through."

Elizabeth Maxson said Molly continues to struggle in the aftermath of the incident. After one occasion when her daughter ran up to her room, screaming, "They hate me," Maxson said, she decided to try a novel approach.

"I hate to say it, but we lied to her," Elizabeth Maxson said. "We lied to make it better."

Maxson said she went to an Abercrombie and Fitch store, bought a T-shirt, wrapped it up with a tag that said, "To Molly, from Abercrombie and Fitch," and gave it to her daughter.

"That's how we tried to pull her out of this," she said.

Abercrombie and Fitch did not immediately return calls for comment. The retailer has declined to comment in the past, citing pending litigation.

Judge Kathleen Sheehy ruled in July that the retailer had discriminated against Molly Maxson, in violation of state statutes.

Sheehy ordered Abercrombie and Fitch to pay the $115,264 fine after the retailer repeatedly refused to apologize, denied engaging in discriminatory practices, and brought in a psychologist who claimed that the girl benefitted from the incident.

In the appeal, the retailer's attorneys highlighted the mother's decision not to have Molly testify, and questioned whether substantial evidence exists to confirm that the girl suffered emotional distress.

The state's appellate court dismissed Abercrombie's appeal today on procedural grounds, after finding that the retailer's attorneys had submitted paperwork incorrectly.

At the time of the incident, Molly Maxson's sister called her mother, who had been shopping at a nearby store in the mall. She arrived and questioned the associate about the policy.

Elizabeth Maxson explained that her older daughter was a caregiver and asked that she be allowed to accompany Molly into the fitting room.

Elizabeth 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.

Maxson 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.

Maxson 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 company, 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.

"All I wanted them to say is, 'Oh, my gosh. They made a mistake. You absolutely can bring your daughter in and have someone help her in the fitting room because of her disability,'" Elizabeth Maxson said.

After receiving no response, she 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 Molly 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.

Judge Sheehy ordered the company to pay Molly Maxson $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 amount that went to Molly is relatively small, considering this has been going on for four years," said Ian Laurie, the family's attorney. "Molly to this day still talks about it and it's really affected her. For [the company] to challenge something that small, especially for a big corporation like this, I think was kind of ridiculous, in my opinion."

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.

Elizabeth Maxson said she hopes today's decision will end the legal battle and will allow her to focus on caring for Molly, who is a high school senior this year.

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