Most frustrating thing is that we could fix all this relatively easily. We have the capacity to build a selection system that could put trillions of dollars more into the economy, reduce unemployment, increase job satisfaction, and even improve immigration (i.e., select immigrants with aptitudes needed). It just needs to be implemented and yet few seem interested in the topic.

But yes, I agree that a particularly good or bad employee has a great deal more potential to affect operations in a small business versus a large one. That’s really what I mean by “luck.” If they get a very good employee, they won’t know how to engage that employee (retain them), but if they get a bad employee, they may derail the whole company. If they get a lot of middling employees, everything will probably be fine – but appropriate management and good selection would have made things so much better.

Of course, this is anecdotal and I will be the first to admit my exposure to small businesses is not as diverse as it could be. Does your experience lead you to a different conclusion?

In terms of a legal attack, you make a very good point. A few years back I ran across some research suggesting that humans were predisposed to find lighter skin tones more attractive. I forget what the effect size was, so I am not sure if it would be sufficient to result in adverse impact, but it was statistically significant. Basically, people rating physical attractiveness of a person’s image were more likely to rate them as attractive if they were Caucasian (they controlled for rater ethnicity). If findings hold outside the lab then American Apparel and anyone else using face-to-face interviews may find themselves in a sticky situation.

To be honest, I find it very difficult to dismiss their aspirational branding argument. If they change their selection practices, they risk changing their brand. Besides, this organization is not the only one selecting against the ugly, fat, or funny-looking; they just couldn’t keep it under wraps. I suspect the fickle tastes of American Youth will take care of this soon enough.

The avenue for legal attack on this company, if one were to desire such a thing, would be to try to show that their standards of attractiveness for hiring are unequal on the basis of a protected class. I think it would be very difficult to prove, for example, that you were using the same standard of attractiveness in hiring both men and women. If your bar was higher for one group, that’s adverse impact.

On the other hand, “the American way” is to let them do whatever they want and let the market sort them out. If consumers were all that outraged, they’d stop shopping there. If it helps their brand image more than it hurts, then they must be doing something right?