Appearance-Based Discrimination

Appearance-based discrimination

Updated January 21 2008 - A survey in 2007 by career publisher Vault.com of 468 employees in a range of industries across the US found that 85 per cent of respondents believe that tattoos and body piercings reduce the chance of getting employment.

One respondent commented:

"Regardless of who the real person may be, stereotypes associated with piercings and tattoos can and do affect others. In general, individuals with tattoos and body piercings are often viewed as 'rougher' or 'less educated.'"

Nearly half (42 per cent) admitted to having either a tattoo and/or body piercing (in addition to ears) of whom 40 per cent had one or more tattoos and 20 per cent had one or more piercings. The most popular place for a tattoo was the arm (25 per cent). Over half of employees with tattoos and/or body piercings chose to cover them up when at work but only 16 per cent of employers had an official company policy in this respect.

March 25 2005 - The US is divided over the regulation of appearance at work - including weight, hairstyles, clothing and body piercing - according to a national survey by the Employment Law Alliance (ELA).

ELA's "America At Work" poll asked 1,000 Americans about their views on appearance-based discrimination. Employer-employee disputes are increasing, frequently spilling over into the courts and government enforcement agencies. Recent cases have included:

- an Atlantic City casino sued over a requirement that cocktail waitresses undergo weekly weigh-ins;
- a challenge based on religious beliefs to a national superstore chain’s prohibition on "visible facial or tongue jewelry (earrings excepted)";
- a $40 million settlement involving a national clothing retailer accused of appearance-based personnel practices.

According to Stephen J. Hirschfeld, CEO of ELA and a partner in the San Francisco-based law firm of Curiale, Dellaverson, Hirschfeld, and Kraemer, said claims involving alleged appearance or personal-style discrimination are surging.

"On the surface this may look like another symptom of a litigious society, but it goes much deeper than that as employers and employees struggle over the authority of management to ensure customer satisfaction versus an employee’s right to, for instance, sport a nose ring and a tongue stud while taking orders at the local fast-food restaurant," said Hirschfeld, head of the world’s largest practice network of labor and employment attorneys.

Major findings of the poll were:

· 39% said employers should have the right to deny employment to someone based on appearance, including weight, clothing, piercing, body art, or hair style.

· 33% said that in their own workplace workers who are physically attractive are more likely to be hired and promoted.

· 33% said workers who are unattractive, overweight, or generally look or dress unconventionally, should be given special government legal protection such as that given persons with disabilities.

· Of the 39% who said employers should have the right to deny employment based on looks, men outnumbered women 46% to 32 %. And whites outnumbered non-whites 41% to 24%.

The workers were also asked if they had any relevant personal experience.

· 16% said that they had been the victim of appearance-based discrimination.

· 38% of those said the discrimination was based on their overall appearance; 31% said it was their weight; and 14% said it was a reaction to their hairstyle.

· A third (33%) of those saying they had been discriminated against said it was for some other reason.

The survey found that supervisors are much more likely than non-supervisors to support a policy permitting companies to regulate personal appearance, said Hirschfeld. 47% of the supervisors surveyed considered that employers should have the right to deny employment based on looks. 35% of non-supervisors supported that position.

"The most surprising finding in the poll might be that roughly half the nation’s employers have absolutely no policy or regulation that addresses this extraordinarily complex yet important issue in the American workplace," explained Hirschfeld. "While most of the employee claims in the past have involved direct-customer contact businesses like retailing, restaurants, and transportation, we’re now seeing image or appearance-based claims in virtually every area. While the law is changing, employers have to focus on the requirements of the position when making personnel decisions if they are going to be able to successfully defend themselves against a discrimination claim."

The study has a confidence interval of plus or minus 3.1%. It was conducted over a recent weekend by the Media, Pa. market research firm of Reed, Haldy, McIntosh & Associates of a representative national sample of the adult population.

The Employment Law Alliance is the worlds’ largest integrated, global practice network and is comprised of premier, independent law firms distinguished for their practice in employment and labor law. There are member firms in every jurisdiction in the United States and major commercial centers throughout the world.

· |

Dress and Appearance discrimination in Employment FAQs

· Can an employer insist that a female staff member not wear traditional Muslim dress or a sari?

· Can an employer refuse to employ someone with a facial disfigurement or birthmark?

· Can employers force employees to shave or trim beards/moustaches?

· Can employers force workers to remove earrings, nose and tongue studs, rings and other jewelry?

· Can employers refuse to employ someone with tattoos?

· Can employers set height/weight requirements for certain jobs?

· Can employers tell an employee to get a haircut?

· Can female employees be forced to wear skirts or dresses?

· Should employers insist on 'standard business attire'?

Can an employer insist that a female staff member not wear traditional Muslim dress or a sari?

Insisting that female staff do not wear traditional Muslim dress or a sari is likely to be considered discrimination on the basis of race or religious belief or activity. However an employer can restrict staff from wearing flowing dresses if they posed a health and safety risk, for instance when operating machinery.

Can an employer refuse to employ someone with a facial disfigurement or birthmark?

Discrimination on the basis of a person’s physical features is against the law, but employers could refuse a job to a person with facial disfigurements or birthmarks when the work involves a dramatic or artistic performance or photographic or modeling work.

Can employers force employees to shave or trim beards/moustaches?

A blanket rule on clean-shaven faces may indirectly discriminate against people forbidden from shaving for religious or cultural reasons. There may also be people who have difficulty shaving because of acne or other skin conditions.

Can employers force workers to remove earrings, nose and tongue studs, rings and other jewelry?

Rules on jewelry should apply equally to both sexes. Restrictions can be imposed for health and safety reasons, such as a ban on long earrings that could be caught in machinery or pulled out by patients. Tongue studs can be banned if the job requires clear speech. But earrings and nose studs are sometimes worn for cultural and religious reasons so a blanket ban on piercing may lead to a complaint of discrimination.

Can employers refuse to employ someone with tattoos?

Some people may have tattoos because of their cultural or religious beliefs, such as Maoris. Tattoos are physical features which are visible and distinctive characteristics of the body so refusing to employ someone because of a tattoo may be discriminatory.

Can employers set height/weight requirements for certain jobs?

It is against the law to discriminate against employees on the basis of height or weight, unless such physical features are needed for a job, such as dramatic performance, modeling or photographic work. Height and weight restrictions may also be enforced to protect the health, safety and property of any person.

Can employers tell an employee to get a haircut?

Insisting on a particular hairstyle or color may discriminate on the basis of physical features, religious beliefs or race. Workers and job applicants can be told to tie their hair back or cover it up for health and safety reasons if involved in food preparation or operating machinery. However the same rules should apply to men and women to avoid sex discrimination.

Can female employees be forced to wear skirts or dresses?

Asking women to wear skirts and dresses? or asking men to wear collars and ties - may discriminate on the basis of sex. It may also discriminate against women with religious beliefs requiring them to wear trousers. It is better to ask employees to adhere to a general dress code such as ?standard business attire?

Should employers insist on 'standard business attire'?

This is a reasonable request, so long as the dress code is relevant to the business environment and both males and females are required to meet the same standard. But the rule may discriminate against people whose religious or cultural beliefs require them to wear other clothing.

[based on Australian law; what about U.S. law?]

/ Members: Log in | Not Registered? Register for free extra services.
South Florida Business Journal - August 29, 2005
http://southflorida.bizjournals.com/southflorida/stories/2005/08/29/editorial1.html

Friday, August 26, 2005

Appearance: Discrimination or legitimate qualification?

South Florida Business Journal - by Antoinette Theodossakos

It is no secret that an individual's appearance forms the basis for a first impression. It also affects perceived characteristics such as intelligence, education, wealth and competence. In fact, it's an almost automatic response to associate attractive individuals with better lifestyles, careers and education.

The workplace is no exception. Employers are more likely to hire physically attractive applicants and to exclude individuals who do not appear to "fit in." Workplace surveys found that Fortune 500 executives are taller than the average American, and that workers who are tall, slender and attractive earn more money.

For years, courts have allowed companies to impose dress and appearance standards on employees to depict certain images without violating federal discrimination laws. For instance, in the past courts have ruled that it is not discriminatory for an employer to require:

§ women to wear overalls, even when to do so conflicts with their religious beliefs

§ men, but not women, to keep short hair

§ women to wear their hair up

Currently, there are no federal laws explicitly prohibiting discrimination because of personal appearance. Instead, individuals with appearance-based claims must link their unprotected physical characteristic to a protected category such as race, color, sex, age, religion, national origin or disability if they are to have any chance of asserting a viable discrimination claim under Title VII.

For example, courts have held that:

§ employers were not allowed to discriminate against individuals who wore beards as part of their Islamic religious beliefs

§ height requirements in an employer's hiring process discriminated against Mexican-Americans

§ a policy limiting hair length adversely affected African-Americans, as their hair texture differs from other races

§ height and weight requirements had a disparate impact on women seeking jobs as prison guards

§ weight requirements for flight attendants constituted discriminatory treatment on the basis of sex, finding that the standards imposed a significantly greater burden on women

§ employers who use sex appeal as a hiring factor to promote a company image have engaged in discriminatory conduct

The Americans with Disabilities Act defines a "qualified individual with a disability" as one who can perform the essential job functions with or without reasonable accommodation. The ADA not only addresses those with an actual impairment, but also includes those individuals perceived to have a substantial limitation on a major life activity, even if they are not actually impaired.

The ADA can offer protection for individuals who are discriminated against based on characteristics such as height and weight. Some courts have already considered these characteristics under this "perceived disability" concept, and have determined discrimination has occurred.

Physical appearance is, no doubt, a very powerful influence in our society. Using appearance as a factor in the hiring process is inevitable. In most jurisdictions, less attractive individuals have no recourse against an employer when they are adversely affected due to an unprotected characteristic. However, employers who do make employment decisions and implement policies based upon employees' physical appearances should not link physical characteristics to protected categories such as race, age, religion, national origin or disability. Otherwise, they may find themselves defending a viable discrimination claim.

------

By SHERRY F. COLB
Wednesday, Mar. 21, 2007

Last week, DePauw University in Indiana cut off ties with Delta Zeta, a national sorority that had, in December, evicted twenty-three members of the DePauw chapter in what was widely viewed as a purge of the unattractive.

Delta Zeta denies that its decision rested on factors other than each woman's commitment to the sorority's recruitment efforts. But DePauw President Robert G. Bottom was apparently unconvinced and wrote a letter indicating that the sorority, beginning in the fall, would no longer be offered housing in the university's Greek-columned residence. Delta Zeta's values, he said, are incompatible with those of the university.

The case of Delta Zeta highlights a deeply-entrenched yet largely-ignored form of discrimination: negative treatment on the basis of looks.

Appearance Discrimination: Unimportant?

Some reports about the Delta Zeta purge indicate that members of minority groups were among those evicted from the sorority. For example, one New York Times article on the subject said that "[t]he action greatly diminished the chapter's diversity" - that is, the number of members belonging to racial or ethnic minorities.

The story of appearance discrimination is not, however, primarily a story about race or ethnicity. Reporters' felt need to mention race in describing the incident is revealing: It suggests a belief that if women were evicted from a sorority just because they were not pretty enough, then the eviction might not be so offensive.

Appearance-Based Discrimination