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.
Previous article
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:
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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.
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16% said that they had been the victim of appearance-based discrimination.
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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 directcustomer 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.
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Dress and Appearance discrimination in Employment FAQs
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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?
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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
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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?]
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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.
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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:
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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:
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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 MexicanAmericans
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
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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.
All contents of this site © American City Business Journals Inc. All rights reserved.
-----------------------------------------------------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.
In some respects, appearance-based discrimination - or what I will call "lookism" - might
at first glance seem much less invidious than other (legally regulated) forms of
discrimination For one thing, it is hidden and ordinarily goes unstated, perhaps because
those who practice it are ashamed. Delta Zeta, for instance, denied that it relied on
appearance in its membership decisions.
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In contrast, the long history of race and sex discrimination has been one of explicit and
legally-mandated forms of disadvantage associated with race (most notably slavery and
Jim Crow segregation) and sex (including the protection of men's legal dominion over
their wives that itself shared - and in some countries, continues to share - many attributes
of chattel slavery).
If people, at least publicly, deny that they are "lookists," then this at least seems to
suggest an understanding that appearance discrimination is wrong and even embarrassing
to its practitioners. That is a healthy sign, isn't it?
Not necessarily. Denial can exist side by side with devaluation of the group claiming an
injustice - the same kind of devaluation that characterizes the words of avowed
discriminators. For good or ill, human beings generally feel compelled to erect elaborate
moral justifications for their actions, even when those actions are objectively
indefensible. When race and sex discrimination were legal (and even legally required) in
this country, for example, its practitioners did not own up to indulging irrational
prejudices. Quite to the contrary, they devoted great energy to "demonstrating" white
supremacy through scientific endeavor (called "scientific racism" in modern study) and to
theorizing from first principles about the alleged innate physical and mental weakness of
women.
Rationalizations for Appearance Discrimination
In the case of lookism, people rarely acknowledge publicly that they have an irrational
aversion to unattractive or overweight people. They rely instead on a combination of
denial, generalization (of the sort that have animated racial and sexual supremacy
theories), and assertions about the supposed relevance of appearance to the workplace
and other venues.
Denial is part of the problem - as exemplified by Delta Zeta's claim that its purge was not
in any way motivated by the relative prettiness of its members. And as is true for the
disease of alcoholism, denial precludes recovery here, because to address a problem, it is
necessary first to acknowledge that there is a problem to be addressed.
Often alongside denial, and closely related to it, is the generalizing claim of justification.
An employer might say, for example, that if a person cannot avoid obesity or otherwise
take care of her appearance, then she is probably not going to be very responsible in
performing her job. To my knowledge, however, no evidence supports this conclusion: in
fact, studies have increasingly suggested that obesity results from genetic and hormonal
traits rather than sloth. And one hardly needs a study to prove that people are not
ultimately responsible for how pretty they are.
Finally, some argue that appearance is itself a bona fide occupational qualification,
because clients and customers prefer to look at a pretty face than at an ugly one. But this
move is question-begging.
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When people have not yet formed a bond of collegiality, friendship, or love with another
person, they do seem to prefer looking at attractive people if given a choice. The very
word "attractive" reflects this preference. Indeed, alarmingly, at least one study suggests
that parents treat their attractive children with greater love and care than they do their less
attractive ones. Though people speak of a face that "only a mother could love," such a
study calls even that foundational premise of unconditional love into doubt. The fact that
people enjoy being around pretty faces, however, does not make looks a "relevant" job
characteristic. It demonstrates instead people's willingness to allow their tastes to trump
other considerations. A word-processor's weight, for example, has no bearing on her
ability to do her job, yet it might nonetheless affect her job prospects.
These observations also hold true outside the employment context. If one's membership
in a community is supposed to be about forming alliances among women to support each
other's social and academic endeavors - the ostensible objective of sororities - then looks
should not matter to that endeavor.
The Prejudice that Gags its Victims: Why A Legal Ban Might Not Work
Existing laws prohibiting discrimination generally do not include unattractive appearance
among the prohibited bases. A legal reform providing for such inclusion, however, might
not be the answer.
Unlike in the case of race or sex discrimination, a person who is subjected to appearancebased prejudice might well find humiliating the very idea of coming forward to identify
herself as "ugly" or "overweight" as a predicate for making a claim. As in the case of rape
victims, the identity that one embraces in leveling such an accusation - that of a rape
victim or that of an "ugly" person - is itself stigmatized. Due to the stigma, rape victims
may not want anyone to know that they were raped, and "ugly" people may not want
anyone to know that they conceive of themselves (or were conceived of by others) in
such terms.
To give a concrete illustration, suppose a friend or protégé said, "I think I might have
been fired because I am ugly." In most people's view, the supportive response would be,
"No. You are not ugly, so that cannot be the reason."
By contrast, one would not be inclined to comfort a friend claiming to have been the
victim of anti-black racism by saying, "I don't think that is what happened, because in my
view, you are actually white." People embrace their identities as African-Americans and
as women, but that is far less true in the case of the unattractive.
What Should We Do About Appearance Discrimination?
Victims' likely reluctance to lodge formal complaints about appearance-based
discrimination makes a conventional legal ban unlikely to work. Fellow FindLaw
columnist and blogger Michael Dorf has proposed an interesting alternative legal
framework. He says that the remedy for looks-based discrimination might be publicity
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and shaming. That is, the law could prohibit covert appearance discrimination and require
that an accused defendant either own up to discriminating on the basis of looks or defend
the lawsuit on the merits. This is potentially promising. However, any path that includes
lawsuits would still require plaintiffs to identify themselves publicly as "ugly" or "obese."
As a variant on the Dorf proposal, I suggest something similar to the Brown "date rape"
list of 1990 that received so much critical attention at the time. At Brown University in
1990, a time when date rape was rarely prosecuted, victims of the crime turned to a selfhelp remedy: They began writing the names of their assailants on the wall of one (and
then several) women's restrooms on campus. As a result of such postings - which Brown
staff repeatedly washed away, only to have them reappear - other women knew to beware
of the listed men.
As an alternative to lawsuits, I propose a hi-tech analogue to the Brown restroom list: a
web-based information exchange at which people could use pseudonyms to register
complaints of appearance-based discrimination against workplaces and other
organizations.
There are, of course, dangers entailed in such a program, a version of which operates
currently in conjunction with some web-based dating services. Accusations in the
absence of investigation can be false with little cost to the accuser, who may simply
despise a particular person or entity and find an anonymous posting the easiest way to
destroy him or it. But numerous remarks about an entity from different persons might
tend to corroborate one another. Thus, if the postings mount, people could properly take
note and act on that basis. Falsely-accused entities, moreover, could make efforts to
respond to unwarranted accusations.
Each person typically occupies two types of roles in the marketplace - that of consumer
and that of "product." In the first of these roles, we ordinarily buy things and hire people.
In the second, we occupy a more passive space - that of wage laborer or salaried
employee whom someone else hires (or refuses to hire). It may be time for those
suffering from appearance-based discrimination to begin fighting back in their role as a
"job consumer" rather than as a scorned product, much as wage-earners do when they
form unions and make demands of their employers.
By publicizing their own experiences of appearance-based prejudice and initiating the
creation of a public record of complaints against practitioners of such misconduct,
victims of appearance-based discrimination can have an impact by persuading other "job
consumers" to look elsewhere. If people start avoiding places known to discriminate on
the basis of appearance, then such places may ultimately have the necessary economic
incentive to terminate their destructive practices.
The case of the Delta Zeta sorority is instructive. As noted above, it recently received
negative publicity in the New York Times, and the president of DePauw University
subsequently terminated its housing privileges. Note that the president's reaction occurred
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in March (after news reports surfaced), though the purge itself took place back in
December of 2006.
In sum, "sunshine" that exposes the ugliness of appearance-based discrimination may be
the most effective antiseptic available.
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