When is Appearance Discrimination OK?
There is no such thing as appearance discrimination under federal laws.
Employers are generally free to hire only the pretty people.
But if you do base all of your hiring and employment decisions on looks, you may be opening yourself up to a bevy of lawsuits.
So what gives? If you are allowed to discriminate based on looks, why can you still get sued?
The tricky thing about appearance discrimination is that it is so closely tied to illegal discrimination of other types; such as, sex discrimination, age discrimination, disability discrimination, and race discrimination.
So if you only impose weight and appearance requirements on your female employees, and not your similarly situated male employees, you could be sued for sex discrimination as opposed to appearance discrimination.
Similarly, if you pass over older applicants, disabled applicants, or brown-skinned applicants because they don't have the right "look," you could also be sued on these grounds.
But so long as you stay clear of these legal pitfalls (and these are very large pitfalls), you can generally discriminate on looks. This means you can require that your employee stay in shape, have manicured nails, and look pleasant. After all, aren't workplace dress codes really a form of appearance discrimination? Wear shorts to work every day and see how quickly you get fired.
The key is to treat all of your employees the same. If waitresses have to look nice, make sure the waiters do as well. And don't give additional restrictions to older workers or disabled workers so that they have a harder time meeting these requirements.
It is a tricky situation to have a business that partially depends upon your employees' looks. Think Hooters or a casino bar. If you must discriminate based on appearance, it is critical that you work with an experienced employment attorney.
This above discussion is in regard to federal law only. Many jurisdictions do have laws that outlaw appearance discrimination such as laws that protect overweight people. So it cannot be emphasized enough that you should work with an employment attorney when making any employment decisions based on looks.
- Our Beauty Bias is Unfair (The Daily Beast)
- 7 cocktail waitresses file gender discrimination lawsuit against Atlantic City casino (The Star-Ledger)
- Employers Brace for EEOC 'Red Zone' Lawsuits (FindLaw's Free Enterprise)
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