WORKPLACE LAW -
Hiring Based on Appearance
Question:
For various reasons it is advantageous to our business to have good-looking employees. I am wondering if it is legal to hire or refuse to hire applicants based on attractiveness and physical appearance, or if doing so violates the law?
Answer:
Under both California and federal law, it is legal to consider physical appearance when making employment decisions. However, there are certain local ordinances that outlaw discrimination in employment based on physical features such as height and weight.
The California Fair Employment and Housing Act prohibits employment discrimination and harassment on the basis of race, color, national origin, ancestry, citizenship, sex, sexual orientation, gender identity, physical and mental disability, age, religion, and pregnancy. Notably absent from this list is discrimination on the basis of physical appearance. As a result, in the case of Cassista v. Community Foods, Inc., the Supreme Court of California ruled against a woman who sued an employer for refusing to hire her because she was overweight.
Title VII of the Civil Rights Act of 1964 also prohibits employers from discriminating against applicants and employees for numerous reasons but does not prohibit discrimination based on physical appearance. One reason suggested for the lack of legal protection is the inherent subjectivity of what is means to be attractive. However, certain local ordinances have banned such discrimination.
Santa Cruz has an ordinance that defines unlawful discrimination as including differential treatment based on one’s height, weight, or physical characteristics. And in June of 2000, San Francisco passed a law specifically outlawing discrimination against people based on their weight. Additionally, the District of Columbia has amended its Human Rights Law to include a prohibition against discrimination based on personal appearance. Therefore, employers operating in the above mentioned localities must not make employment decisions based on the attractiveness or physical appearance of an applicant or employee. For employers not operating in those localities, there are some important requirements to consider before making employment decisions based on appearance.
Although it is legal under California and federal law to consider physical appearance when making employment decisions, it is illegal to discriminate on many related grounds. For example, it is illegal to discriminate on the basis of a physical disability. Furthermore, California courts have concluded that obesity can be considered a physical disability under the California Fair Employment and Housing Act if an individual is disabled because of his or her weight. Likewise, federal courts have held that morbid obesity is a protected disability under the Americans with Disabilities Act.
Another potential claim that a disgruntled applicant or employee may bring against an employer who discriminates on the basis of physical appearance is a sex discrimination claim. Under both California law and federal law, it is illegal to make employment decisions based on an individual’s sex. Consequently, employers should not advertise that they have an opening for “an attractive waitress” or for “a muscular man” who can lift heavy boxes. Instead, employers must be gender neutral, and use advertisements such as “waitperson” or “heavy lifting required.” The potential for litigation in this arena is illustrated by a $3.75 million settlement obtained by a group of male applicants who challenged Hooters’ practice of hiring only attractive women as food and beverage servers. Although Hooters was permitted to continue hiring female food servers, Hooters was ordered to create and fill support jobs such as bartenders and hosts without regard to gender.
Race discrimination charges may also be brought against employers who discriminate in hiring based on physical appearance. For example, Abercrombie and Fitch Stores, Inc. was sued in multiple lawsuits brought by individuals of numerous ethnic backgrounds who alleged that the retailer refused to hire job applicants who did not fit Abercrombie’s young, white, and male image. The case eventually settled for fifty million dollars.
Although in many jurisdictions in the United States it may be legal to hire or refuse to hire applicants based on attractiveness and physical appearance, employers must exercise caution. Also, employers must be aware of local ordinances and the fact that discrimination claims may be brought on other grounds, including those discussed above. Therefore, employers must be careful when drafting job advertisements and making employment decisions to insure that they are not discriminating on the basis of any protected trait. The best practice is to base employment decisions on objective, performance related criteria.
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