By: James B. Sherman, Esq.
A recent decision of the United States Court of Appeals for the 8th Circuit addressed a very troublesome issue for employers: May employment decisions be based on an employee's or applicant's looks or appearance? Currently, there is no law prohibiting discrimination based on beauty or appearance, per se, though such a law has been proposed based on studies showing that beautiful people fare better in job interviews. Still, where an employer's appearance-based decisions can be linked to factors that are addressed in the law - e.g., gender, race, age, disability, etc. - a successful claim may be brought. The instant case dealt with the fine line between a hotel employer's desire to employ "attractive" people at the front desk to deal with the public and gender discrimination against this particular plaintiff. Stated without the legalese as the employer's decision-maker apparently put it in this case: Is it illegal to want a pretty "Midwestern girl look" from a female front desk hotel employee in Iowa versus what was described as an undesirable "Ellen DeGeneres look"?
The plaintiff's lawsuit claimed she was discharged for failing to conform to sex stereotypes in violation of federal (Title VII) and Iowa state law. The trial court dismissed her claims but, on appeal in a split decision, a majority reversed the trial court and ordered the employer to stand trial on the claims. What lessons may employers take from this case besides the fact that reasonable minds (as demonstrated by the trial court and dissenting appellate judge's support for this employer's action) may differ on an employer's right to take appearance into account? We offer the following short list:
- Depending on the particular position, employers may try to claim looks as a "bona fide occupational qualification" under the law; however, meeting this standard is difficult and requires guidance from experienced legal counsel.
- The Court of Appeals noted that the employer's front desk job description made no mention of appearance (only dress code, which the plaintiff satisfied).
- Adding new job qualifications more than a month after someone is hired or promoted to a job (to belatedly fire them) is generally a bad idea.
- While directors, officers and other upper management may have greater authority than mid-level management, using that authority to trump direct supervisors when they feel strongly about the qualifications of someone whose performance they have seen on a daily basis often backfires.
Many employers who read of this decision, especially those in the hospitality industry or other fields where business is based on public image, may sympathize with this employer. However, the fine line between lawful and unlawful employer preferences among employees and applicants often depends on how and when the employer asserts its criteria as much as on what they are. Here, the employer raised appearance as a factor for a position when it was not part of the job description and after the promotion was awarded by others in management who had no issue with the plaintiff's appearance. Employers are well advised to address important needs of each position in their workforce in advance of any decisions, preferably in written job descriptions based on careful considerations with assistance from experienced legal counsel.
Questions? Please contact WS Shareholder and Senior Attorney James B. Sherman at (952) 746-1700, or jasherman@wesselssherman.com
