Jottings By An Employer's Lawyer

Tuesday, April 05, 2005

Discrimination On the Basis of Looks

No doubt. Happens all the time -- but it is it illegal? Not yet, at least not directly, although the thrust of the article in yesterday's Atlanta Journal Constitution, At Work Looks Breed Success, is that there are ways to bascially make that argument while dressing it up as an act that is prohibited. Examples given include the recent Abercrombie & Fitch class action settlement, which was based on hiring mostly whites and putting black, Hispanic and Asian workers in less-visible jobs. Although cast as a race discrimination case, appearance was at least involved. Other examples given include the Costco case involving piercings, although the article fails to note that it was decided in Costco's favor at the 2nd Circuit, see my earlier post here. They could also have mentioned the make up case out of the 9th Circuit, discussed here, in which a bartender lost her job for failing to comply with the company's appearance policy.

One of their most recent examples, a federal lawsuit brought by a Harvard University librarian who alleges she has repeatedly been passed over for promotions because she is seen as "just a pretty girl" in "sexy" attire, which went to trial last week, was decided yesterday with the plaintiff losing. Although the publicity buzz came from the "pretty girl" tag line, the legal hook was a race and gender discrimination claim. The New York Lawyer headline, "Pretty Girl" Librarian Loses Suit Against Harvard, pretty well sums it up.

While I agree that discrimination on the basis of looks happens and that creative lawyers will try to stretch existing laws to cover that behavior given half a chance, I don't know that I would go as far as the Atlanta employment lawyer quoted in the AJC article who opined, "These kinds of things are going to gain more attention. This is potentially the next area of significant claims explosions against employers." Well maybe, but not something I am going to lose a lot of sleep over.


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