Hot Topic - Appearance Discrimination

Although the various federal, state and local laws regarding discrimination can be complex, the fundamental idea behind them is simple: individuals should be judged on the basis of their character and merits, not on innate characteristics (and to some extent, membership in certain groups). Anti-discrimination laws speak to many aspects of individuals that we notice and identify – or think we can identify – upon first meeting a person: race, gender, religion, age, pregnancy and disability. A growing number of jurisdictions are also banning discrimination on the basis of gender identity or expression, while some courts have found that discrimination based on gender identity/expression is a type of sex discrimination. In other words, a person who was born male but presents as a woman and is terminated from a job may be protected by sex discrimination laws since that individual suffered adverse consequences for not behaving the way some people expect males to behave.

As children, many of us are taught not to judge people based on the way they look. Yet appearance, apart from specified protected categories and a handful of jurisdictions, remains a legal basis for discrimination. Although appearance discrimination is prevalent throughout every aspect of public and private life, it is especially knotty in the context of employment discrimination because there may be legitimate business reasons for discrimination. Is appearance discrimination the last “acceptable” prejudice, or is it the next target for anti-discrimination legislation?

Appearance discrimination could be the basis for several blog posts, since it touches upon several questions. To what extent can appearance be separated from race, sex and gender, age, religion and disability and our expectations around these groups? To what extent does appearance cross over into First Amendment rights of self-expression? Does it make sense to talk about “reverse” appearance discrimination?

When the Supreme Court debates the level of protection for certain groups of people, they ask whether the characteristic in question is 1) discrete and 2) historically the subject of discrimination. Subconscious discrimination based on appearance has been the subject of numerous studies affirming that “lookism” can have a powerful effect on our day to day lives. Indeed, during the 19th century, certain cities in the United States prohibited unsightly persons from going out in public. However, legalized appearance discrimination has hardly reached the levels of race, gender and sexual orientation discrimination. And appearance is hardly “discrete” in the sense that for the most part it is difficult to draw hard and fast lines around categories of appearance – as opposed to gender or outmoded understandings of race.

In spite of these complications, one state, Michigan, and six municipalities, including the District of Columbia, have banned appearance discrimination at least to some extent. Some of these laws are narrowly tailored to height and weight, while others reach more broadly. All of these laws make exceptions for reasonable business needs, also known as bona fide occupational qualifications.

As an attorney, there are certain appearance expectations for myself and my colleagues. We wear things like ties, suits, dresses, and scarves (that last one is just me, actually). We hardly ever wear jeans to the office. There is an understanding of the minimums of tidiness and formality we should fulfill to present a professional image to our clients and maybe to each other as well. If we did not wear professional clothes and employ tidy grooming habits, our clients, fellow attorneys and judges would not take us seriously.

There are legitimate business reasons for employers to require that employees maintain a certain “look,” largely related to customer expectations and standards of a profession. But as retail companies in particular have been learning over the past several years, demanding employees to have a certain “look” cannot lead to discrimination against people of certain races and religions. Companies cannot point to customer expectations as excuses for discrimination against specific people, but employers can discriminate on other grounds, including weight and attractiveness as long as those standards are applied equally to all persons.

Because of the vagaries of what constitutes “appearance,” the existence of laws that protect people in certain categories, the existence of some legitimate business reasons for appearance discrimination, and the difficulties of mustering popular support for anti-appearance discrimination legislation, I do not expect that appearance discrimination is going to be the next big civil rights movement. Nevertheless, the extent to which appearance, especially relatively immutable characteristics, influences major employment decisions is unfair and disturbing.

However, the absence of laws expressly banning appearance discrimination does not give employers carte blanche – employees are protected as to race/ethnicity, religion, sex and gender, and disability. In the United States, the law is clear: companies can require employees to have an “All-American” or a professional look, but they must understand that an “All-American” look or a professional look can come in dozens of permutations, colors and trappings.