May You Discriminate Based on "Personal Appearance"?

Posted by Edward Sharkey on Wed, 10/17/2012 - 14:29

The hiring practices of a Boston-based coffee shop could be the impetus behind creation of the country’s newest protected class in employment discrimination cases: unattractive people. Earlier this year, the Equal Opportunity Employment Commission (“EEOC”) began investigating the coffee shop for what is being called a “beauty bias”. The coffee shop allegedly only hires young, attractive, female employees to staff roughly 30 locations throughout Massachusetts and Rhode Island.

The EEOC is a federal agency responsible for investigating and prosecuting violations of federal anti-discrimination statutes. The most important of these statutes as they relate to employment discrimination is known as Title VII. Title VII prohibits workplace discrimination based on “race, color, religion, sex or national origin,” unless a “bona fide occupational qualification” is at stake. In recent years, Title VII has also been expanded by the EEOC and by courts to cover sexual harassment allegations and gender identity.

The EEOC has yet to levy any charges against the coffee shop, and, as of this writing, physical attractiveness (or lack thereof) is not protected under Title VII. Businesses must be careful, however, when using looks as a factor in employment decisions: courts and the EEOC have, in the past, been sympathetic to plaintiffs’ arguments that attractiveness standards can be a guise for more invidious forms of discrimination based on race or national origin.

Businesses also need to be aware of state laws on the subject. In Washington, D.C., businesses are explicitly prohibited from making employment decisions (such as refusing to hire, firing, promoting, or assigning employees) based on personal appearance. Under the D.C. statute, employers may only discriminate on personal appearance if the discrimination is a “business necessity.”

Our firm continues to monitor developments in this area. If you have a question about this or any related issue, please feel free to give us a call.

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