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Implicit bias and appearance discrimination in the workplace.
Abstract:
This paper explores appearance-based discrimination in employment settings. A major challenge employers face is the evolving nature of discrimination. While Title VII has helped reduce overt discrimination, subtle discrimination continues to be pervasive, and implicit bias plays a major role in recent cases of discrimination. Appearance discrimination can turn into Title VII discrimination because of implicit bias against a particular race, gender, age, or religion. This paper explains the nature of implicit bias and how it leads to discrimination. It then examines the impact of such discrimination on conditions of employment. Subsequent sections review litigation approaches to appearance discrimination and how they can potentially embroil businesses in lawsuits. Small businesses are especially vulnerable because they may not always have clear policies regarding discrimination. This paper concludes with practical guidelines for employers.

Keywords: Implicit bias, appearance discrimination, Title VII

Subject:
Scandals (Analysis)
Employment discrimination (Analysis)
Employers (Compensation and benefits)
Authors:
Martin, Michael
Krahnke, Keiko
Pub Date:
09/22/2012
Publication:
Name: European Journal of Management Publisher: International Academy of Business and Economics Audience: Academic Format: Magazine/Journal Subject: Business, international Copyright: COPYRIGHT 2012 International Academy of Business and Economics ISSN: 1555-4015
Issue:
Date: Fall, 2012 Source Volume: 12 Source Issue: 3
Topic:
Event Code: 280 Personnel administration
Geographic:
Geographic Scope: United States Geographic Code: 1USA United States
Accession Number:
312171932
Full Text:
1. INTRODUCTION

The ability to discriminate is a fundamental skill in human development. We learn early on that some objects are dangerous and some are safe. We also are taught to distinguish good from bad, preferable from not preferable, and beautiful from ugly. In this way, we learn to categorize items and label them. These perceptual skills are honed as we mature, and we extend these skills to decisions about people we encounter. In professional environments, we ideally judge an individual's abilities and talents and strive to judge them objectively and without bias.

Unfortunately, many of us tend to believe that there is an objective reality and that our perceptions are accurate in understanding that reality. For example, we try to, and sometimes pretend to, make objective judgments in performance appraisal. However, we cannot deny that decisions we make are at least partly based on our bias and our subjective reality. This subjective reality is based on our thoughts, feelings, biases, and experience. We are often unaware of the judgments, biases, and stereotyping we are making at a subconscious level, and even when we are aware of our biases, we tend to justify our behavior by using false attributions. According to Estrin, stereotyping is "to hold a belief that a person fits within a category and that all persons within a category are alike" (1996, p.70).

We use categorizations such as stereotyping to make sense of the world around us, but automatic and unconscious reliance on stereotypes often results in bias, which can lead to discriminatory practices. Although recent studies refute the stereotypical personality traits commonly held about overweight employees (Roehling, Roehling, & Odland, 2008), employers traditionally have discriminated against overweight people in employment (Wilson & Jupp, 2004). Reasons for the discrimination may be valid reasons such as safety or a bona fide occupational qualification (BFOQ), but they may very well be irrational biases and assumptions. For example, studies by Heilman and Okimoto (2007) revealed a negative bias against women who are successful in male gender-typed domains, as they were not viewed as desirable as bosses. Further, the negative responses to these successful women were lessened by information that would make them appear more communal.

Some industries are image-conscious, and appropriate appearance is sought after in hiring. Employers currently are not liable for discrimination against employees on the basis of their appearance as there are no federal laws which explicitly prohibit discrimination because of personal appearance; however, if appearance discrimination can be linked to racial, gender, and religious characteristics, liability through a discrimination claim may result (Theodassakos, 2006).

Progressively, social science and legal academics have focused their discrimination examinations on the concept of implicit bias, which can be defined as our hidden or unconscious mental processes that have substantial bearing on discrimination (Greenwald and Krieger, 2006). Research suggests that discrimination which stems from implicit or unconscious bias is growing more pervasive in the workplace, and the role implicit bias plays in disparate treatment cases is emerging and evolving in our understanding (Babcock, 2006; Lieber, 2009). Further, Lee (2005) argues that implicit bias is "the emerging form of discrimination that limits employment opportunities for women and minorities" (p. 503).

Although this paper focuses on the U.S., we recognize the importance of inquiring how other countries deal with this issue. Implicit bias is clearly not confined by geographical or national borders. In fact, according to the Implicit Bias and Philosophy International Research Project, most people will hold some sort of implicit bias (see: http://www.eeoc.gov/laws/statutes/index.cfm).

The American experience fits in a broader international context. The concept of discrimination is not confined to the U.S. and is a global concern as seen in the growing number of international human rights treaties (see: http://www.un.org/en/documents/udhr/hrlaw.shtml).

Generally, European law is similar to that of the United States, and prohibits appearance discrimination only when it involves other forms of bias covered by human rights law (such as that involving race, gender, religion, age, disability, and sexual orientation). However, in countries such as France and Germany, employees' rights are more highly recognized than those in the U.S., and employers rarely get away with biased treatment of their employees (Rhode, 2011).

As mentioned, the U.S. is not an exception in its lack of federal law against appearance discrimination, but biases regarding one's appearance seem to be a growing issue in other countries as well. A recent multi-country study involving interviews of 700 people and surveys in ten countries revealed that negative perceptions about weight have spread even in the countries where heavier people are traditionally accepted positively (Brewis, Wutich, Falletta-Cowden, & Rodriguez-Soto, 2011).

This paper examines the issues created by appearance discrimination in the workplace from psychological, social, and legal perspectives. Further, we provide universal recommendations to employers to better understand these issues and to be proactive in avoiding possible litigations. Further, as this is a growing global concern, discussions and examination of this topic are applicable to a global audience as all legal systems will need to address this issue.

2. SIGNIFICANCE OF THE ISSUE

The Civil Rights Act of 1964 Title VII is designed to prevent discriminating against people on the basis of race, color, sex, national origin, and religion. However, despite continual legal efforts, employment discrimination still exists and may in fact be thriving. One of our developing challenges is that modern discrimination has evolved from what existed in1964. Even though Title VII has helped minimize overt discrimination, subtle discrimination which stems from implicit bias is still widespread (Lee, 2005). A plaintiff has to prove that discrimination was intentional in a disparate treatment case under Title VII (Lee, 2005); however, implicit bias, even though it is not intentional, still excludes certain groups of individuals, often resulting in unfair discrimination.

Appearance can be more than looking neat or professional; it could be about dress, physical appearance, hair, or body alterations. Furthermore, such appearance issues are closely tied to gender, race, and religious backgrounds (Flower-Hermes, 2001). When appearance discrimination stems from gender, race, or religion, it can quickly become a legal matter. Many employers strive to judge their employees by their skills and performance objectively, but implicit biases and implicit prejudice often play a role in their decisions (Batz, 2006; Lee, 2005; Banaji, Bazerman, & Chugh, 2003). Physical appearance issues range from concerns of attractiveness, weight, height, body alterations, skin color, facial and body hair, and dress and symbols. These matters become complicated when they are linked to religious beliefs, age, or gender differences. Although appearance discrimination includes a wide range of issues, this paper focuses on appearance issues which could potentially create legal issues.

3. IMPLICIT BIAS AND DISCRIMINATION

3.0.0. Implicit Cognition

Contrary to common perceptions, human decisions may not always be guided by conscious awareness or behavioral control. A new science of unconscious mental process is emerging, and the role it plays in discrimination cases is gaining attention (Greenwald and Krieger, 2006). The science of implicit cognition, according to Greenwald and Krieger, "suggests that actors do not always have conscious, intentional control over the processes of social perception, impression formation, and judgment that motivate their actions" (p. 946). Examples of the implicit mental processes, according to Greenwald and Krieger (2006), are implicit attitudes and implicit stereotypes. Attitude is "an evaluative disposition" (Greenwald and Krieger, 2006), and implicit attitudes, for example, may cause someone to act favorably or unfavorably towards another person even though very little information is available about the individual.

Explicit attitudes and implicit attitudes toward something or someone may actually differ from each other. Implicit attitudes are attitudes that cannot be seen explicitly; therefore, they can only be accessed by implicit testing (Banaji, 2001). A stereotype is an association made between a particular group and a trait, but some associations may not be statistically valid. An example of an implicit stereotype is the association between male gender and fame-deserving achievement demonstrated in an experiment by Banaji and Greenwald (1995). The experiment revealed that there was a stronger implicit association made between male names with fame-deserving achievement than with female names.

3.1.0. Implicit Bias and Discrimination

Social science research has established the pervasiveness of implicit bias (Ayres, 2001). Implicit or unconscious bias may be a natural part of human behavior. To make sense of the world around us, we categorize and make associations. These associations are programmed in a person's mind, so the linked concepts can be retrieved more quickly than concepts that were not linked together (Carpenter, 2008). These associations often become stereotypes, and we sometimes resort to automatic reliance on stereotypes to understand and judge others.

Implicit biases can be a problem because "they can produce behavior that diverges from a person's avowed or endorsed beliefs or principles" (Greenwald and Krieger, 2006, p. 951). Implicit or unconscious bias may have been considered secondary to explicit bias that leads to unlawful discrimination, but current understanding focuses on how implicit bias has significant negative effects in employment decisions. Greenwald and Krieger (2006) note, however, that the current legal rulings view discrimination as behavior that arises from one's explicit beliefs and intentions. From the court's perspective, what matters in the end is whether the plaintiff's damages (if any) result from discrimination based on a protected class (race, for example), regardless of whether the employer's actions are stemming from conscious intention or unconscious bias. Blanton and Jaccard (2008) state that "old-fashioned" or explicit racism is on the decline, but racism still occurs and disparities in employment persist. Racist attitudes linger, but are harder to detect because they are often unconscious (Blanton & Jaccard, 2008; Quillian, 2006). Many people do not recognize that they discriminate, and their discriminatory actions stem from their implicit or unconscious bias (Batz, 2006; Wang 2006). Lee (2005) addresses possible reasons for the rise in unconscious bias in the workplace. First, organizations have generally moved towards a more team-oriented and less hierarchical approach, and evaluation of employees has become more subjective. Second, this subjective evaluation process sometimes creates a serious problem with the "solo effect," which means a minority employee is evaluated by mostly white peers (Lee, 2005). When there is one minority employee, the stereotypical assumptions of the minority employee by the white peers seem more pronounced (Lee, 2005).

A good example of implicit bias playing out was found in a study conducted by MIT and University of Chicago researchers, where five thousand resumes were sent out in response to an advertisement, some with stereotypical white-sounding names and some with African American names. White-sounding name candidates received 50 percent more interviews than did stereotypical African American-sounding name candidates (Lee, 2005). Another study also confirmed the presence of implicit bias in employment, finding that female applicants had an increased chance to advance and to be selected in the blind process (Lee, 2005).

Project Implicit, begun with a grant from the National Institute of Mental Health and the National Science Foundation in 2003, "is a Virtual Laboratory for the social and behavioral sciences designed to facilitate the research of implicit social cognition: cognitions, feelings, and evaluations that are not necessarily available to conscious awareness, conscious control, conscious intention, or self-reflection" (http://www.projectimplicit.net/about.php). It measures people's implicit biases in topics such as race, religion, and weight. One of the Implicit Association Tests (IAT) measures the response times in associating positive words and negative words with white and black faces. The test revealed that people of multiple race backgrounds showed preference for white over black faces, which contradicted their conscious self-report (Lee, 2005).

Gladwell (2005), in his popular book Blink, also points out that IAT results are often incompatible with our conscious values. He asserts that IAT is more than a test that measures our hidden attitude; it could be a predictor of our behavior or decisions in spontaneous situations (Gladwell, 2005). Implicit bias manifests in employment decisions (Greenwald and Krieger, 2006). We may not consciously think tall people are more competent, but evidence concludes that being tall has positive, unconscious associations. Gladwell notes that "an inch of height is worth $789 a year in salary" (2005, p. 88). Another implicit association experiment was conducted by Ayres (1995). In this experiment, white men, white women, black men, and black women were all made to appear similar in clothing, level of education, age, and attractiveness. They were instructed specifically to go to car dealers and bargain with a sales person as much as they could. The results showed that the white men received "$725 above the dealer's invoice, white women $935, black women $1,195, and black men $1, 687" (Gladwell, 2005, p. 93). There is likely a subtle, unconscious association between women and minorities and "lay downs," which car sales people call naive customers who pay the sticker price (Gladwell, 2005, p. 93).

Could implicit bias be a probable cause of disparate impact? Although Blanton and Jaccard (2008) caution against making strong conclusions that implicit bias leads to discrimination without adequate empirical evidence, Greenwald and Krieger (2006) found it reasonable to conclude that racial disparity is at least in part caused by implicit bias. This conclusion is supported by the following considerations: the observed pervasiveness of implicit bias, implicit bias as a better predictor of discriminatory behavior than explicit bias, and implicit bias playing a causal role in discrimination (Greenwald and Krieger, 2006, p. 966).

As pervasive as implicit biases seem to be, a solution to attenuate implicit bias may not be complicated. Moule (2009) notes that unconscious bias is automatic, "a blink of the eye" racism that could lead to unintentional discrimination (p. 321). If implicit biases are weak automatic responses, conscious attention and thought may help eliminate implicit bias. Allowing people to consciously think and feel leads them to a more reasoned response and the unconscious biases decrease, Cromie (2003). To support this claim, a recent study on self-regulation of implicit bias by Allen, Jeffrey, Sherman, & Klauer (2010) found that people who were highly motivated to control bias, regardless of motivation being internal or external, were able to control their bias. Another factor in making a difference in the level of implicit bias is the context in which the subject is seen (Barden, Maddux, Petty, & Brewer, 2004). For example, Whittenbrink, Judd, & Park (2001) found that the level of implicit bias is reduced in the Black-White IAT when the African Americans are seen in the positive context. Gladwell (2005) also makes encouraging remarks about changing our first impressions and unconscious biases. Whatever our biases may be, surrounding ourselves with them and creating new, positive association would minimize the negative outcomes. Gladwell (2005) argues that "simple commitment to equality" is not enough. We need to take our "rapid cognition seriously - acknowledging the incredible power, for good and ill, that first impressions play in our lives - requires that we take active steps to manage and control those impressions" (p. 97-98).

With the above background on implicit bias and its correlation with persistent employment disparities, the following sections review modern litigation based on appearance discrimination and how they can potentially embroil well-intentioned businesses into lawsuits.

4. LEGAL ISSUES

4.0.0. Background

As detailed above, conventional wisdom supported by evidence indicates that appearance matters. Many small business owners and managers are unaware of the lurking and growing legal liability associated with the aforementioned implicit bias or appearance discrimination. While employees have had varying degrees of success with these claims, employment-related discrimination claims continue to increase (Clark, 2011). The previous sections detail why this type of discrimination occurs and why it is a growing issue. This section examines emerging discrimination-based litigation trends, how businesses may unintentionally become entangled in these issues, and finally some advice for business managers to hopefully avoid this costly and tricky litigation altogether.

Appearance discrimination claims usually revolve around the attempted implementation of some sort of dress code, grooming policy, or appearance-based requirement (Malos, 2007). Most of these policies regulate some sort of mutable characteristic (tattoos, piercings, weight or facial and body hair); however, some regulate a distinctly immutable characteristic such as overall appearance (attractiveness), height, or gender, as seen in Jespersen v Harrah's (8th Cir. 2004). While most employers try to avoid any overt discrimination, invariably managers will continue to make employment decisions based on their subconscious or implicit prejudices (as described above) and exterior stereotypes.

It is this inescapable reality that necessitates the employer's attention. Employers understand that people who do not look like they can take care of themselves will not elicit confidence that they can take care of a potential customer's business (Fowler, 2007). If case precedent holds true, federal courts will still permit employers to set appearance standards, even if they vary, provided certain conditions are met (Robinson et al., 2007). Understanding these conditions is crucial for employers. However, simply stated, the reality is that employers, who regulate a worker's appearance, including practices such as banning tattoos to controlling makeup, will face a growing risk of employee initiated litigation (Baldas, 2005). While courts generally have been deferential to an employer's desire to regulate employee appearance in order to present to its customers a professional workforce, where appearance standards clearly apply differently to men and women, they are typically held to be discriminatory under Title VII, and thus sustainable only if they are based on a bona fide occupational qualification (Malos, 2007).

4.1.0. Instigating Legal Action

Traditionally, employees bring discrimination suits alleging that they have been discriminated against on the basis of a few legally protected categories. Liability is assigned when a plaintiff can prove he or she was intentionally discriminated against. This type of discrimination is referred to as disparate treatment. Further, even if intent is not proven, liability will be assigned if the plaintiff can prove that employer policies have had an adverse impact, even if unintentional, on members of a protected group. This type of discrimination is called disparate impact. These suits are generally based on state or federal legislation which specifically prohibits discrimination (whether disparate treatment or impact) based on certain protected classifications.

In the U.S. the main piece of federal legislation used to combat employment discrimination or protect against potential liability is Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the First Amendment, and the Americans with Disability Act (ADA) (Mahajan, 2007). Title VII theoretically only prohibits employer (defined as employers who have 15 or more employees) discrimination on the very limited categories of sex, race, religion, color or national ancestry (http://www.eeoc.gov/laws/statutes/titlevii.cfm). The ADEA provides protection to those over 40 years of age while the ADA protects those who are disabled or are perceived as being disabled (http://www.eeoc.gov/laws/statutes/index.cfm).

Traditionally, employees who believe they have been discriminated against on the basis of their appearance, but do not fall under the umbrella of Title VII, ADEA, or the ADA, have been essentially left unprotected (Niedrich, 2011). However, as we will detail, courts are starting to change this trend (Baldas, 2005).

While employment based decisions are frequently based on irreversible appearance characteristics, Mahajan (2007) notes, "under current law it is not illegal for an employer to consider appearance when making hiring or other employment decisions" (pg. 166). In general, this type of discrimination only becomes illegal when it involves other characteristics that civil rights law protects, such as sex race, religion, or disability (Rhode, 2010). However, creative uses of Title VII (i.e. tying appearance to a protected characteristic) and some unique state protections for employees have expanded potential claims thus increasing the risk of employee instigated litigation (Baldas 2005).

More frequently, employees and former employees are bringing lawsuits, which are in essence appearance-based discrimination claims, alleging violations of the ADA, ADEA, Title VII, state fair employment statutes, and select constitutional provisions. By tying an unprotected physical characteristic to race, sex, national origin, religion, or disability, plaintiffs are able to get their appearance-based complaints in front of a judge or jury Marks v. National Communications Association, Inc. (1999).

For example, although federal law provides no protection against discrimination because of sexual orientation, the laws of some states and local governments do provide such protection. In fact, state-provided safeguards can provide protection on a wide variety of classifications, including mutable characteristics such as smoking, and to date eighteen states specifically protect against sexual orientation discrimination (Goldberg and Carr, 2010). The courts in the state of California have long prohibited discrimination on the basis of sexual orientation. While Title VII defines sex protections as relating only to gender, California's Civil Rights Act of 2005, (Assembly Bill 1400), specifically prohibits sexual orientation discrimination.

Title VII does not mention or directly prohibit discrimination based on the categories of height, weight, or appearance in general. In fact, Title VII was specifically drafted to provide employers with some form of discretion (Dawson 2005). However, as detailed above, appearance-based decisions (whether intentional or subliminal) are prevalent in the employment context. Further, in some cases, a narrow interpretation of the Title VII protections may unintentionally perpetuate, especially if the employer's undue burden standard is applied, discrimination which it normally and explicitly prohibits (Prenkert et al, 2006). However, as we describe below, several modern court rulings have expanded rather than narrowed the protections provided by Title VII (Bandsuch, 2009).

As mentioned in Marks v National communications Association, Inc., by tying an unprotected physical or appearance characteristic to race, sex, age, religion, national origin or disability, employees are bringing appearance via Title VII into the courts. The number of employment related discrimination claims continues to increase as does the variety of fact patterns that underlie these claims (Malos, 2007). In fact, courts have found that dress codes (uniforms, jewelry, and gender appropriate attire) and grooming guidelines (hairstyles, beards, tattoos, and piercings) violate Title VII for their unequal treatment of protected classes (Bandsuch, 2009).

The following sections explain the use of federal legislation to challenge organizational appearance and gender policies. We provide several case examples of employees challenging company regulations by tying protected traits to organizational policies affecting characteristics such as weight, hair length, tattoos, and overall attractiveness or appearance. While results of employee instigated lawsuits have been mixed, for employers the best litigation is that which never was.

4.2.0. Use of Title VII for Appearance Discrimination Claims

It is not an overstatement to say that a cultural shift is taking place in which managers are struggling to control a younger generation of workers who are more culturally and racially diverse than before and subsequently more resistant to rules regulating their personal appearance (Baldas, 2005). Appearance-based discrimination suits are clearly on the rise. In fact, according to the Equal Employment Opportunity Commission, job discrimination complaints rose to unprecedented levels in 2010 (www.govexes.com).

Plaintiffs are now focusing their Title VII disparate treatment and impact claims on several tangential categories. More and more, plaintiffs are challenging employer policies, which regulate in some manner height, weight, or appearance, by implicating one of Title VII's clearly protected categories. These challenges have been surprisingly successful, and this success shows no signs of abatement. Indeed, according to a recent report from the EEOC, employee claims hit record highs with 99,922 new charges and $319 million in awards, the most since the agency opened its doors in 1965 (http://total-employeerewards.blogspot.com/2011/01/eeoc-claims-and-awards-hit-record-highs.html). If the categories of height, weight, and appearance are actually included (at least implicitly) under the Title VII umbrella, an employer's liability will drastically expand. Consequently, to successfully navigate through the employment process and avoid any appearance discrimination related claims, employers will need to stay current on this evolving field.

4.3.0. Appearance Policies Challenged Using Gender Bias Claims

Appearance-based lawsuits using Title VII's protection of gender to challenge organizational appearance and weight policies gained momentum in the early 1990s. During this time, three major airlines settled or lost suits with their female flight attendants over weight standards. In a suit brought by the EEOC, the agency argued that females gain weight as they age, so weight policies will intrinsically violate federal age and sex civil right protections (Voros, 2009).

In particular, United Airlines attempted to use standardized insurance industry tables that specify age and weight guidelines in Frank v. United Airlines, (9th Cir. 2000). In this case the plaintiffs sued, alleging that United Airlines' 14-year requirement that female flight attendants weigh 14 to 25 pounds less than their male colleagues of the same height and age was discriminatory. Plaintiffs attempted to lose weight by various means, including severely restricting their caloric intake, using diuretics, and purging, but were unable to comply with United's maximum weight requirements

United Airlines' weight restrictions were based on a weight table published by Metropolitan Life Insurance Company. United Airlines limited men to weights that generally corresponded to the maximum weights listed on the chart for men with larger body frames. On the other hand, women were limited to weights that generally corresponded to the maximum weights listed on the chart for women with medium body frames. The district court granted summary judgment for the employer on plaintiffs' Title VII claims and the plaintiffs appealed.

However the Ninth Circuit found the policy was discriminatory on its face because United used a standard based on large frames for men and medium frames for women, thus creating sex discrimination on the face of the policy. Furthermore, the court concluded that United offered no evidence to show that the weight standard was a bona fide occupational qualification (BFOQ). The conclusion is that an employer may adopt different weight standards for men and women, but the standards may not impose an unequal burden on one of the sexes unless it can be justified as a BFOQ.

Given these rulings, it is clear that any employer using weight as a performance measure could be questioned under Title VII. Consequently, US Air only uses a performance standard based on how easily someone can move down the passenger aisles and how quickly they can move through the emergency doors (Brady 1994).

It is important for employers worldwide to realize that weight related employment issues are not going to subside in the near future. A recent study by the National Center for Health Statistics - a branch of the Centers for Disease Control and Prevention (CDC) - determined that nearly two-thirds of all American adults are either overweight or obese (Grossman, 2004). Globally, the World Health Organization states that there is an escalating global epidemic of which they have labeled, "globesity." (see: http://www.who.int/nutrition/topics/obesity/en/) Obesity is a growing area of litigation with mixed results. Potential plaintiffs are filing discrimination claims under the ADA claiming that they are disabled or are regarded as disabled.

However, not all weight-based discrimination claims are decided in favor of the plaintiffs. Current law permits employers to make hiring decisions based on certain non-protected physical characteristics. According to Baron (2005), the mere fact that the Defendant was aware of the Plaintiff's weight and rejected his application for fear that his appearance did not accord with the company image is not improper. To hold otherwise would render an employer's ability to hire based on certain physical characteristics entirely void.

An example involves an overweight telemarketer who was excellent at her job doing inside telemarketing but was denied a promotion to outside sales where she would have to interact with the public. During her employment, Marks weighed approximately 270 pounds. She repeatedly asked management for a promotion to an outside sales position and was repeatedly passed over for such promotions. When she learned that a less experienced, "thin and cute" female had been promoted to an outside sales position, she confronted her supervisor, and was told that if she lost the weight, she would be promoted. Marks shortly thereafter refused to come back to work. As a consequence, she was terminated Marks v. National Communication Association, 1999.

She alleged sex discrimination on the grounds that overweight females were not given the same treatment as overweight males. The court ruled that while sex and weight could form the basis for a possible Title VII claim, in this case she had not proven that the company treated overweight men differently than overweight women Marks, (1999).

In the paradigm Jespersen v Harrah's, (8th Cir. 2004), Ms. Darlene Jespersen was a beverage department employee in Harrah's casino, where she had worked for over twenty years. Ms. Jespersen filed suit after she was fired for refusing to follow Harrah's "personal best" policy which required women to wear makeup. Harrah's gave her 30 days to apply for another position that did not require her to wear makeup. She did not apply, and Harrah's terminated her.

This policy set both behavioral and appearance guidelines for employees who had contact with customers. She filed suit under Title VII claiming the policy was discriminatory as it was more burdensome for women than men. The 9th Circuit ruled that the plaintiff failed to prove that the policy imposed unequal burdens on male and female employees. The court explained that an "employer may impose different appearance standards to the sexes as long as they do not create 'unequal burdens' that are not otherwise justified as a BFOQ," Jespersen v Harrah's, 393 F.3d 1076 at 1080. This unequal burden test has provided some protection for employers who are facing discrimination suits (Prenkert et al, 2006).

An appearance discrimination claim with a twist involves a Harvard librarian who filed a suit claiming she was denied promotion for being too sexy and therefore not fitting into Harvard's librarian stereotype, Goodwin v Harvard College, (2005). To date there is no legislation which protects those who suffer from discrimination for being too good-looking; however, according to the Supreme Court in Price Waterhouse v. Hopkins, sex stereotyping itself violates Title VII when it influences employment decisions. In other words, an adverse employment decision based on gender nonconforming behavior and appearance is impermissible, Smith v Salem, (2004). However, if the employer can prove that the questioned polices pose an equal burden on each gender, they will have a viable defense, Jespersen v Harrah's, (8th Cir. 2004).

4.4.0. Males Using Gender Protections and the ADA to Bring Appearance and Sex Discrimination Claims

Males, as well, are using Title VII's gender protection to bring appearance discrimination suits. While the results in these cases are also mixed, plaintiffs are generally not successful where company policies are clear and uniformly applied to both sexes.

For example, in Kleinsorge v. Island Corp. (2000), the employer successfully defended a suit brought by a male employee who was discharged for wearing an earring to work in violation of the company's dress code. The employer's dress code for men differed from the dress code for women in that it prohibited men, but not women, from wearing earrings. Based on this differential treatment of the sexes, the male employee sued for reverse sex discrimination. The court ruled that the company's policy consistently established professional standards even though they allowed for accepted gender-based differences. Such gender based differences are not discriminatory as long as they conform to generally held traditional or customary practices for men and women (Fowler-Hermes, 2001).

Another court upheld a company's policy limiting the length of men's hair against a similar claim of unequal sex treatment Rivera and Karwowski v. Trump Plaza Hotel and Casino, (1997). However, in the often cited reverse discrimination suit, Wilson v SW. Airlines. Co, (1981), an airline refused to hire male flight attendants as they wanted an attractive female staff to service their male clientele. The court ruled against the airline as sexuality was not an essential function or bona fide occupational qualification of a flight attendant's job. Further, in the now infamous Hooters class action suit, three males brought a 3.75 million dollar suit claiming reverse discrimination as they were denied employment as "waitresses." The suit was settled out of court, but, as in Wilson, the essential function or qualification of the employment was the central issue (Schneyer, 1998).

The case, Goodman v L.A. Weight Loss Centers, Inc. (2005), represents the case of a 350-pound man suffering from obesity who was not hired as a sales counselor for the weight loss center. The individual filed suit under the ADA claiming he was regarded as disabled. The court dismissed this claim by holding that the plaintiff failed to plead he was excluded from a broad class of jobs. Further, he did not plead he was substantially limited in a major life activity as required by the ADA. However, despite the dismissal of this case, the concept of tying a disability claim to an employer's weight or appearance policy was reinforced. Subsequently, the majority of weigh-based discrimination claims arise under the guise of ADA claims (Fowler-Hermes, 2001).

4.5.0. The Use of Religion and Freedom of Expression Protections to Bring Appearance Claims

A number of cases involve appearance issues that raise claims of religious discrimination (1st Amendment). These claims are simple to bring because the courts only require that the religious beliefs be strongly held as opposed to nationally recognized. In most cases, a history of religious practices, or a history of behavior based on religious beliefs, is sufficient to raise a claim. Employers have to attempt to accommodate the employee's religious-based request, but are not required to hire additional workers, inconvenience other workers, or pay more than a de minimis cost of accommodation.

An example is the highly publicized case, Cloutier v CostCo. (2004), where an employee who belonged to the Church of Body Modification, refused to remove an eyebrow ring during work to comply with the employer's dress code, which included a jewelry prohibition. The plaintiff continued wearing her eyebrow piercing despite the employer's objections, claiming that she was a member of the Church of Body Modification (CBM) and that the piercing was part of her religion. The court held that the employer had a valid interest in its work force's appearance and public image. The court further determined that the plaintiff's requested accommodation, which was simply an exception to the dress code, would cause an undue hardship on the employer. An accommodation constitutes an undue hardship if it would impose more than a de minimis cost on the employer, Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004). As a result, the store's policy prohibiting facial jewelry did not violate the employee's freedom of expression or religion (Prenkert et al, 2006).

In several recent and similar cases, the courts ruled that an employer can require an employee to cover tattoos despite arguments that this violated the employee's First Amendment freedom of expression, Riggs v. City of Fort Worth, (N.D. Tex. 2002). Employer policies or requirements to cover up tattoos were given further support by Stephenson v. Davenport Cnty. Sch Dist., (8th Cir. 1997). The court found that tattoos are nothing more than self-expressions and, thus, are not entitled to protection. However, as the court in Hub Folding Box Co., Inc., v. MCAD, found, if only women are required to cover up tattoos, the employer will be liable for discrimination. Again, the courts are stressing that an appearance polices need to have an equal burden on each gender for the employer to have a viable defense Jespersen v Harrah's, (8th Cir. 2004).

4.6.0. Appearance Discrimination Claims Based on Race.

Employer appearance policies which distinguish employees based on height or hair characteristics are frequently challenged under Title VII's race protections. In the classic case, Craig v. County of Los Angeles (1980), the court held a height requirement violated the employee's Title VII protections, specifically his race protections. The sheriff's department argued that a minimum height requirement was necessary because height is directly related to strength and it gives officers a necessary psychological advantage when quarrels arise. The court found the policy was racially discriminatory against Mexican-Americans, as it prevented them from being hired.

In addition to height, employees have tied employer hair policies (including facial hair polices) to their discrimination claims. Court rulings with respect to hair policies are usually won by those employers who have safety concerns or have a policy on grooming and appearance that is disseminated to its employees and consistently enforced. For example, a district court upheld a United Parcel Service (UPS) appearance policy where UPS fired a driver for refusing to comply. The black employee with dreadlocks argued that the company policy disproportionately affected black employees (Hamblett, 2002). The judge ruled that the plaintiff had not shown how the policy adversely affected black employees as opposed to other groups.

Companies run into difficulty where the grooming or appearance policies are not consistently enforced. For example, the court upheld the case of a black female who brought pictures of hair styles into work to get pre-approval and was still reprimanded. The company had not enforced its policy of hair length against five white women with similar hair styles (Hollins v. Atlantic Company, 1999). What several of these cases make clear is the method by which courts resolve inconsistencies between employer appearance polices and Title VII protections. Courts often apply the unequal burdens standard when a grooming or appearance policy is challenged or tied to a protected characteristic (Robinson et al, 2007).

5. SUGGESTIONS AND IMPLICATIONS FOR EMPLOYERS

As detailed above, employees who believe they are the victims of some sort of "appearance" discrimination are more frequently turning to the courts. As the population of employees becomes more culturally diverse, managers will have a difficult time adopting employee and employer expectations as to work site behavior and appearance. To minimize confusion and avoid potential discrimination suits (successful or not), we offer a few practical guidelines.

5.0.0. Establish a well written policy

Be proactive. The first line of defense is a well-written and easy to understand employment policy that sets out the business's appearance expectations. It is imperative that this policy be well thought out. In other words, employers need to review any grooming policies to verify that there are no discriminatory standards inherent in the policy. As an example, any policies which differentiate between men and women should be double checked to ensure they have comparable effects or treat each gender equally.

5.1.0. Focus your efforts and communicate from the start

Ensure that policies regulate general behavior rather than employee appearances which bear little, if any, relationship to job performance. These policies should reflect the business's image and needs as well as the customers' reasonable expectations and attitudes. However, any policy (especially if it involves grooming or personal appearance) should be narrowly tailored. Employers should focus more on behavior and less on appearance. Civility policies which are centered on performance and employee interactions will limit the employers' legal liability (Malos, 2007). Employers need to engage employees in open and honest communication as to the reasons and motivations behind their policies. This will help facilitate a mutual understanding of the requirements and expectations. It will also help employers to become more aware of their implicit biases, anticipate possible problems, and correct them before they become legal issues.

5.2.0. Justification.

Only use appearance requirements that your organization finds necessary to achieve your business goals. If at all possible, validating any criteria empirically with consumer and market research will help legitimize, in the court's eyes, your policies. Further, it is imperative that any company appearance or grooming policy be examined to assure that no class or groups of individuals are being excluded.

5.3.0. Consistent enforcement

Any business needs to consistently enforce its standards across sexes, religion, age, and race. Any appearance policy should be carefully drafted so as not to impose greater requirements or burdens on one sex over another, as seen in Jespersen v Harrah's, (8th Cir. 2004). Further, always be careful to avoid sexual stereotypes (whether it's of men or women), as courts are taking a tougher stance against such practices.

5.4.0. Flexibility

Always attempt to accommodate your employee's reasonable requests. If they have requests based on their religious beliefs, make sure to document all of your negotiations and attempts at accommodation. Blanket policies should be avoided at all costs as they send the wrong message to both employees and to the courts.

5.5.0. Safety Issues

Exchanging a negligence or workers compensation claim for a discrimination claim is a zero net game. For those businesses which have safety concerns, its dress or grooming code may, and in fact should, reflect those needs. For jobs requiring the employee to work around machinery, the employer is justified in requiring dress that would be safe, such as disallowing loose fitting clothing or requiring shoes with toe guards. However, safety concerns should not be used as pretext for potentially discriminatory policies. If this is the case, an employee's discrimination claim may have success in court despite the employer's safety concerns. For example, in one recent case, the District of Colombia has claimed a grooming policy, which requires firefighters to shave, is based on safety concerns, and is therefore not discriminatory. However, the court was not convinced that the employer's safety concerns were sufficiently substantiated and ruled in favor of the employees, Potter v. D.C, (2009).

5.6.0. Training and work environment issues

As Gladwell (2005) argues, "simple commitment to equality is not enough" (p. 97). Implicit biases are weak automatic responses, unlike deep-seated prejudice against certain groups of individuals. When people are given an opportunity to think more consciously about their assumptions and implicit associations, we can move beyond our first impressions and minimize discriminatory practices. Ongoing training sessions to help employees raise awareness of their own biases and to create a healthy work environment and climate are necessary. Gladwell (2005) also makes an argument for a diverse environment where people can be surrounded by others of different backgrounds and where positive experiences will outweigh negative ones, resulting in separating the damaging implicit association with certain appearances.

6. CONCLUSION

Simply stated, to be human is to discriminate. Implicit discrimination is an international behavior which is not confined to a single nationality. In short, it is a global phenomenon, which can affect employers and employees of any nation. As human nature seems to be oriented towards some sort of appearance prejudice, this issue will only continue to grow in importance. This topic has attracted attention in recent years while plaintiffs continue to bring viable claims by linking them to federally protected categories such as gender, race, or religion. The result is that companies who regulate an employee's appearance are increasingly likely (successful or not) to face employee lawsuits.

The line between legitimate business discretion and unlawful appearance discrimination is neither bright nor stationary. The only sure thing is that continuing uncertainty in the law will spawn more appearance discrimination claims in the future. As other employees see this trend, they will invariably attempt the same arguments.

Future research should focus on whether this trend does indeed increase and should also observe the outcome of the ongoing movement to add appearance issues to current state laws. However, the implication for business is clear; they need to be acutely aware of this potential source of liability. In addition, they need to be proactive in developing clear policies while diligently and consistently enforcing their requirements. If this is done, employers will find that they have a strong defense if or when litigation arises.

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AUTHOR PROFILES:

Dr. Keiko Krahnke earned her Ph.D. from Colorado State University in 1991. She is an Associate Professor of Management at the Monfort College of Business, University of Northern Colorado. She has served in leadership positions in the Management, Spirituality and Religion Interest Group at the Academy of Management. Her work has appeared in the Journal of Business Ethics, Journal of Academic and Business Ethics, Spirituality in Business among others.
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