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,
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, &
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
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
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
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
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
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
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,
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
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
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,
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
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.
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.
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.
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
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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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.