The beauty and the beast in the workplace: appearance-based discrimination claims under EEO laws.

• Author: Fowler-Hermes, Jennifer

In today's world there is one thing that can be said with absolute certainty: Appearance matters. Our society is obsessed with appearance. Appearance is the focus of many books sold in local bookstores. It is the topic of many self-help seminars. In every walk of life, whether it is the cashier at the grocery store or the trial attorney arguing a case before the local court, appearance makes a difference. While employers and customers in the business world regularly make decisions based on appearance, there is no law explicitly prohibiting use of appearance as a consideration in hiring or other employment decisions. Nonetheless, appearance issues are increasingly arising, with mixed results, in cases involving traditional employment discrimination laws.

Appearance and Success

Studies show that appearance is tied to success. For instance, attractive people are generally assumed to have higher levels of intelligence, motivation, education, and overall capability.(1) Attractive persons generally have more employment opportunities and earn 10 to 15 percent more than unattractive persons.(2) Finally, attractive persons have been found to be more effective at influencing people.(3)

While employers may not be aware of these studies or conclusions, most do realize that attractiveness sells. Everyday on television and in magazines we see beautiful models selling products and doing it successfully. Employers realize that although they do not need Cindy Crawford to make a deal, an employee with a professional, clean, neat appearance can make the difference in closing an important deal or making that big sale. Whatever the psychological or physiological reason, employers understand that persons 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.

As a result, employers often try to control appearance in their workplace. They institute dress codes, appearance guidelines, or grooming policies in order to guarantee a minimum appearance standard. If employers do not have such policies in place, most will "counsel" an employee who is not dressed appropriately. As a consequence of our society's increased obsession with appearance and the assumptions we make about others based on appearance, courts have seen "appearance-based" litigation become more prevalent. Although there is no law that prohibits discrimination based on personal appearance, appearance-based litigation arises under several discrimination laws.(4) These days 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. See Marks v. National Communications Association, Inc., 72 F. Supp. 2d 322 (S.D.N.Y. 1999) (citing Maximum Weight Requirements, 45 A. Am. Jur. 2d Job Discrim. [sections] 462 (1993)).(5)

For instance, in Frank v. United Airlines, 216 F.3d 845 (9th Cir. 2000), a group of female flight attendants brought a class action lawsuit against United Airlines for imposing stricter weight requirements on them than on similarly situated male flight attendants. In Schmitz v. ING Securities, Futures and Options, Inc., 1999 U.S. App. LEXIS 16942 (7th Cir. July 20, 1999), a former female employee during her employment was repeatedly criticized by a male executive for wearing revealing clothing that was not professional, and brought a Title VII claim against her former employer alleging that she was subjected to a hostile work environment. In Swartzentruber v. Gunite Corp., 83 F.E.P. Cases (BNA) 181 (N.D. Ind. 2000), an employee brought a religious discrimination claim after his employer repeatedly requested that he cover a tattoo on his arm depicting a white-hooded man and a burning cross. In Marks v. National Communications Association, Inc., 72 F. Supp. 2d 322, a 270-pound woman who lost a promotion to a woman who was "thinner and cuter," brought a gender-plus discrimination claim under Title VII and the New York City Civil Rights Law. Id. at 327.

These examples are just a few of the appearance-based cases arising in the employment arena. As these appearance-based lawsuits become more prevalent in our court system, employers who want to maintain a professional atmosphere through dress codes and appearance policies must come to understand the issues that will arise as a result of these policies and how they can position themselves to avoid a successful lawsuit. By summarizing some of the recent case law that exemplifies appearance-based litigation, this article will provide insight into how plaintiffs are able to manipulate discrimination law to get an appearance-based claim into court. Further, this article will provide guidance on how employers should implement appearance standards in order to avoid liability for discrimination. Part I of this article specifically addresses lawsuits brought in response to different appearance/ dress/grooming standards, whether the standard is in the form of a written policy or business practice. Part II of this article addresses cases arising from adverse employment decisions based on an individual's weight. Finally, in part III, the article will provide suggestions on implementation and enforcement of appropriate appearance standards.

Controlling Appearances

Dress codes, grooming requirements, or other appearance-based policies are permitted under discrimination law as long as they are enforced even-handedly. See Kleinsorge v. Island Corp., 81 F.E.P. Cases (BNA) 1601 (E.D. Pa. 2000). As this basic rule suggests, such policies must not have a disparate impact on any particular protected class, either on its face or in its application. However, that is not to say that there may not be variations in requirements.

In Kleinsorge, a male employee was discharged for wearing an earring to work in violation of the employer's dress code. The employer's dress code for men differed from its dress code for women in that men were prohibited from wearing earrings. Kleinsorge asserted that the employer's grooming standards violated Title VII because it set out different requirements for men and women. The district court rejected Kleinsorge's argument on the basis that he failed to allege that the grooming standards were unevenly applied or enforced or that other male employees were allowed to wear earrings. Citing Knott v. Missouri Pac. Ry. Co., 527 F.2d 1249 (8th Cir. 1975), the court explained that "minor differences in personal appearance regulations that reflect customary modes of grooming do not constitute sex discrimination within the meaning of [Title VII]," and dismissed Kleinsorge's lawsuit. Id. at 1602. In the court's view, as long as men and women were both held to similar standards of professionalism, gender-based differences in standards were not discriminatory so long as they comported with traditional or customary practices.

In Rivera v. Trump Plaza Hotel, 702 A.2d 1359 (N.J. Super. Ct. App. Div. 1997), two men fired after failing to comply with their employer's grooming policy brought sex discrimination claims under the New Jersey Discrimination Statute. Both plaintiffs were terminated when they wore ponytails to work after the effective date...