We have a delicate situation that comes up from time to time. We hire service representatives for work at our customer service desk. We want to be fair in our hiring, but last week we had someone with a large scar on her face apply. We’re concerned that our customers will be put off by this. Can appearance be a legitimate reason for turning someone down for employment? — Sandy P., Staffing Manager in Merced
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The federal Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA) provide protections for applicants and employees who are actually disabled as well as those who are “regarded as” disabled. The regarded as provision was designed to protect individuals who don’t have physical or mental limitations but who, because of some nonlimiting impairment, are prevented from obtaining employment (or the full benefits of employment) because of society’s myths, fears, and prejudices. In other words, a nonlimiting impairment could still have the effect of substantially limiting an individual’s ability to work because of others’ negative reactions to the impairment.
As to your specific question, an individual with cosmetic impairments—such as burn or accident scars—who is rejected from jobs because of that impairment or who is treated differently with respect to work assignments because of the impairment would likely have a right to claim that an employer illegally regarded him or her as disabled. In fact, the legislative history to the ADA uses cosmetic impairments as an example of “regarded as” discrimination.
The U.S. Equal Employment Opportunity Commission’s Compliance Manual, Section 902, has a detailed discussion of this type of discrimination. This manual is available online. Information on disabilities and California’s Fair Employment and Housing Act is also availble online. Note that California defines disability less stringently than federal law does, making it easier for California plaintiffs alleging disability discrimination to prove their case. — CELA Editors and Carolyn Rashby, senior editor of ERI’s California Employer Advisor