Special from Atlanta—SHRM Annual Conference and Exhibition
In yesterday’s Advisor, attorney James McDonald explained the legal pitfalls of one kind of lookism—“You’re too unattractive to work here.” Today, he tackles the opposite—“You’re too attractive to work here”—plus we introduce the HR policy guru, SmartPolicies.
The Other Side of Lookism: I’m Too Sexy
McDonald, who is a partner in the Irvine, California office of national employment law firm Fisher & Phillips LLP, says that there are a few cases relating to “too sexy” employees; however, none has made it through the appellate courts:
McDonald discussed the cases at SHRM’s Annual Conference and Exhibition held recently in Atlanta, Georgia:
- Debrahlee Lorenzana v. Citibank (N.Y. 2010), in which an employee claimed she was fired for being too attractive
- Amy-Erin Blakely v. The Devereux Foundation (Fla. 2010) in which an employee claimed she was not promoted and then fired because she was told she was “too sensual”
- Lauren Odes v. Native Intimates (EEOC 2012), in which an employee of a lingerie company allegedly was fired for being “too busty”; her boss told her “You are just too hot for this office.”
So “too sexy” suits are in the courts, but it’s too early to say what they will decide, says McDonald. However, we can say:
- “Too sexy for the job” is not a lawful basis for termination or failure to hire as it reflects gender stereotypes (a man would not likely be deemed “too handsome” for a job).
- Employers may implement reasonable dress and grooming standards.
- Employees may be required to conform to your dress code so as not to distract other employees.
Should Lookism Be Illegal?
Stanford law professor Deborah Rhode and University of Texas economics professor Daniel Hamermesh argue that unattractiveness should be protected under anti-discrimination laws just as race, gender and disability are covered, says McDonald.
He quotes Hamermesh: “Ugliness could be protected … by small extensions of the Americans with Disabilities Act …. We could even have affirmative-action programs for the ugly.”
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How Unattractive Would You Have to Be to Sue?
McDonald plays along. He envisions the conversation that would take place:
The employer would have to claim, “She’s not ugly enough to qualify for the law’s protection.”
And the employee would immediately respond: “Oh yes I am!”
A skeptical McDonald wonders:
- Will EEOC define standards of attractiveness?
- Will beauty contest judges serve as expert witnesses?
- Will employers have to hire a sufficient number of homely people so as not to be accused of discrimination?
- Will marginal employees gain weight or let their looks decline so they will have a basis for a lawsuit if they are fired?
Finally, says McDonald, as a practical matter, is this a problem? Most employers won’t hire people who are pretty but incompetent.
Lookism—yet another policy challenge for HR managers. Actually, our editors estimate that for most companies, there are 50 or so policies that need regular updating (or maybe need to be written). It’s easy to let policies slide, but you can’t afford to—your policies are your only hope for consistent and compliant management that avoids lawsuits.
Fortunately, BLR’s editors have done most of the work for you in their extraordinary program called SmartPolicies.
Don’t struggle with creating compliant HR policies! We’ve already written them for you, and at less than $1 each. Plus, for a limited time receive a bonus special report. Click Here.
SmartPolicies’ expert authors have already worked through the critical issues on some 100 policy topics and have prewritten the policies for you.
In all, SmartPolicies contains some 350 policies, arranged alphabetically from absenteeism and blogging to cell phone safety, EEO, voice mail, and workers’ compensation. What’s more, the CD format makes these policies easily customizable. Just add your company specifics or use as is.
Just as important, as regulations and court decisions clarify your responsibilities on workplace issues, the policies are updated—or new ones are added—as needed, every quarter, as a standard part of the program.
SmartPolicies is available to HR Daily Advisor subscribers on a 30-day evaluation basis at no cost or risk … even for return postage. If you’d like to have a look at it, let us know, and we’ll be happy to arrange it.