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A Different Kind of Leadership,
A Different Kind of Workplace

Carpe Diem Associates

Steve Greenblatt, Esq.,  Principal

Looks Can Be Deceiving

There is no federal statute that directly addresses appearance discrimination per se, but people are still subject to tangible bias, humiliation, insults and more on this basis.  The law must be flexible enough to reconcile legally recognized forms of discrimination and their intersection with those that are not. 

I am not proud of it, but I used to weigh almost 400 pounds, and I stood at about 5’11”.  I knew that my health and appearance suffered – so did my self-esteem.  At the time, I was Director of Labor Relations in an academic medical center and fielded grievance and disciplinary cases from eight collective bargaining units.  

During that time, the Associate Vice-President (AVP)of Nursing referred a senior nurse manager for discipline; the manager was thought to have committed several very public errors that embarrassed the Department of Nursing Services and might have implicated it in some patient liability. At her interrogation, she waived union representation, probably because she and I had worked on several projects over the years.  Nonetheless, she was visibly upset, and her hands were shaking.  I explained that she was there as a result of two incidents that had not yet been proven; this interview was her chance to explain what happened.  While I was getting my notes together, she moved her chair to my end of the table and placed her hand on my inner thigh.  

I was as surprised as you are, especially since I knew that her interest was not motivated by my svelte bodily features.  I was also in charge of investigating sexual harassment allegations when they rose to the level of potential discipline, and she was well aware of that.  I told her, “Please stop touching me right now, or I will have to report you to the AVP of Nursing and the Affirmative Action Office.”  She immediately retracted her hand, and we proceeded to discuss the cases for which she had been referred.  It resulted in no disciplinary charges.  

As Director of Labor Relations, I was not subject to discrimination based on my morbid obesity, but that did not mean that it did not figure into how people regarded me.  I knew that, as do most people who are severely overweight.  

The law regarding appearance discrimination is complicated, particularly when it involves a possible disability cognizable under the Americans with Disabilities Act of 1990.  America has many millions of obese individuals, and most people consider obesity a matter of personal choice and lack of discipline.  However, under the law, morbid obesity may qualify as a disability on several grounds.  For instance, if it “substantially limits one or more life activities”, or, under the more recent statute, the ADAAA (ADA AMENDMENTS Act of 2008), if the person is “regarded as” having the disability.  

But the real target of this blog is appearance discrimination, which can encompass obesity but has a much broader scope.  As Friedrich Schiller, a German playwright and philosopher, opined, “Appearance rules the world.”  

There is no federal statute that directly addresses appearance discrimination per se, but people are still subject to tangible bias, humiliation, insults and more on this basis.  The law must be flexible enough to reconcile legally recognized forms of discrimination and their intersection with those that are not.  For example, tattoos are popular, but many people look askance at those who choose to display one.  There are several municipalities and other jurisdictions that have made tattoo discrimination illegal, but they are few, and effective enforcement of this regulation remains challenging.  

Appearance discrimination also overlaps with other disabilities, with younger (some jurisdictions also protect younger persons) and older employees (generally over 40, per the Age Discrimination in Employment Act of 1967), with religious or ethnic garb, or self-expressions of sexual orientation, or political beliefs.  These crossovers significantly expand the universe of possibilities for appearance discrimination.  A rough illustration of the increased issues may be viewed as a Venn Diagram:

In this depiction, some appearance discrimination may overlap with others, complicating the issues; moreover, while not illustrated above, some manifestations of each discriminatory behavior may be illegal, but much falls outside the purview of statutes and regulations.  Should anti-discrimination laws embrace more of this phenomenon?  Put another way, should your organization consider forbidding certain types of appearance discrimination despite the fact that the law may not?  

These questions suggest guidelines that have helped to fashion novel policies and procedures:  

Postulate:  Set the bar below the legal standard for liability.  [Nothing prevents an organization from lowering its standard to take action against wrongdoers, as long as it is reasonable, and they receive effective notice of the rule.]1 Intervening to stop objectionable behavior before it becomes illegal, can avert organizational and individual liability. 

Corollary:  Acting to deter offensive or unacceptable conduct before it triggers legally cognizable wrongdoing will facilitate a respectful and welcoming workplace.  

The potential complexity of appearance discrimination was salient in one case when a hospital technician, who daily wore more than 20 different buttons on his uniform declaring his opinion on 20 different issues, was referred for discipline.  The case raised issues of compliance with hospital dress code (unfortunately for me, incredibly, there was none!) but also involved First Amendment rights and appearance discrimination.  His union representatives knew that he was an oddball and was dressing inappropriately, but they still vigorously advocated on his behalf.  We agreed on a compromise where, henceforth, he would display no more than 7 buttons at once, and none of them could contain profanity or pictures.    

Management is not immune to these biases since we are all prone to our subjective points of view, and they often sully what is supposed to be unbiased decision-making.  It is too easy for a bigot to find reasons not to hire or promote someone who has a different sexual orientation or is a different shade of skin, or who practices a different religion, often expressed in the way they dress, act or talk.  By way of example, I try to refrain from cursing, and I find it objectionable when people do so in the workplace.  Should that be a criterion for selection or for assignment of a plum project?  Clearly not, unless it would affect the team’s relationship or have some other likely adverse impact.  But, of course, my unstated, individual, motivation may be at work.  We can discuss implicit bias in another blog, but the failure to separate our idiosyncratic preferences from actual merit is problematic.  

Appearance discrimination raises its ugly head 

→ Starbucks closed its stores for part of a day to discuss what happened in Philadelphia in 2018 when a Black man, wearing a dark winter coat with the hood over his head and considering purchasing two items while going to the back of the line, was told not to touch them.  The Starbucks personnel thought he was a homeless person.  No one else was given this directive, and the court that eventually heard the case found that the employees’ insinuation was clearly that this ostensibly homeless person intended to steal them.  Eventually, an employee shoved him, the Black man fell and suffered a seizure, and the manager called the police.  This was appearance discrimination based on a racial stereotype, and Starbucks’ reputation for tolerance needed to be revisited.  

→ In 2022, Canada’s CTV laid off Lisa LaFlamme, the longest-tenured anchor on the news and also the most popular one.  It coincided with her return from the pandemic, during which she allowed her grey hair to flow without the aid of L’Oreal or Clairol.  According to LaFlamme, this termination came from out of the blue, although there were rumors that she and a couple of high-level executives were at odds over several issues.  Through the CEO, the station denied that her age, hair color or appearance were linked to the move: “[T]he narrative has been that Lisa’s age, gender or grey hair played into the decision.  I am satisfied that this is not the case.”  Whatever the truth, appearance discrimination seems so easy to employ. This tidbit from Hilary Clinton may sum up these events: “Pay attention to your hair, because everyone else will.”  

→ Abercrombie and Fitch (A&F) had a “look” policy of which it was proud.  Salespersons had to “fit” the image, which, it turned out, was that of white people in their twenties.  If others who did not match were hired, it was found, they were often relegated to back-room assignments out of the public eye.  A&F paid a penalty of $50 million, while continuing to assert that business necessity required its “natural, classic, American style” of grooming.  The lesson was evidently not learned.  

→ It is not a stretch to understand that a person’s skin color can also result in appearance discrimination.  Colorism between people of similar backgrounds is a well-known phenomenon, so for those not of color, it is certainly within the realm of possibility.  Colorism is prohibited under Title VII of the Civil Rights Act of 1964, but appearance discrimination is not.  That incongruence makes for a squishy ban on color discrimination.  

CROWN Laws as One Response 

Seventeen states2 and Washington, D.C., have passed so-called ”Crown laws”, that expand the definition of “race” to include as illegal any discrimination based on hairstyle related to one’s religious, ancestral, racial or ethnic identification – more evidence of the sinister quality of appearance discrimination.  These laws are intended to protect people whose hair is made into braids, twists, locs, cornrows, knots and Afros, or are textured.  Studies have shown that Black women are 50% more likely to be sent home from work because of their hair.  Every workplace should review its policies to comply with these new statutes or to anticipate the significance of such rules.  

The takeaway?  Appearance discrimination is often not considered discrimination, which makes it insidious – and too effortlessly – sometimes unconsciously – committed without reflection.  

Carpe Diem’s Interviewing Skills workshop is designed to teach techniques that will produce the best-qualified candidate without succumbing to illegal or questionable conduct.  

1 An organization, however, may not set the bar higher than the law does.  

2 California, Colorado, Connecticut, Delaware, Louisiana, Maine, Maryland, Massachusetts, Nebraska, Nevada, New Jersey, New Mexico, New York, Oregon, Tennessee, Virginia and Washington.

This blog is not intended for legal advice or counsel.

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