UnderCover Waitress: Appearance Discrimination

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Friday, May 4, 2012

Appearance Discrimination

Ask the Waitress!

A question about a difficult and complicated situation came my way. In short: can employers be held liable for only hiring pretty women for certain jobs? So, if a woman is hired as a cook, and wants to wait tables, let's say she is told they are not currently hiring waitresses. Shortly thereafter, a buxom blonde who turns heads is hired to wait tables. Discrimination?

First, let me make clear that this discussion is in no way an attempt disparage attractive people. This is a discussion about worker rights.

The Federal government protects workers from discrimination on the basis of race, religion, sex, color, and national origin. Some states add categories to this list. For example, in Michigan a worker may not be discriminated against on the basis of height and weight. This is the basis for a discrimination case at a Hooter's restaurant in Michigan. 

The Pennsylvania Human Relations Act states clearly in Section 2(b):

"It is hereby declared to be the public policy of this Commonwealth to foster the employment of all individuals in accordance with their fullest capacities regardless of their race, color, religious creed, ancestry, age, sex, national origin, handicap or disability, use of guide or support animals because of the blindness, deafness or physical handicap of the user or because the user is a handler or trainer of support or guide animals, and to safeguard their right to obtain and hold employment without such discrimination..."


I notice that "familial status" is listed in the document, but not in this clause specifically relating to employment.

Silverglate and Choi wrote a good online article about the legal status of appearance discrimination. I will focus on the relevant parts in this blog post. Bear in mind that "appearance" is too general for the law. If you claim appearance discrimination, you must clarify if you were not hired because you are fat, have tattoos, or are missing front teeth (or anything else.)

Silverglate and Choi began by discussing a 20/20 television show episode from 1994 in which the show producers sent out four people on job interviews. Two men and two women with identical resumes were sent to the interviews. One man was handsome, the other, ugly. One woman was pretty, the other, ugly. The good-looking job candidate was hired each and every time. We know that appearance discrimination happens.

And it is still happening today. Obese women are less likely to get hired than their trimmer counterparts. Fat women make less money than skinny women for the same work.  The comments in this article  show how prejudiced, cruel, and judgmental people can be.

The problem is what to do about it?

Obesity may be argued under the Americans With Disabilities Act ("ADA"), according to Silverglate and Choi. To qualify for coverage under the ADA, however, a person must be heavy enough that the weight "substantially limits one or more major life activities." "Being regarded as having such impairment" is also covered. So, if your employer says, "you are too fat to work as a waitress" you may have a claim.

I remember working with a woman who was missing some teeth. She washed dishes; she wanted to be on the floor with us making more money. The bosses never let her be in sight of customers. Ironically, she was saving her money to get her teeth fixed.

Silverglate and Choi discuss a similar situation in which a manager hired a man with missing teeth to work the counter at a KFC restaurant. The boss told the manager to get the guy off of the front counter and into a position out of sight. The manager refused. The courts did not allow the suit to go forward under the ADA because the facial disfigurement (in this situation) did not substantially limit the employee's major life activities.

In both of the above "missing teeth" situations, it seems that the employers could decide which jobs were appropriate for which employees without fear of being sued under the ADA.

What about appearance discrimination that is not interpreted as disability? Claiming gender discrimination may work. For example, if waiters are not required to fit certain appearance standards but waitresses are, then women are being discriminated against on the basis of gender.

If a waiter can be overweight but a waitress can not, you need to try to demonstrate that for your claim. If waiters can be short, or tall and lanky, but all waitresses must fit a certain body type, you need to show that.

Sometimes employees who can be seen by customers are told to remove facial jewelry and cover tattoos. If you are willing to comply with these restrictions during work hours then you shouldn't have a problem. Sometimes, employees fight these requirements; for example, Silverglate and Choi discuss a case in which a woman claimed her eyebrow piercing was part of her religion.

If you feel you have been discriminated at work on the basis of personal appearance, it couldn't hurt to have a chat with a lawyer in your area. My personal opinion is that case law will continue to form the foundation for how we treat these cases in the future. If nobody complains about appearance discrimination, employers will be able to get away with almost anything. The courts need to look at each case and try to balance an employer's desire to create an image with worker rights.

Of course, I will include my usual disclaimer. Please know that this blog can not and does not give legal advice. I write for entertainment and information purposes, but I am not a lawyer -- just a stupid waitress! ;-D

1 comment:

  1. The problem with the law to begin with... is that there are too many lawyers putting it together.

    ReplyDelete

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