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Is Hiring on the Basis of Appearance Illegal?
by Gerard Panaro, BOL Guru

Abercrombie & Fitch, the clothing retailer, has recently been in the news for being sued for discrimination. This raises a fundamental question: Can employers hire on the basis of looks?

There is no question that employers cannot hire (or refuse to hire) employees on the basis of sex, race, age, disability and other protected characteristics. At the same time, however, neither is there any question that employers may have and enforce "grooming" (appearance) codes. Further, Title VII itself allows an exception to the rule against discrimination on the basis of sex, race, etc., if the employer can prove that sex, race, etc. is a "bona fide occupational qualification." (BFOQ.) Therefore, while an employer can't hire solely on the basis of appearance, it can take appearance into account.

EEOC regulations.
The EEOC Guidelines on Discrimination Because of Sex state that the "refusal to hire an individual because of the preferences of coworkers, the employer, clients or customers" violates Title VII, unless it is a BFOQ.

The guidelines on national origin discrimination define national origin discrimination "broadly as including, but not limited to, the denial of equal employment opportunity because of an individual's, or his or her ancestor's, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group." (Emphasis added.) The national origin guidelines likewise recognize a BFOQ exception. In addition to forbidding discrimination on the basis of physical characteristics, the national origin guidelines as state that height and weight requirements will be subject to an adverse impact analysis.

At least one provision of the EEOC age discrimination regulations seems pretty strongly to prohibit hiring on the basis of appearance. Sec. 1625.4(a) of the ADEA regulations says that "When help wanted notices or advertisements contain terms and phrases such as age 25 to 35, young, college student, recent college graduate, boy, girl, or others of a similar nature, such a term or phrase deters the employment of older persons and is a violation of the Act, unless one of the exceptions applies." One of the exceptions is if age is a BFOQ. Whether or not this is the case (age is a BFOQ) is determined on a case-by-case basis.

Finally, the regulations implementing the Americans With Disabilities Act simply and flatly state: "It is unlawful for a covered entity to discriminate on the basis of disability against a qualified individual with a disability." At first glance, the ADA would appear to be no bar to hiring on the basis of appearance: after all, being unattractive or ugly is not a disability. However, this is not the case, for at least two reasons. First, aside from arguably making a person unattractive, obesity is generally a covered disability under the ADA. Therefore, if a plaintiff alleged that s/he was not hired because s/he was obese and her obesity made her unattractive to the employer, s/he could state an ADA claim. Second, the definition of disability includes the perception of disability and an employer certainly could not refuse to hire an applicant, for example, whose disability left him or her disfigured, without risking an ADA suit.

Can appearance ever be a BFOQ?
This precise question does not seem to be addressed in the reported cases (at least none that the author could find). Even the lawsuit against A&F is not premised on discrimination on the basis of appearance: it alleges race and national origin discrimination (and perhaps could also have alleged age discrimination as well). What case law is available seems to establish this principle: discrimination on the basis of appearance alone is not prohibited by Title VII; a plaintiff wishing to challenge the legality of "appearance" discrimination must in some form tie appearance to discrimination on the basis of sex, race, age, disability or some other legally protected characteristic. Of course, if an employer could establish that appearance was a BFOQ, it could also hire on the basis of appearance, without regard to Title VII's prohibitions.

Title VII does not bar "appearance" standards, so long as they are non-discriminatory.
This appears to be one of the conclusions that can be drawn from Frank v. United Airlines, Inc., 216 F.3d 845 (C.A.9 (Cal.), 2000), where the court said: "An appearance standard that imposes different but essentially equal burdens on men and women is not disparate treatment." The court even cited a decision holding that an airline can require all flight attendants to wear contacts instead of glasses. (The holding of the case was that United Airlines could not use one set of weight tables for female flight attendants but another for male attendants without violating Title VII, unless it could prove that its use of different standards was a BFOQ.) United failed to make this showing.

Current law makes it clear that an employer cannot hire all white applicants, to the exclusion of African-Americans, Hispanics, Indians, Middle-Easterners, etc. But what if the employer's policy were simply to hire "beautiful" applicants of either sex and any race, age or nationality, but not to hire "ugly," plain, or "unattractive" applicants?

In Latuga v. Hooters, Inc., 1996 WL 164427 (N.D.Ill., 1996), which dealt with Hooters's objections to the certification of the litigation as a class action, the company actually raised the BFOQ defense. "The restaurant concept", Hooters told the court, "includes certain ambience requirements and a female waitstaff wearing cutoff t-shirts, tanktops and orange jogging shorts. This concept, the prospective HOA [Hooters of America] franchisee is told, creates a restaurant that can compete with any casual dining restaurant, particularly those featuring female sex appeal. Furthermore, the prospective franchisee is told that both HI [Hooters, Inc.] and HOA believe the Hooter's restaurant concept to be protected by a BFOQ against any Title VII challenges." (Emphasis added.) Because the issue before the court was the plaintiffs' motion to certify the class, this evidence wasn't addressed. And the case was apparently settled, because no further reference to the litigation can be found after the cited case.

The Craft/Metromedia case.
One case presenting an extensive discussion of grooming and appearance standards in the context of Title VII is Craft v. Metromedia, Inc., 766 F.2d 1205 (C.A.8, 1985). Craft arose when the plaintiff, Christine Craft, was reassigned from coanchor to reporter by a tv station in Kansas City, MO (KMBC-TV), as a result of focus group studies and telephone polls which were "overwhelmingly negative" toward the plaintiff.

In reviewing the district court opinion, the court of appeals wrote: "Evidence showed a particular concern with appearance in television; the district court stated that reasonable appearance requirements were 'obviously critical' to KMBC's economic well-being; and even Craft admitted she recognized that television was a visual medium and that on-air personnel would need to wear appropriate clothes and makeup. ... While we believe the record shows an overemphasis by KMBC on appearance, we are not the proper forum in which to debate the relationship between newsgathering and dissemination and considerations of appearance and presentation--i.e., questions of substance versus image--in television journalism." (Emphasis added.)

The courts' analyses in Craft, in effect approving and relying upon focus group and telephone survey results, suggest that employers who wish to base hiring decisions on the appearance (attractiveness) of applicants would be wise to validate such criteria empirically with consumer and market research.

Would the ADA prohibit hiring on the basis of appearance?
As noted before, there are no cases holding that being "plain," "unattractive" or downright "ugly" is a disability within the meaning of ADA, protecting job applicants in those categories. However, it is equally clear that disfigurement, for example, due to a disability or obesity are usually held to be disabilities within the meaning of the ADA, and so applicants who were not hired for those reasons could state a claim.

Summary and Conclusion
The above discussion suggests the following:
  • It does not appear to be a violation of federal anti-discrimination law to hire on the basis of looks, attractiveness, personal appearance.
  • However, such a policy may be forbidden by state law (e.g., District of Columbia Human Rights Act: unlawful to hire on the basis of personal appearance).
  • But it does violate federal law to hire on the basis of gender, race, national origin, disability and other protected characteristics.
Therefore, it would appear to follow that if an employer had a policy saying, in effect, "We only hire beautiful people. We will hire people of any gender, race, national origin or disability so long as they meet our standards of attractiveness," that policy would not violate federal law. Moreover, under such a policy, an employer would not have to worry about establishing a BFOQ defense, because it would not be excluding applicants of any gender, race, etc. Probably, however, "unattractiveness" due to an applicant's race would always violate Title VII.

Complications could and certainly would arise, however, if an applicant's "unattractiveness" were based on disability. With respect to a potential disability claim, the criterion is "reasonable accommodation:" that is, can the applicant perform the essential functions of the job with or without reasonable accommodation? So, an employer probably could not establish a "BFOQ" defense to an ADA challenge.

First published October 2003 in Fair Employment Practices Guidelines, a semimonthly publication by Aspen Publishers, 1185 Avenue of the Americas. New York, NY.

About the Author:
Gerard P. Panaro has more than 25 years' experience in employment law and is available to assist readers on an individual basis. You may reach him at 202-861-1314. Mr. Panaro is of counsel with Howe & Hutton, in the Washington, DC office.

First published on BankersOnline.com 9/22/03






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