Chrisof BK
04-15-2009, 02:13 PM
http://www.employmentlawalliance.com/en/node/2393
Personal appearance discrimination statutes: is beauty now in the eye of the legislature?
Submitted by: Edwards Angell Palmer & Dodge, LLP
Contact: Timothy P. Van Dyck
Territory: Category: Legal Update
Created: Jul 17 2008 - 14:37
Updated: Jul 17 2008 - 14:47
In March 2008, Massachusetts legislators heard testimony from organizations denouncing “heightism” and urging “fat acceptance.” The focus of the testimony was a bill that would amend Massachusetts’ anti-discrimination laws to provide a cause of action against employers who discriminate because of height or weight. If the bill passes, Massachusetts would join Michigan, the District of Columbia, and the cities of San Francisco, Palo Alto, and Santa Cruz in barring discrimination based on height, weight, and/or “personal appearance.” All of these legislative efforts have troubling implications for employers.
The most obvious problem with personal appearance legislation is the vagueness of the characteristics sought to be protected. Many legally protected characteristics, such as age, gender or national origin, are obvious or easily verified, but rules against appearance discrimination are virtually impossible to articulate. The proposed Massachusetts law, for example, makes no attempt to define “height” or “weight.” Even in jurisdictions such as San Francisco, where legislators have attempted to provide further definition, the guidelines are often so broad that they are unhelpful.
As a result, it is not apparent which employees possess the traits sought to be protected by personal appearance litigation. While supporters of the Massachusetts bill and others like it appear to seek protection for shorter and heavier people, unless the terms “height” and “weight” are clearly defined it will be difficult for employers to understand who falls into the protected group, and difficult for courts to know who has standing to bring a claim. For example, what if a tall employee is mistreated by an envious, and much shorter, supervisor? Is there a claim for height discrimination? One need look no further than the Americans with Disabilities Act to see the inherent difficulties in appearance based anti-discrimination legislation. Since its enactment, there has been an explosion of litigation over what constitutes a “disability” within the meaning of the Act. Despite over 15 years of experience with the extensive definition of “disability” provided by the ADA and its implementing regulations, there is still widespread confusion in the courts on the issue. If defining a “disability” has been this difficult, imagine the task of defining something as innately subjective as “height” or “weight” or “personal appearance.”
Efforts to ban discrimination against employees based on their “personal appearance” are even more problematic. While height and weight can be measured, a person’s overall appearance cannot. There is, by definition, a profoundly subjective element to the inquiry. What attributes, for example, should be considered in determining one’s personal appearance? In the District of Columbia, personal appearance is defined to include the outward appearance of any person, including style of dress and grooming in addition to physical attributes. This does nothing to advance the inquiry. It is also entirely unclear whether other personal attributes, such as a person’s posture, manner of speaking, or the neatness of his office, are also protected. Nor is it clear whether “personal appearance” legislation is intended to protect less attractive employees, or good-looking employees, or both.
A fundamental question is whether personal appearance legislation is necessary or warranted at all. Some workplace surveys show that employees who are taller or thinner receive better compensation. In addition, one recent survey found that Fortune 500 CEOs, as a group, are taller than average. What is still unclear, however, is whether intentional appearance discrimination is the reason for these results. Several studies reflect that workers who are overweight or shorter believe that they have been disfavored because of these attributes while other studies have shown that employers – or those simulating employment decisions in experiments – may allow a person’s shorter stature or heavier weight impact their decision-making. Critics point out, however, that many of these studies are dated, involve artificial laboratory settings, or rely solely on self-reporting of perceived discrimination without proof that the subject’s physical characteristic caused an adverse employment action. Moreover, advocates of personal appearance anti-discrimination legislation fail to recognize the reality that, at least in certain lines of work, such as service and sales, personal appearance and success may be inextricably intertwined. In short, there is no compelling empirical evidence to suggest that intentional discrimination by employers against workers who are short, heavy or unattractive is sufficiently pervasive to justify expansive new legislative restrictions.
Finally, existing anti-discrimination laws may address many of the concerns expressed by proponents of such legislation. Proponents argue that height and weight characteristics often correlate with race and gender; thus, the argument goes, any discrimination on the basis of height or weight could constitute forbidden race or gender discrimination. In fact, a major impetus for Michigan’s decision to add height and weight as protected characteristics was to respond to complaints from women and Asian-Americans who argued that height and weight restrictions disproportionately prevented them from qualifying for jobs in police and fire departments. Under Title VII and similar state laws, however, using height or weight as a proxy for gender or race discrimination, or using height- or weight-based employment requirements that have a disparate impact on particular sexes or races, can already support a claim of discrimination. Additionally, employees who suffer from clinically-diagnosed morbid obesity or height disorders could potentially bring discrimination claims under the Americans With Disabilities Act if they can show that their medical condition substantially limits (or is perceived to substantially limit) their major life activities. In New York and New Jersey, an employee’s burden to show a disability is even lower; there, employees need only prove the employer discriminated based on a medically identifiable condition, which could include height disorders or obesity.
Most would agree that it is a worthy goal to have all employees judged purely on their contribution to the workplace, rather than based on their physical appearance. Present legislative efforts to eliminate possible appearance discrimination, however raise a host of issues that may wind up creating more problems than they resolve.
Personal appearance discrimination statutes: is beauty now in the eye of the legislature?
Submitted by: Edwards Angell Palmer & Dodge, LLP
Contact: Timothy P. Van Dyck
Territory: Category: Legal Update
Created: Jul 17 2008 - 14:37
Updated: Jul 17 2008 - 14:47
In March 2008, Massachusetts legislators heard testimony from organizations denouncing “heightism” and urging “fat acceptance.” The focus of the testimony was a bill that would amend Massachusetts’ anti-discrimination laws to provide a cause of action against employers who discriminate because of height or weight. If the bill passes, Massachusetts would join Michigan, the District of Columbia, and the cities of San Francisco, Palo Alto, and Santa Cruz in barring discrimination based on height, weight, and/or “personal appearance.” All of these legislative efforts have troubling implications for employers.
The most obvious problem with personal appearance legislation is the vagueness of the characteristics sought to be protected. Many legally protected characteristics, such as age, gender or national origin, are obvious or easily verified, but rules against appearance discrimination are virtually impossible to articulate. The proposed Massachusetts law, for example, makes no attempt to define “height” or “weight.” Even in jurisdictions such as San Francisco, where legislators have attempted to provide further definition, the guidelines are often so broad that they are unhelpful.
As a result, it is not apparent which employees possess the traits sought to be protected by personal appearance litigation. While supporters of the Massachusetts bill and others like it appear to seek protection for shorter and heavier people, unless the terms “height” and “weight” are clearly defined it will be difficult for employers to understand who falls into the protected group, and difficult for courts to know who has standing to bring a claim. For example, what if a tall employee is mistreated by an envious, and much shorter, supervisor? Is there a claim for height discrimination? One need look no further than the Americans with Disabilities Act to see the inherent difficulties in appearance based anti-discrimination legislation. Since its enactment, there has been an explosion of litigation over what constitutes a “disability” within the meaning of the Act. Despite over 15 years of experience with the extensive definition of “disability” provided by the ADA and its implementing regulations, there is still widespread confusion in the courts on the issue. If defining a “disability” has been this difficult, imagine the task of defining something as innately subjective as “height” or “weight” or “personal appearance.”
Efforts to ban discrimination against employees based on their “personal appearance” are even more problematic. While height and weight can be measured, a person’s overall appearance cannot. There is, by definition, a profoundly subjective element to the inquiry. What attributes, for example, should be considered in determining one’s personal appearance? In the District of Columbia, personal appearance is defined to include the outward appearance of any person, including style of dress and grooming in addition to physical attributes. This does nothing to advance the inquiry. It is also entirely unclear whether other personal attributes, such as a person’s posture, manner of speaking, or the neatness of his office, are also protected. Nor is it clear whether “personal appearance” legislation is intended to protect less attractive employees, or good-looking employees, or both.
A fundamental question is whether personal appearance legislation is necessary or warranted at all. Some workplace surveys show that employees who are taller or thinner receive better compensation. In addition, one recent survey found that Fortune 500 CEOs, as a group, are taller than average. What is still unclear, however, is whether intentional appearance discrimination is the reason for these results. Several studies reflect that workers who are overweight or shorter believe that they have been disfavored because of these attributes while other studies have shown that employers – or those simulating employment decisions in experiments – may allow a person’s shorter stature or heavier weight impact their decision-making. Critics point out, however, that many of these studies are dated, involve artificial laboratory settings, or rely solely on self-reporting of perceived discrimination without proof that the subject’s physical characteristic caused an adverse employment action. Moreover, advocates of personal appearance anti-discrimination legislation fail to recognize the reality that, at least in certain lines of work, such as service and sales, personal appearance and success may be inextricably intertwined. In short, there is no compelling empirical evidence to suggest that intentional discrimination by employers against workers who are short, heavy or unattractive is sufficiently pervasive to justify expansive new legislative restrictions.
Finally, existing anti-discrimination laws may address many of the concerns expressed by proponents of such legislation. Proponents argue that height and weight characteristics often correlate with race and gender; thus, the argument goes, any discrimination on the basis of height or weight could constitute forbidden race or gender discrimination. In fact, a major impetus for Michigan’s decision to add height and weight as protected characteristics was to respond to complaints from women and Asian-Americans who argued that height and weight restrictions disproportionately prevented them from qualifying for jobs in police and fire departments. Under Title VII and similar state laws, however, using height or weight as a proxy for gender or race discrimination, or using height- or weight-based employment requirements that have a disparate impact on particular sexes or races, can already support a claim of discrimination. Additionally, employees who suffer from clinically-diagnosed morbid obesity or height disorders could potentially bring discrimination claims under the Americans With Disabilities Act if they can show that their medical condition substantially limits (or is perceived to substantially limit) their major life activities. In New York and New Jersey, an employee’s burden to show a disability is even lower; there, employees need only prove the employer discriminated based on a medically identifiable condition, which could include height disorders or obesity.
Most would agree that it is a worthy goal to have all employees judged purely on their contribution to the workplace, rather than based on their physical appearance. Present legislative efforts to eliminate possible appearance discrimination, however raise a host of issues that may wind up creating more problems than they resolve.