HomeMy WebLinkAboutAppearance Discrimination Memo
Date: September 11, 2020
To: Iowa City Business Owners
From: Kristin Watson, Human Rights Investigator
Re: Appearance Discrimination
One of the most common areas of workplace discrimination is also one of the least
acknowledged. Appearance discrimination occurs when a person is treated differently based
upon how they look. This can take many forms and can affect anyone.
What are the types of appearance discrimination?
Many types exist. One of the most common, however, is attractiveness bias. While older studies
found attractiveness to be a gender-neutral advantage, newer research shows that
conventionally-attractive men enjoy a universal career advantage, while women’s attractiveness
can actually function as a career detriment. Researchers found that for women, attractiveness
was an advantage only in traditionally feminine careers, such as administrative assistants or
educators. In male-dominated professions such as engineering and construction, however,
female attractiveness was found to be a detriment to hiring and advancement. Other types of
appearance discrimination include discrimination based upon a person’s weight, their clothing,
their hair, their personal presentation style, and other factors.
Is appearance discrimination illegal?
Not as such. Several retailers and restaurant chains are famous for the image their employees
reflect. It is not illegal to impose a dress code or safety requirements that may affect how
employees look. But there is a difference between Target mandating that all employees wear
khaki-colored pants and red shirts to work, and the almost $45,000 Abercrombie had to pay a
job applicant in damages and court costs for discriminating against her because her religious
head covering did not fit their “look.”1
If appearance discrimination is not illegal, why are there court cases about it?
The reason is that appearance is often tied to one or more of a person’s “protected classes.” A
protected class is (1) a personal characteristic a person cannot change, like their race or age, or
should not have to change, like their religion, that (2) is protected by anti-discrimination laws. In
the Abercrombie case, the job applicant was not hired because managers felt her headscarf did
not fit Abercrombie’s “classic collegiate East Coast style.” However, the headscarf was a hijab,
required by the applicant’s religion. Her lawsuit was based not upon the “look” policy, but on
religious discrimination.2
Similarly, in the very first case recognizing discrimination could be based upon perception of
gender roles and sex-stereotypes, Ann Hopkins was denied partnership at Price Waterhouse
Coopers because she, as a male partner wrote in her evaluation, “needed a course in charm
school.” Although she won the firm’s most lucrative contract, a $44 million project for the State
Department, and was described in evaluations as “one of the very best,” male partners rejected
1 See EEOC v. Abercrombie & Fitch, 575 U.S. __ (2015).
2 For those interested in the details, the suit was based upon the narrow question of whether the applicant
must inform the employer of the religious nature of the head covering, or whether the employer must
inquire about it before rejecting the applicant.
September 11, 2020
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her for partnership because they felt she needed to "walk more femininely, talk more femininely,
dress more femininely, wear make-up, have her hair styled, and wear jewelry.” The US
Supreme Court found that this was discrimination based upon her sex, as a man being
considered for partnership would not have been subjected to the same stereotypical
appearance and behavior standards as Ms. Hopkins. After seven years of litigation, Price
Waterhouse Coopers was ordered to grant Ms. Hopkins a partnership, along with over $370,000
in back pay.3 The Hopkins case remains relevant today, as gender-non-conforming people fight
for the right to wear the clothing and hair styles in which they feel comfortable.
Are there developing areas of appearance-discrimination law?
Yes. A current issue in appearance discrimination is natural hair. Chastity Jones, a Black
woman, was offered a job, provided she get rid of her dreadlocks. When she refused, the offer
was rescinded. The EEOC filed a lawsuit on her behalf claiming race discrimination, which was
dismissed on the theory that a protected class refers to things a person can’t change, while a
hairstyle is merely a matter of grooming. An appeals court agreed. The EEOC appealed to the
U. S. Supreme Court, which declined to hear the case. However, a growing number of states
and local governments are recognizing that a hairstyle can be much more than grooming; it can
be a matter of identity.
The Jones case is problematic for several reasons: it ignores stereotypes associated with Black
natural hairstyles, it relies on outdated theories of race as a biological instead of a social and
cultural construct, and perhaps most important from a legal precedent standpoint, it entirely
ignores the Hopkins case. It has been settled law for over 30 years that anti-discrimination laws
apply not only to the person’s unchangeable characteristic (in this case, race), but also to
stereotypical perceptions about how that characteristic should be expressed (in the Hopkins
case, “needing charm school;” in this case, having a ”messy” hairstyle). For this reason, the
states of California and New York, as well as the City of Cincinnati, have enacted laws against
race-based hair discrimination. New Jersey, Michigan, Wisconsin, Illinois, Kentucky, and
Montgomery County, Maryland, are considering enacting similar provisions.
Another developing area is weight. Although severe obesity and obesity that contributes to
secondary health conditions may qualify a person to make a disability-related claim of
discrimination, the act of discriminating against a person solely because of their weight is also
beginning to be outlawed. Michigan was the first state to do so (also including height), and
Massachusetts introduced a bill last year. The cities of San Francisco and Binghampton, New
York also forbid weight discrimination. Madison, WI; Urbana, IL; Santa Cruz, CA; and
Washington, D.C. go further, forbidding discrimination based upon “physical appearance,”
“personal appearance, weight, or height,” “physical characteristics,” and “personal appearance,”
respectively.
How should employers avoid appearance-bias?
Be sure employees are evaluated on one thing only: job performance. If appearance is
genuinely an essential function of the job, as it may be in customer-facing positions or
professional environments, be certain employees’ appearance is judged objectively. Become
aware of implicit bias4 and be sure appearance evaluation is not based upon stereotypes.
The City of Iowa City Office of Equity and Human Rights has been providing memos to
businesses on areas of discrimination since August of 2016. Please send topics you would like
to receive guidance on in the future, or inquiries regarding discrimination issues, to
humanrights@iowa-city.org.
3 See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
4 A good resource is Harvard University’s “Project Implicit.” https://implicit.harvard.edu/implicit/