employment law update

by Michael Starr Hogan & Hartson LLP

and

by Adam J. Heft Hogan & Hartson LLP

Lookism: New Forms of

Appearance matters – at work and in are, on average, considerably taller than Opportunity Commission. Abercrombie & life. Researchers at the University of the average American, and that workers Fitch had sought to promote an “all- Alberta, after observing more than 400 who are tall, slender and attractive earn American” image and was accused of parent-child interactions occurring at more money than their shorter, heavier violating Title VII by maintaining recruit- supermarkets, determined that less and less attractive counterparts. ing and hiring practices that favored attractive children were less cared for by If appearance plays an ingrained part white males and excluded minorities and their parents: they were belted into of our evaluations of other people, and women. The EEOC lawsuit and two shopping carts less often and were more attractiveness pays dividends in the private class actions were resolved by a likely to be allowed to wander out of workplace, is that a social reality that Consent Decree that provides for sight. The research team leader con- exceeds the reach of the law or a form of payments of $50 million and significant nected this to evolution, suggesting that invidious discrimination that should be changes to the way the company better looking children get better care banned? The law on this point goes both recruits and hires employees, makes because they carry a more desirable ways. promotion decisions and assigns jobs. genetic legacy. The American Heritage Dictionary For decades courts have recog- While some challenge the validity of defines “lookism” as “discrimination or nized that companies may adopt a this “supermarket science,” other against people based on their certain image that they want to project to sources support the view that appear- appearance.” Apparently adopting the their customers and, to that end, impose ance plays a critical role in how people view that lookism is invidious, the dress and appearance standards on their are treated by other people. Research- District of Columbia anti-discrimination employees without violating federal ers at Harvard Medical School and MIT law bans employment decisions based employment discrimination laws. In this report that the part of the brain that is upon “personal appearance” to the same regard, women have been required to affected when a man is shown pictures degree as those based on race, color, wear overalls thought it contradicted of an attractive woman’s face is the same religion, age and sex. their religious scruples against a woman as is affected when a gambler sees The high water mark for appearance dressing like a man, see Killebrew v. Local money or an addict sees drugs. Studies discrimination may have been reached in Union 1683, 651 F. Supp. 95 (W.D. Ky. focusing on the workplace have found the lawsuit against Abercrombie & Fitch 1986), men have been required to keep that C.E.O.’s of Fortune 500 companies brought by the Equal Employment their hair short though no such rule was

12 imposed on women, see, e.g., Baker v. Circuit was clearly mindful of long- challenged standards did not meet this California Land Title Co., 507 F.2d 895 established precedent that customer test. Jespersen had argued that the (9th Cir. 1974), and women were required preferences (like Abercrombie & Fitch’s “unequal burdens” test should be to wear their hair up contrary to their desire for an “all-American” image) cannot invalidated in light of the decision in own fashion sense when necessary to be used as an excuse for employment Price Waterhouse v. Hopkins, 490 U.S. conform to the “Brooks Brothers” image discrimination: customer hostility, for 228 (1989), which, as interpreted by the that their employer wanted its employ- example, is no defense to refusing to Ninth Circuit, had “held that an employer ees to project, see Wislocki-Goin v. hire Hispanic salesmen. may not force its employees to conform Mears, 831 F.2d 1374 (7th Cir. 1987). These two opposing positions the to the sex associated with This issue was revisited recently in use of appearance in employment their gender as a condition of employ- Cloutier v. Costco Wholesale Corp., 390 decisions may be on a collision course in ment.” Although the court previously F.3d 126 (1st Cir. 2004), cert. filed, No. the forthcoming en banc review of the cited to Price Waterhouse in upholding 04-9716 (2005), where Kimberly Cloutier, Ninth Circuit’s decision in Jespersen v. employees’ claims of harassment for a cashier at a Costco store in Massachu- Harrah’s Operating Co., 392 F.3d 1076 failing to conform to sex , it setts, refused to comply with her (9th Cir. 2004). A divided panel had rejected the implication that “there is any violation of Title VII occasioned by reasonable regulations that require male and female employees to conform to different dress and grooming standards.” “. . . appearance discrimination, unlike almost anything Id. at 1082-83. else in employment discrimination law, rises at the The dissent objected strenuously, intersection of civil rights and social engineering.” arguing that Jespersen “articulated a classic case of Price Waterhouse discrimination,” and reasoning that she was fired for refusing to conform to the employer’s dress code prohibiting facial rejected Jespersen’s Title VII disparate sex stereotype that women wear make- jewelry other than earrings. Costco treatment claim after she was fired for up. The dissent concluded that “when an argued that such jewelry detracted from refusing to comply with a new policy that employer takes an adverse employment the “neat, clean and professional image” set specific appearance standards for action against a plaintiff based on the that the company believed its customers men and women working in specified plaintiff’s failure to conform to sex preferred. Cloutier told her supervisors positions. This policy required stereotypes, the employer has acted that she would not comply with the Jespersen, a bartender with nearly 20 because of sex.” This broad interpreta- policy because she considered constant years of experience at Harrah’s, to tion of the sex-stereotyping theory of display of her piercings to be a require- comply with a number of sex-specific discrimination necessarily means that ment of her religion, the Church of Body appearance standards, including wearing any appearance standards that impose Modification, and her employment was make-up to work. Jespersen refused, different requirements on men and terminated. arguing that wearing make-up made her women are discriminatory per se. The district court had found in favor feel “degraded” and “forced her to be Perhaps there should be a law of Costco, ruling that the employer had feminine.” affording employees a right to express reasonably accommodated Cloutier by The panel majority found that their self-image through their personal proposing that she either cover or Harrah’s policy was no different than appearance at work. Perhaps, too, temporarily replace her piercings while other policies applying gender-specific workers like Jespersen should not be working. The First Circuit, however, grooming and appearance standards that required to wear make-up just because went further. It ruled that Costco had no the Ninth Circuit had previously ruled do that it is the image her employer wants duty to accommodate Cloutier in the first not constitute discrimination on the its female bartenders to project. Does place because the accommodation that basis of sex. The court noted that while that mean, however, that Cloutier must she had requested, an exemption from sex-differentiated appearance standards be allowed to show her multifarious body its appearance policy, would impose an that impose “unequal burdens” on men undue hardship on Costco. The First and women could be discriminatory, the (CONTINUED ON PAGE 14)

13 Labor Law Update

(CONTINUED FROM PAGE 13) Announcements With over 15 years experience piercings that is contrary to the “neat and clean” image that Costco has built Invitations producing a complete spectrum of into its company’s marketing strategy? Is correcting such perceived injustices Stationery Systems printed materials for the legal really what Title VII was intended to do? profession, in a full range of Our national employment discrimina- Firm brochures tion law is premised on the belief that reproduction processes, Precise there simply are no relevant differences Newsletters between blacks and whites, men and meets its commitments thanks to women, Hispanics and Anglos, Christians Seminar materials and Jews with respect to the qualities an interactive team of services: and characteristics that really matter (or Engraving from PC or Mac disks, or traditional that should matter) for the workplace, Offset except for that small range of instances mechanicals. We have built our where, for example, sex (but never race) Thermography can be a bona fide occupational qualifi- reputation on meeting your dead- cation. Embossing But appearance is different because lines. For more information about appearance matters. How employees Foil stamping Precise, please call Jim Donnelly. dress and groom themselves affect the image that the company is trying to project to the marketplace so as to Precise Corporate Printing, Inc. differentiate itself from its competitors in 20 Jay Street, Brooklyn NY 11201 Telephone: 718-797-0900 Ext. 201 the eyes of – shall we say? – “discriminat- Outside NYC: 1-800-392-2496 ing” consumers. And, it seems, attrac- Fax: 718-797-9637 www.precisecorp.com tiveness sells. From the perspective of enlightened rationality, this may all seem to be benighted , but it is also, it seems, something embedded in the fabric of the human condition. For this reason, appearance discrimination, unlike almost anything else in employ- ment discrimination law, rises at the Save the Date intersection of civil rights and social Save the Date engineering. How far the courts will go with this is still too early to tell. Join us for an evening of networking with your fellow chapter members at our Michael Starr is a partner in the labor and employment group of Hogan & Summer Barbecue Hartson L.L.P., resident in New York. He can be reached at [email protected]. Thursday, June 15, 2006 Adam J. Heft is an associate in Hogan & Hartson's labor and employment group, Bridgewaters resident in New York. He can be reached South Street Seaport at [email protected].

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