Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination in employment on the basis of sex, race, color, national origin, or religion. Other federal employment law prohibits discrimination based on age, disability, and genetics. In the changing world of personal appearance, the lines between discrimination based on federally protected classes may become blurred with bias towards lifestyle choices: piercings, tattoos, smoking, weight, or sexual orientation. Employers should be aware of the potential of employees (or prospective employees) using Title VII or other discrimination theories to advance new, non-traditional discrimination claims.
Sexual Identity
Title VII and the Americans with Disabilities Act (ADA) do not protect against discrimination based on a person’s sexual orientation or transgender status, but at least 20 states have passed laws that do. Even under Title VII, there are several cases where an employer has been found liable under Title VII for discriminating against an employee for “failure to conform to gender stereotypes.” These cases are based on the logic of a 1989 U.S. Supreme Court case, Price Waterhouse v. Hopkins.
In this particular case, a highly-qualified, sometimes aggressive, successful female accountant was repeatedly denied partnership because, her male colleagues said, she was not feminine enough. Her supervisor advised her to walk, talk, and dress more femininely, wear makeup, have her hair styled, and wear jewelry. She sued the company for gender discrimination under Title VII. The case was battled all the way to Supreme Court, which ultimately held that gender must be irrelevant to employment decisions, and that an employer who makes a decision because of an employee’s “failure to conform to gender stereotype” has unlawfully discriminated against her.
The concept of discrimination based on “failure to conform to gender stereotype” has been applied in the context of alleged discrimination against homosexuals and transsexuals. For example, a male Ohio firefighter was diagnosed with Gender Identity Disorder (GID) and made the decision to go through the gender reassignment process. He discussed his diagnosis with his employer and began to express a more feminine appearance on a full-time basis as part of the process. His co-workers said his appearance and mannerisms were not “masculine enough,” and his employer then devised a plan to terminate his employment because of his transsexualism and its manifestations. After he was fired, he successfully sued the fire department alleging discrimination. Transsexuals are not a protected class under Title VII, but he sued that he was discriminated against not because he was a transsexual, but because he was a man that did not act like a man.
In contrast, a male bus driver diagnosed with GID began to appear as a woman at work with the full support of the employer, the Utah Transit authority. The employer became concerned, however, when it realized that the bus driver, who had not yet undergone gender reassignment surgery, was required to use public restrooms along the route. The employer worried about the company’s liability for the uniformed bus driver using female public restrooms while still possessing male anatomical parts. The bus driver was terminated because the employer could not accommodate the restroom use, but told the bus driver to reapply after the gender reassignment surgery. The bus driver sued, claiming unfair treatment on the basis of gender because of failure to conform to gender stereotypes, but did not prevail. The court stated that an employer’s requirement that employees use restrooms matching their biological sex is not discriminatory.
Employers should be sure that they do not make employment decision because an employee “isn’t acting like a man or woman should.”
Weight Discrimination
Recent studies by Yale University’s Rudd Center for Food Policy and Obesity reveal that weight discrimination has increased by 66 percent in the past decade. Only Michigan and some Connecticut cities have laws prohibiting weight bias, but the federal government does consider someone who is “severely” obese (weighing more than 100 percent of that individual’s ideal weight) to be disabled and protected by the 2009 amendment to the ADA, the Americans With Disabilities Amendments Act (“the ADAA”). The ADAA does not grant new protection to those who are overweight or moderately obese.
Dress Codes, Grooming, Tattoos, and Piercings
Employers may decide not to hire someone because of an applicant’s piercings or tattoos, and employers may impose non-discriminatory dress codes in the workplace. Sometimes, however, an employer may be confronted with the issue of an employee who dresses or grooms in a certain way because of the culture of his or her national origin or religion.
For example, a potential Abercrombie & Fitch hire brought a discrimination claim against the retailer, claiming she was not hired because she wears a hijab, as she believes her Muslim faith requires. Abercrombie is famous for its preppy, young style. In an effort to promote that image, Abercrombie instilled a “Look Policy” for its employees, which included a “no hat” policy.
The young woman was not hired after a positive interview because the interviewer assumed her faith would prevent her from adhering to the Look Policy.
Generally speaking, an employer cannot impose a dress code that would treat certain employees unfairly because of their national origin or religion unless the employer cannot offer some reasonable accommodation to the employee, and it would result in undue hardship to the employer to not impose the dress code. At the same time, it is inappropriate to question an employee or potential hire about his or her religion when making an employment decision.
When crafting and issuing dress codes, employers should be sure to give employees and potential hires the opportunity to review the dress code and let them know that if they have any conflict with the dress policy, they must bring the issue to their employer’s attention and request a reasonable accommodation.
Smoking
Many states have outlawed smoking in public places and many employeer ban smoking from the workplace or even decide not to hire smokers. Those in favor of banning smokers from employment argue that the practice increases worker productivity, reduces healthcare costs, and encourages healthier living. Others fear that refusing to hire smokers may lead to the adoption of other selective employment practices, such as not hiring people who are overweight or who have high cholesterol. Federal law does not protect smokers from “discrimination,” or from employers’ judgments about employees’ lawful activities away from work; however, there are currently 29 states and the District of Columbia that consider smokers a protected class. If you do decide to ban smoking from the workplace, and are permitted to do so by your local law, consider whether you would like to add “vaping” and e-cigarettes to the definition of “smoking.”
Employers should keep these thoughts in mind as they shape employer policies or make employment decisions.
