Appearance Discrimination &

Sexual Harassment

• Title VII (42 USC § 2000).
• Both public (fed, state, and local) and private (15 employees or more)
• Classes: Race, Color, Religion, Sex, National Origin.

Types of Sexual Harassment

Sex Based Sterotyping

• Quid pro quo: This for that.
• Employment decisions like hiring, receiving raises, and promotion are predicated upon providing sexual favors.
• Hostile Work Environment
• A workplace that is permeated with discriminatory intimidation, ridicule, and insults that is sufficiently severe and pervasive to alter the conditions of employment and creates an abusive working enviroment. (Harris)

Affirmative Defense for HWE Claim

Hostile Work Environment

Weight and Disability

• Under Title VII, if plaintiff shows that gender played part in employment decision, the employer can rebut that assertion.
• Employer can avoid liability by proving by preponderance of the evidence that it would have made the same decision even if it had not taken plaintiff’s gender into account.

• If there was sexual harassment, absent tangible employment action, employers have an affirmative defense.
• That it exercised reasonable care to prevent and correct harassment promptly.
• Employee unreasonably failed to avail self of correction option. (ex. reporting system) (Burlington).

• Totality of Circumstances
• Frequency of conduct, severity, physically threatening or humiliating, or mere offensive utterance.
• Must unreasonably interfere with work performance.
• Harassment by Supervisor
• Employer is per se liable (strict liability) for sexual harassment by supervisor when employee suffers a tangible employment action. (Faragher)

• Cook v. State of Rhode Island, Dept. of Mental Health, Retardation, and Hospitals.
• Applicant was 5'2" and 320 pounds.
• Hospital denied her employment because they argued her morbid obesity would affect her ability to do the job.
• Morbid Obesity is mutable.
• Morbid Obesity is created or exacerbated by voluntary conduct.
• Plaintiff failed to prove that she was substantially impaired in a major life activity.

Punitive Damages

Gray Area in the Law

Appearance Discrimination

• Punitive damages recoverable under Title VII if plaintiff can show employer’s malice or reckless indifference; egregious or outrageous discrimination. (Kolstad).

• Although appearance is not a protected class under the law, there can be some intersection with other protected classes.
• The only successful challenge to Abercrombie's "look policy" involved religious accommodation.

Appearance Discrimination

Defenses to Sexual Harassment

• Professionalism should not be based on appearance.
• There is no scientific evidence or any other type evidence that verifies a correlation between work ethic and appearance.

• Bona Fide Occupational Qualification
• Allows discrimination in certain instances where sex discrimination is reasonably necessary to the normal operation of the particular business (Dothard)
• Job qualification must relate to the essence, or to the central mission of the employer’s business.

Samantha Elauf v.

Abercrombie and Fitch

• Samantha Elauf is a Muslim woman, who applied for a job with Abercrombie and Fitch.
• She was denied a position because of the headscarf she wore, in accordance with her religious beliefs, and did not comply with the company dress code.
• The Supreme Court ruled that companies can have dress codes, but may not have a "forbidden motive", or discriminate based on protected classes, in this case religion.

• Discrimination based on an individual's outward appearance.
• Tattoos
• Body Piercing
• Hair Color
• Clothing Style
• Weight
• Height

Is it Fair Game?

• Although it is unfair to discriminate against someone based on appearance, it is legal.
• Appearance is not a protected class recognized by the law.
• Abercrombie and Fitch has a "looks policy", which requires sales associates to look and dress a certain way.

Appearance Discrimination &

Sexual Harassment

References

• Silverglate, Spencer. Apperance Discrimination. csclawfirm.com/index.php/csc/law/publications/appearance_discrimination.
• Manglona, Mona . “The Naked Truth: Appearance Discrimination in the Workplace.” The Digital Voice, 14 Nov. 2015, wordpress.philau.edu/thevoice/2015/11/the-naked-truth-appearance-discrimination-in-the-workplace/.
• Kaplan, Sarah. The rise and fall of Abercrombie’s ‘look policy’. Washington Post, 2 June 2015, www.washingtonpost.com/news/morning-mix/wp/2015/06/02/the-rise-and-fall-of-abercrombies-look-policy/?utm_term=.cb622146e391.
• Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
• Dothard v. Rawlinson, 433 US 321 (1977).
• Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
• Kolstad v. American Dental Assn., 527 U.S. 526 (1999).