Appearance Based Discrimination 

Louis Pechman*

There are no federal or state laws which per se ban employment discrimination based on “appearance.” Over the last several years, however, a patchwork of legal doctrines have emerged which make clear that employers do not maintain unfettered discretion to base employment decisions simply on the way employees look.

Appearance based discrimination may be actionable if it has a nexus to sex, race, age, religion, disability or some other protected category. For example, in Tamimi v. Howard Johnson Co., Inc., 1 a motel was found to have unlawfully fired a pregnant desk clerk who refused her supervisor’s directive to wear make-up when her complexion had broken out. Or, in Rourke v. State Department of Correctional Services,2 the State Correctional Department violated a Native American correction officer’s right to the free exercise of religion when it terminated him for refusing to cut his hair since the tenets of his Mohawk faith prohibited him from cutting his hair. On the other hand, courts “have recognized that the appearance of a company’s employees may contribute greatly to the company’s image and success with the public.”3 This tension between the legitimate needs of business and the statutory proscriptions against discrimination has created challenging legal issues in the workplace.

The ADA

The Americans with Disabilities Act (“ADA”) has provided new avenues by which employees may pursue claims of appearance based discrimination. The ADA defines disability as (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such an impairment or (3) being regarded as having such an impairment.4 The “regarded as” prong of the definition of disability has particularly significant ramifications with respect to employees who have a visable physical impairment. In School Board of Nassau County, Florida v. Arline,5 the Supreme Court, in the context of the Rehabilitation Act – – the predecessor to the ADA – – explained that Congress intended to prohibit discrimination based on a physical impairment where that impairment only affects major life activities as a result of attitudes of others toward the impairment. The Arline decision cited two examples from the Congressional Record of discrimination based on the attitudes of others toward a visible physical impairment. In the first case, a child with cerebral palsy was excluded from public school because his teacher believed that his physical appearance “produced a nauseating effect” on classmates. In the second case, a woman with arthritis was denied a job solely because college trustees believed that “normal students” should not be exposed to her.6

The ADA has embraced the Arline court’s reasoning. Under the ADA, individuals who have stigmatic conditions that do not rise to the level of a substantial limitation on a major life activity may nonetheless be substantially limited as a result of the negative attitudes of others toward the impairments. EEOC regulations point out that “a person who has experienced severe burns may have an impairment that is substantially limiting solely because of the attitudes of others. Similarly, a person who has a cosmetic disfigurement may be continuously refused employment because of employers’ fears about the negative reactions of co-workers or clients. These persons would be covered under the third part of the definition of the term ‘disability.'” 7

In an example given by the EEOC, an applicant for employment as a sales representative in a home appliance store has a facial scar that runs from the base of his left ear to his chin. The sales manager of the store refuses to consider the applicant for the position because she fears that the applicant’s presence on the showroom floor will dissuade customers from shopping at the store. According to the EEOC, the applicant is protected by the third part of the definition of “disability” since he has an impairment — a facial scar — that is substantially limiting only as a result of the negative attitudes of others.8

An interesting application of the “regarded as” theory of discrimination occurred in Hodgdon v. Mt. Mansfield Co., Inc.,9 a case involving a toothless chambermaid at a ski resort. Plaintiff had no upper teeth and refused to wear her dentures because they caused her pain. The ski resort, striving for a “four star” rating and concerned about the way employees were seen by the public, terminated plaintiff when she failed to comply with its directive that “employees will be expected to have teeth and to wear them daily to work.” The Vermont Supreme Court found that plaintiff’s lawsuit was viable as it fell squarely within the “regarded as” prong discussed in the Arline case. The court stated “Plaintiff has a physical impairment, lack of upper teeth, that does not substantially limit her in any major life activity. Nonetheless, defendant treated her as if she had such a limiting condition because it decided that a visible physical impairment rendered plaintiff unfit to fill a position in which she had some contact with defendant’s guests. Defendant, thus, treated plaintiff as if her ability to work were substantially limited by her impairment.”10

A variation on the toothless employee issue occurred in Talanda v. KFC National Management Co.11 In that case, the manager of a Kentucky Fried Chicken restaurant claimed he was fired for disobeying an order from his supervisor to remove from customer view an employee who was missing her front teeth. The court held that a triable issue existed as to whether the manager was a victim of unlawful retaliation under the ADA.

The issue of customer preference raises complex issues in regard to claims of appearance based discrimination. Historically, customer preference defenses have been rejected in the discrimination context. Courts have reasoned that it would be anomalous to allow the preferences and prejudices of customers to determine whether discrimination is valid when it was these very prejudices that the discrimination laws were meant to overcome.12 Cases arising out of the ADA have similarly taken note of the pervasive discrimination disabled persons have faced because “others would feel uncomfortable around them.”13 In a recent ADA case an applicant for a sales position, whose face was partially paralyzed because of a brain tumor operation, was told by an interviewer that his face made him uncomfortable.14 The interviewer questioned the applicant about the cause and treatment of the disfigurement and what effect it had on customers. When the applicant was not hired, he sued. Although the jury found that the company did not discriminate against the applicant by failing to hire him, they nonetheless awarded him $15,000 in compensatory damages and $30,000 in punitive damages for asking disability related questions prohibited by the ADA.15

Height and Weight

Normal deviations in height and weight that are not the result of a physiological disorder are not impairments under the ADA.16 In the landmark case of Cook v. Rhode Island,17 however, the First Circuit held that morbid obesity may be a disability and upheld a $100,000 jury verdict for a job applicant who was refused a position at a home for the mentally retarded because of her obesity. The court explained that “in a society that all too often confuses ‘slim’ with ‘beautiful’ or ‘good,’ morbid obesity can present formidable barriers to employment. Where, as here, the barriers transgress federal law, those who erect and seek to preserve them must suffer the consequences.”18 The Cook decision was also important because it rejected the employer’s argument that the obese are not entitled to protection because physical conditions that result from the voluntary acts of an individual should not constitute a disability. The court noted that “numerous conditions that may be caused or exacerbated by voluntary conduct, such as alcoholism, AIDS, diabetes, and cancer resulting from cigarette smoking” were all protected disabilities under the law.19

In EEOC v. Texas Bus Lines,20 a bus company refused to hire a five foot seven inch woman who weighed 345 pounds as a bus driver. The bus company relied on the opinion of a doctor who examined the applicant as per Federal Motor Carrier Regulations. Although the doctor found no medical impairments, he was concerned about the way she “waddled” and feared that she would not react quickly enough in the case of an emergency. The court found that the applicant was unlawfully discriminated against because she was “regarded as” having a disability and that, moreover, the employer’s reliance on the doctor’s medical opinion was not a valid defense to the claim.

The distinction between the protections afforded to the morbidly obese as opposed to the merely overweight underscores the point that whether an impairment arises to the level of a covered disability often is a question of degree. In a similar vein, EEOC regulations point out that a four foot ten inch tall woman who was denied employment as an automotive production worker because the employer thought she was too small to do the work, does not have an impairment. Although the woman’s height was below the norm, her small stature was not so extreme as to constitute an impairment and was not the result of a defect, disorder, or other physical abnormality. On the other hand, a four foot five inch tall man with achondroplastic dwarfism does have an impairment as his stature is the result of an underlying disorder.21

The Legislative Response

The District of Columbia has prohibited discrimination on the basis of “personal appearance.”22 This broad prohibition has led to some interesting cases. In Atlantic Richfield Co. v. Commision on Human Rights,23 a female employee was found to have been unlawfully terminated because she wore “provacative and inappropriate clothes that did not conform with normal standards for office attire.” And in Underwood v. Archer Management Services, Inc.,24 the court found that a transexual stated a cause of action under the D.C. statute by alleging she was terminated because she “retains some masculine traits.” Only a few other jurisdictions have legislatively prohibited discrimination on the basis of appearance. The City of Santa Cruz, California, has enacted a statute barring discrimination on the basis of “physical characteristics.”25Similarly, Michigan law bans discrimination on the basis of height and weight.26

In New York, Assemblyman Daniel Feldman has proposed legislation that would amend the New York State Human Rights Law to include height and weight as protected categories.27 The Memorandum in support of the legislation explained that overweight persons are regarded by many in society as “unsightly and lacking in discipline despite the consistent findings by medical researchers that most people actually have little control over their body weight. Size discrimination is a ‘safe’ prejudice in a thin-obsessed society.” With respect to height, the Memorandum stated that “in American society, height frequently symbolizes power. For many people, height is a subtle indication of ability. Thus short people face discrimination based on unalterable physical characteristics.”28 The bill will be reintroduced by Assembly Feldman for the 1997 legislative session.

Conclusion

August Rodin, the French sculptor, once remarked that “to the artist there is never anything ugly in nature.” American society, on the other hand, is hardly so sanguine when it comes to personal appearance. In a culture fixated with make-overs and buns of steel and where advertisements pronounce “image is everything,” it is no surprise that employment decisions are sometimes based on the way someone looks. Employers will be well advised, however, to recognize that their ability to judge individuals on the basis of appearance may be severely circumscribed in certain situations by employment laws.


ENDNOTES
*Louis Pechman, an attorney with Berke-Weiss & Pechman LLP in Manhattan, is Chair of the New York County Lawyers’ Association Committee on Labor Relations and Employment Law.

This article is reprinted with permission from the September 25, 1996 edition of the New York Law Journal ©1996 NLP IP Company.

1 807 F.2d 1550 (11th Cir. 1987)

2 201 A.D.2d 179, 615 N.Y.S.2d 470 (3d Dept. 1994).

3 Craft v. Metromedia, Inc., 766 F.2d 1205, 1215 (8th Cir. 1985), cert. denied, 106 S. Ct. 1285 (1986).

4 42 U.S.C. § 12102(2)

5 480 U.S. 273, 282-83 (1987).

6 Id. at 282, n.9.

7 EEOC Compliance Manual, Volume 2, EEOC Order 915.002, Section 902. Definition of the term “Disability,” (“Compliance Manual”), at 902-48. (March 14, 1995).

8 Id.

9 160 Vt. 150, 624 A.2d 1122 (Vt. Sup. Ct. 1992).

10 160 Vt. at 166, 624 A.2d at 1131.

11 Talanda v. KFC National Management Co., 1996 U.S. Dist. LEXIS 7634 (N.D. Ill. 1996).

12 Diaz v. Pan American World Airways, Inc., 442 F.2d 385, 389 (5th Cir.), cert. denied, 404 U.S. 950 (1971).

13 Fink v. Kitzman, 881 F. Supp. 1347, 1369-70 (N.D. Iowa 1995).

14 EEOC v. Community Coffee, Co., Case No. H-94-1061 (S.D. Tx. 1995).

15 In the Final Judgment, dated July 28, 1995, the award of punitive damages was set aside by Judge Black.

16 29 C.F.R. 1630 app. § 1630.2(h).

17 10 F.3d 17 (1st Cir. 1993). Cf. 29 C.F.R. 1630 app. § 1630.2(j) (“except in rare circumstances, obesity is not considered a disabling impairment”). See also State Division of Human Rights v. Xerox Corp., 65 N.Y.2d 213, 480 N.E.2d 695, 491 N.Y.S.2d 106 (1985) (obesity may constitute a “handicap” under a New York Executive Law).

18 Id. at 28.

19 Id. at 25.

20 923 F.Supp. 965 (S.D. Tex. 1996).

21 Compliance Manual at 902-11.

22 D.C. Human Rights Act, Sections 1-2512 (1981). Section 1-2502 (22) the Act defines personal appearance as “the outward appearance of any person, irrespective of sex, with regard to bodily condition or characteristics, manner or style of dress, and manner or style of personal grooming, including, but not limited to, hairstyle and beards.”

23 515 A.2d 1095 (D.C. 1986)

24 65 FEP Cases (BNA) 791 (D.C. 1994).

25 Santa Cruz, California, Ordinance 92-11 (April 28, 1992).

26 Mich. Comp. Laws Ann. Sec. 37.2202 (West 1991).

27 Assembly Bill No. 158 (1995-1996 Regular Session).

28 Memorandum in Support of Assembly Bill No. 158 (1995-1996 Regular Session).