Mimi, a fat woman with big hair and heavy makeup, wants the job. But it's all Carey can do to take the woman seriously because of her dramatic style and presence. Before Carey can get a word in edgewise, Mimi has managed to talk herself into a job—making it clear that she has been discriminated against in the past because of her looks and will not be discriminated against in the same way again.
While this overly dramatic situation was portrayed in a comical light, what makes us laugh is there's a glimmer of truth to the story. At some point in their careers, most human resources professionals have faced a situation in which they were forced to evaluate someone based on his or her looks, not just on qualifications or potential. And they secretly wondered: How fair is it to make snap judgments about people based on their appearance?
If you were behind Carey's hiring desk, would you have hired someone who didn't fit a preconceived idea about what the "right person for the job" was supposed to look like? Have you ever made a snap judgment about someone based on his or her looks and later were proved wrong? Just as there never are black-and-white answers to most human relations questions, it's difficult to determine when a company should evaluate people based on how they look, or whether to maintain appearance policies in the first place. You might be surprised to learn that there are some solid business reasons for mandating appearance—because those standards can lead to a culture that's uniform and consistent.
But there are other good reasons not to judge people based on appearance factors, such as height, weight and grooming. Looks-based judgments tend to inhibit diversity, can be discriminatory and can lead to legal entanglements. Certainly, how a person looks should never be the sole factor in recruitment, hiring, promotion or compensation, but it sometimes is part of the employment decision-making process. Should it be? And if so, when? You be the judge.
Physical appearance affects economic status.
Lest you think people are judged solely on performance, and not on their looks, consider the following. From infancy, we start making judgments about how people look. Studies consistently show that babies are more attracted to the faces of people who rate higher on the "beautiful" or "handsome" scale than to those who rate lower. They actually will look at a "pretty" face longer, and turn away from a "not-as-pretty" face sooner.
It seems to be an instinct related to the idea of the survival of the fittest. There's something in the human psyche that feels the more attractive you are, the better you'll survive in the world. Therefore, if we align ourselves with the better looking of the species, we also may be better off.
Other studies indicate that when people reach their teens, certain physical traits, such as height and weight, already inhibit workers' social status and earning potential. For example, a study completed in 1994 by David G. Blanchflower, professor of economics at Dartmouth College, and Dr. James D. Sargent, showed that 16-year-old girls who were in the heaviest 10% of the population earned 7.4% less than their non-obese peers. And, the heaviest teens (the top 1%), earned 12% less. Interestingly, women who still were overweight at age 23 earned 6.4% less than their peers who had never been overweight. It seems that they either never catch up because they're burdened with low self-esteem that continues to affect their performance as time goes on, or employers continually and blatantly discriminate against them.
The study also shows that height was a critical factor in boys' earnings potential. For each 4-inch increase in height, boys' earnings rose 2%. Height, however, didn't statistically affect girls' wages, nor did weight affect boys' earnings.
And statistics don't seem to change as people age. A 1993 study in New England Journal of Medicine shows that the heaviest 3% of women were 20% less likely to be married, had household incomes averaging $6,710 lower than those who weighed less and were 10% more likely to suffer from poverty. To the researchers' surprise, problems such as asthma, diabetes, deformed legs and impaired vision didn't have the kind of impact that weight had.
Height, not surprisingly, seemed to affect men's economic status more than weight. Short men were 10% more likely to be poor and earned about $3,000 less than men a foot taller.
And height and weight aren't the only perceived appearance problems either. Overall attractiveness also affects individuals' economic health. According to a study by economists Daniel Hammermesh and Jeff Biddle—who are aligned with the Cambridge, Massachusetts-based National Bureau of Economic Research—more attractive people earn more and less attractive people earn less. "We were trying to find out how big the relationship was between looks and earnings," says Hammermesh, also a professor of economics at the University of Texas at Austin. "We hoped to see what gender differences there might be." There were, in fact, subtle differences.
The researchers analyzed ratings from three sets of data (two from the United States and one from Canada), in which interviewers had ranked individuals on a five-point scale (strikingly handsome or beautiful, above average, average, below average, plain or homely). Then, taking credentials, occupation and age into consideration, the researchers found that good-looking men and women make close to 5% more than average-looking individuals. Unattractive people, especially men, get less (as much as 9% less). Some of the U.S. data shows that attractive women got about 3% more pay than average-looking women, and homely women got about 5% less than those with average looks.
Whether an individual is classified as good looking is simply a state of being. As they say, beauty is in the eye of the beholder. But money, as they also say, is in the hands of the employer—and should be distributed based on performance and not physical status.
Balancing the legal scale on the issue of weight.
Of all the personal appearance topics, weight is perhaps the most delicate. Despite America's preoccupation with slimness, we're collectively getting fatter ("fat," by the way, is the politically correct term). The National Center for Health Statistics tells us that in 1980, the average American man was 5 feet 9 inches and weighed 173 pounds. The average woman was 5 feet 4 inches and weighed 144 pounds. A decade later, the average man weighed 180 pounds, and the woman weighed 153. As of 1993, 68% of all Americans were considered overweight, up from 58% a decade earlier, based on Metropolitan Life Insurance tables. If the majority of people technically are "overweight," who really is the "majority" or "normal?" And what difference does it make in the workplace?
It shouldn't make any difference, unless the overweight condition causes a person to be unable to perform his or job. The problem is perceptions—and misperceptions."There are assumptions made that if people are overweight, they can't control their lives, or they're sloppy or lazy," says Anita Rowe, a diversity consultant in Culver City, California. "There's a whole set of assumptions that may be unconscious around this issue."
Says Lee Martindale, a size-rights activist who lives in Dallas: "I would rather be judged by my work, not my waistline." Martindale, who's also a paraplegic, says she's constantly discriminated against because of her disability and her weight. "I've had employers offer me positions on the condition that I lose 100 pounds. My standard answer is: Fine, I'll do that if you cut off your left arm. It's the same kind of self-mutilation." She explains: "It all boils down to being allowed to contribute based on your talents, not on what you look like."
In a culture in which we're bombarded with social cues saying slim is good, and near-anorexic is better, it's no wonder that much of American society feels woefully inadequate. Yet, we seem to idolize a weight standard that's often unachievable, unsustainable and idealistic. For some, it's an unconscious ideal leading to hurtful bigotry at work.
Take the case of John Rossi, who lives in Chula Vista, California. For 10 years, Rossi worked for Phoenix-based Northern Automotive Corp., owner of Kragen Auto Parts. Four years ago, unexpectedly, Rossi was fired by supervisors in the firm's San Francisco offices—the area where Rossi worked at the time. When Rossi was fired, he weighed 400 pounds. He learned from another manager that his weight played a part in his firing. "He just didn't like the way I looked," Rossi said of the regional supervisor he thinks was behind his termination. "He judged me without even meeting me."
Rossi sued. Supervisors from the firm argued that Rossi was discharged solely for poor performance. Rossi contends he worked his way up from clerk to manager, often doing the job of two people. When he could no longer fit into the company uniform, he consistently wore slacks and a tie. Rossi claims he continually was praised for his work during his tenure.
During Rossi's trial, Dr. Richard Kamrath of Walnut Creek, California, testified that obesity can be attributed 80% to genetics and only 20% to environment. After only six hours of deliberation, a jury found that Rossi's weight condition qualified him for coverage under a California law, similar to the federal ADA law, and therefore protected him against discrimination. The California Supreme Court has ruled that under the state law, obesity is a valid disability when it results from a medical condition, rather than a ravenous appetite.
In September, Rossi was awarded $1 million. He will receive $776,739 for emotional distress and $258,913 for lost compensation and benefits. "I hope people are judged on their character and work ethic, not on their appearance," said Rossi after the verdict. The company hasn't decided whether to appeal.
The Equal Employment Opportunity Commission (EEOC) has asserted that obesity—particularly "morbid obesity" (the unforgiving medical term meaning one who weighs twice or more the "average")—should be regarded as a protected disability under federal law. However, neither the Rehabilitation Act of 1973, the ADA, nor the regulations under either statute directly address the question of whether obesity is a disability.
In its first detailed comment on the subject, the EEOC issued a position statement in 1993 in response to the case of a Rhode Island woman who was 5-feet-2-inches tall and weighed 329 pounds. Bonnie Cook had applied for a job with the Rhode Island Department of Mental Health. She was denied employment, and she sued. The court upheld a $100,000 verdict in the case on the basis of the Rehabilition Act.
The EEOC said that morbid obesity "of sufficient duration and with a significant impact on major life activities can constitute a disability.... It is not necessary that a condition be involuntary or immutable to be covered under the federal Rehabilitation Act of 1973 or the Americans with Disabilities Act," the commission stated. It compared obesity with alcoholism, diabetes, emphysema and heart disease, all of which have been regarded as covered disabilities, although the conditions "may be caused or exacerbated by voluntary conduct."
Other jurisdictions have issued varying decisions dealing with obesity as a handicap. A leading New York decision declares obesity to be a handicap. A Pennsylvania Commonwealth Court held that morbid obesity may be, but is not per se, a handicap. A Washington court held that it isn't a handicap when the condition is "within the plaintiff's control."
Whether weight is under a person's control or not, what about individuals who are overweight, but don't consider themselves disabled because of it? That was the question ultimately posed by Toni Cassista, a 305-pound woman who went job-hunting. In 1987, Cassista applied for a job opening at Community Foods in Santa Cruz, California. The position involved moving 50-pound bags and produce boxes. She wasn't hired.
Cassista sued, charging that she was denied employment because she was perceived to be physically handicapped by her weight. Store officials testified they were concerned about Cassista's experience and ability to safely perform the job because of her weight. Cassista said her overweight condition wasn't caused by a physiological disorder, and she didn't want to be perceived as disabled.
The state's supreme court emphasized that its task was limited to determining the boundaries of the state's Fair Employment and Housing Act, and that it wasn't free to define "physical handicap" in terms that may be "morally just or socially desirable." Because the state law requires an individual to prove his or her weight is caused by "a physiological disorder that affects one or more bodily systems and limits the ability to participate in major life activities," Cassista's case was dismissed. But the questions remain.
These are questions that the city of Santa Cruz, California, Washington, D.C. and the state of Michigan have decided once and for all. There, you can't discriminate against people because of their weight, their height or any other physical condition a person may have been born with. Currently, these are the only jurisdictions having laws forbidding discrimination on the basis of weight and other inherent physical conditions, although others are carefully considering them.
Santa Cruz's city ordinance says: "It is the intent of the city council, in enacting this chapter [9.83.01], to protect and safeguard the right and opportunity of all persons to be free from all forms of arbitrary discrimination, including discrimination based on age, race, color, creed, religion, national origin, ancestry, disability, marital status, gender, sexual orientation, height, weight or physical characteristic... The council's purpose in enacting this chapter is to promote the public health and welfare of all persons who live and work in Santa Cruz."
The law further indicates that physical characteristic "shall mean a bodily condition or bodily characteristic which is from birth, accident or disease, or from any natural physical development, or any other event outside the control of that person including physical mannerisms."
The law also specifies that employers or labor organizations may not "fail to hire, refuse to hire or discharge any individual" because of these reasons, or "discriminate against any individual, with respect to compensation, terms, conditions or privileges of employment, including promotion."
Although no cases of discrimination have been filed in Santa Cruz on this issue since it was enacted in 1992, plenty have come up in Michigan. James J. Parks, an attorney with the law firm of Gabrian and Parks PC in Bloomfield Hills, Michigan, should know. Parks has represented employees' interests in 15 weight-related cases over the past few years. "It's surprising how people still feel free to treat people differently because of weight," says Parks. "They would never do it with someone's age because they're scared to death [to do that]; they'd never do it because of race, because that's not politically correct, despite bigotry. But nearly everyone feels free to take potshots at fat people. Weight discrimination is the last bastion of discrimination that society permits."
He says he just helped settle a case for a "significant amount of money" against an employer who failed to take appropriate steps to stop harassment (name-calling and malicious statements) of an overweight employee. "It's just like the kind of chiding that happens on the playground," says Parks. "The difference is it can cost employers millions of dollars if they don't stop it." That's money lost in productivity, morale, turnover and lawsuits.
Parks suggests that even if weight discrimination isn't illegal where you work, you should consider adding weight to your company's non-discrimination policy. It will help ensure that employees treat each other with respect. "That doesn't mean nothing bad will happen to you [if you add it to your policy], but it can't hurt," he says. "So why not take that extra step?"
Sizing up the height issue.
Just as you should add weight to your policy as something not to discriminate against, it's also wise to recognize height has a diversity issue. Although height isn't a factor in discrimination as often as weight, height discrimination does happen. David Brookfield, for example, who's 4-feet-3-inches, has been told in employment interviews, "You're going to have trouble. People won't hire you because of your height." He says: "That was before the Americans With Disabilities Act [ADA]. Before laws went into effect, people could say those types of things." Now, he says that although it may be illegal to say such things, some employers clearly still think this way and find reasons not to hire people of short stature.
Brookfield, who's a district director for The Little People of America in Anaheim, California, has been employed in the entertainment field for the past several years. He says employers shouldn't discriminate against little people (or "LPs"—the politically correct term) because of their height. Although height isn't specifically mentioned as a protected category under the ADA, many LPs have non-visible disabilities because of the short stature, such as curvature of the spine or mobility problems, which do give them coverage under the ADA.
Although employers may have to make ADA-type accommodations for some LPs, such as lowering desks and chairs, the accommodations generally are worth the paybacks you get from employing people of short stature, Brookfield says. "I don't want to say we're marketing tools, but [we're] a way for a company to be remembered," he says. "If a little person makes a presentation, people tend not to forget it."
Brookfield says employers need to know that small bodies don't equal small minds. "We're full-grown adults," he says. "We have full-grown minds with the ability to think and sort out problems [just like anyone else]."
Ironically, very tall people don't seem to have the same problem with misperceptions as short people. "As far as I understand, there's no discrimination against tall people in employment," says Ray Wottrich, vice president of publicity for Tall Clubs International, in Stafford, Texas. TCI is a social organization for tall people. "There are studies that indicate the taller a person is, the more likely he or she is to hold a better job and advance more rapidly because there's automatic respect added to somebody when you're looking up to him or her—everything else being equal." But, he says, if people are too tall, they can be perceived as "gawky" instead of "statuesque" and may experience discrimination, too.
A legal look at grooming, appearance and dress codes.
Height, obviously, is something a person has no control over. But what about grooming and dressing? Employers should have some rights to regulate these voluntary actions, right? Well, laws governing grooming and appearance are sometimes difficult to interpret, and must be balanced with company standards.
"The general rule is that an employer can regulate how it wishes to have its employees dress and groom, restricted only by general principles of discrimination law," says James Hall, an attorney with the Los Angeles-based law firm of Barlow & Kobata. As you know, Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against individuals on the basis of race, color, religion, gender or national origin.
In the early days of Title VII, some women challenged employers whose dress codes required them to wear clothing that imposed a greater burden on them than on men. For example, employers who required women to wear uniforms (often revealing or sexually provocative ones), but only required men to wear slacks and shirts, were required to change their policies. And many had to pay lots of money in damages. "So you can't discriminate on the basis of a protected classification in drafting or enforcing the grooming rule," adds Hall.
Companies also need to be careful that grooming policies don't discriminate against people's religious persuasions without good reason. In July, a New York federal judge ruled that two guards at Sing Sing prison who were Rastafarians could wear dreadlocks, a common sign of followers of that religion. Prison managers argued that the men's long hair violated the organization's grooming standards—which prohibited spikes, tails and names shaved into hair—and that their hairstyle also signified the guards were "getting down" with black inmates. The judge disagreed saying there was no proof the hairstyle was unprofessional or posed a threat.
Race is another area that appearance standards, unwittingly or not, must be careful not to discriminate against. In one instance, Ann Arbor, Michigan-based Domino's Pizza Inc. had a long-standing, nationwide rule against facial hair. The EEOC challenged the rule on behalf of employees saying it racially discriminated against black males who often suffer from pseudofoliculitis barbae, a genetic skin disorder that makes shaving difficult, and even painful.
A 1993 U.S. Court of Appeals for the Eighth Circuit concluded that, in spite of the company's testimony that as much as 20% of its customers have a negative reaction to delivery men with beards, Domino's failed to show a substantial business justification for its no-beard policy.
"The existence of a beard doesn't affect in any manner Domino's ability to make or deliver pizzas to their customers," the judge in the case wrote, adding that the company "makes no showing that customers would order less pizza in the absence of a no-beard rule."
However, the courts don't favor employees in every situation. It clearly depends upon the job and the organization for whom the work is performed. For example, a federal appeals court rejected a race discrimination suit filed by 12 African-American firefighters in 1993. The firefighters had challenged the city of Atlanta's policy that male firefighters must be clean-shaven. They said black men were prone to suffering from pseudofoliculitis barbae and that the policy was discriminatory because of race. The Eleventh Circuit affirmed a district court's grant of summary judgment for the city, dismissing the plaintiffs' argument that the no-beard rule has an adverse discriminatory impact on blacks. The judge in the case wrote that the city proved its shaving rule was prompted by business necessity—a secure seal is needed between the skin and the respirators firefighters wear to protect them from smoke.
Problems over appearance guidelines sometimes can be purely cosmetic. For example, in 1991, an employee of Houston-based Continental Airlines Inc. refused to comply with the company's newly released, 45-page appearance code requiring women in customer-contact jobs to wear makeup. Teresa Fischette, one of the airline's part-time ticket agents in Boston, never wore makeup. When the guidelines were adopted, she didn't change her practice.
According to newspaper reports, the airline fired her. Of the action, Fischette was quoted as saying, "Where does company prerogative step over the bounds into personal choice?" In a letter she wrote to the company's president, Hollis Harris, she said: "My decision in this matter comes from a deep conviction that this policy of requiring, rather than encouraging, women to wear makeup and lipstick is not only unnecessary, but discriminatory toward women. The company certainly has a right to have... appearance standards, but... wearing make-up and lipstick should be a personal choice, not grounds for termination." Eventually, the airline reinstated her, but initially stuck with its new guidelines. Whether the company still maintains its strict policy is unknown. Continental has declined to discuss the issue.
Even Burbank, California-based Walt Disney Co., which has strict appearance and grooming guidelines for its U.S. work force, had trouble implementing the same guidelines in France. According to reports, Disney wanted its 10,000 workers in its Euro Disney SCA unit at Disneyland Paris to sign a 10-page addendum to their employment contract called "The Disney Look." The look prohibits men from wearing mustaches, regulates the use of perfume and requires women to wear modest hemlines.
Although the company has been challenged by employees about the same policy in the United States and won, French labor-law inspectors complained the contract was so detailed, it should have been approved by the company's works council before being adopted and implemented. After a former Disneyland Paris executive was fined in the case, the organization implemented a much less stringent dress code in its French operations.
"We think of Americans as being super-independent, but the Europeans absolutely were not going to wear 'le costume,'" says George Simons, a diversity expert and president of George Simons International, based in Santa Cruz, California. "You're going to need a business reason to do any of these things. And a business reason needs to be substantiated."
Even with the potential problems appearance standards may create, Erwin Young, City of Santa Cruz personnel director, argues that employers shouldn't shy away from them. "Those are issues employers should have the right to control," says Young. Although the city of Santa Cruz doesn't have written dress codes for city workers (except those who wear uniforms), Young says employers should be able to maintain appearance codes based on reasonable business necessity. "I mean, if a person is working in a warehouse in the back room, who cares what he or she looks like? But if the person's in a [high-profile job] and serving the public, that's different. If a company wants to portray a certain image, it certainly seems reasonable."
Decide on a consistent corporate image and draft employee appearance standards around it.
Having a clear company image is the base from which experts say employers should draft their appearance standards. Whether your firm wants to portray a casual, trendy, conservative or fun image—or any other profile on the image continuum—you need to decide what it's going to be, rather than let it happen by chance. If you don't drive the process, employees certainly will develop an image without you, but it may not be the one you want. While the standard doesn't have to be written, it should be clearly communicated.
This is the position that Jo Anne Dlott, vice president of HR for the Santa Cruz Seaside Company in Santa Cruz, has taken at her organization. Her company has continued to have the same basic appearance guidelines for the 1,000 employees who work in its parks each year during peak season (June through August) as it always has—even after the city's strict non-discrimination code went into effect three years ago. Dlott says they continue to update the guidelines each year as needed.
Dlott says the city's looks law hasn't adversely impacted her organization's ability to do business. She testified in city council meetings when the law was up for public hearings. In the law's earliest version, the ordinance would have prohibited employers from discriminating against individuals based on looks for any reason. In the end, the law narrowed it down to not discriminating against individuals because of height, weight or physical characteristics one is born with.
"The city council was really smart," says Dlott. "They listened to everybody, including employers. In the end, they said,'Look, anything you're born with or happens to you by accident and alters your appearance, we can deal with that. But if you tattoo your forehead or pierce your eyebrows or dye your hair purple and pink, we don't think that's appropriate [to ask employers to overlook].'
"It's been very livable for us from an HR standpoint," adds Dlott, whose organization runs amusement parks in both Santa Cruz and San Diego. "We have a fairly strict personal appearance and dress code. But because we're in Santa Cruz, which is more relaxed, we're far less rigid than, say, Disney." Seaside Company park employees wear uniforms and can't wear bi-level hair, nose rings or a hair color other than one a person would be born with. "Many of our guests come from fairly conservative Fresno, and we basically want to project an image of friendly, well-groomed folk."
And the company's very up-front with its guidelines. "When a person walks in the door and says, 'I want to work here,' we hand him or her a fact sheet so the person knows before even filling out an application, what our [appearance] requirements are," says Dlott.
When violations to the appearance code have occurred, Dlott says it has been up to the offending employees' supervisors to tell the workers it's time for a haircut, to remove their earrings or to change whatever the problem is. A conversation usually takes care it. When an employee fails to comply, he or she is terminated.
Image experts say companies that take a strong stance on image tend to do better overall because they have a stronger sense of mission and can communicate that better to their customers. "Even if employers don't think image is an issue, it should be an issue," says Susan Morem, an image consultant and president of Premier Presentation Inc. in Minneapolis. "I believe that employees' image should be tied in with the overall image of a company. If companies go to a lot of trouble designing [the physical space of] an office, thinking about advertising logos and such, but forget about their employees' [image], then they're missing the complete cycle that will make it a cohesive image with their customer. It all needs to be congruent." So, be clear about the standards you expect from applicants and employees.
Don't be afraid to include image as part of your diversity literature, either. The Seaside Company, as part of its guest-service training program, emphasizes that its guests are a diverse population and should be treated equally. That translates to workers' diversity as well. "It's really important to treat everyone the same," says Dlott. The idea is that everyone is different and should be treated with respect.
Says Simons: "Try to operate beyond the level of what the law requires to what's going to really work." Have a vision of diversity that includes personal appearance. Then, communicate how it fits into the organization and include it in diversity training. "You want people understanding why they're [being asked to look] the way they do and what advantage it is to them and to the organization," says Simons.
A proactive organization capitalizes on its human resources. "One of the ways we waste resources is by having stereotypical views of other people. We dismiss [people] before we give them a chance to show what they can do and what possibilities they bring to [the company] because they're different." Does it really matter that one of your employees wears a nose ring? If you honestly feel that, yes, it does, then you need to substantiate why that is. If it doesn't matter to the business, but you simply find it distasteful, realize it's your problem, not the employee's. Seek to cultivate personal expression and the diverse flavor it brings to an organization.
"The secret is voluntary synergy, not just voluntary compliance," says Simons. "I'm talking about people building synergy to do what their organization needs to do so they can have a good time, make money and contribute to the world effectively." Simons recommends you become aware of how personal appearances may create unfairness and damage productivity in your organization, and that you see images as diverse.
As someone once said: "If all the tools in your toolbox look like a hammer, then everything will look like a nail." The face of diversity is supposed to look different. That's the beauty of it.
Personnel Journal, November 1995, Vol. 74, No. 11, pp. 48-61.