Michael Cohen

Employment bias based on physical appearance is widespread and is even openly stated policy at some workplaces. But in certain circumstances, it can also be illegal.

“Lookism—discrimination based on appearance—is a real thing and in my view, a real problem,” Michael S. Cohen, a partner in management-side law firm Duane Morris LLP in Philadelphia, told Bloomberg BNA May 24. 

Casinos and restaurants are examples of employers that sometimes have physical appearance policies, attorney Michael C. Eastman told Bloomberg BNA May 25. One dress code he recalled seeing called for employees to be “toned.”

“There's nothing necessarily illegal” under federal employment discrimination law” against wanting people to be in shape or good looking,” said Eastman, vice president of public policy at the Washington-based Equal Employment Advisory Council. However, employers could face legal challenges if such a policy is shown to have a disparate impact on women, he said, and pregnancy discrimination lawsuits are a possibility if an employer doesn't make an explicit exception to a policy about employees’ weight.

Moreover, Eastman said, “there's a certain risk when you have that kind of policy” that can be mitigated by specifying objective criteria for appearance rather than allowing it to be judged subjectively.

Weight policies can also be a problem in cases involving morbid obesity, which the Equal Employment Opportunity Commission has said it regards as a protected disability, Cohen said. In addition, Michigan, the District of Columbia, and certain localities in California, Illinois, and Wisconsin protect some forms of physical appearance against job discrimination, he said.

Shelling Out for Perfect Teeth

That many employers nonetheless set standards for physical appearance is clear from the success of cosmetic dentist Dr. John Moore Jr., who heads the San Antonio practice Cosmetic Dental Associates, in working with people who want their teeth fixed to help their careers.

Moore has seen an increase in both men and women getting cosmetic dental work for career reasons, he told Bloomberg BNA in a May 25 email. About three-quarters of them are in sales, he said. “Of all the reasons I'm seeing given for getting porcelain veneers, I'd say 60 percent are social and 40 percent are career. This is definitely increasing and I'll bet it'll top 50 percent before long, maybe within a year.”

Moore recalled a father who brought in his daughter, who hadn't had success finding a job despite completing her education, for work on her decayed front teeth. “She was hired the first interview after getting her teeth fixed,” he said. Moore also recalled the case of a salesman with crooked teeth and bad breath from what turned out to be gum disease. After he was treated, Moore said, “his sales improved dramatically.”

Shallow Business Practice?

Even where not prohibited by law, though, it’s often unwise for employers to make job decisions based on a job candidate’s or employee’s physical appearance, Cohen argued. Regarding tattoos, for example, “the message I try to communicate to organizations all the time is that you want the best person for the job. We’re not concerned with their body type, face, or ink on the body.”

Employer clients sometimes counter that tattoos will upset customers or other members of the public the company deals with, but Cohen said he points out to them that many of these people also now have tattoos. In the late 1990s, many law firms similarly felt that “business casual” wear that was then becoming popular would be off-putting to clients, he said, but instead, law firm clients often wanted their attorneys to look like them.

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