Contributed by Helen Crossland (London)
Judging people on the basis of their physical looks is a fact of reality these days. Evidence also suggests that the culture of “lookism” within society now has such a foothold in the workplace that a person’s physical appearance can have as much influence on his or her career prospects as his or her performance in the office or boardroom. Whilst very few organisations will openly admit it, many businesses recruit, retain or promote employees on the basis of their attractiveness or how their appearance best complies with the image the organisation wishes to present. In certain circumstances, this can lead to job applicants and employees being discriminated against or harassed in the workplace purely on the basis of how they look.
It is a depressing thought that besides any other challenges women might face in the workplace, their progression up the career ladder might be more dependent on their looks than their brains or achievements. However, there is strong statistical evidence to show that women who wear make-up in business get better jobs and are promoted more quickly. In a survey reported in The Times last year, 64% of directors interviewed believed that women who wore make-up in the workplace look more professional, lending support to the theory that women are more likely to benefit career wise if they conform to this ideology.
The Guardian published a similar report which concluded that “attractive applicants have a better chance of getting better paid jobs.” The article also quoted a survey which found that women spend one fifth of their earnings on trying to look good in the workplace in the belief that their image will play a significant role in their career path.
Look Policies and Discrimination
An increasing number of organisations now have written “look policies” as part of their standard employment documentation and some even award prizes for staff whose appearance best represents the company’s image. Whilst “look policies” are most commonly found in the retail, beauty, leisure and hospitality industries, employers who do not have an express “look policy” may still subconsciously recruit, retain or promote staff based in part on the way they look and whether their appearance helps to maintain and promote the organisation’s image. People also tend to be comfortable recruiting or promoting people like themselves or which conform with their own stereotypes about how a person should look which can lead to a discriminatory homogenous staff, however unintentional.
“Look policies,” whether express or implied can therefore suggest that an employer positively discriminates against individuals who have certain physical characteristics or favours people based on how they look to the detriment of others. Females can be just as guilty as men in terms of judging job applicants and colleagues and whether their appearance complies with their own expectations of how a person should look in the workplace. Whereas there is nothing wrong with expecting staff to dress or present themselves in a certain way, a number of cases have emerged in recent years where an employer’s assessment about how a person looks in the workplace has resulted in a claim for discrimination or harassment.
In a survey carried out by Personnel Today, 75% of those interviewed considered a person’s blonde hair to be an acceptable topic of banter in the workplace, whilst 65% considered jokes about women having large breasts fair game. In this age of political correctness these results are at first glance surprising, but not when considered against the continuing backdrop of claims brought by women (often in very senior positions) who claim to have been sexually harassed or discriminated against in the workplace on the basis of their appearance.
“Look policies” are only unlawful, however, if they discriminate against any individual or particular groups on the basis of their physical appearance. Further, in order to be eligible to bring a looks-based claim, the person bringing the claim must have one or more of the “prohibited grounds” upon which to base the claim including sex, pregnancy or maternity leave, race, religion or belief, age, disability, sexual orientation, marital or civil partnership status or gender reassignment. A person will not be able to bring a claim on the basis of their blonde hair or body shape for example, unless there is an underlying discriminatory reason. However, if a woman is treated as less intelligent in the workplace because of her blonde hair or is teased about her bodily assets, then there may well be potential for a sexual harassment claim.
A Few Lookism Cases
The issue of lookism in the workplace and whether it can be justified was brought to the forefront last year thanks to the much publicised case involving Abercrombie & Fitch. Many businesses will, as a result of this case, have had their awareness heightened to the risks of having a “look policy” and of consciously or subconsciously hiring or promoting staff on the basis of how they look. Whilst the Abercrombie & Fitch case was brought on the ground of disability discrimination, ‘looks based’ claims can take many forms.
In June 2009 L’Oreal in France was fined 30,000 Euros after being found guilty of discriminating against job applicants following the disclosure of faxes it sent to a recruitment agency stating that it was seeking job applicants who were French white nationals, aged 18-22 and a dress size 8-12. Whilst extreme, this case showed the propensity of some employers to engage only those staff whose appearance matches the corporate image the company wishes to present.
The UK has seen a number of successful ‘looks based’ claims brought on the basis of age discrimination. One of the first such cases brought after the introduction of the age discrimination laws in 2006, involved a 19 year old woman who was told by her employer she looked too young to do her job and to deal with members of the exclusive private members club where she worked on the basis that its members might query her experience or ability to deal with certain matters.
Conversely, there has been a steady flow of claims in the last year brought by employees from the banking industry who claim that upon reaching the ripe old age of 40 or just over, they were put out to pasture by their employer in favour of younger employees. Whilst the outcome of these cases has yet to be decided and the banks are unlikely to admit to any such practices, it goes without saying that if an employee is forced out or passed over for promotion because they are considered to look too old then this will amount to unlawful age discrimination. Whilst ageism affects men and women alike there is a growing belief among female executives that the main threat to them is not their male counterparts but younger women rising through the ranks who do not only look the part but who have youth on their side.
Whilst it appears that lookism in the workplace is here to stay and we can expect to see many more looks based claims in the future, some employers might be able to argue that there is a genuine justification to require staff to look a certain way. However, the case law on the matter shows how inherently difficult looks based claims can be to defend as well as attracting publicity and expensive litigation that employers could well do without.
Helen Crossland is an associate solicitor at Sprecher Grier Halberstam LLP.