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Image-based discrimination can give employers a black eye
By DENNIS QUICK
Senior Staff Writer
Employers intent on hiring employees whose appearances reflect the company’s image could be entering a legal minefield if they’re not careful.
Those mines could explode into discrimination lawsuits costing an employer anywhere from $75,000 to $500,000 in legal fees for a single-plaintiff case, regardless of the trial outcome.
So warn employment attorneys J. Walker Coleman and Charles F. Castner of Charlotte law firm Parker Poe Adams & Bernstein’s Charleston office.
Image-based discrimination issues are most prevalent in the hospitality and retail industries, where employers strive for a particular ambiance and employees interact face-to-face with customers. In South Carolina, image-discrimination lawsuits are on the rise, Coleman and Castner say.
One image-based discrimination case receiving national attention involves the Borgata Hotel Casino & Spa in Atlantic City, N.J.
The Borgata’s servers—referred to as “Borgata Babes”—and bartenders wear tight-fitting or scanty costumes and are regularly weighed. If their weight exceeds 7% of their baseline weight and they fail to lose the extra pounds within 90 days, they can be fired. The Borgata employees union has filed a grievance against the casino, charging Borgata with image-based employment discrimination. Borgata officials rejected the grievance, saying their employees’ look is part of Borgata’s product. Union officials plan to take the issue to arbitration.
Trim, sexy servers are essential to Borgata’s business, says Coleman. “That’s Borgata’s brand. And because the weight standard is applied across the board, to males as well as females, it’s legal.”
As long as employee appearance plays a role in the business and the appearance standard is applied equally to employees, employers can legally enforce their brand identification through their employees, Coleman and Castner explain.
For instance, it’s no surprise that health clubs prefer their employees to look and be fit, that so-called “gentlemen’s clubs” prefer their exotic dancers shapely and young, Coleman points out. One is selling health, the other sex, and their employees’ appearance is crucial to their business.
However, a legal battle could ensue if employee appearance is not a “bona fide occupational qualification,” or BFOQ, Castner warns. Firm muscles and svelte figures are BFOQs as they relate to fitness trainers and exotic dancers.
Race is never a BFOQ, yet this is an area where some employers risk discrimination charges, Castner and Coleman note. For example, Charleston’s finer restaurants tend to hire young, attractive whites as “front of the house” servers and bartenders and blacks as kitchen and “back of the house” help. This could be legally “problematic,” Castner says.
Likewise, it is unlawful for businesses serving black neighborhoods to hire black employees because of their race, Castner points out. It’s one thing for employers to hire neighborhood residents as an economic boost to the community. It’s another to conduct hiring that is racially discriminatory.
It is illegal for employers to hire or fire anyone on the basis of race, religion, sex or national origin, according to Title VII of the 1964 Civil Rights Act.
Yet Title VII provides a BFOQ exception to the rule if religion, sex or national origin are “reasonably necessary to the normal operation” of a business.
Employee dress codes are legal as long as employers are “regulating only changeable characteristics” such as hairstyles, clothing and jewelry and the rules are applied to everyone, says Castner.
“Appearance is more important than ever before” in the workplace, Coleman says. Although offering no explanation as to why this is so, he attributes the growing emphasis on appearance to the rise in image-based discrimination claims.
Coleman and Castner recommend that employers consistently monitor their workforce for possible discrimination charges. Employers should document their recruiting, hiring and firing actions to prove those actions were not discriminatory, communicate their hiring criteria to job interviewers and make sure the interviewers are trained not to ask inappropriate questions.
Dennis Quick covers hospitality and tourism for the Business Journal. E-mail him at dquick@crbj.com.
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