Many consider the way they dress an extension of who they are as a person. Their appearance is a form of self-expression. Sometimes your appearance is even more than this, sometimes it is intrinsically tied to your history and cultural identity.
Appearance, and the legal peculiarities surrounding it, have been in the news lately after an 11h Circuit ruling declared earlier this week that employers can ban dreadlocks at work. The ruling comes after a black woman—Chastity Jones—was denied employment after she refused the would-be employers demand that she cut off her dreadlocks. The company had a policy which blanket forbade “non-professional hairstyles.” The HR representative which spoke with Ms. Jones said that dreadlocks fell under this policy because they “tend to get messy.”
The ruling in this case focused primarily on defining race discrimination—whether race was confined to the biological aspects of race or includes cultural aspects associated with a specific race. However, it has raised the question—when can an employer discriminate based on somebody’s appearance?
Classy Looks Not a Protected Class
Federal law bars employers from taking adverse employment action (not hiring somebody, firing somebody, refusing promotions, etc.) based on a protected classification such as race, national origin, religion, gender, veteran status and disability. You’ll notice that appearance is nowhere in that list. That’s no mistake because, generally, employers are totally free to discriminate based on your appearance.
However, like almost everything in law, there are exceptions to this general rule. Where appearance overlaps with a protected class feature—such as disability, religion, or gender—the rules change a little bit. What’s more, while there are no federal laws protecting against appearance based discrimination, there are a number of local laws that change how an employer must behave.
Obesity and the Americans with Disabilities Act
The Americans with Disabilities Act (ADA) protects against discrimination based on an actual or perceived (by your employer) disability. You may be asking, how does disability relate to appearance? The answer is that the ADA can potentially limit how an employer can discriminate based on appearance when it comes to weight—specifically obesity.
Exactly how the ADA treats obesity is something that varies wildly based on the court and where you are. In some places, morbid obesity is outright protected as a disability, in others its protected only if it stems from a different underlying condition. The same goes for "normal" obesity, with rulings as recent as earlier this year limiting the situations where it counts as a disability. The situation continues to develop and change in the courts—with a trend towards counting all obesity as a disability.
What this means is that, if obese or morbid obesity count as disabilities where you live, your employer must make reasonable accommodations for your disability and cannot take adverse employment action based on your obesity.
Discriminatory Dress Codes?
Most workplaces, like the workplace in the dreadlocks case, have some sort of dress code that they enforce. Where these dress codes are written to be totally neutral, and are neutral in practice, there’s no problem. An employer is, barring the rest of the exceptions discussed in this article, has a surprising amount of leeway when it comes to restricting your appearance as they wish. However, when the code is applied in a discriminatory manner, an employer may run into problems.
First and foremost, a dress code must be generally applied. Dress codes that single out either an individual or a protected group—such as gender or religion—are a no-no. For instance, your employer is not allowed to enforce a dress code that either explicitly, or in effect, unfairly burden one gender more than another.
However, employers are often allowed to apply different dress codes to men and women—cases have dealt with issues such as codes requiring makeup for women only. Employer codes can also generally enforce required weight and height so long as it is neutrally applied to men and women. They can also generally enforce grooming requirements and the covering up of tattoos and body piercings. A workplace can even require, so long as there are legitimate business requirements, “sexy” clothing and uniforms.
Employers must make reasonable accommodations—any accommodation that would not cause undue hardship for the employer—for religious garb and grooming within the workplace. Employees may also often insist on standards of modesty based on their religious beliefs.
The law also requires an employer to allow an employee to express their gender identity through accepted characteristics—although employers can require work clothing to conform to accepted social norms.
Where Appearance Discrimination Meets Other Kinds of Discrimination
So we’ve established that the law does not protect your appearance, employers have a great deal of leeway in limiting your appearance and—perhaps not surprisingly—hiring, firing, or refusing promotions based on your appearance.
An employer can’t, however, make adverse employment decisions based on your appearance where that determination also is founded on gender stereotypes or discrimination against religious garb or grooming.
There are a few places where appearance based discrimination has some teeth based on local laws. The state of Michigan forbids discrimination based on obesity. There are many cities which prohibit discrimination based on height, weight, or physical characteristics. These cities include: San Francisco and Santa Cruz in California, Madison in Wisconsin, Binghampton in New York, and Urbana in Illinois. Washington DC takes a slightly different approach, forbidding discrimination based on outward appearance subject to business requirements or standards.
Massachusetts has introduced legislation to prevent weight or height based discrimination several times, as recently as last year, but has yet to succeed in passing such a law. Their most recent attempt at such a law would also have prevented discrimination based on “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.”
Why Isn’t Appearance Protected?
Beyond these local rules and overlap with protected classes, your appearance is not protected from discrimination under the law. The legal reasoning behind this is that it does not check the required boxes to be a protected class.
Protected classes are generally immutable characteristics of a class that has historically been discriminated against. The way you dress or groom yourself can be easily changed and is thus not a likely candidate for a protected class. The same approach is generally taken with weight, although this ignores medical afflictions which may prevent a person from losing weight.
Height is a bit of an odd one, while it is certainly immutable, there could be some question as to whether it has been historically discriminated against—although very short and very tall people may think differently. The issue has been more and more addressed locally and, as the dreadlocks case shows, is beginning to be more visible on a national scale. Perhaps soon we’ll see federal law outlining exactly how much of appearance is protected from discrimination. However, given how long the federal government has been silent on this issue, I wouldn’t hold your breath; it is likely to remain primarily an issue of state and local law for the foreseeable future.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law