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Managers who hire for ‘Right look’ may be discriminating

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in Discrimination and Harassment,Employment Law,Hiring,Human Resources

Image is everything, as the saying goes. But be extra careful that your pursuit of a certain work-force image doesn’t result in the weeding out of legally protected employees (females, minorities, older workers, etc.).

Reason: Clever employment lawyers recently have been experimenting with a new kind of discrimination lawsuit: the “right look” class-action. It occurs when people claim they’re fired (or not hired) for waiter, sales clerk or other customer service jobs because they don’t have the “right look.”

Their allegations: That “right look” is simply code for no minorities, older workers or disabled people. Then, their lawyers ask for class-action status, suing on behalf of all employees who don’t convey the image.

Abercrombie & Fitch had to shell out $50 million a couple years ago to settle hiring-bias lawsuits by rejected applicants who said the company’s “A&F Look” meant hiring only white, male, preppy sales clerks.

Bottom line: Periodically remind hiring managers about your EEO hiring policy and the desire for diversity. Very few jobs satisfy the requirement that “looks” are a bona fide occupational qualification (BFOQ) necessary for a job. One exception: modeling.

Recent case: Three hotel employees fired by Valley Hospitality sued for race and age discrimination, claiming they didn’t meet the company-mandated “right look.” Their attorney asked to consolidate the lawsuits into a class action on behalf of all the company’s employees who didn’t meet this image threshold.

In this case, the 11th Circuit Court of Appeals rejected the request, saying the three hadn’t proven that the discharge rate among blacks and older employees was greater than for younger, white employees after Valley implemented its alleged “right look” policy. (Duncan, et al., v. Valley Hospitality Services, No. 05-13107 and 13342, 11th Cir., 2006)  

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