Is It Legal to Be Discriminated Against Based on My Appearance?

Discrimination
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You may have a valid cause of action of discrimination based on your appearance, depending on the facts of your situation and the laws that could apply. An employer may want employees to have a certain “look,” which may be an illegal standard: for example, someone who is not a minority, does not appear to be disabled, or is specifically limited to male or female. In these instances, federal laws could apply if decisions are made that harm an employee because of his or her race, color, disability (or perceived disability), or sex.

The Role Appearance Can Play in Employment Decisions

We’d like to believe that looks aren’t everything, but according to an article in Psychology Today, good looks help you get ahead in the business world. People perceived as physically and social attractive are seen as more persuasive, meaning they are better able to secure the cooperation of colleagues, attract customers, and sell products. Perhaps because of this, an attractive person is more likely to be hired and later promoted.

In another study, reported in Time, participants were given a series of résumés and photos of applicants before and after weight-loss surgery. The results, published in the International Journal of Obesity, showed that starting salary, perceived leadership potential, and the ultimate selection of the candidate for the job were all negatively affected for women who were considered obese.

A study published in the Journal of Obesity estimates that the country saw a 66% increase in workplace weight bias from 2002 to 2012, a level of discrimination that is comparable to racial bias. One Texas hospital, the Citizens Medical Center in Victoria, made its bias against the overweight into an official policy. That policy requires new employees to have a body mass index of less than 35 (about 245 pounds for a man 5’10” tall and 195 pounds for a 5’2” woman). The hospital further stated that new employees “should fit with a representational image or specific mental projection of the job of a health care professional.”

The District of Columbia Human Rights Act (DCHRA) goes further than federal law, allowing a possible cause of action for discrimination based on personal appearance. One case where the plaintiff is suing under this law is pending in the U.S. District Court for the District of Columbia. It involves a woman who claimed she was denied a promotion, in part, because of her appearance (being overweight).

The Plaintiff Alleges Discrimination Because of Her Race and Her Appearance

Ana Lapera was born in Caracas, Venezuela. She earned her undergraduate degree in systems engineering and a master’s degree in engineering administration. Lapera started working for Fannie Mae in 1994. During her nearly 20 years there, she was promoted to management-level positions.

Lapera, who described herself as having “a body size which may be perceived by some as being overweight,” claimed that she was illegally discriminated against in violation of the DCHRA due to her personal appearance and in violation of federal law, Title VII, based on her race.

The judge assigned to the case issued a decision in September 2016 that denied the defendant’s motion for summary judgment, allowing Lapera’s case to proceed to trial. The plaintiff claimed she lost out on a promotion that was awarded to a slimmer Caucasian female who was less qualified for the job. Lapera alleged that Anne Gehring, a senior vice president at Fannie Mae, was biased against Hispanic and overweight employees.

Specifically, Lapera claimed that a new salary grading system, which was started in 2009, gave her an improperly low salary grade. She believed her denial of a promotion to vice president of planning and alignment was due to Gehring’s emphasis on “executive presence,” which Lapera argued was a cover for unfair criticism of and discrimination against overweight and minority employees. Gehring spoke about employees who didn’t “fit the team’s image,” criticized an overweight employee female by saying she “waddled,” and said one Hispanic worker “need[ed] to work on [her] accent because there is no way she’s going to progress with an accent like the one she has.” Instead of promoting Lapera, Gehring chose a slender, Caucasian female for the vice president position, though the plaintiff had more extensive experience and qualifications.

Following the terms of a contract between the parties, Lapera took the issue to nonbinding arbitration. The arbitrator ruled in the employer’s favor. Lapera rejected the decision and filed a lawsuit. Fannie Mae filed a motion for summary judgment, asking to have the case dismissed.

Judge Beryl A. Howell wrote in his decision that a reasonable juror could interpret the evidence as showing that Lapera was more qualified than the person who was chosen for the job, as she had more relevant education and more experience managing a large team. Judge Howell therefore allowed the failure to promote claim to go forward, though he did dismiss her pay rate claims.

The decision stated that whether Lapera was more qualified than the chosen person was a close call that should be left to a jury. Also, whether Lapera had communication issues, as the defendant claimed, would require the jury to make a credibility determination, given the conflicting evidence. Lapera’s claims of irregularities in the hiring process could lead a jury to conclude “that something was amiss.” (The selected candidate was allowed to apply after the deadline had passed and the successful candidate’s interview occurred during an hour-long lunch, whereas Lapera met with Gehring for 30 minutes in an office.) The court also concluded that the evidence of bias against Hispanics was weak, although there was evidence of Gehring criticizing Hispanic employees’ accents.

The judge stated that ultimately, a jury would need to decide which of two competing explanations was better supported by the evidence and more credible. The jury could conclude that Gehring, who was in charge of the hiring process, was biased against Hispanic and overweight employees and selected the other candidate not because she was more qualified but because she fit the mold in terms of demographics and personal appearance. Alternatively, the jury could decide that despite her knowledge of the job’s subject matter, Lapera lacked the communication skills necessary to be an effective vice president of planning and alignment.

Summing It Up

The DCHRA prohibits discrimination based on personal appearance. As a result, an employer in the District of Columbia may not take the following actions on the basis of an individual’s personal appearance:

  • fail or refuse to hire or discharge any individual;
  • discriminate against any individual concerning compensation, terms, conditions, or privileges of employment (including promotion);
  • limit, segregate, or classify employees in any way that would deprive or tend to deprive any individual of employment opportunities; or
  • adversely affect an employee’s employment status.

If you’re in the District of Columbia and feel that you weren’t hired or that some aspect of your job has been negatively affected because of your appearance, contact our office. We can talk about the situation, about why you think your appearance played a role, about how the law may be applied in your situation, and about your best options for protecting your rights and interests.