Discrimination

gab · September 2002

I have an employee who wants to transfer to another location because she recently moved and it would be closer for her. She met with the Customer Service Manager who wants to hire her, but the Operations Manager said she is not the "right" material for the location. In other words, she is not pretty enough for that location. Could this be a potential lawsuit?

Don D · September 2002

OH BOY! YOU BET!

Marie · September 2002

Potential? Yes. But,Don, what protected class is pretty?

Don D · September 2002

You'd better have more going for you with this rejection than "She's not easy enough to look at". Let's say she's not the shiniest apple in the market. Let's also say she's obese and has been combatting that for eons to no avail. Let's also say she's depressed due in part to both. Let's also say she's an American Indian and all the 'girls' who are 'real easy on the eyes' over in customer service are white. Let's also say she's got better performance reviews than the customer service bevy. Anybody smell ADA? Anybody smell Title VII? It's just plumb dumb to base a rejection on pretty. x:=|

Rockie · September 2002

I smell a rat! I recently had this same situation, but, of course, it was a physician that didn't like the "looks" of a potential employee. His comment, (not to me, of course, as he looks at me as "Catbert, the Evil HR Director"), was: "Well....really, I'm looking for someone younger, with less experience".
Of course, all docs are exempt from Title VII and ADA Claims.

Crout · September 2002

[font size="1" color="#FF0000"]LAST EDITED ON 09-09-02 AT 01:01PM (CST)[/font][p]If the employee in question is now doing the same or similar job, and the Manager can't justify his choice other than to say that she's not the "right material" you may have a BIG problem. In the short-term, you may be able to defend your company by focusing upon the qualifications of the other candidates. You may be able to prove that the in-house transfer was not as qualified, but that's a stretch. The long-term solution, of course, is to educate the Manager in appropriate hiring practices.

I just saw Marie's comment and while she is correct, there could be too many variables if the ONLY criteria is personal appearance. If opens your Manager up to charges of other forms of discrimination since the choice can not be quantified.

HS · September 2002

Anything as ambiguous as "not the right fit" could lead to a lawsuit. It depends on the individual who is being "discriminated" against. Best bet is to take some of the advice already posted. Advise the manager about "Civil Treatment" of his employees. If she's truly not qualified, you best make sure that a person hired for the spot is more qualified than her. Tell that manager to start guarding his words!

Good Luck

NaeNae55 · September 2002

In my mind (not necessarily a legal point), basing hiring practices upon someone's idea of "pretty" IS sexual discrimination. When you base your opinion of someone's ability to do a job upon their attractiveness, you are saying if you were a guy it would ok to be less attractive, but since you are female you have to be easy on the eyes (or does this manager turn down males who aren't handsome?) Wait a minute...wasn't there a lawsuit years ago involving flight attendants and them not being hired because they weren't attractive enough?x:-/

Crout · September 2002

Discrimination based upon personal appearance is the last accepted form of bias. The reality is that attractive people make more money and enjoy greater career success than people who are considered by society to be unattractive, such as individuals who are obese, for example. I once reported to an HR Manager who advised me with the most sincere expression that if two women were equally qualified, I should ALWAYS hire the more attractive of the two. This was from a man who would have considered it an absolute outrage to base a hiring decision on race or gender alone. I didn't buy that then and I certainly don't buy it now. I think that there are always other defining characteristics.

HS · September 2002

Unfortunate, but true...our managers perceptions of individuals they interview could be based on "looks" and we wouldn't know it if there were several people qualified to fill one opening. Strange that one would actually come out and say that to you...you said it was your HR boss?? Never ceases to amaze me how people don't guard their words...guess we all have to learn that lesson the hard way.

Brad Forrister · September 2002

I think the flight attendant cases have been based on age, not prettiness. Some airlines had a practice of getting rid of attendants at a certain age - which, of course, was mostly about appearance. But the legal doctrine was age discrimination.

Brad Forrister
Director of Publishing
M. Lee Smith Publishers

Don D · September 2002

I think I also recall that the airlines did have a weight restriction for female flight attendants that once upon a time were called stewardesses. The union challenged it in court if I'm not mistaken and one particular woman who exceeded the weight restriction (does that translate to ugly?) won mucho bucks.

System · September 2002

I think it's technically legal for the manager to discriminate against ugly women as long as he discriminates equally against ugly men (including himself). And his definition of beauty would have to be broad enough to include beautiful people of all races and nationalities, not to mention beautiful senior citizens and beautiful disabled people. Of course, unenlightened employees will sue your company anyway. It may be hard to find lawyers to defend this guy in court without busting out laughing, and the attorneys' fees could hit $100,000.

Other than that, it seems OK. x}>

James Sokolowski
Senior Editor
M. Lee Smith Publishers

Discrimination

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