7 Ways You Can Be Fired For Your Appearance -- Legally
I also got this question through AOL Jobs recently: I was just terminated for wearing the wrong kind of shoes. Do you think i have a case against my employer? I'm going to get a lawyer. The shoes I have cover my toe, which is the only requirement in the dress code.
The too-pretty-to-work case and my questioner bring up an issue that I get lots of questions about in my law practice: can you be fired for your appearance? The answer: It depends. While employers can't fire you based on race, sex, national origin, age, disability or other protected categories that may relate to appearance, there are some appearance-based firings that may be perfectly legal. Here are seven ways your employer might get away with it:
1. Too attractive: Unfortunately, it may well be legal to fire or refuse to hire an employee who is just too darned gorgeous. However, if your boss makes comments like, if his pants are bulging that's a sign your clothes are too revealing, as the boss in the too-pretty-to-work case did, you might have a case of sexual harassment. I'd also ask whether men and women are being held to the same standard. If hunky guys are allowed to stay but gorgeous gals are fired, that's a sign that sex discrimination might be happening in your workplace.
attractive people are more successful than the beauty-challenged. Unfair? Absolutely. Illegal? Doubtful. However, this is another of those situations in which you should look around. If only males or only females are being held to the beauty standard, then it might be sex discrimination. Similarly, if only people of a particular race, age or national origin are being held to an appearance standard, the company may have crossed the line into illegal discrimination.
3. Too fat: While employers can and do fire, and refuse to hire or promote people because they are overweight, if you are obese, you might be protected under the Americans With Disabilities Act. If only overweight women are targeted (or only men), then there might be sex discrimination. I haven't seen a case like this, but I suspect that a person from a nationality that is disproportionately overweight might argue that weight standards have a disparate impact on their nationality. Michigan makes weight discrimination expressly illegal. Some cities, such as Santa Cruz, Calif., Binghamton, N.Y., and San Francisco have ordinances against weight discrimination. There's a bill pending in Massachusetts that would also make weight discrimination illegal.
4. Too thin: Yes, the thin face discrimination too. While this is mostly legal, if your weight problem is due to a disability, you might have a claim under the Americans With Disabilities Act. If your job has a minimum weight requirement, unless the employer can demonstrate a business necessity and that no other criteria can be used as a substitute to weight, then this requirement may have a disparate impact on women and be illegal discrimination. You may also have a remedy if your state or local law prohibits weight discrimination (see No. 3 above).
using it to protest working conditions, then the National Labor Relations Act says they can't fire you for that. If special shoes needed for a disability violate a dress code, the employer must provide a reasonable accommodation to allow the employee to perform their job. If the employee objects to a uniform or dress code for religious reasons, the employer may have to grant an accommodation to respect the employee's religious beliefs or face the consequences.
6. Too short: Like attractive folks, tall people tend to make more money than short people. Minimum height requirements may have a disparate impact on women, so employers must be very careful in imposing height requirements. If your company tends to equally prefer taller men and women over shorter ones, you may be out of luck. If you're lucky enough to live in Michigan, or the cities of Santa Cruz, Binghamton or San Francisco height discrimination is expressly illegal there. Massachusetts has a similar bill pending in the legislature right now.
7. Too young: Sometimes people are turned down for jobs promotions because they look too young. This is legal in most states. The Age Discrimination in Employment Act only protects employees over age 40 against discrimination based on being too old. Some states, such as Alaska, Florida, Maine, Maryland, Minnesota and New Jersey, and municipalities such as New York City, have laws prohibiting discrimination based on being too young.
There's some hope for the appearance-challenged. A few cities, such as Madison, Wis., Urbana, Ill., and Washington, D.C., have passed laws against appearance discrimination. It looks like appearance will be one of the areas legislatures will be looking at in the years to come.
In the meantime, if you think you've been subjected to illegal appearance discrimination based on race, shade of skin color, gender, national origin, disability, religion, pregnancy or some other protected category in your state, you should talk to an employment lawyer in your state about your rights.
If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs. While I can't answer every question here, your question might be featured in one of my columns, or in an upcoming live video chat.
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Donna Ballman’s new book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was recently released and is currently available for purchase. The book won the Law category of the 2012 USA Best Book Awards. Donna is the award-winning author of The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She’s been practicing employment law, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and employment law issues in Florida since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011 ABA Blawg 100 and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.
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