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Appearance-based discrimination

Updated January 21 2008 - A survey in 2007 by career publisher Vault.com of 468 employees in a range of industries across the US found that 85 per cent of respondents believe that tattoos and body piercings reduce the chance of getting employment.

One respondent commented:

"Regardless of who the real person may be, stereotypes associated with piercings and tattoos can and do affect others. In general, individuals with tattoos and body piercings are often viewed as 'rougher' or 'less educated.'"

Nearly half (42 per cent) admitted to having either a tattoo and/or body piercing (in addition to ears) of whom 40 per cent had one or more tattoos and 20 per cent had one or more piercings. The most popular place for a tattoo was the arm (25 per cent). Over half of employees with tattoos and/or body piercings chose to cover them up when at work but only 16 per cent of employers had an official company policy in this respect.

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March 25 2005 - The US is divided over the regulation of appearance at work - including weight, hairstyles, clothing and body piercing - according to a national survey by the Employment Law Alliance (ELA).

ELA's "America At Work" poll asked 1,000 Americans about their views on appearance-based discrimination. Employer-employee disputes are increasing, frequently spilling over into the courts and government enforcement agencies. Recent cases have included:

- an Atlantic City casino sued over a requirement that cocktail waitresses undergo weekly weigh-ins;
- a challenge based on religious beliefs to a national superstore chain’s prohibition on "visible facial or tongue jewelry (earrings excepted)";
- a $40 million settlement involving a national clothing retailer accused of appearance-based personnel practices.

According to Stephen J. Hirschfeld, CEO of ELA and a partner in the San Francisco-based law firm of Curiale, Dellaverson, Hirschfeld, and Kraemer, said claims involving alleged appearance or personal-style discrimination are surging.

"On the surface this may look like another symptom of a litigious society, but it goes much deeper than that as employers and employees struggle over the authority of management to ensure customer satisfaction versus an employee’s right to, for instance, sport a nose ring and a tongue stud while taking orders at the local fast-food restaurant," said Hirschfeld, head of the world’s largest practice network of labor and employment attorneys.

Major findings of the poll were:

  • 39% said employers should have the right to deny employment to someone based on appearance, including weight, clothing, piercing, body art, or hair style.
  • 33% said that in their own workplace workers who are physically attractive are more likely to be hired and promoted.
  • 33% said workers who are unattractive, overweight, or generally look or dress unconventionally, should be given special government legal protection such as that given persons with disabilities.
  • Of the 39% who said employers should have the right to deny employment based on looks, men outnumbered women 46% to 32 %. And whites outnumbered non-whites 41% to 24%.

The workers were also asked if they had any relevant personal experience.

  • 16% said that they had been the victim of appearance-based discrimination.
  • 38% of those said the discrimination was based on their overall appearance; 31% said it was their weight; and 14% said it was a reaction to their hairstyle.
  • A third (33%) of those saying they had been discriminated against said it was for some other reason.

The survey found that supervisors are much more likely than non-supervisors to support a policy permitting companies to regulate personal appearance, said Hirschfeld. 47% of the supervisors surveyed considered that employers should have the right to deny employment based on looks. 35% of non-supervisors supported that position.

"The most surprising finding in the poll might be that roughly half the nation’s employers have absolutely no policy or regulation that addresses this extraordinarily complex yet important issue in the American workplace," explained Hirschfeld. "While most of the employee claims in the past have involved direct-customer contact businesses like retailing, restaurants, and transportation, we’re now seeing image or appearance-based claims in virtually every area. While the law is changing, employers have to focus on the requirements of the position when making personnel decisions if they are going to be able to successfully defend themselves against a discrimination claim."

The study has a confidence interval of plus or minus 3.1%. It was conducted over a recent weekend by the Media, Pa. market research firm of Reed, Haldy, McIntosh & Associates of a representative national sample of the adult population.

The Employment Law Alliance is the worlds’ largest integrated, global practice network and is comprised of premier, independent law firms distinguished for their practice in employment and labor law. There are member firms in every jurisdiction in the United States and major commercial centers throughout the world. For further information, including access to the survey charts and graphs, visit http://www.employmentlawalliance.com.



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