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Brad Reid

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The Difficult Issue of Attractiveness Discrimination

Posted: 01/10/2013 11:11 am

Employment-at-will is an established part of U.S. law. In essence since the employee is free to quit at any time for no reason, the employer is free to fire for no reason. Exceptions to employment-at-will are typically created by legislation, employment contract, and the judiciary's view of public policy. A recent decision of the Iowa Supreme Court, Nelson v. Knight, determined that the termination of a female dental assistant by her male dentist employer for being too attractive and physically desirable in the mind of the male employer did not violate the Iowa Civil Rights Act. This decision has sparked considerable comment. One thread criticizes the decision since physical appearance resulting in attractiveness is unrelated to job performance and is an immutable personal characteristic. Another thread supports the decision as upholding the right of employers to freely manage without governmental regulation. Our society seems to be of two minds when it comes to attractiveness and appearance discrimination.

Regulatory and penal legislation is typically narrowly interpreted by courts. Consequently, conventional legal wisdom indicates that civil rights legislation would need to be amended to specifically prohibit, by some appropriate terminology, the employment actions taken in the dental assistant case. Thus the Iowa Supreme Court distinguished employment actions based upon personal relations and prohibited gender discrimination. Another approach suggests separate legislation such as that in Michigan addressing employment discrimination based upon height and weight. Under either approach it is a difficult legal task to precisely draft legislation containing an appropriate balance between employee and employer. A slippery slope exists. Ultimately the question becomes a broad public policy debate related to the business and employment environment that government should support. This comment is not taking sides but briefly highlighting some of the issues to consider.

A free market economy should maximize business managerial prerogatives. On the other hand, individuals should not be penalized for appearance and attractiveness factors beyond their control. Currently, the Americans With Disabilities Act requires employers to provide reasonable accommodations to disabled employees unless this would cause an undue hardship to the employer. Legislation does shape public perceptions. Yet, social interaction molded by appearance and attractiveness is deeply engrained. Customer preferences are a significant business consideration but have been frequently determined to be linked to unlawful employment discrimination. Civil rights judicial decisions have prohibited gender-stereotyping in the workplace. Should appearance and attractiveness stereotyping become a part of this doctrine?

 
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