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The Beauty and the Beast in the Workplace: Appearance-based Discrimination Claims Under EEO Laws

Labor and Employment Law

In today’s world there is one thing that can be said with absolute certainty: Appearance matters. Our society is obsessed with appearance. Appearance is the focus of many books sold in local bookstores. It is the topic of many self-help seminars. In every walk of life, whether it is the cashier at the grocery store or the trial attorney arguing a case before the local court, appearance makes a difference. While employers and customers in the business world regularly make decisions based on appearance, there is no law explicitly prohibiting use of appearance as a consideration in hiring or other employment decisions. Nonetheless, appearance issues are increasingly arising, with mixed results, in cases involving traditional employment discrimination laws.

Appearance and Success
Studies show that appearance is tied to success. For instance, attractive people are generally assumed to have higher levels of intelligence, motivation, education, and overall capability.1 Attractive persons generally have more employment opportunities and earn 10 to 15 percent more than unattractive persons.2 Finally, attractive persons have been found to be more effective at influencing people.3

While employers may not be aware of these studies or conclusions, most do realize that attractiveness sells. Everyday on television and in magazines we see beautiful models selling products and doing it successfully. Employers realize that although they do not need Cindy Crawford to make a deal, an employee with a professional, clean, neat appearance can make the difference in closing an important deal or making that big sale. Whatever the psychological or physiological reason, employers understand that persons who do not look like they can take care of themselves will not elicit confidence that they can take care of a potential customer’s business.

As a result, employers often try to control appearance in their workplace. They institute dress codes, appearance guidelines, or grooming policies in order to guarantee a minimum appearance standard. If employers do not have such policies in place, most will “counsel” an employee who is not dressed appropriately. As a consequence of our society’s increased obsession with appearance and the assumptions we make about others based on appearance, courts have seen “appearance-based” litigation become more prevalent. Although there is no law that prohibits discrimination based on personal appearance, appearance-based litigation arises under several discrimination laws.4 These days employees and former employees are bringing lawsuits, which are in essence appearance-based discrimination claims, alleging violations of the ADA, ADEA, Title VII, state fair employment statutes, and select constitutional provisions. tying an unprotected physical characteristic to race, sex, national origin, religion, or disability, plaintiffs are able to get their appearance-based complaints in front of a judge or jury. See Marks v. National Communications Association, Inc., 72 F. Supp. 2d 322 (S.D.N.Y. 1999) (citing Maximum Weight Requirements, 45 A. Am. Jur. 2d Job Discrim. §462 (1993)).5

For instance, in Frank v. United Airlines, 216 F.3d 845 (9th Cir. 2000), a group of female flight attendants brought a class action lawsuit against United Airlines for imposing stricter weight requirements on them than on similarly situated male flight attendants. In Schmitz v. ING Securities, Futures and Options, Inc., 1999 U.S. App. LEXIS 16942 (7th Cir. July 20, 1999), a former female employee during her employment was repeatedly criticized by a male executive for wearing revealing clothing that was not professional, and brought a Title VII claim against her former employer alleging that she was subjected to a hostile work environment. In Swartzentruber v. Gunite Corp., 83 F.E.P. Cases (BNA) 181 (N.D. Ind. 2000), an employee brought a religious discrimination claim after his employer repeatedly requested that he cover a tattoo on his arm depicting a white-hooded man and a burning cross. In Marks v. National Communications Association, Inc., 72 F. Supp. 2d 322, a 270-pound woman who lost a promotion to a woman who was “thinner and cuter,” brought a gender-plus discrimination claim under Title VII and the New York City Civil Rights Law. Id. at 327.

These examples are just a few of the appearance-based cases arising in the employment arena. As these appearance-based lawsuits become more prevalent in our court system, employers who want to maintain a professional atmosphere through dress codes and appearance policies must come to understand the issues that will arise as a result of these policies and how they can position themselves to avoid a successful lawsuit. summarizing some of the recent case law that exemplifies appearance-based litigation, this article will provide insight into how plaintiffs are able to manipulate discrimination law to get an appearance-based claim into court. Further, this article will provide guidance on how employers should implement appearance standards in order to avoid liability for discrimination. Part I of this article specifically addresses lawsuits brought in response to different appearance/dress/grooming standards, whether the standard is in the form of a written policy or business practice. Part II of this article addresses cases arising from adverse employment decisions based on an individual’s weight. Finally, in part III, the article will provide suggestions on implementation and enforcement of appropriate appearance standards.

Controlling Appearances
Dress codes, grooming requirements, or other appearance-based policies are permitted under discrimination law as long as they are enforced even-handedly. See Kleinsorge v. Island Corp., 81 F.E.P. Cases (BNA) 1601 (E.D. Pa. 2000). As this basic rule suggests, such policies must not have a disparate impact on any particular protected class, either on its face or in its application. However, that is not to say that there may not be variations in requirements.

In Kleinsorge, a male employee was discharged for wearing an earring to work in violation of the employer’s dress code. The employer’s dress code for men differed from its dress code for women in that men were prohibited from wearing earrings. Kleinsorge asserted that the employer’s grooming standards violated Title VII because it set out different requirements for men and women. The district court rejected Kleinsorge’s argument on the basis that he failed to allege that the grooming standards were unevenly applied or enforced or that other male employees were allowed to wear earrings. Citing Knott v. Missouri Pac. Ry. Co., 527 F.2d 1249 (8th Cir. 1975), the court explained that “minor differences in personal appearance regulations that reflect customary modes of grooming do not constitute sex discrimination within the meaning of [Title VII],” and dismissed Kleinsorge’s lawsuit. Id. at 1602. In the court’s view, as long as men and women were both held to similar standards of professionalism, gender-based differences in standards were not discriminatory so long as they comported with traditional or customary practices.

In Rivera v. Trump Plaza Hotel, 702 A.2d 1359 (N.J. Super. Ct. App. Div. 1997), two men fired after failing to comply with their employer’s grooming policy brought sex discrimination claims under the New Jersey Discrimination Statute. Both plaintiffs were terminated when they wore ponytails to work after the effective date of a revised grooming policy that provided: “Hair must be clean, neatly combed and arranged in a traditional style (Men: no longer than mid-collar in the back, to the earlobe on the side), and natural in color. Extreme looks such as unnatural hair color, extreme ornamentation for hair or shaved-in designs are unacceptable.” Id. at 1360.

Both plaintiffs were given ample notice that the new grooming policy was being instituted. The plaintiffs asserted that because their former employer interpreted its rules for hair length and style differently for men and women, they were discriminated against on the basis of their sex. The court, relying on federal precedent, determined that hair length policies generally do not constitute sex discrimination under Title VII.

In addition to their sex discrimination claims, the plaintiffs asserted that they had a constitutional right to wear their hair in any manner they desire in a place of private employment. The court rejected this argument as well, stating “the protection of individual rights and liberties afforded under the Constitution of the United States only applies to state action and is not applicable to a private employer.” Id. at 1362. Accordingly, the court dismissed the plaintiffs’ claims.

In Seabrook v. City of New York, 80 F.E.P. Cases (BNA) 1453 (S.D.N.Y. 1999), aff’d, 210 F.3d 355 (2000), female Department of Corrections officers filed a class action lawsuit seeking injunctive relief and alleging that the DOC’s dress code provisions requiring both men and women officers to wear trousers violated their rights under the First and 14th amendments to the U.S. Constitution, as well as the New York Constitution. The plaintiffs claimed that their religious beliefs prohibited them from wearing pants.

The court, accepting the DOC’s proffered nondiscriminatory reason for its dress code, agreed that the plaintiffs, like all other DOC officers, had to be available in the case of an emergency. If the plaintiffs were in skirts, they would not be in a position to respond to an emergency as certain safety gear was designed to be worn with trousers and not with skirts. The court opined that the DOC should be afforded great latitude in determining its dress code and denied the plaintiffs’ request for injunctive relief.

Similarly, grooming and dress code policies must also be even-handed in their treatment and enforcement between majority and minority races. In Hollins v. Atlantic, 188 F.3d 652 (6th Cir. 1999), Hollins, an African-American woman, brought racial discrimination claims against her employer because it required her to seek pre-approval of hairstyles she planned to wear to work.6 The employer’s grooming policy required women to have neat and well-groomed hair. It prohibited the use of rollers or other hair-setting aids. After Hollins came to work one day with “finger waves” in her hair, which the employer agreed was “neat and well-groomed,” the employer created an unwritten grooming policy that hairstyles could not be “eye catching.” According to Hollins, this unwritten policy was only applied to her.

The district court granted summary judgment for the employer and Hollins appealed. The Sixth Circuit reversed, finding that Hollins had established her prima facie case. She introduced evidence that created a genuine issue of material fact as to whether Caucasian women were not subjected to the pre-approval “eye catching” requirement. The court reversed and remanded Hollins’ race discrimination claim to the district court for further consideration.

In McManus v. MCI, 82 F.E.P. Cases (BNA) 1063 (D.D.C. 2000), McManus, following her termination, brought a race and appearance discrimination claim against MCI. McManus, an African-American woman, displayed her heritage through her choice of clothing by wearing African-styled attire and her hair in dreadlocks or braids. In its defense, MCI provided evidence that it had replaced McManus with another African-American woman. In reply to this defense, McManus asserted that because of her choice of clothing and hairstyle, she represented a subset of African-Americans whose claim of discrimination based on race and personal appearance could not be defeated by the hiring of another African-American whose dress was more typical of corporate America. The court rejected this argument. Even so, the court refused to find that McManus’s claim was not actionable. Instead, the court said that McManus did not provide sufficient evidence for it to infer discrimination.

In addition to making sure that grooming policies are evenly enforced by management, employers must also make sure that such policies, even when uniformly enforced, do not disparately impact a protected class. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th Cir. 1993). In Fitzpatrick, a group of African-American firefighters, who were told they had to shave their beards, brought a disparate impact race discrimination claim under Title VII and a disability discrimination claim under the Rehabilitation Act.7 Each of the plaintiffs suffered from pseudolfolliculitis barbae (PFB), a condition where curved facial hairs, that are sharpened by shaving, grow back into the skin causing inflammation, scarring, and risk of infection. It is generally accepted that PFB disproportionately afflicts African-American men. Id. at 1114.

The court rejected the plaintiffs’ disparate impact race claim, not because the policy did not have a disparate impact on African-Americans, but instead on the basis that the defendant’s grooming requirement was based on a legitimate business necessity. The defendant set forth evidence, which the plaintiffs did not dispute, that the respirator masks worn by firefighters do not fit properly on firefighters with beards. Thus, bearded men could not safely wear the masks. The court did opine that if the plaintiffs could have established that a less discriminatory alternative to the grooming policy was available, they could have survived summary judgment.

As for plaintiffs’ Rehabilitation Act claim, the 11th Circuit affirmed the district court’s grant of summary judgment for the employer, as the firefighters failed to show that a reasonable accommodation was available. Even so, both courts noted that PFB may not even be a physical impairment under the Rehabilitation Act.

Even when employers do not have an established dress code or grooming policy, they can still be subjected to appearance-based litigation. For instance, in Schmitz v. ING Securities, Futures and Options, Inc., 1999 U.S. App. LEXIS 16942 (7th Cir. July 20,1999), Schmitz often wore to work skirts and blouses that were, in the employer’s opinion, too short, too tight, too shear, or too revealing. On occasion she would wear a miniskirt with thigh-high stockings, exposing part of her thigh. The chief financial officer repeatedly counseled the plaintiff on her attire. Even though he repeatedly commented on the inappropriateness of her clothing, he never made a pass at Schmitz, never touched her, and never expressed any interest of a sexual nature.

Schmitz was eventually fired. Subsequently, she sued in federal court. The defendant admitted that Schmitz’s appearance was a contributing factor in its decision to terminate her employment. Even so, the district court granted summary judgment for the employer and the plaintiff appealed. The appellate court affirmed and placed great weight on evidence that in addition to the chief financial officer, two female supervisors had informally counseled the plaintiff on her improper attire. Further, the court found that the fact that the chief financial officer commented to other female employees, in addition to Schmitz, about their clothing when their dress was unprofessional was evidence that Schmitz had not been singled out by him. In affirming the district court’s decision, the Seventh Circuit noted, Schmitz’s work environment, rather than being hostile, was simply one where Schmitz was not able to dress and act in the way that she preferred. The [district] judge opined that Schmitz’s allegations amounted to “the exact opposite of the too-frequently encountered scenario that properly carries the label of ‘sexual harassment.’”
Id. at *5.

Swartzentruber v. Gunite Corp., 83 F.E.P. Cases (BNA) 181 (N.D. Ind. 2000), is another example of a case in which an employee sued based on his employer’s reaction to his appearance when no dress code or grooming policies were at issue. In Swartzentruber, after numerous African-American employees complained to management that Swartzentruber’s tattoo of a hooded man in front of a burning cross was offensive, Swartzentruber was asked by Gunite Corporation’s management to cover his tattoo while at work. Gunite believed that Swartzentruber’s tattoo would contribute or create a racially hostile work environment. It was well known in the workplace that Swartzentruber was a member of the Ku Klux Klan.

Although Swartzentruber agreed to cover his tattoo, after management said that he could wash it as necessary, management received reports that he was leaving his tattoo uncovered for extended periods of time. The company directed two of Swartzentruber’s supervisors to monitor Swartzentruber to see if he was disobeying company orders to cover his tattoo. Swartzentruber believed that the monitoring of him was harassment and filed a grievance with the union.8 After going through the union’s appeal process, he filed a complaint in district court asserting that by requiring him to cover his tattoo, his employer was discriminating against him on the basis of his religious beliefs.

In order to establish a prima facie case, the court required Swartzentruber to show that he held a sincere religious belief that conflicted with a business requirement. The court found that Swartzentruber failed to establish a prima facie case. Moreover, it opined that even if Swartzentruber had established a prima facie case, his claim would have failed, as allowing him to have his tattoo in plain sight at the workplace would have caused an undue hardship on Gunite. The court reasoned that: “Some would certainly view a burning cross as ‘a precursor to physical violence and abuse against African-Americans and. . . an unmistakable symbol of hatred and violence based on virulent notions of racial supremacy.’” Id. at 183 (quoting United States v. Hayward, 6 F.3d 1241, 1251 (7th Cir. 1993), cert. denied, 511 U.S. 1004 (1994)) (quoting Charles H. Hones, Proscribing Hate: Distinctions Between Criminal Harm and Protected Expression, 18 Wm. Mitchell L. Rev. 935, 948 (1992)). Accordingly, the court dismissed Swartzentruber’s lawsuit.

These cases illustrate that courts are reluctant to accept appearance as a legitimate basis for discrimination claims. However, if a plaintiff successfully ties appearance to a protected class and illustrates that the class is treated differently from the majority, such claims may be successful. Further, although employers are prohibited from unevenly enforcing their dress codes or grooming policies, such policies may reflect differences that are considered reflections of customary appearance standards.

“Weighty” Issues
Another consideration that generates a number of lawsuits is that of an employee’s weight. Such cases are often tied to appearance or grooming standards, but this is not always the case, see Frank v. United Airlines, 216 F.3d 845 (9th Cir. 2000), Marks v. First of National Communications Association, Inc., 72 F. Supp. 2d 232 (S.D.N.Y. 1999). Appearance-based weight discrimination cases can be disguised as anything from a sex discrimination claim to a disability discrimination claim.

Generally, weight is not a protected class and “discrimination based on weight alone is not illegal under Title VII.” Marks v. First of National Communications Association, Inc., 72 F. Supp 2d at 335. To succeed in claims alleging sex discrimination on the basis of weight, plaintiffs must establish that men and women are treated differently. See id. In Marks, Marks asserted that she was denied a promotion based on the fact that she was an overweight female. During her employment with the defendant, Marks weighed approximately 270 pounds. She repeatedly asked management for a promotion to an outside sales position and was repeatedly passed over for such promotions. When she learned that a less experienced “thin and cute” female had been promoted to an outside sales position, she confronted her supervisors, and was told that if she lost the weight she would be promoted. Soon thereafter, Marks consulted an attorney and refused to come back to work. As a consequence, she was terminated.

Marks sued her former employer alleging that the defendant applied weight standards to women but not to men. The defendant conceded that Marks was denied promotion because of her weight; however, it denied its decision was motivated in any way by gender and, therefore, was not liable under Title VII. The court agreed with the defendant, particularly when Marks could not identify one overweight male outside sales person.

More recently, the Ninth Circuit utilized this same reasoning in finding Title VII employer liability in Frank v. United Airlines, 216 F.3d 845 (9th Cir. 2000).9 The plaintiffs in Frank sued alleging that United Airlines’ 14-year requirement that female flight attendants weigh 14 to 25 pounds less than their male colleagues of the same height and age was discriminatory. United Airlines’ weight restriction was based on a weight table published by Metropolitan Life Insurance Company. United limited men to weights that generally corresponded to the maximum weights listed on the chart for men with larger body frames. On the other hand, women were limited to weights that generally corresponded to the maximum weights listed on the chart for women with medium body frames. The district court granted summary judgment for the employer on plaintiffs’ Title VII claims and the plaintiffs appealed.

The Ninth Circuit determined United Airlines’ weight policy was discriminatory on its face. The court found that, although both men and women were subject to weight restrictions, the airline was imposing more burdensome weight restrictions on women by requiring female flight attendants to meet maximums for a medium-framed person while men were allowed to reach maximums for larger-framed persons. Finding that “United made no showing that having a disproportionately thinner female than male flight attendants bears a relation to flight attendants’ ability to greet passengers, push carts, move luggage, and, perhaps most important, provide physical assistance in emergencies,” the court reversed the district court’s decision. Id. at 855.

Although some of the more recent weight-based lawsuits have been brought pursuant to Title VII, the majority of weight-based discrimination claims arise under the guise of ADA claims. Like any other ADA claim, plaintiffs bringing weight-based claims must show that they have a substantially limiting impairment that limits one or more of their major life activities. The EEOC guidelines provide, “the definition of impairment does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight or muscle tone that are within ‘normal range’ and are not the result of a physiological disorder.” 29 C.F.R. pt. 1630, App. §1360.2(h). Moreover, the EEOC guidelines provide that “except in rare circumstances, obesity is not considered a disabling impairment.” 29 C.F.R. pt. 1630, App. §1360.2(j). Consequently, unless a plaintiff’s weight problem rises to the level of morbid obesity that is caused by a physiological condition, he or she will not be entitled to the ADA’s protections.

Coleman v. Georgia Power Co., 81 F. Supp. 2d 1365 (N.D. Ga. 2000), is an example of a weight-based ADA claim. In Coleman, the plaintiff had been working for Georgia Power for 23 years when he was terminated for failing to meet his employer’s weight guidelines. The court, finding no 11th Circuit case law directly on point, relied on cases from the Sixth, Second, and First circuits10 to conclude that in order for weight to be an impairment under the ADA, a plaintiff must show not only that “one of the bodily systems outlined in the guidelines definition for physical impairment [but also that] such obesity is related to a physiological disorder.” Id. at 1369.

Coleman did not assert that his obesity was a result or symptom of a physiological disorder; accordingly, the court granted the defendant’s motion for summary judgment. In rejecting Coleman’s claims, the court, citing Fredregill v. Nationwide Agribusiness Insurance Co., 922 F. Supp. 1082, 1091 (S.D. Iowa 1997), opined:

    The ADA was meant to protect people who are truly disabled. “It is incumbent on the courts to faithfully adhere to the intended scope of the statute so that it does not become a ‘catch-all cause of action for discrimination based on appearance, size, and any number of other things far removed from the reasons the statutes were passed.’”

Id. at 1370.

The court also rejected Coleman’s “record of” and “regarded as” claims under the ADA, as he failed to establish either a record of or that he was perceived as having a substantially limiting impairment.

In King v. Hawkeye Community College, 10 AD Cases (BNA) 203 (N.D. Iowa 2000), the district court denied an obese former employee’s claim of disability discrimination.11 King was obese when he was hired as a full-time instructor. At the time he was hired, he had difficulty walking and breathing. His condition continued to decline to the point where he was absent as many days as he taught. He went on medical leave and was hospitalized for congestive heart failure, at which time he had 40 pounds of fluid drained from his heart. While King was on medical leave, the defendant made the decision to terminate his employment.

Subsequently, King brought a lawsuit alleging that his termination was motivated by discriminatory intent and, therefore, was a violation of the ADA. The court rejected King’s ADA claim without conducting an analysis of whether King was disabled. Instead, the court looked at the decisionmakers. King was obese when he was hired and the person who made the decision to hire King was the same person who made the decision to terminate his employment. Further, the court noted that one of the strong proponents for King’s termination was also obese. Based on the foregoing, the court found that even if King was disabled as defined by the ADA, his weight was not a motivating factor in the defendant’s decision to terminate his employment.

These cases exemplify the basic rule in appearance-based weight discrimination claims. That is, weight alone is not actionable. However, weight considered with a protected class may be protected. Ultimately, employers need to be careful to make sure that they treat all employees as even-handedly as possible. Employers may make decisions based on an employee’s weight; however, they must make sure that weight and not race, sex, religion, or disability is the actual consideration. If a person is obese and such obesity is caused by a prolonged physiological disorder, he or she may be entitled to ADA protection. If so, it appears that courts will afford many of the same defenses to such claims as they do to other discrimination claims. This means that the same-actor inference will apply in appearance-based litigation; as will the inference that there is no discriminatory animus when the decisionmaker shares the characteristic on which a plaintiff bases a claim of discrimination.

Putting Your Best Face Forward
As mentioned at the beginning of this article, appearance counts. Employers want to ensure that their work force adequately represents their goals and desires and will elicit the confidence of their clients. If employers understand that their clientele is going to look at their employees and make subjective determinations based on their appearance, they may want to implement policies that, to some extent, will control how their employees look when they come to work. This means they may want to institute grooming policies requiring individuals to have hair that is neat and in order. They may want to make sure that their most visible employees are thinner and have a more professional appearance. They may want to make sure that their secretaries and other staff supporting positions are not bringing unwanted attention to their physical appearance. But how do employers do this? How does an employer implement the type of policies that it may find necessary to maintain a professional workplace without subjecting itself to lawsuits?

Although there is never a guarantee that a lawsuit will not be filed, employers can take precautions in order to prevent a successful lawsuit. For instance, if employers plan to implement a grooming policy, dress code, or appearance standard, they need to make sure that discriminatory standards are not written into the fabric of the policies. In Franks is an example of what not to do. In Franks, United Airlines had a policy that on its face required women to meet a standard that was stricter than that for similarly situated men. What employers can learn from this case is that if they implement a weight restriction or any other appearance-based restriction, they need to make sure that the restrictions treat men and women comparably. The requirements may be different, but they must be similar. In Franks, had United Airlines required men and women to meet the same weight standards, the plaintiffs would not have been successful.

Private employers have more latitude in developing appearance-based standards. This is because their actions, in most instances, will not be considered state action and, therefore, any constitutional protection that an individual may have on determining the standards of his or her own appearance are not implicated by appearance standards. Private employers may have different standards for men and women when it comes to dress or hair, particularly when such standards reflect what is considered customary to our society. Knott v. Missouri Pac. Ry. Co., 527 F.2d 1249 (8th Cir. 1975).

At the most basic level, the message from recent case law is simple: If you plan to have a grooming policy, dress code, or other appearance standard, be consistent. Be consistent in your treatment of men and women. Be consistent in your treatment of Caucasians, African-Americans, Asians, Hispanics, or any other distinguishable group. Be consistent in your implementation of such policies. As with most other areas of discrimination law, consistent application of a facially neutral standard that is justified by the employer’s business requirements is the best practice to ensure the successful defense of a charge or lawsuit.

1 See Elaine Hatfield & Susan Sprecher, Mirror, Mirror. . . : The Importance of Looks in Everyday Life (1986).
2 See Daniel S. Hamermesh & Jeff E. Biddle, Beauty and the Labor Market, 84 Am. Econ. Rev. 1174-1194 (Dec. 1994); see also Susan Averett & Sanders Korenman, The Economic Reality of the Beauty Myth, 31 J. Hum. Resources 304-330 (Spring 1996) (Obese women have lower family incomes than women whose weight-for-height is in the “recommended” range. Differences in economic status by body weight increase for obese women who are single and childless.).
3 See Jeff E. Biddle & Daniel Hamermesh, Beauty, Productivity and Discrimination: Lawyers’ Looks and Lucre, 16 J. Lab. Econ. 172-201 (Jan. 1998); S. Chaiken, Physical Appearance and Social Influence, in C.P. Herman, M.P. Zanna & E.T. Higgens (Eds.), 3 Physical Appearance, Stigma, and Social Behavior: The Ontario Symposium 143-177. Other articles discussing research relating to the importance of appearance are: Irene Freize, Josephine Olson and June Russell, Attractiveness and Income for Men and Women in Management, 21 J. Applied Soc. Psych. 1039-57 (1991); Eng Seng Loh, Economic Affects of Physical Appearance, 74 Soc. Sci. Q. 420-38 (June 1993).
4 There is a movement to amend the Americans with Disabilities Act to include appearance discrimination. See Steve Jeffes, Appearance is Everything: The Hidden Truth Regarding Your Appearance & Appearance Discrimination (1998); see also; and Troy McAdams, Farzad Moussavi and Michael Klassen, Employee Appearance and the Americans with Disabilities Act: An Emerging Issue?, 5 Employee Resp. and Rts. J. 323-38 (1992).
5 Appearance-based lawsuits are also arising in contexts other than employment discrimination. For instance, in Advanced Mobilehome Systems v. UAC, 663 So. 2d 1382 (Fla. 4th D.C.A. 1995), appearance was a primary issue in an unemployment compensation appeal. In Advanced, the respondent terminated his own employment after being counseled for arriving for work with a three-day-old beard in violation of the company’s grooming policy. At his unemployment hearing he asserted that he was constructively discharged because he was not allowed to determine his own appearance at work. The unemployment hearing officer determined that the respondent was entitled to unemployment benefits and the petitioner appealed. The Fourth District Court of Appeal for Florida reversed the hearing officer’s decision. The court opined that although the individual’s right to determine his own appearance is protected from state action by the 14th Amendment, such right is neither fundamental nor a protected form of expression; “to claim that an unexplained refusal of an employee to shave his stubble is of constitutional magnitude would be to trivialize the constitution.” Id. at 1386-87.
6 Hollins also brought a claim for retaliation. The district court granted summary judgment on her retaliation claim and the Sixth Circuit affirmed.
7 The plaintiffs also set forth a disparate treatment claim in their complaint. The court granted summary judgment on this claim as well. The court found that the defendant had proffered a legitimate, nondiscriminatory reason for its policy. The plaintiffs were unable to set forth any evidence that the defendant’s justification was pretext.
8 He also complained that on one occasion after a Klan rally, a pencil lead was broken off in the keyhole of his tool box and his rollaway tool box was hidden from him, and on another occasion his two front tires were slashed. In regard to these allegations, the court found that the tool box incidents did not rise to the level of harassment. As for the tire incident, although such actions may have been objectively and subjectively harassing, the court found that no reasonable inference could be drawn from the incident against Gunite.
9 The plaintiffs also brought claims asserting violations of the ADEA, ADA, and California’s Fair Employment and Housing Act. The Ninth Circuit allowed plaintiffs to proceed with their ADEA claims, but upheld the district court’s dismissal of their ADA and FEHA claims.
10 See Andrews v. State of Ohio, 104 F.3d 803 (6th Cir. 1997); Frances v. Meriden, 129 F.3d 281 (2d Cir. 1997); and Cook v. State of Rhode Island Dep’t of Mental Health, Retardation, and Hospitals, 10 F.3d 17 (1st Cir. 1993).
11 The plaintiff did prevail in his breach of contract claim based on the college’s failure to provide the plaintiff with a six-month review before terminating his employment. Plaintiff was awarded $46,810.

Jennifer Fowler-Hermes of Sarasota practices in the areas of labor and employent law representing management. She received her B.A., with highest honors, in 1994, and her J.D. in 1997 from the University of Florida.
This column is submitted on behalf of the Labor and Employment Law Section, Richard C. McCrea, Jr., chair, and F. Damon Kitchen, editor.

Labor and Employment Law