Appearance: The New Discrimination

What is the next category of anti-discrimination legislation to come along? 

Appearance!

A recent study by Brian K. Miller, SPHR, a management professor at Texas State University, and  colleagues Jack Eure and Kay Nicols surveyed college students with and without body art. Participants were asked their opinions about working with a fictitious co-worker named Sharon in a specific job: selling business insurance.  In the hypothetical situation Sharon, though highly qualified, had a facial tattoo around her eye and cheek and a pierced lip and eyebrow.  Results from the 150 respondents indicated that they did not want to work with Sharon, and they felt that being with Sharon undermined their own chances for sales success.

Likewise, Abercrombie and Fitch continue to fight against lawsuits filed by applicants or employees who have been discriminated against because they didn't look like the "boy/girl next door," the brand image the company wants to maintain.

The most interesting questions, however, are yet to be answered.  For example, only Michigan and Washington, D.C. bar discrimination based on weight, and California bars discrimination on gender appearance.  Yet, 40% of Americans are considered overweight, but obesity is not considered a protected group, unless it can be shown to be a disability under the Americans With Disabilities Act (ADA).  But weight may soon be the focus of new anti-discrimination law.  Several states have pending legislation related to obesity in the workplace.

The more general question for HR managers is this:  does an employee appearance policy automatically exclude people (even those otherwise qualified) whose appearance varies from the company-defined norm?  Certainly, Hooters is one example in which it was considered lawful to support the right of a business to cater to customer preference for attracive, female employees. 

But, is it ethical?