Two headline making lawsuits ignited a national debate over whether it should be illegal for an employer to make employment decisions based on an employee’s appearance. The Wall Street Journal reported that Cassandra Marie Smith filed a lawsuit against her former employer, Hooters, alleging that restaurant management told her during a performance evaluation to join a gym in order to “lose weight and improve her looks so that she would better” fit into the uniform she was required to wear. Smith also claims she was required to sign an agreement placing her on “weight probation” as a condition of staying employed.
Within weeks, Debrahlee Lorenzana made headlines across the country for suing her former employer, Citigroup, for firing her for being “too attractive.” Lorenzana alleges she was fired after complaining about comments made by male managers telling her to refrain from wearing clothing that accentuated her curvaceous figure because it distracted her male colleagues. Lorenzana also alleges that, when she pointed out that some co-workers wore more revealing clothes than she, a manager told her “your body is very different from them” and “it’s OK for them to dress like that” because they “are short or fat.”
Discrimination lawsuits based on appearance are not new in California. For example, in Cassita v. Community Foods, Inc., a female applicant claimed she was not hired for a job because she was overweight. However, since California has no law prohibiting discrimination based on weight, the applicant sued under a disability discrimination theory and lost because she had no evidence her weight was the result of a physiological condition or disorder. Perhaps if California had a specific anti-discrimination law targeting appearance and weight, the outcome in Cassita might have been different. The State of Michigan (where the Hooters lawsuit was filed), City of Santa Cruz, and City of San Francisco currently have anti-weight discrimination laws.
The Hooters and Citibank lawsuits should serve as a reminder to employers that bias may arise from an unconscious reaction to an applicant’s or employee’s appearance. Employers should also remain vigilant in preventing workplace harassment, discrimination and retaliation. Employees, particularly supervisors and managers, should be trained regularly on how to avoid discrimination and harassment. Finally, all applicants and employees should be treated equally and employment decisions should be based on the person’s qualifications and individual merits without regard to their physical appearance or any other protected status.