United States: National Poll Shows Public Opinion Divided on Regulating Appearance in the Workplace
Last Updated: March 31 2005

Seattle, WA --

The latest national survey by the Employment Law Alliance (ELA) reveals a nation deeply divided over regulating appearance – from weight to clothing, hairstyles to body piercing — in the U.S. workplace. More than half of those surveyed said their employers had no policy addressing employees' personal appearance.

The "America At Work" poll questioned 1,000 Americans regarding their views on appearance-based discrimination. Employer-employee disputes have been increasing, and they frequently spill over into the courts and government enforcement agencies. Recent cases include a lawsuit against an Atlantic City casino that required cocktail waitresses to 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)"; and a $40 million settlement involving a national clothing retailer accused of appearance-based personnel practices.

Stephen J. Hirschfeld, ELA's chief executive officer said, "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. 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."

According to Mary Petersen, a partner with the law firm of Miller Nash and a member of the ELA, employers need to protect themselves from such claims by establishing appropriate dress codes. "Employers should establish workplace appearance standards that have a reasonable relationship to the nature of the business and the requirements of the position. In establishing these standards, employers may not discriminate based on gender, race, national origin, religion, disability, age, or other categories that may be protected by state or local law."

Craig Armstrong, also a partner with Miller Nash, notes that "seeking to establish and maintain a specific public image is a legitimate business interest. The difficulty arises when the employer's dress code or appearance standards begin to look like a pretext for discrimination against a protected group or adversely affect a protected group. Dress codes or appearance standards that are founded on health and safety principles are the easiest for an employer to defend. Depending on the workplace, this might include standards for clothing, jewelry, hair length, footwear, and so on."

The poll was conducted over a recent weekend by the Media, Pennsylvania, market research firm of Reed, Haldy, McIntosh & Associates of a representative national sample of the adult population. The poll has a confidence interval of +/- 3.1%. Its major findings include the following:

  • 39% said that employers should have the right to deny employment to someone based on appearance, including weight, clothing, piercing, body art, or hairstyle.
  • 33% said that in their own workplace, workers who are physically attractive are more likely to be hired and promoted.
  • 33% said that workers who are unattractive, overweight, or generally look or dress unconventionally, should be given special government legal protection such as that given to persons with disabilities.
  • Of the 39% who said that 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 asked not only for their opinion on this issue, but also whether they had any relevant personal experience.

  • 16% said they had been the victim of appearance-based discrimination.
  • Of those, 38% said the discrimination was based on their overall appearance, 31% said it was based on their weight, and 14% said it was based on their hairstyle.
  • 33% of those who claimed to have been discriminated against cited some other reason.

The Employment Law Alliance is the world’s largest integrated, global practice network. The ELA comprises 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 www.employmentlawalliance.com.

As one of the largest multispecialty law firms in the Pacific Northwest, Miller Nash LLP serves clients locally and worldwide from its offices in Portland, Oregon, and Seattle and Vancouver, Washington.

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