Q&A with Josh Solberg
Appearance discrimination claims
can lead to viable court action
Q: A dental assistant in Iowa recently made headlines when she sued her former employer for wrongful termination and discrimination. Many news outlets ran wild with headlines claiming she was fired for being “too hot.” Was this a case of unlawful sex discrimination?
A: In Nelson v. James H. Knight DDS, P.C., the Supreme Court of Iowa said no. In the end, the court found the reason for the dental assistant's firing had less to do with appearance and more to do with jealousy and concern from the dentist's spouse, who viewed the assistant as a big threat to their marriage and demanded her husband terminate the assistant's employment. While the dentist admitted to finding the assistant's appearance “distracting” — he even complained to her as much — there were no claims by the dental assistant of sexual harassment or a hostile work environment or other indications that the termination was unlawful sex discrimination.
Q: So, could an employee sue — and win — for appearance discrimination?
A: Potentially. In fact, the same Iowa court that ruled the dental assistant was not unlawfully fired over jealousy concerns opined that she may have been able to win her lawsuit if she could have proved her termination was based on stereotypes related to the characteristics of her gender — in that specific case, her attractiveness.
Q: What have the federal courts had to say about sex discrimination as it relates to appearance?
A: Two noteworthy cases have shown that claims involving appearance, under the proper circumstances, can be the basis for viable sex discrimination claims under Title VII of the Civil Rights Act of 1964, which prohibits an employer from discriminating against an employee on the basis of sex as well as race, color, religion or national origin. In Price Waterhouse v. Hopkins, the U.S. Supreme Court ruled that a female accountant who was denied partnership in part due to her failure to “dress more femininely, wear makeup, have her hair styled, and wear jewelry” was a victim of unlawful sex discrimination. In another case, the Ninth Circuit Court of Appeals found that a major airline discriminated against females when it implemented a policy of requiring female flight attendants to adhere to certain weight restrictions.
Q: What about appearance discrimination claims based on traits other than sex?
A: Such claims could be possible. As an example, the Americans with Disabilities Act (ADA) and the ADA Amendments Act of 2008 provide a cause of action any time an individual is subjected to an adverse action — such as a termination or not being hired in the first place — because of an actual or perceived impairment that is not both transitory and minor.
PAULA BURKES, BUSINESS WRITER