(Week 4) Two set of discussions questions to post for MBA level Business Employment Law Online!

CHAPTER 7: Hiring and Promotion Decisions

This chapter rounds out our discussion of the legal issues involved in selecting employees for initial hire or promotion by considering the legal implications of facially discriminatory requirements, appearance standards (e.g., weight), and subjective criteria (e.g., impressions from interviews). Sex stereotyping and discrimination against caregivers are also discussed. After a selection decision is made, the process through which employment is offered and accepted requires careful attention. Discrimination claims increasingly center on obstacles to advancement. Thus, legal concerns surrounding promotion decisions are highlighted.

Criteria for Hiring and Promotion Decisions

Facially discriminatory policies/practices: BFOQ defense

Employers that base employment decisions, including hiring and promotion, on protected class characteristics are engaging in disparate treatment. When they do so overtly and argue that it is necessary to limit a particular type of employment to people with specific protected class characteristics, this type of disparate treatment is termed a facially discriminatory policy or practice. It is not necessary to delve into the employer’s motive in such cases because the policy or practice is discriminatory on its face. However, an important, albeit limited, defense is available to employers that adopt facially discriminatory requirements. If an employer can show that a particular protected class characteristic (e.g., being male) is a bona fide occupational qualification (BFOQ) for the job in question, the facially discriminatory requirement is legal. Thus, we should amend our earlier advice for avoiding disparate treatment by saying that employers must not establish protected class requirements for jobs, except in rare instances where those protected class requirements are BFOQs for the jobs in question.

Title VII of the Civil Rights Act, in language that is mirrored in the Age Discrimination in Employment Act (ADEA), defines the BFOQ defense as follows:

• [I]t shall not be an unlawful employment practice for an employer to hire and employ … on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.…1

Notice that the Title VII protected classes of race and color are omitted. Because racial discrimination was the central problem that motivated passage of the Civil Rights Act, Congress was unwilling to allow for any circumstances in which employment opportunity could be strictly limited on the basis of race or color. Thus, the BFOQ defense is not available for policies that facially discriminate on the basis of race or color, and employers must not establish racial requirements for jobs.

Although the term reasonably necessary does not sound overly exacting, the Equal Employment Opportunity Commission (EEOC) and courts have made it clear that this is a narrow exception to the general rule prohibiting disparate treatment. It is important to distinguish adverse impact cases in which neutral requirements (e.g., employment tests) with discriminatory effects must be defended as job-related and consistent with business necessity, from disparate treatment cases involving facially discriminatory policies in which specifications based on protected class (e.g., “We want to hire only female table servers because that is what our customers want.”) must be defended as BFOQs. These terms apply in different contexts and are not synonymous. An adverse impact claim can be defended if the challenged requirement is associated with job performance and appears reasonable given the nature of the business. In contrast, defense of a facially discriminatory policy requires the employer to show that only, or virtually only, people with the specified protected class characteristic can do the job and that the job, as it is currently configured, is integral to the operation of the business. In other words, hiring people without the specified protected class characteristic would not lead simply to lower job performance but would ultimately undermine the business.

So when is a BFOQ recognized? The courts have recognized three general grounds for establishing BFOQs: authenticity, public safety, and privacy. The classic example of authenticity, or genuineness, is a director casting a movie and limiting a female role to female actors. Authenticity also applies where sex or sex appeal is the essence of the job and business. Owners of clubs featuring topless dancers need not consider males for those jobs. The more difficult cases involve jobs that contain both sex-linked and sex-neutral aspects. A BFOQ will be recognized only if the sex-linked aspects clearly predominate.4 Hooters restaurants hired only women for jobs as table servers, bartenders, and hosts. A company attorney defended this practice: “Being female is a bona fide occupational qualification. We don’t believe the position is simple food service. It’s a multidimensional job. We think of Hooters Girls as something closer to the Dallas Cowgirls than to a waitress whose only job is to serve food.”5 In 1997, Hooters agreed to pay $3.75 million to settle a class-action sex discrimination suit brought by males denied employment. The company agreed to open all host positions and some bartender and server positions to men. However, the settlement was a compromise and allowed the restaurant to maintain a “modified Hooters Girl” position, open only to women who would be garbed in Hooters Girl uniforms.6

The second basis for establishing a BFOQ is public safety. When hiring or assigning employees with particular protected class characteristics is necessary to protect the safety of others, facially discriminatory requirements are legally defensible. The Supreme Court held that Alabama could hire only males for certain prison jobs because conditions in the prisons were so bad that there was a real prospect of violent sexual offenders attacking female guards and prison riots ensuing.7Importantly, the Court’s rationale was based on potential harm to others, not on a paternalistic impulse to protect individual females from accepting dangerous employment. A public safety BFOQ was not established where an employer’s “fetal protection policy” excluded fertile women from jobs that involved exposure to lead.8 Concerns about the safety of a potential fetus, even if within the realm of “public” safety, were deemed to be not sufficiently related to job performance and the essence of the business to warrant a BFOQ. Although the ADEA generally prohibits mandatory retirement and other maximum age requirements, public safety concerns sometimes allow employers to consider only younger people for jobs. A BFOQ based on public safety was upheld for an inner-city bus company that limited new hires to people under 40.9 Courts are relatively receptive to BFOQs for age requirements based on public safety, but before excluding older people from safety sensitive jobs, employers must establish that the risks posed by older employees are substantial and that more individualized means (e.g., regular medical exams) of identifying people who might pose risks are not feasible.

The third basis for a BFOQ is customer privacy. This primarily relates to requirements for employees of a particular sex. One BFOQ case with a privacy basis concerned a psychiatric facility’s rule that at least one person of each sex be available on each shift.10 The rationale for the rule was that many of the hospital’s adolescent clients had been victims of sexual abuse and might be willing to speak only with counselors of a specific sex. The court agreed that scheduling shifts based on sex was facially discriminatory but held that the sex requirement was a BFOQ due to its close relationship to the therapeutic mission of the hospital. Privacy-based BFOQs have also been recognized in cases involving delivery nurses,11 custodians,12 and correctional officers assigned to certain female residential facilities.13

Except when clear authenticity, public safety, or privacy interests are at stake, employers should not impose protected class requirements for employment based on the demands or needs of customers or coworkers. Overall, the best advice regarding BFOQs is that even when suitability for a job is associated with protected class characteristics, employers should seek more individualized means of assessing suitability rather than rely on protected class as a convenient proxy. For example, if being knowledgeable about contemporary music is a requirement of a job, the employer should directly assess that knowledge rather than limit hiring to young people on the assumption that older people are not conversant on the subject. Finally, because some state antidiscrimination laws require that BFOQs be certified by the state fair employment practice agency before being put into use, employers might be required to convince state fair employment practice agencies that BFOQs are warranted before putting them into effect.

A less obvious form of facially discriminatory policy or practice occurs when neutral criteria are applied to some protected class groups but not others. In an important Supreme Court case, the employer refused to employ women with children under age 5.14 The company did not concern itself with the ages of the children of male employees. Even though the majority of the company’s employees were women and the policy excluded only some women, it was deemed facially discriminatory because it was applied to and limited the employment opportunities of women only. Likewise, a female truck driver was allowed to go to trial on her claim that the trucking company required her to obtain an independent medical evaluation of a gynecological condition, while not requiring the same for males with serious health conditions.15 Although circumstances may call for sex-specific requirements or policies, the general rule is that employers must not establish requirements that apply to some protected class groups but not others. These cases are labeled sex-plus because they most often involve differential requirements based on sex, but the issue is really “protected class–plus.” Thus, an employer’s policy of requiring that candidates for a promotional position who were over 40 years of age submit to EKG exams, while younger candidates were not usually required to do so, was facially discriminatory. A BFOQ could not be established because of the fairly minimal public safety dimensions of the job and because it was possible to require EKG testing on a more individualized basis than age.16

Getting ahead in the workplace is like entering a beauty contest. Well, not exactly, but research has shown that physical appearance has a pervasive effect on employment outcomes. People judged better looking are more likely to get hired, to be promoted, and even to be paid more.17 One aspect of appearance that can affect treatment in the workplace is weight. Research suggests that discrimination on the basis of weight is common and that such bias is particularly detrimental to women. Males are apparently given more slack and have to put on considerably more weight than women before experiencing similar mistreatment.18 A heavier-than-average woman described her experience when she was a candidate for a grant-writing job. Her phone interview went well, but after she was invited for an in-person interview, everything changed:

• As soon as I shook the interviewer’s hand, I knew she would not hire me.… She gave me a look of utter disdain, and made a big deal about whether we should take the stairs or ride the elevator to the room where we were going to talk. During the actual interview, she would not even look at me and kept looking to the side.19

Mistreatment of this sort is as common as it is unkind, but what are the legal implications of considering weight in hiring decisions?

Except for a very few jurisdictions (e.g., Michigan; the cities of San Francisco and Santa Cruz, California; Binghamton, New York), weight is not a protected class. However, employers that discriminate against people because they are “too heavy” might be discriminating on the basis of disability. For example, a hospital for the developmentally disabled declined to re-hire a 5′2″, 320-pound woman as an attendant despite her prior good work record.20 The woman argued that her obesity led the hospital to regard her as disabled and deny employment on that basis even though she could do the job. The hospital’s arguments that obesity should not be considered a disabling condition because it is mutable (capable of being altered) and voluntarily incurred, even if supportable, did not impress the appeals court, which ruled on the employee’s behalf. But overall, courts have been reluctant to conclude that being overweight is a disability. Any chance of protection under disability discrimination laws has depended on the individual being not merely overweight, but “morbidly obese” (more than twice the normal body weight or 100 pounds over normal body weight for a person of that height). At least until very recently, most courts also required that a physiological basis for the obesity (or serious medical problems stemming from it) be shown. Thus, the Americans with Disabilities Act (ADA) claim of a dockworker who weighed as much as 450 pounds failed because no evidence was produced that his morbid obesity had a physiological basis.21 However, changes to the ADA have broadened the definition of disability, and this might facilitate claims of disability discrimination by obese people. Several courts have subsequently issued decisions finding obese plaintiffs to be disabled without requiring evidence of an underlying physiological basis for the condition.22 In one of these cases, the court observed that:

• A careful reading of the EEOC guidelines and the ADA reveals that the requirement for a physiological cause is only required when a charging party’s weight is within the normal range. However, if a charging party’s weight is outside the normal range—that is, if the charging party is severely obese—there is no explicit requirement that obesity be based on a physiological impairment. * * * Further, neither the EEOC nor the Fifth Circuit have ever required a disabled party to prove the underlying basis of their impairment. The EEOC Compliance Manual specifically provides that “[t]he cause of a condition has no effect on whether that condition is an impairment.” Voluntariness is also irrelevant when determining if a condition is or is not an impairment. Plaintiff notes that “[t]o require establishment of the underlying cause of the impairment in a morbid obesity [case], but not in any other disability cases, would epitomize the very prejudices and stereotypes which the ADA was passed to address.” 23

Should an employer discriminate against someone deemed underweight, disability discrimination could be claimed if the person was anorexic or had some other disabling condition (e.g., cancer, AIDS) as the cause of the person’s thinness.

Employer policies or practices that place differentially burdensome weight requirements on men and women can be challenged as sex-plus discrimination. Weight standards for flight attendants at United Airlines were successfully challenged on this basis.24 The airline had weight limits for both male and female flight attendants, but the limits for males were based on the assumption of a large body frame, whereas the limits for women were based on the assumption of a medium frame. Consequently, female flight attendants were required to weigh between 14 and 25 pounds less than male peers of the same age and height. United was unable to defend its facially discriminatory weight requirements by showing that it was reasonably necessary to its business that female flight attendants be disproportionately thinner than male flight attendants.

Challenges to weight criteria on sex-plus grounds are not limited to formal policies. A highly qualified 270-pound woman was turned down for a sales representative position. She was allegedly told by several managers that because this was an outside sales position involving direct contact with customers, she needed to lose weight to get promoted. The court agreed that her allegations raised a question of sex-plus discrimination, but her case failed because she was unable to point to men in sales positions whose excess weight was not objected to by the company.25

Employers impose many types of appearance and grooming requirements. Different rules are often established for men and women relating to such matters as hair length, facial hair, jewelry, and the wearing of dresses. Are such policies discriminatory? A newspaper refused to hire a man for a copy layout artist job because his hair was too long. The newspaper did not have any requirements for the hair length of women. The appeals court distinguished this situation from other sex-plus cases because the neutral requirement paired with sex in this case was not a fundamental right (e.g., having children, getting married) and was not based on an immutable characteristic (i.e., the applicant could get a haircut). Thus, in the court’s view, “a hiring policy that distinguishes on … grooming codes or length of hair is related more closely to the employer’s choice of how to run his business than to equality of employment opportunity.”26 The court also endorsed the alternative rationale that no differential standard based on sex existed because both sexes were simply being asked to meet generally accepted standards of appearance. In the case of the job candidate with dreadlocks (see “Clippings” feature), the EEOC is arguing that an appearance policy that proscribes a particular, race-linked hairstyle differs from a lawful policy promoting neat or professional appearance generally.

In an interesting recent case, a New Jersey state court upheld an Atlantic City casino’s sex-differentiated appearance requirements.27 The casino instituted its Costumed Beverage Server program under which women, who were the vast majority of cocktail servers, were referred to as “Borgata Babes.” Servers were intended to be “part fashion model [and] part beverage server.” Female servers were required to don tight skirts, bustier tops, panty hose, and black shoes, whereas male servers wore slacks, club-style T-shirts, and black shoes. Servers of both sexes were subject to disciplinary actions if their weight increased by more than seven percent of weight at hire. Only a small percentage of all servers were disciplined under the weight policy, but they were all women. In ruling for the employer, the court found the casino’s requirements to be the sort of “reasonable workplace appearance” standard permitted under New Jersey antidiscrimination law, particularly in the context of the casino industry and this employer’s business strategy. Although only women had been disciplined for violations, this was most likely due to the fact that the vast majority of servers were women; the plaintiffs failed to present credible evidence of males violating the appearance policy and not being punished.

Judicial disinclination to get involved in disputes over employers’ appearance requirements can readily be discerned in the case law, but courts also employ the logic of sex-plus claims and ask whether differential requirements are truly more burdensome to people of one sex. And increasingly, courts examine whether appearance requirements are rooted in demeaning sexual stereotypes.

Although courts have generally not been receptive to claims based on differential appearance standards for men and women, requirements that impose sex-stereotypical standards are sometimes a different story. In one case, a retailer required female salesclerks to wear maternal-looking smocks, whereas male salesclerks wore business attire. The court concluded that these disparate standards reinforced stereotypes about women and were discriminatory.28Dress requirements that subject women to harassment have also been judged discriminatory.29 The U.S. Supreme Court made an important statement about sex stereotyping in a case involving a woman denied partnership at an accounting firm.30 The comments of partners who participated in the decision process made it clear that they saw her as not sufficiently “feminine.” Partners criticized her for using profanity, being “macho,” “overcompensat[ing] for being a woman,” and being “a somewhat masculine hardnosed manager.” When informed that she was denied partnership, the woman was advised to “walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled, and wear jewelry.” The Court stated the following:

• [W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.… “Congress intended to strike at the entire spectrum of disparate treatment of men and women, resulting from sex stereotypes.” An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch-22; out of a job if they behave aggressively and out of a job if they don’t. Title VII lifts women out of this bind.31

Sex stereotypes can also affect men. A restaurant employee who was continually harassed because he was viewed by coworkers as effeminate had grounds for a sex discrimination claim.32 An even more sweeping application of sex stereotyping is found in the case of a transsexual firefighter diagnosed with gender identity disorder. The firefighter began to adopt a more feminine appearance, leading to negative comments from coworkers, efforts by managers to force him to quit, and his subsequent suspension. The court said that the crux of the case was the firefighter’s gender-nonconforming behavior and appearance. Regardless of the transsexual label, discrimination against an individual because he or she does not conform to stereotypes about how people assigned a particular sex at birth should act and dress violates Title VII.33 However, courts have been far from unanimous in holding that the sex-stereotyping theory reaches transsexual or transgender persons. In one relevant case, an employee in the process of transitioning from male to female was terminated for noncompliance with her employer’s dress and grooming policy.34 Over time, the employee started wearing clear nail polish, trimming her eyebrows, using mascara, and wearing her hair longer and in a feminine style. These changes conflicted with the store’s policy requiring male employees to have short hair, to refrain from wearing jewelry that required piercing, and to maintain “a conservative, socially acceptable general appearance.” The court concluded that while it “may disagree with Family Express that a male-to-female transsexual’s intent to present herself according to her gender identity should be considered a violation of its dress code and grooming policy, … [there is] too little evidence to permit an inference that Family Express didn’t actually terminate Ms. Creed for this legally permissible reason.”35

Application of the sex-stereotyping theory to appearance requirements is a work in progress, and the results have thus far been inconsistent. In the “Borgata Babes” case, the court rejected the plaintiffs’ argument that the casino’s requirements amounted to impermissible sex stereotyping (i.e., that they were “used as nothing more than sex objects by the casino, required to adhere to a stereotype of overt and aggressive feminine sexuality”). The court said that employers are allowed “to show a preference for employees who possess a sexually attractive appearance” and to rely on “stereotypical notions of how men and women should appear” when expressing these preferences.36 What employers are not allowed to do, is to “use stereotypes to impose a professional disadvantage on one sex or the other, nor … punish one sex for having a personal or physical trait that is praised in the other.”37 Whatever its legal merits, this distinction seems difficult to draw in practice. A broader view of sex stereotyping is evident in the Lewis v. Heartland Inns of America case that follows, in which the court finds evidence of sex discrimination in the informal expectations of a manager regarding an employee’s appearance.

The influence of appearance on employment decisions is perhaps inevitable. For some jobs, appearance is job-related. Certainly, employers can establish appearance and grooming requirements that are the same for all employees; however, appearance is very closely intertwined with protected class. How will older people fare in workplace beauty contests? Pregnant women? People whose religious beliefs dictate a particular mode of appearance or dress? When grooming or appearance standards are needed, employers should ensure that requirements for men and women are not widely different, more burdensome on one sex, based on stereotypes, or likely to result in harassment. Appearance policies must also be flexible enough to allow for exceptions to accommodate religious practices of employees (see Chapter 10).