Originally posted May 23, 2011.
Here’s a topic we’ve considered a few times on this blog, and it always comes up in my workplace Human Rights law course.
Can an employer hire only “pretty women”?
The Toronto Sun ran a piece this week looking at how some Toronto employers make their hiring decisions based on whether the manager believes the women are good-looking, and not whether they are qualified or experienced. Big surprise there.
Said a manager at Moxie’s at Yorkdale:
To be sure no ‘uglies’ even got an interview, Hawker said he and other front of house staff were directed to screen applicants coming through the door at Moxie’s, and mark resumes with a “110” (one-ten) if they were unattractive. It’s an internal code for “do not call,” he said. (Put a diagonal line between the pair of ones and it forms ‘NO’). Similar practices are allegedly in place at other restaurants across the country.
Moxies is hiring at Yorkdale. Here is their ad for servers. The only mention of appearance is under “Competencies”, where it says “Appearance Standards”. Can’t get much more vague than that.
The question for law students to think about is whether it is unlawful to hire only women who the recruitment manager thinks are attractive. I’ve discussed this earlier in my posts Can An Employer Discriminate Against Me Because I Am Ugly? and Can Hooters Require Servers to be Slim and Fit?.
The key is always to decide if the reason for the discrimination is covered by Section 5 of the Human Rights Code (in Ontario. Other provinces have their own prohibited grounds that are similar, but not always identical). Are physical looks covered by any of those grounds?
The article cites Stacey Ball, who is a senior employment lawyer in Toronto, as saying that it is possible that “ugliness” is covered by these grounds. He says:
“A case could definitely be made under the human rights code. It’s a live issue. Let’s say you’re simply ugly due to your luck of the gene pool, is that a medical condition? That could be argued. That’s your genetic composition.”
What do you think? Is he saying that a person’s looks can be placed under “disability” or “ancestry”? Do you agree with that? I guess that’s possible, though it would be an odd hearing in which an employee testifies, “I can’t help that I’m ugly, it’s my ancestor’s fault”. How about “sex”? Is it ‘sex’ discrimination for an employer choosing amongst only female applicants to select the applicant who is most physically appealing to the recruiter?
The real issue is a policy one. If we don’t like employers screening out women based on their looks, then we could just add to the grounds in Section 5 “physical appearance”. Some American states have already done this, and it has been a subject of academic commentary for years. Here is a short piece from the New York Times discussing the issue, which notes that “the state of Michigan and six locales — the District of Columbia; Santa Cruz, Calif.; Madison, Wis.; Urbana, Ill.; and Howard County, Md., along with San Francisco — have laws that protect against appearance discrimination.” If you were the Minister of Labour, would you propose amending our Human Rights legislation to add “physical appearance” as a prohibited ground?
Question for Discussion
Can you think of any reasons why our government has not legislated a ban on discrimination on the basis of “physical appearance”?
