Personal Appearance Discrimination: It’s not illegal, but…
October 5, 2016
In a recent federal court decision out of the District of Columbia, FannieMae’s bid to have a race and personal appearance discrimination case thrown out was denied. In Lapera v. Federal National Mortgage Association, the plaintiff, who was from Venezuela, contended that she was denied promotions and higher salary grades on the basis of her overweight appearance and Hispanic ethnicity. The court, in denying summary judgment, stated:
Although a close call…Ms. Lapera has produced sufficient evidence to create a genuine issue as to whether Fannie Mae’s rationale for selecting Ms. Fraser for the Vice President of Planning and Alignment position was pretextual…One view is that Ms. Gehring, who drove the hiring process, harbored biases toward Hispanic and overweight employees and selected Ms. Fraser not because she was more qualified but because she fit the mold in terms of demographics and personal appearance that Ms. Gerhing preferred. The other view is that, notwithstanding her subject matter expertise, Ms. Lapera simply lacked the requisite communication skills to be effective in the Vice President of Planning and Alignment role. Ultimately, a jury will get to choose between these “competing views.”
The plaintiff in Lapera brought her “personal appearance discrimination” claim pursuant to the D.C. Human Rights Act. In Florida, neither state nor federal law prohibits discrimination on such basis. Notwithstanding, employers in Florida should use caution in making personnel decisions on the basis of the physical characteristics of employees and applicants. Taking an adverse action against an employee or denying an applicant a position on the basis of physical appearance could implicate an actual protected status. For example, an employee may have a weight problem that is attributed to an underlying disability such as hyperthyroidism. Unless weight was a bona fide occupational qualification or the individual’s weight prevented the performance of the essential job functions with or without a reasonable accommodation, an employer who takes an adverse action against such an employee on the basis of weight may find itself the subject of a disability discrimination claim. Likewise, a claim for sex discrimination could arise from an employer’s disparate application of strict appearance standards to female versus male employees.