Appearances Can Be Deceiving: Making Hiring Decisions Based on Physical Appearance
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It’s not illegal per se to make an employment decision based on an individual’s appearance, but it’s tremendously dangerous for an employer to do so because it could very easily implicate illegal discrimination against a protected category. As a result, employers should never ask for a job applicant’s photograph or make employment decisions based on physical appearance, because it will very likely be taken as—and may in fact be—illegal discrimination.
First, it’s important to bear in mind that there are both federal and state anti-discrimination laws that must be followed. While federal anti-discrimination laws are in-force everywhere, states may have their own anti-discrimination laws that might protect additional categories of people. The following discussion focuses on federal law, but it’s vital to always check state law, too. Several states include additional protected categories to those enumerated below, such as national origin, sexual orientation, or marital status.
Under federal law, an employer may not discriminate on the basis of race, religion, sex, age over 40, or disability status. Since sex and many physical disabilities are observable, as are some religious affiliations due to their distinctive dress (Orthodox or observant Conservative Jews, many Muslims, Sikhs, etc.), most protected categories are visible, and arguably the majority of job applicants show their membership in one or another category.
It’s against the law to make decisions based on these categories. Therefore, if an employer asks for a job candidate’s photograph and that candidate belongs to a protected group, it will be very easy for that person to think they did not get the job because of their membership in a protected category. That, in fact, may be the case, but even if not, the employer could face an investigation and a lawsuit. If the candidate was otherwise qualified, it may be difficult to show that bias or discrimination was not the basis for the decision.
Therefore, although decision-making on the basis of appearance is not illegal per se and does happen—for example, you can refuse to hire someone, or if you’ve already hired them, refuse to promote them, because you think their tattoos or piercings are inappropriate for your organization—it’s still risky. Again, if the candidate belongs to a protected category, it may be difficult to prove that the decision was not illegal discrimination.
An employer may make many appearance-based decisions, but because illegal discrimination is based on typically obvious physical characteristics, it is exceedingly dangerous for an employer to do this. In doing so, the employer could be discriminating illegally or making itself vulnerable to legal action.