Appearance Discrimination: What’s the Short and Tall of It? in New York Employment Law Letter

Jill Barbarino, an Associate in the Labor and Employment practice in the firm's New York office, wrote an article titled "Appearance Discrimination: What's the Short and Tall of It?"

Following is an excerpt:

Employers in various industries may want to use their employees' appearance to brand their image as having a cer­tain "look" or to solicit "high-end" customers. A spate of law­suits by employees of upscale establishments has challenged those practices. You must tread carefully before imposing appearance-related requirements (e.g., dress codes and weight limits) on your employees to ensure you aren't (1) discrimi­nating based on protected characteristics or (2) enforcing your policies in a discriminatory manner.

In a lawsuit recently filed in the Supreme Court of New York, former cocktail waitresses at a swanky nightclub, allege that they were fired be­cause they weren't tall or skinny enough. Both waitresses approximately 5'4", contend that after club renovations were complete, management "made a conscious decision to remove all cocktail waitresses who were not tall, ex­tremely slender and extremely good looking." The suit goes on to state that "the club wanted only cocktail waitresses who fit into its own perception of perfection, women who appear to be willowy, svelte and statuesque runway models." The suit claims gender discrimination because the new appearance standards allegedly apply only to fe­male workers. Male employees don't have to have "model" looks or physiques.