In a Right Said Fred song popular in the 90s come the lyrics, “I’m too sexy for my shirt, too sexy for my shirt, so sexy it hurts.” As the song goes along, the singer is too sexy for just about everything!
For employers the question arises, can an employee be too sexy for his/her job? In 2013, Ms. Dilek Edwards, a “beautiful blond massage therapist” claimed that her employer, a chiropractor, fired her because the chiropractor’s wife, a former Playboy Playmate, because Ms. Edwards was “too cute.” Apparently, the wife sent an email instructing Ms. Edwards to say away from her man. Although there is no claim that the chiropractor and Ms. Edwards engaged in any hanky-panky, the next day Ms. Edwards received her walking papers.
The wife’s defense appears to be that she is cuter than Ms. Edwards. The wife allegedly said, “No disrespect to anyone – but I’m a centerfold.”
The New York appellate court took a more reasoned, and legal, approach. In its order dated August 22, 2017 it claimed “it is well established” a termination of employment motivated by sexual attraction constitutes unlawful gender discrimination. The court noted that what makes the termination unlawful is the reason that the wife urged the chiropractor to fire Ms. Edwards.
The case is similar to the claim asserted by Melissa Nelson, a dental hygienist, who was fired after 10 years of employment because the dentist, James Knight, found her “irresistible.” (Dr. Knight’s description reminds me of another old song – “Simply Irresistible” by Robert Palmer.) The court in the Nelson case said that Title VII did not protect the employee. Dr. Knight did not fire her because she was a woman. In fact, he hired a woman to replace her. The replacement was not apparently “irresistible.”
California state laws do not expressly prohibit discrimination based on appearance. Santa Cruz enacted an ordinance in 1992 prohibiting discrimination based on height, weight or physical characteristics. This came after the California Supreme Court held in Cassista v. Community Foods, Inc. that being overweight was not protected. In 2000 San Francisco enacted an ordinance prohibiting discrimination based on height or weight.
However, one might successfully assert a claim based on appearance. Consider for example the lawsuits against Abercrombie & Fitch based on its “Look Policy.” This policy subjected the company to liability on the basis of discrimination based on ethnicity and religious practices. Similar policies may also give rise to lawsuits based on claims of disability or gender identity discrimination as well.
What’s to be learned from all of this? Perhaps that beautiful people can’t file lawsuits because they are too attractive, too beautiful or too sexy unless they live in Santa Cruz, San Francisco or a handful of other cities around the nation with special ordinances. But applicants and employees may assert a claim of discrimination for not being sufficiently “attractive” when those standards of attractiveness are based on considerations involving race, ethnicity, religion, disability or gender identity.
Discrimination laws can be very complicated and difficult to interpret in any particular situation. Companies should review their policies and practices with legal counsel to determine any possible bases for discrimination claims.
Here is Right Said Fred’s “I’m Too Sexy” https://www.bing.com/videos/search?q=too%20sexy%20for%20my%20shirt&qs=n&form=QBVR&sp=-1&pq=too%20sexy%20for%20my%20shirt&sc=2-20&sk=&cvid=02DB1864F8B74320B207CC1F85422303
A news story on the case: http://nypost.com/2016/05/19/yes-you-can-be-fired-for-being-too-hot/
NY Appellate Court decision: http://law.justia.com/cases/new-york/appellate-division-first-department/2017/4080-160830-13.html
Here is Robert Palmer’s “Simply Irresistible” https://www.bing.com/videos/search?q=simply+irresistible+&FORM=HDRSC3
The Santa Cruz Municipal Code: http://www.codepublishing.com/CA/SantaCruz/
Read about the San Francisco discrimination ordinance here: http://sf-hrc.org/how-file-discrimination-complaint-employment-housing-or-public-accommodation#What%20are%20protected%20classes%20in%20employment?
See an EEOC Press Release on two of the Abercrombie & Fitch cases: https://www.eeoc.gov/eeoc/newsroom/release/9-23-13c.cfm
We are told that beautiful people are treated more positively. See Ritu Mahajan, The Nake Truth: Appearance Discrimination, Employment, and the Law, 14 Asian Am. L.J. 165 (2007) available at http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1137&context=aalj