Wednesday, June 29, 2016

Can You Be Fired for Being Too Good Looking?

Last fall we discussed whether an employee could be fired for not being good looking enough. As a recent case shows, employees can also be fired for the opposite reason: being too hot. 

Beauty really was a curse for a yoga instructor who worked at a Manhattan chiropractor’s office.  After working at the office for about a year, one of the owners of the chiropractic practice told the woman that his wife, who also was a co-owner of the business, might be jealous because she was “too cute.” A few months later, the owner’s wife fired the yoga instructor. 

The yoga instructor filed suit against the employer, saying that her firing was illegal gender discrimination. The court, however, dismissed the suit, finding that it is not illegal gender discrimination to fire someone for being too good looking. 

The court noted that in order for gender discrimination to exist, one gender must be treated differently than the other. So, had the wife fired all the good-looking female employees, but retained all the good-looking male employees, the yoga instructor might have been able to bring a claim for gender discrimination. 

While an employer can fire an employee for being too good-looking, not good-looking enough, or possibly even for being obese, doing so is probably not a good idea. First, firing an employee based on his or her physical characteristics is basically an invitation for that employee to sue the employer. Even if the employer will eventually prevail, inviting litigation, which is expensive and always a hassle, is never a good idea.

Second, it is possible that the employee’s problematic physical characteristics are the result of a disability. Perhaps a sudden weight gain is due to diabetes, or pregnancy, which, as we have discussed at length, it is illegal to base a hiring or firing decision.  

Third, it could leave an employer open to claims of sexual harassment. This is true even if, as in this case, the employee is the same gender as the employer, as same sex sexual harassment is illegal. If an employer is commenting on an employee’s looks, a court could construe this to be sexual harassment. 

We suggest that employers have criteria in place that they use to evaluate an employee’s performance and determine that employee’s pay and whether the employee should continue in their position. Using arbitrary metrics based on things like looks or favoritism to manage employees can leave an employer open to a lawsuit. Contact an Ancel Glink attorney for help creating such a policy.