National Poll Echoes Divided Public Opinion on Regulating Appearance in the Workplace: From “Borgata Babes” to an Employee's Scent, Young Conaway’s Sandler Sees It All

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The latest national survey by the Employment Law Alliance (ELA) reveals a nation divided over regulating personal appearance Â? from weight to clothing, hairstyles to body piercing Â? in the U.S. workplace. More than half of those surveyed said their employers had no policy addressing employee appearance.

The latest national survey by the Employment Law Alliance (ELA) reveals a nation divided over regulating personal appearance – from weight to clothing, hairstyles to body piercing – in the U.S. workplace. More than half of those surveyed said their employers had no policy addressing employee appearance.

“Recently, we have seen this topic come front and center in our region,” said Sheldon N. Sandler, partner in the Employment Law Department of Wilmington, Delaware-based law firm Young Conaway Stargatt & Taylor, LLP. “We’ve seen the Borgata Hotel Casino in Atlantic City come under fire for a formal company policy forbidding the ‘Borgata Babes’ (cocktail waitresses) from gaining more than 7 percent of their baseline body weight or incur suspension and termination. Recently, I dealt with a matter where an employee’s smell and subsequent complaints from co-workers led to an employer being faced with a very sensitive issue.”

The “America At Work” poll questioned 1,000 Americans about their views on appearance-based discrimination as employer-employee disputes on the issue increase and frequently spill over into the courts and government enforcement agencies. Besides the Borgata suit, there has been a challenge based on religious beliefs to a national superstore chain’s prohibition on “visible facial or tongue jewelry (earrings excepted)”; and a $40 million settlement involving a national, trendy clothing retailer accused of appearance-based personnel practices. The 9th U.S. Circuit Court of Appeals recently held that a female employee fired for refusing to wear makeup cannot sue her employer for sex discrimination. Harrah’s Resorts had implemented a “Personal Best” policy.

“The tension between an employer's authority to manage in order to ensure maximum customer satisfaction and an employee’s feeling that his or her personal body and beliefs are being invaded is a tough one,” said Sandler. “Who decides whether a nose ring or tattoo is offensive? Or whether dress or smell can be regulated? Litigation results mirror the public's opinion in this survey.”

Conducted by the Media, Pennsylvania-based market research firm of Reed, Haldy, McIntosh & Associates, the ELA survey found that:

--39% said employers should have the right to deny employment to someone based on appearance, including weight, clothing, piercing, body art, or hair style.

--33% said that in their own workplace workers who are physically attractive are more likely to be hired and promoted.

--33% said workers who are unattractive, overweight, or generally look or dress unconventionally, should be given special government legal protection such as that given persons with disabilities.

--Of the 39% who said employers should have the right to deny employment based on looks, men outnumbered women 46% to 32%. And whites outnumbered non-whites 41% to 24%.

--16% said they had been the victim of appearance-based discrimination.

Sandler said the poll found that supervisors are much more likely than non-supervisors to support a policy permitting companies to regulate personal appearance. The survey found that 47% of the supervisors surveyed said employers should have the right to deny employment based on looks, while 35% of the non-supervisors supported that position.

“The poll tells us that about half of our nation’s employers have no policy or regulation regarding most of these issues,” said Sandler. “The law is changing and employers have to focus on the requirements of the position when making personnel decisions if they are going to be able to successfully defend themselves against a discrimination claim.”

Young Conaway Stargatt & Taylor LLP, with over 95 attorneys firm wide, has the largest employment law department in the state of Delaware. For more information, please contact Mr. Sandler via e-mail at ssandler@ycst.com, phone at 302-571-6673, or through the firm's web site, http://www.YoungConaway.com.

Young Conaway is the exclusive Delaware representative of the Employment Law Alliance, the world's largest integrated, global practice network comprised of premier, independent law firms distinguished for their practice in employment and labor law. There are member firms in every jurisdiction in the United States and major commercial centers throughout the world. For more information, please visit http://www.employmentlawalliance.com.

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