Appearance Discrimination and the Law

As the old adage goes, ‘good looking people always get ahead’.  It is one of those socially accepted, but ugly truths of many workplaces.

Attractive people, tend to be more successful in the business world.  They are more likely to be hired, promoted and earn more money.[1]   A good-looking man will reportedly make some $250,000 more than his least-attractive counterpart. [2] Further, 13% of women say they would consider cosmetic surgery if it made them more competitive at work. [3] Studies have shown that physical attractiveness is often perceived as a sign of success, wealth, and marketability. [4]

Appearance discrimination or ‘lookism’, undoubtedly has corrosive effects in the workplace.  It sends a message to employees that they are being evaluated, not based on an objective review of their performance, but at least in part, on their physical appearance.

However, is this legal?  Judging someone based on their innate physical appearance is an affront to one’s dignity, self-esteem and self-worth.

Currently, there is no stand-alone law in Ontario that prohibits appearance discrimination. Technically, it is not illegal for an employer to hire or promote someone based on looks.   However, appearance discrimination is unlawful in so far as it has adverse effects on employees based on a prohibited ground of discrimination such as, sex, gender identity, religion, colour or ethnic status.

The reality is that women are generally more scrutinized in terms of their beauty, clothing and physical appearance, relative to their male counterparts.   In Janzen v. Platy Enterprises Ltd., [1989] 1 SCR 1252, the Supreme Court rejected the notion that attractiveness is simply to be treated as a personal characteristic.  According to the Supreme Court, “sexual attractiveness cannot be separated from gender.”

The Ontario Human Rights Commission guidelines specifically state that sexualized and/or gender-specific dress codes that reinforce stereotypical and sexist notions about how women should look will, in most circumstances, violate human rights legislation.[5] For instance, rules requiring women to accentuate or expose their bodies, or wear high heels, will in most contexts, be considered a violation of the Ontario Human Rights Code.

Appearance discrimination also has disparate impacts on visible minority groups.   Black women and women of colour often face significant socio-economic pressure to straighten or relax their hair to conform to white and European standards of beauty, which can cause emotional harm and stigma.

Some jurisdictions in the United States have enacted laws specifically addressing forms of appearance discrimination.  For example, New York City enacted laws recognizing  “the right of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities,” including “locs, cornrows, twists, braids, Bantu knots, fades, Afros …”

Various other US jurisdictions, including Madison, Wisconsin and Urbana, Illinois have passed laws banning discrimination in employment based on a person’s “physical appearance” and “personal appearance”. Some U.S. cities have further banned weight and height requirements.

Discrimination can take many forms. Perhaps it is time to expand human rights laws in Ontario to specifically address discrimination based on other immutable traits, such as one’s physical appearance, weight or height.

If you believe you are a victim of appearance discrimination, speak with an employment lawyer about your rights.

Authors: Dilpreet Grewal & Jonquille Pak

By |2022-05-09T16:09:25-04:00May 9th, 2022|Article, Article-All|0 Comments

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