It’s an area than can easily overlap with other types of discrimination, explains Philip Miles, an attorney with Pennsylvania law firm McQuaide Blasko. In cases of discrimination based on appearance, it can sometimes be argued that the appearance characteristics in question constitute a gender stereotype.
In this case, “the court said, ‘you’re applying stereotypes to her [Hopkins] based on her being a woman and by insisting that she conform to these stereotypes that’s actually a form of sex discrimination’”, says Miles.
Gender Stereotyping = Sex Discrimination
In fact, the Court held that Title VII forbids employers from discriminating against an employee for failing to live up to gender role expectations. The justices concluded that: “We are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”
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Yes, Hooters can refuse to hire flat-chested women, but employers who use such criteria in hiring may still find themselves in hot water. “You can make the argument that you’re applying a stereotype that women should be large-chested, they should have a certain amount of curves, weigh a certain amount, and that by applying this stereotype you’re discriminating on the bases of sex,” says Miles. “But generally speaking, can Hooters discriminate based on appearance? Yes, in most jurisdictions they can.”
Miles suggests that employers ensure their managers think carefully about the reasoning behind their decisions. “Make sure they have some sort of legitimate criteria that they’re basing their hiring, promotion and pay decisions on,” he says. “Of course people making these decisions have to have some discretion, but employers should require that some type of documentation, some type of rationale, be provided for these decisions.” This documentation should be maintained by HR, in case it’s ever needed to justify an employment decision.
Miles also recommends including some specific training for hiring managers. “Ideally the managers should already be going through the standard discrimination training that deals with definitions of sexual harassment and the mainstream discrimination situations such as race, religion, national origins, etc. And I would include in that training the concept of gender stereotyping… If there’s any question at all about whether you’re making a decision based on one of these protected characteristics, the manager needs to contact HR for guidance.”