Legal

Is ‘lookism’ the forgotten workplace inequality?

15 Jun 2018 By Helen Crossland

How are employees affected by looks-based discrimination, and when are employers leaving themselves open to a claim? Helen Crossland reports

Great strides are being made to tackle gender inequality in the workplace. These include the drive to see more women represented in executive positions and the obligation on organisations with a workforce of 250+ to now annually report and explain any differences in pay between their male and female employees. The risk of being named and shamed can be significant and costly for businesses, both in terms of PR damage and exposure to equal pay and sex discrimination claims.  

Yet despite the efforts being made, the fact that a woman’s appearance can still play a key role in their careers – compared to men – attracts far less recognition. 

There has always been statistical evidence that some women get better jobs and are promoted more quickly based on their appearance. In a survey only last year, 28 per cent of women said they had been advised to change their appearance to ‘do better in business’, with a further 25 per cent reporting having been challenged about how they look at work compared to 9 per cent of men. This indicates that there remain institutional views about how women should present themselves in the workplace.

So-called ‘lookism’ hit the headlines in 2016 after accountancy giant PwC sent one of its receptionists home without pay because she refused to wear heels. While PwC hastily distanced itself from any policy that its reception staff were forced to wear high heels, it was demonstrative that the firm may have had an image it wanted its frontline female staff to promote.

The Government Equalities Office this month issued guidelines suggesting that dress policies requiring gender-specific items, such as high heels, make-up or manicured nails, are likely to be unlawful, and that requiring employees to dress provocatively raises the risk of harassment claims.

While it seems women may be more affected by ‘lookism’, no one is suggesting that men are the sole protagonists. Some may be familiar with the infamous footage from Australian programme Nine News last year. This saw the female anchor being inadvertently broadcast chastising a younger female colleague about her outfit, apparently because she felt upstaged. This shows a person’s looks can conspire against them for a range of reasons, including if seen as a threat by their (female) co-workers. 

It is further acknowledged that since age discrimination became a recognised legal complaint in 2006, a steady trend of claims have arisen from women rejected for a role or promotion after being told their youthful appearance would prevent them from being taken seriously in the position applied for. Conversely, several female TV presenters have litigated successfully on the basis that on reaching a certain age they were moved out of view – unlike their male counterparts whose age was seen to give them added gravitas.  

It is undeniable that decisions, including around recruitment or promotion, are sometimes based on a person’s appearance, and whether this conforms with the company brand or stereotypes about how an individual (in that role) should look. This can lead to job applicants and employees being discriminated against or harassed in the workplace primarily based on how they look. 

To be eligible to bring a looks-based claim, the person must have one or more of the prohibited grounds upon which to base the claim, including sex, pregnancy or maternity leave, race, religion or belief, age, disability, sexual orientation, marital or civil partnership status or gender reassignment. A person will therefore be ineligible to bring a claim on the basis of their tattoos, hair style/colour or body shape, unless there is an underlying discriminatory reason. However, if a woman is treated as less intelligent in the workplace because of her blonde hair or is bullied about her figure, then there may be potential for a sexual harassment claim.

The pressure is on businesses to adapt their employment practices to eradicate any unjustified gender bias. This should extend to addressing lookism in the workplace, not least because the case law and emerging government initiatives are making it inherently harder to defend such claims. 

Helen Crossland is a partner and head of employment at Seddons

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