Rightly or wrongly people judge each other by the way they look. But what happens if these judgements affect their job prospects or the advancement of their career? During the media storm surrounding Samantha Brick's comments that women treated her differently because she was so good looking, she also mentioned that her looks had affected how she was treated at work.
Her comments touched on an interesting issue: the impact of physical appearance in the workplace, and the scope of legal redress for those who feel they have been unfairly treated because of their looks. As discrimination law continues to evolve, will employees in the future be able to bring a claim for discrimination based on their hair colour, attractiveness, or even lack of?
The Equality Act 2010 governs the current law relating to discrimination in the workplace. Employers will be familiar with the nine protected characteristics in the Equality Act (disability; age; sex; race; religion and belief; sexual orientation; gender reassignment; marriage and civil partnership; and pregnancy and maternity). This is significantly more than the two protected characteristics of the 1970s: race and sex. In just 40 years, discrimination law has transformed, and it looks likely to continue to expand as social and cultural norms develop.
Presently, it is not illegal for an employer in the UK to treat an employee or job applicant less favourably because of their physical appearance alone. However in some parts of the world this is the case, for example, in Washington in the USA. Despite the fact that "physical appearance" is not a protected characteristic in the UK, there are circumstances where treatment because of physical appearance can be unlawful. For example, if someone is treated differently because they look too old for a job, that may be age discrimination.
There is, however, strong evidence that physical appearance is having a detrimental impact on how employees are treated in the workplace. Given the propensity for discrimination law to evolve to cope with the changing cultural and social conventions, there are areas where the boundaries of discrimination law could be stretched so that employees are protected from adverse treatment due to their physical appearance. But where can we expect such changes?
Firstly, did Mrs Brick have a point that good looks can be detrimental in the workplace? Research suggests that job candidates are treated less favourably if they are good looking, but only if they are female. It is possible, therefore, that not recruiting a good looking job candidate could potentially be sex discrimination, but only if it was a female candidate and she could successfully argue that a good looking man would have not been treated in the same way as she was. It would be very difficult to provide evidence to support such a contention; how do you objectively assess who is good looking?
Perhaps the next development in equal pay will be equal pay for short and tall employees. Research by Professors Timothy Judge and Daniel Cable showed that taller employees earn more money on average than shorter employees. Employers are subconsciously short-changing (pardon the pun) some employees because of their height. Could this be an angle for a lateral thinking lawyer to pursue?
By far the biggest potential for a Government-backed change to discrimination law is the issue of obesity. Obesity can cause issues in the workplace in relation to an individual’s ability to perform their job and weight-related illness can also affect absence levels. A survey found that 93% of employers would hire an applicant of normal weight instead of an equally qualified obese candidate. Campaigners argue that the law should be changed to include obesity as a protected characteristic.
It is not illegal to subject someone to less favourable treatment solely because of the colour of their hair. Popular culture has often been less than kind to women with blonde hair and to anyone with red hair. Arguably, any less favourable treatment of a blonde woman, for example, where she is not promoted due to a stereotypical assumption about her intelligence, is sufficiently linked to her sex and so may be caught by the Equality Act. There has been a case where a Tribunal found that a woman had been discriminated against after jibes from management about her red hair. However her sex was found to be the reason she was harassed and her hair colour was incidental. The Government will likely wish to see compelling evidence that red-headed employees are treated unfavourably before considering changing the Equality Act.
And finally there is scope for a change which Dickens would surely have appreciated: could a person’s appearance of being ’working class’ or ’upper class’ be protected from discrimination? Research shows that white working class children are more likely than any other group to not be in education, employment or training. At the other end of the scale there is an anti-elitist sentiment in society; even the Prime Minister receives negative press for being perceived as upper class. So it seems that whether an individual is perceived as blue collar or Old Etonian, they may encounter prejudice in their working life. The current Government did not bring into force the socio-economic duty contained in the Equality Act (which would have forced public authorities to take into account socio-economic inequality when making decisions about their policies). It follows that the Government would therefore probably not make ’class appearances’ a protected characteristic.
It would be a big step for the Government to add another protected characteristic to the statute book, especially when its focus is on reducing regulation. However, lawyers have always been skilful at stretching the boundaries of the law in the Tribunals. In ten years’ time, it is not outlandish to think that some of the above characteristics will have found their way into the case law and, perhaps, the statute books. This begs the question; in the pursuit of the meritocratic workplace, will future workplace interviews and meetings have to be conducted in the same manner as the BBC's The Voice? I am sure that some clever employee would allege ’voice discrimination’, and put an end to that.
