Tuesday, January 10, 2012

Boys' Night Out

Boys Night Out Part 1

A few weeks back one of my colleagues at the Centre For Human Resource Management arranged a “boys night out” and several venues were put forth as possibilities. A place was chosen that offered a great special on ribs – a full rack, with fries for $9.99. Arriving late I had no time to consider the full menu, but the server was prompt and I ordered the special. Shortly thereafter she returned and asked me if I would like a beverage. I indicated I would and it wasn’t long before she came by with my beer, and then again returned with my rack. Over the course of the evening, I couldn’t help but notice that there seemed to be something different about my server each time she returned to the table. In fact there was – she was four different people. This I discerned mostly by looking at the name tags. It’s not just that they all wore the same outfit; they actually looked remarkably similar.

Having a corporate look, or image, is not new. The Disney Corporation, for example, is quite clear in its requirements that employees have “the Disney Look”. In the restaurant trade it may be the tux of a high end steak house, or the polyesters and hats of fast food franchises; but, uniforms are common place. The Hooter’s (the venue of our outing) uniform is described at http://www.hooters.to/torontodowntown/employment.php It would appear that the uniform and the “Hooters look” is a major component of the corporate image. Indeed, on the American site this is made clear:

The "nearly world famous" Hooters Girls are the cornerstone of the Hooters concept, and as part of their job, these all-American cheerleaders make promotional and charitable appearances in their respective communities. Hooters hires women who best fit the image of a Hooters Girl to work in this capacity. The chain hires both males and females to work in management and host, staff, service bar, and kitchen positions. The Hooters Girl uniform consists of orange shorts and a white tank top. Pantyhose and bras are required.

Several questions arise, the first, one that my students ask all the time, is whether the company can hire on the basis of looks. The short answer is yes. The concept of lookism, discrimination on the basis of physical attractiveness, is not something that has received much judicial attention in Canada, nor likely in any other jurisdiction. Though, a recent book by Stanford professor, Deborah Rhode, called The Beauty Bias, suggests that it should be the next rights issue to be tackled. Just this past September a lawsuit was filed in the U.S. by Shirley Ivey who alleges that her boss didn’t promote her at the Department of Consumer and Regulatory Affairs in Washington because she wasn’t pretty enough. At the other end of the spectrum, Citibank employee Debrahlee Lorenzana apparently sued on the basis that she was fired for being too attractive. There is no doubt that choosing one person on the basis of his or her looks over another is discrimination; the question is whether it is illegal discrimination-- that is discrimination based on one of the prohibited grounds in the Human Rights Code. For example, if the restaurant hired only blonde haired, blue eyed servers, then they would likely be discriminating on the basis of race, ancestry or place of origin. Though the web page linked above does not appear to show any racial diversity, there was, I discovered on further investigation, such diversity at the location chosen by my colleague.

In this regard, clothing retailer Abercrombie and Fitch recently settled a class action law suit for in excess of $40 million on the basis that its look based hiring policy did discriminate on the basis of race.

Discrimination on the basis of religion may also be a possibility in that the uniform would not be acceptable as appropriate dress to serious adherents of a number of different religious groups. Again Abercrombie has recently been named as a defendant in a lawsuit where it allegedly terminated a Muslim employee for refusing to remove her hijab.

The Hooters.to employment web page should also be viewed in light of the requirements of s.23 of the Human Rights Code which prohibits advertisements or invitations to apply for employment which directly or indirectly classify qualifications on a prohibited ground. A look at the page shows a relatively homogenous group of females in the Hooters Girl outfit, indirectly thereby inviting similar looking females to apply for the job. However, the page states directly “There is no set requirement in order to be a nearly World Famous Hooters Girl!” But then goes on to state: “We look for the All-American (Canadian) Cheerleader / Surfer-Girl-Next-Door image to fill our restaurants. In other words...Very bubbly, outgoing personalities!”

More obvious, is the fact that the position is for Hooters Girls, not for servers and the application may well discriminate against males. In fact, Hooters, has apparently settled a gender discrimination law suit in the United States for $3.75 million. Hooters did argue that the position was not for a server but rather for a Hooters Girl, and as such one had to be female to fill the position. In this regard, Hooters states: “the settlement agreement acknowledged that "being female is reasonably necessary" to the performance of the Hooters Girl's job duties, forever preserving the integrity of the Hooters Girl concept.” This private settlement would not determine the issue in law, especially in Canada. The test for what is a bona fide occupational requirement in Canada is set out in the Meiorin case and requires a three step analysis once prima facie discrimination has been determined. Here prima facie discrimination is established in that they do not hire males to be Hooters Girls. The three steps are then, first that the requirement is rationally connected to the performance of the job. Secondly, the standard must be adopted in the good faith belief that it is necessary for the fulfillment of that work related purpose, and finally, it must be reasonably necessary for the fulfillment of the work related purpose and to show that it is reasonably necessary it must be shown that it would be impossible to accommodate someone without the qualification. The question really would be whether they could get past step one, that being female is rationally connected to the performance of the job.

The third possibility, here, is that choosing employees on the basis of sexual attractiveness might arguably be sexual harassment. There is some case law to suggest that placing someone on a sexual spectrum (i.e. attractive or not) is sexual harassment. The Human Rights Code does not expressly include sexual harassment at the hiring stage, but rather only once there is an employment relationship (compare s.5 to s.7(2)). Though, the seminal case, Janzen v. Platy did hold that sexual harassment is discrimination on the basis of sex. Thus it is arguable that not getting a job on the basis of looks, that is, sexual attractiveness is sexual harassment which is a form of sex discrimination and thus prohibited by s.5 of the Code. The problem with this is that harassment requires a course of conduct and that is unlikely to be met at the hiring stage.

In the Meiorin case, the Supreme Court made reference to the human rights “goal of transformation.” In this regard, systemic discrimination occurs partly because the system has and creates its own momentum. It’s unlikely that a male will want to apply for a position as a Hooters Girl, or that someone whose religion requires more conservative clothing will seek out employment at the Hooters organization. One look in the restaurant or at the website will cause people who do not match the image to self select out of those positions. But again, provided that the discrimination is based on attractiveness and not on one of the prohibited grounds, then likely, it is perfectly legal. As the Hooters site states: “Hooters Girls have the same right to use their natural female sex appeal to earn a living as do super models Cindy Crawford and Naomi Campbell.”

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