Intro to the NYCHRL: Your Right to a Non-Discriminatory Lunch

New York City is undeniably more liberal than most other places in America.  So it should be no surprise that it has one of the most protective anti-discrimination statutes in the country. 

In contrast, federal discrimination claims often face difficult hurdles.  There are countless situations where behavior that is objectively discriminatory, would not make it far as a discrimination claim under only federal law.

The result is that clearly discriminatory conduct goes unpunished, not because it is not discrimination, but because discrimination law has a standard, either judge made, or based on the text of the statute, that is very conservative - demanding at times incredibly exacting evidentiary support. 

But what about situations that are clearly discriminatory, but where there is a “smart discriminator”?  A discriminator who fails to leave a helpful document trail clearly showing the reason they did what they did was based on discrimination or retaliation.

Or what about instances that are discriminatory, but where the courts are be hesitant to find discriminatory because the conduct is viewed by some merely as passing slights?

Enter stage left – the New York City Human Rights Law, which applies less demanding standards for finding conduct to be discriminatory compared to its federal and state counterparts.

In fact, there are some pretty striking examples where the NYC law supported a discrimination lawsuit that might not have made it far in court under only federal law.

Here is one:

At an administrative hearing, a restaurant, a place of public accommodation under Administrative Code section 8-102(9), was found to have engaged in discrimination against an African American customer by asking her to pay for her food before receiving it, while three non-African American customers were not required to pay for their food until receiving their food orders. Respondents failed to demonstrate a legitimate, non-discriminatory motive for treating the African American customer differently.

Annotated NYC Administrative Code 8-107

Importantly, just this one instance was enough to find the restaurant liable for discrimination.

The restaurant was ultimately fined $5,000.

Amazingly, the restaurant did this to a “tester” from the New York City Commission on Human Rights – i.e. an employee of the Commission. 

 You can read the final decision and previous history here.

Come back for additional case studies demonstrating the distinction between federal and NYCHRL discrimination standards.

Recently Pregnant Employees Also Protected From Pregnancy Discrimination For Four Months

Citing recent decisions from within the Second Circuit, New York federal Judge J. Paul Oetken found that protection from pregnancy discrimination extends to include recently pregnant women in addition to pregnant women:

Katherine Albin alleged viable pregnancy discrimination claims against Thomas Pink Inc., its corporate parent LVMH Moet Louis Vuitton Inc., and two supervisors under Title VII of the 1964 Civil Rights Act and New York state and city law, the U.S. District Court for the Southern District of New York said.  It found that the promotion denial may have occurred three and a half months after Albin gave birth to her first child.

Judge J. Paul Oetken cited emerging case law within the U.S. Court of Appeals for the Second Circuit holding that women who are four months or less removed from giving birth are still protected by Title VII's prohibition against pregnancy discrimination."

While observing that at some point after a pregnancy ends protection from pregnancy discrimination also comes to an end:

"[P]regnant women, women who very recently gave birth, and women on maternity leave are unquestionably within the protected class of pregnant persons, 'at some point in time such women are no longer 'affected by pregnancy, childbirth, or related medical conditions' and, thus, are not protected.'" (internal citations omitted) (link)

the court found that protection generally continues for approximately four months after a pregnancy:

"Distinguishing among previously pregnant women to determine who is still affected by pregnancy requires selecting a temporal cutoff based on the facts of the given case.  While ultimately dependent on the factual situation of a specific claim, a pattern has developed in this Circuit establishing a loose line at approximately four months from the date of birth." (internal citations omitted) (link)

In my view, along with age and disability discrimination, pregnancy discrimination is one of the more prevalent forms of discrimination today.  Unlike explicit race and gender discrimination, pregnancy discrimination (in its varied forms) does not carry the same heavy stigma and is surprisingly prevalent. 

Unfortunately, although prevalent, it is often unrecognized and/or unreported.

This decision goes a long way to help advance anti-discrimination protections for pregnant and recently pregnant employees.

Can My Employer Discriminate Against Me Based on My Looks?

The combination of federal, state, and city laws provide something close to comprehensive protection from employment discrimination, at least for New York City residents.  Read together, these statutes make it is illegal to discriminate based on a substantial list of protected classifications including, race, gender, age, nationality, disability status, sexual orientation, and religion to name just a few. 

But what about attractiveness? 

When you give it some thought, or at least look at the research, it quickly becomes apparent that a person’s attractiveness has a very significant impact on his or her life prospects:

"The bias in favor of physically attractive people is robust, with attractive people being perceived as more sociable, happier and more successful than unattractive people.  Attractiveness biases have been demonstrated in such different areas as teacher judgments of students, voter preferences for political candidates and jury judgments in simulated trials." (link)

The bias is so strong that one study found that even identical twins evaluate each other more negatively or positively based on small differences in their relative attractiveness: "[t]he more attractive twin assessed the other as less athletic, less emotionally stable, and less socially competent. The less attractive twins agreed, ranking their better-looking siblings ahead [of the other]." (link) 

Strikingly, these disparities appear to have very real economic effects: a study found a $230,000 lifetime earnings advantage for more attractive people compared to their less attractive peers. (link)  The one notable exception to a "beauty bias" is apparently limited to instances where women seek employment in traditionally masculine positions. (link)

But, generally, attractive individuals benefit from an attractiveness premium throughout their lives.  As a result, less attractive, but completely competent applicants and employees are not given the same opportunities, even despite equal or superior work.

That seems, at a basic level, highly unfair - but is it illegal?

Do employers and supervisors have free reign to promote, protect, and advance the employees they perceive to be more attractive, just because they perceive these employees to be more attractive?

The short answer is technically -  yes - there is no direct protection from "attractiveness discrimination" under federal, New York State, and/or New York City laws.

Nonetheless, there are still several ways that New York employees, perceived by employers and/or supervisors as "less attractive," may have a claim for employment discrimination, even under the existing legal framework.

These legal theories are not "attractiveness discrimination" cases per se, but involve instances where attractiveness "requirements" are applied unevenly, have disparate impacts on protected groups, or are used as proxies for race or ethnicity.

1. “Beauty” Used as a Proxy for Race or Ethnicity

Even while "attractiveness discrimination" is not directly prohibited, employers that exclude members of protected classes through the proxy of perceived "beauty" requirements/restrictions that are tied to racial characteristics, may be engaging in discrimination.  For example, excluding all Black or Asian applicants for a position based on a perceived lack of “beauty” -- through the illegitimate proxy of a Euro ethno-centric beauty paradigm. 

So, hiring only blonde applicants, or otherwise hiring only applicants with a racially specific "look," could result in a claim for race discrimination.  This was roughly the cause of action pursued against Abercrombie & Fitch for its previous practice of hiring only those with a "classic American look."  (link) (link)

On the other hand, if an employer hires only attractive employees, but does so while hiring both men and women, as well as applicants from varied racial backgrounds, this practice is less likely to support a claim of discrimination. 

2. Workplace Only Advances Attractive Women

Imposing an attractiveness requirement on women, but not men, with respect to hiring or advancement means the employer is treating men and women differently, which may be grounds for a sex discrimination claim.  This was the type of claim brought against airlines that imposed harsher weight requirements on female flight staff than comparable male flight staff.  (link) (link). 

3. Disparate Impact Discrimination

Another approach is a disparate impact discrimination claim.  Under a disparate impact theory of liability an employee can point to an otherwise neutral policy that they allege is the cause of a (potentially unintentional) disparate impact on a protected classification.  

For example, a female employee could point to the use of pictures in a job application and attempt to establish that this policy resulted in potentially subconscious attractiveness biases affecting which applicants are offered an interview, in a way that disparately impacted women but not men (i.e. excluding less attractive women but not less attractive men and thereby hiring a smaller percentage of female applicants).  If this policy can be isolated as the reason for a gender disparity in hiring that disadvantages women as a group, a female applicant may be able to make out an initial case of disparate impact discrimination.  The employer would then be forced to establish that the challenged policy was job-related and/or supported by business necessity. 

A Possible Solution: Pass a Law?

The state of Michigan and at least a few other localities have passed statutes forbidding discrimination based on weight, height, and/or appearance.  For example:

"The cities of Binghamton, San Francisco and Santa Cruz prohibit discrimination against weight and height as well.  Madison, Wisconsin and Urbana, Illinois have ordinances banning discrimination based on a person’s “physical appearance” and “personal appearance” respectively, while Washington D.C. prohibits all forms of personal appearance discrimination."  (link)

Although attractiveness and weight are obviously not the same thing - they are often perceived as highly correlated.  Perhaps weight discrimination would be a good starting place to start to tackle appearance discrimination.  Importantly,  obese women are often treated poorly compared to obese men:

"One recent study revealed that higher body mass is associated with reductions in women's hourly wages, family income, and probability of marriage, with obese women experiencing a 17.51 percent reduction in wages from their standard weight counterparts. In striking contrast, the only significant negative effect of obesity for men is that they are less likely to marry."  (link)

Bona Fide Occupational Qualifications

Employers can attempt to show that "attractiveness requirements" are bona fide occupational qualifications that are reasonably necessary to the normal operation of that particular business or enterprise. But that is usually hard to establish because courts apply the exception very narrowly and it also does not apply to race discrimination claims.

Obesity

It is worth noting that obesity, which is often seen as an unattractive trait (at least in American society), may, under certain circumstances, qualify as a disability under the ADA and additional state and local statutes.  When this standard is met it may provide anti-discrimination rights to an obese employee.

Conclusion

Why does this matter?  Is contemplating attractiveness discrimination statutes taking anti-discrimination protections a bit too far?

While it is may be a complicated issue I don’t think so.  I like Ruth Graham’s explanation:

Our preference for beautiful people makes us poor judges of qualities that have nothing to do with physical appearance—it means that when we select employees, teachers, protégés, borrowers, and even friends, we may not really be making the best choice.  It’s an embarrassing and stubborn truth—and the question is now whether, having established it, social researchers can find a way to help us level the playing field. (link)

Perhaps New York State or New York City should start with passing a weight discrimination statute to begin to address appearance discrimination.  Would it really hurt anybody to protect overweight individuals from employment discrimination?

Would the sky really fall if we took that step in New York?

I think it's likely to stay put.