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EMPLOYMENT LAW
Jan 15, 2013

‘Hey good looking, you’re fired’

Is dismissal based on an employee’s looks discrimination?
    

By Jeffrey R. Smith

Have you ever had difficulty working with someone because they just looked too good?

If someone’s appearance is distracting enough to disrupt the workplace, can that individual be fired because of it? We’re not necessarily talking about how the person dresses — which can be modified — but just general appearance. Do human rights protections go so far as to include appearance?

According to a dentist in the United States, physical appearance is grounds for dismissal. And a court agreed with him.

Iowa dentist James Knight found himself attracted to dental assistant Melissa Nelson. After much agonizing over his urges, leading to him texting Nelson and discussing his situation with his pastor, Knight decided to terminate Nelson’s employment. When he called Nelson into his office to dismiss her, he read from a prepared statement that said it would be inevitable they would eventually have an affair if she continued working for him. Therefore, he was letting her go for the sake of both their marriages, said Knight.

Nelson sued Knight for sex discrimination, claiming she was fired for being too attractive. The Iowa Supreme Court agreed with Nelson on the reason for her dismissal, but found her clothing and behaviour were inappropriate for the workplace. This, said the court, was not related to the fact she was female and therefore there was no human rights violation.

This case was in the U.S., but it raises similar questions in Canada. Attractiveness — or ugliness, for that matter — is not a protected ground under human rights legislation, though sex is. Is physical appearance connected to a person’s gender, or can it be treated differently? Is the way someone looks or carries herself in the workplace tied to her gender? If someone’s appearance is distracting — as Knight was distracted by Nelson — and it negatively affects the work environment, can an employer take action without going afoul of human rights?

A similar situation could conceivably happen if the employee is an attractive male and the boss is a female, or they are the same sex and the boss is homosexual. Or an attractive employee could be treated differently by someone of the same sex out of jealousy. A dismissal in those circumstances would be for essentially the same reason but not necessarily related to gender. Also, there are many employers out there — such as bars and restaurants hiring serving staff — who hire people based on their appearance, male or female. Is this discriminatory based on any protected ground? Should appearance be a protected ground for discrimination, or is it really tied to sex?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.
    
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