Sign mentioning ‘long-haired, freaky people’ raises issue of discrimination in hiring
A meme has been making the rounds on social media lately: It’s a photo of a sign on a deck by the water, stating: “The employee shortage is so bad that long-haired, freaky people can now apply.”
The meme made me chuckle while also turning my mind to the issue of discrimination in the hiring process. I admit that I miss the days when I could watch shows or listen to music without thinking of the HR law implications, but I have clearly become an HR law nerd.
For those who don’t understand the meme: it is a reference to a lyric in the song “Signs” by the Five Man Electrical Band. The relevant part goes like this:
“And the sign said,
‘Long-haired freaky people
Need not apply.’
So I tucked my hair up under my hat
And I went in to ask him why
He said, ‘You look like a fine upstandin' young man
I think you'll do.’"
So, could an employer discriminate against applicants with long hair? Or against “freaky people”? Regular readers will know that the answer is usually “It depends,” but in this case I will say “In most cases, yes.”
“Discrimination” is a bad word in modern society. We equate it with racism, homophobia, and other mistreatment of traditionally disadvantaged groups. However, I confess that I do like to see the shock on people’s faces when I say that there is nothing inherently wrong with discrimination and, in fact, if you are not discriminating in your hiring process, you’re doing it wrong.
I made this point in a blog I wrote back in the summer of 2013. It drew a significant reaction, especially from those who only read the headline without reading the details. When you are hiring, your job is to hire the best candidate. You can and should discriminate against those without the required education, training, or experience.
For example, if you are hiring a lawyer, you will presumably discriminate against those without law degrees (although Mike Ross, in Suits, was a pretty good lawyer despite the lack of one).
Discrimination is unlawful if it is based upon a ground protected by human rights legislation, such as age, gender, disability, or sexual orientation. As I often say, you can choose your employees based on the colour of their shirt, but not the colour of their skin; although I do not advise either.
I hope that we all understand that it is both inappropriate and unlawful for a job posting to require “whites only” or “Canadian citizens” or to say something like “no Asians”. Those are examples of direct discrimination and can only be justified where the organization can establish a bona fide occupational requirement.
For example, if it can be established that a role requires someone who is able to walk, then the employer could discriminate on the basis of disability, which would otherwise be a protected ground. However, establishing that a criteria or rule is a bona fide occupational requirement involves proving that it was:
- adopted for a purpose or goal that is rationally connected to the function being performed
- adopted in good faith, in the belief that it is needed to fulfill the purpose or goal
- reasonably necessary to accomplish its purpose or goal, because it is impossible to accommodate the candidate without undue hardship.
Even if there is a genuine and legitimate purpose, the employer must prove that it cannot be achieved through means that have a lesser impact on the applicant’s human rights.
We rarely see examples of direct discrimination anymore, but we do see allegations of indirect or systemic discrimination. Indirect discrimination exists when an employer imposes a requirement or policy that applies to everyone but particularly disadvantages a particular protected group.
For example, a minimum height requirement might indirectly exclude women, who tend to be shorter than men. As many have said before, treating everyone equally can result in unequal treatment. Another example is a requirement that a candidate be available to work on Saturdays, when that might be their sabbath; this rule treats everyone the same way, but impacts different people in different ways based on a protected ground (religion).
As mentioned above, any such requirement will have to be justified as a bona fide occupational requirement.
So, can you discriminate against “long-haired freaky people”? Yes, unless the length of their hair or the “freakyness” can be linked to a protected ground.
We often admire people that have “discriminating taste”, and the word “discrimination” is based on the word “discriminate,” which has, as one of its definitions, “to use good judgment”. There is nothing wrong with that.