We in the Human Resources and employment law field have an alphabet soup of federal statutes to keep on top of: FLSA, FMLA, ADA, ADAAA, and ADEA, among others. But there’s a relatively young law that you may not be aware of, but should be—GINA. GINA is the Genetic Information Nondiscrimination Act of 2008.
At some point, most employers must face the prospect of sitting down with an employee to advise him or her that it’s time for the employment relationship to end. This is frequently a dreaded scenario for employers, and understandably so. Emotions usually run high and legal risks can loom large when that happens. But terminations can actually hold overlooked benefits for an employer – beyond perhaps ridding the workplace of an underperforming employee – if done properly.
In the 75 years after its creation in 1913, the West Virginia workers’ compensation system generated an unfunded liability measured in the billions of dollars. In prior decisions regarding that system, the West Virginia Supreme Court of Appeals noted that spiraling debt within the system could be attributed to the liberalization of permanent total disability (“PTD”) eligibility among West Virginia workers at rates far higher than the national average.
I was bouncing around recently on Twitter (@SJEmpEssentials is a recommended handle, by the way) when I came across an interesting piece about an employee who was not promoted due to her “nervous laugh.” Apparently the employee had little customer contact in her position, but the job she applied for included significant customer interaction. The employee had been the subject of complaints from co-workers and a few customers because of her laugh. She was not promoted. The article went on to include comments from lawyers around the country on the potential legal pitfalls of such a decision.
Reading that article made me recall an older case from West Virginia where a woman was twice passed over for promotion due to her eye socket being “somewhat sunken and hollow.” The basis for the refusal to promote was not the fact that she was blind in that eye; rather it was the “unsavory and unacceptable” appearance it would have supposedly created in dealing with the public. Now, being mindful of the fact that this case occurred before West Virginia recognized a “perceived as” definition of disability, the West Virginia Supreme Court then concluded that discrimination based solely on unacceptable physical appearance did not meet the definition of handicap under the WV Human Rights Act.
Is looksism something we should be concerned with? The District of Columbia’s anti-discrimination statute includes “personal appearance” as a protected category. Other state and local laws protect physical characteristics, height, and weight. The Americans With Disabilities Act includes “cosmetic disfigurement” under the definition of impairment, and if characteristics such as obesity or being too thin are the result of a disability or constitute a disability in and of themselves, employees may also seek protection under the Act. If only one gender is subject to the appearance standard – only requiring women to be beautiful or men to be tall, for instance – a sex discrimination claim is the risk.
The questions don’t stop there, however. By far and away, some of the most interesting stories going right now are about reverse looksism, where – for example – women who are too beautiful or too sexually appealing are discharged because of their appearance. In fact, there recently was a fairly newsworthy case in Iowa where the plaintiff was fired because her boss viewed her as a threat to his marriage on account of how attractive he found her. Keep in mind that there was no consensual sexual relationship between them; only a working relationship. The Iowa Supreme Court found the employer was within its legal rights when it discharged her. Now, “I’m afraid I’m going to sexually harass you so I have to fire you” is being touted as a legitimate, nondiscriminatory reason for discharge. If beauty is the true reason (not simply being female), has anything illegal occurred?
Should we even be concerned with legislating looksism? Who is qualified to make a determination on attractiveness? The thought that employment law may be headed this direction is mind-boggling in my view. What about yours?
All HR professionals know that having candidates complete an employment application is a very important step in the hiring process. Employment applications not only collect employment history and educational information on potential candidates, but can also be used to inform applicants of the company’s equal employment opportunity and at-will employment policies. Even if an employer requests that candidates submit a resume for a position opening, the completion of an employment application at the interview meeting should be standard hiring practice for all companies.