Tackling discrimination based on appearance: advice from France – Emploi et RH

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Les problèmes d'apparence physique, tels que les coiffures, le poids, les tatouages ​​et les poils du visage peuvent être des sujets sensibles sur le lieu de travail. Comment les employeurs peuvent-ils éviter le «lookisme» sur le lieu de travail? Cet article explore.

In a framework decision of 2 October 2019, the Défenseur des droits de l'homme '' ( DDD ”) condemned what he called“ lookism ”in the job and called on employers to review their requirements for clothing, hairstyle, facial hair, weight, piercings, tattoos, etc. in the light of the principle of non-discrimination.

What is “lookism”?

Neological “lookism”, first coined in the United States in the 1970s, refers to the creation of stereotypes and discrimination on the basis of physical appearance. “Lookism” is used to describe the hypothesis that physical appearance is an indicator of a person’s worth and discriminatory treatment of people considered physically unattractive, including in a professional context.

Long underestimated, in practical terms, lookism can be synonymous with more success for people considered attractive. According to the DDD, one in three unemployed find it acceptable to refuse a job to an overweight person, one in two recruiters pass judgment on a candidate even before he has expressed himself, and “beautiful” people receive a salary 12 % higher than the others.

What about the principle of non-discrimination based on physical appearance?

This principle is included in the list of illegal discrimination appearing in Article L. 1132-1 of the Labor Code.

The October DDD Framework Decision recalled:

  • That it is forbidden to take physical appearance into account during recruitment and during a career; and
  • Let employees be free to choose their clothing and bodily attributes.

An employer may, however, impose certain restrictions on the freedom of employees with regard to their personal appearance. According to the DDD:

“The legitimate interests of employers must be weighed against the right to respect for individual freedoms, health and safety at work and the right to non-discrimination, while taking into account the evolution of social trends and codes “.

Employers are encouraged to check that their dress codes and practices are in line with changing social and cultural mores. Some rules, considered legitimate in the past, are now totally obsolete, sexist and discriminatory. The framework decision aims to provide guidance to employers in this area.

What rules based on appearance should be prohibited in the workplace?

Dress code

The DDD condemned dress codes that reinforce “strict and conservative” gender stereotypes, such as rules about heels, skirts and cleavage, which tend towards sexism. However, when the restrictions are justified, shorts and flip-flops may be prohibited and ties or uniforms imposed.

Hairstyles

Gender stereotypes such as prohibiting long hair for men or discriminatory practices against hairstyles with natural textures or imposing “Eurocentric” standards can constitute physical discrimination on the basis of ethnicity and are discriminatory.

Tattoos, piercings and beards

In view of current aesthetic trends, restrictions not required by the work itself on body adornments (tattoos and piercings) should be prohibited, as long as the adornments are discreet and not outrageous or offensive. Likewise, beards (which are clean and well-groomed) must be authorized, unless they violate safety requirements or the principle of neutrality enshrined in the internal regulations of the company.

«Fatphobie»

It is discriminatory to refuse to hire, sanction or fire an employee because of their weight. Even in jobs with physical demands related to weight, systematically sanctioning weight gain is prohibited, except in exceptional circumstances.

What should HR departments do?

The DDD framework decision suggested that employers record in writing (in the internal regulations, the employment contract, a memorandum, etc.) all the restrictions of physical appearance justified by the nature of the work and the tasks to be performed, in the respect for the principle of proportionality.

It also encourages employers to:

  • put in place prevention tools;
  • sanction discriminatory behavior by employees in a dissuasive and effective manner;
  • train managers;
  • involve the social partners in the effective implementation of measures aimed at reducing this discrimination.

Comment

The October DDD framework decision undeniably has the merit of highlighting a form of discrimination that is both tacitly tolerated and difficult to prove, and of making HRDs aware of the need to adapt their practices to cultural changes. It is regrettable, however, that no distinction has been made between discriminatory practices based on physical characteristics that are not deliberately chosen (such as ‘fatphobia’ or dress codes based on gender stereotypes) and situations where restrictions are imposed on voluntarily chosen physical attributes (hairstyles, tattoos), in order to strike a fair balance between individual freedoms and the interests of employers.

Originally posted July 18, 2020

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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