These unwritten codes have led some agencies to question whether to apply them in a hiring situation. Can agencies really use appearance as a criterion in selecting employees? Yes. But they must walk a thin line.
Under the law, an employer cannot discriminate against employees/applicants on the basis of certain protected characteristics. Among other things, federal law prohibits discrimination on the basis of age, race, sex, national origin and disability; it does not prohibit discrimination solely based on appearance or attractiveness. But a few states and local statutes prohibit discrimination on appearance. (For example, Washington, D.C., prohibits discrimination based on physical appearance.)
Keeping one's nose clean
So, hiring individuals based on appearance is not, per se, unlawful. Because appearance, on its face, does not violate any federal statute, an agency that decides to apply a criterion of "attractiveness" in a nondiscriminatory manner should not violate the law. For instance, if an agency decided to hire attractive people over a broad spectrum of various ages, races and ethnicities (and regardless of any disability), its selection process should be in the clear. The key is this: The criteria must be applied equally across the board and should not have an adverse impact. It's the only way an employer should be able to use "attractiveness" as a standard.
No doubt, however, hiring solely on the basis of appearance is risky business. Any employer wishing to hire based on appearance must bear in mind that the appearance criteria cannot have the impact of excluding any protected group. As a safeguard, an agency should ask itself: What is its definition of attractiveness? Is it limited to a certain group? Does it exclude any protected group? While the criteria might sound "neutral" (legal), would it be applied equally to males and females, old and young and people of different races and ethnicities?
For example, in 2005, Abercrombie & Fitch was sued for race and age discrimination based on a hiring practice that allegedly actively sought college students who fit its brand image: young, attractive, white, male and preppy.
But what if a client insists its advertising agency's employees have a certain look? Again, if the look does not discriminate against a certain group, the client's wishes can be accommodated. However, customer preferences are generally not a defense to illegal discrimination.
What if an employer wants to hire only women? In some limited situations, it's OK. The law does recognize a bona fide occupational qualification ("BFOQ") for certain positions where the qualification is reasonably necessary to the normal operation or essence of an employer's business. For example, a BFOQ is permitted to guarantee authenticity or genuineness. This exception applies to actors, actresses and in certain casting roles. Unlike an agency's operational staff, actors, models, or other brand ambassadors who serve as "live marketing or advertising campaigns" should also fall within this exception. (Think Jennifer Aniston as the new face of Glacéau's SmartWater campaign.)
The bottom line is this: While it may seem unfair for companies to base hiring decisions on preconceived notions of attractiveness, the law generally does not protect individuals from discrimination based on appearance. As long as attractiveness criteria are applied to different classes of people equally, the practice is generally lawful.
Gregg A. Gilman is a partner and co-chair of the Employment Practices Group at Davis & Gilbert. He advises several advertising agencies.