Republican presidential nominee Donald Trump has not shied away from sharing his opinions on women’s looks — he’s had a lot of derogatory things to say about comedienne Rosie O’Donnell and most recently, former Miss Universe Alicia Machado, for instance.
Now a 2009 lawsuit by former employees has recently surfaced claiming the real estate mogul wanted to fire employees at his Trump National Golf Club in Ranchos Palos Verdes, Calif. because they weren’t deemed attractive enough, according to a Los Angeles Times article published last week. As a result, managers would choose attractive young women to work when Trump was visiting, as opposed to those more experienced or skilled.
Such a controversial lawsuit has raised the question: Is that even legal?
At first glance, yes. But it’s complicated. Personal appearance does not fall under the list of federal equal opportunity rights. But if an employer’s “look” is tied to race, gender or age, then passing someone over for a job on that basis can be considered illegal.
“It is not always illegal, but it can be, depending on exactly what the employer is doing,” said Emily Martin, general counsel and vice president for workplace justice at the National Women’s Law Center in Washington, D.C.
Under the U.S. Equal Employment Opportunity Commission, discrimination of employees or applicants includes age, disability, national origin, race, religion, sexual orientation, pregnancy and genetic information, such as family’s medical history. Only when one of these attributes is connected to a hiring committee’s perception of attractiveness would hiring based on looks come into legal territory.
The Trump Organization, which includes his real estate, hotel, entertainment and television businesses, says the allegations in the lawsuit were meritless, Jill Martin, vice president and assistant general counsel for The Trump Organization said in an email via public relations.
“We do not engage in discrimination of any kind,” she wrote. “The only appearance Mr. Trump cares about is that of the facility and the grounds. Rather than looking to old statements from a handful of employees with an ax to grind, the media should focus on the thousands of happy employees, of all races, gender, size and shape, whose lives upon which Mr. Trump has made an incredibly positive impact.”
Whether a company would want to be known as the place that hires based on looks and not qualifications is debatable, however. There are a few establishments that might jump to mind, and they have been called out for it.
In 2003, clothing retailer Abercrombie & Fitch ANF, +1.88% was sued for placing preference on white applicants in store hiring and promotions as well as advertisements and catalogues, resulting in the company expanding its marketing materials by adding more diversity, according to the New York Times. In 2015, 62,000 employees filed a class-action lawsuit against the company for enforcing a policy stating they must purchase and wear the company’s clothes without reimbursement of the cost of those outfits. If they did not adhere to the policy, they were allegedly sent home or lost shifts, the Huffington Post reported. That same year, the Supreme Court ruled against the clothing company, stating a woman was denied a job there for wearing a hijab. The company changed its policies completely in 2015, and their website has a page dedicated to diversity.
“It’s silly because you’re going to end up with a less efficient outcome,” said Jesse Rose, an attorney with The Rose Law Group in Astoria, N.Y. “If your goal is to make the most money, why wouldn’t you hire the most qualified applicant?”
Details matter when it comes to a person feeling singled out based on personal appearance, Martin said. In some cases, companies may have an explicit policy stating how their employees must look. When it comes to grooming, it should be equal between a man and a woman — forcing female employees to adhere to a certain dress or appearance code and not their male counterparts could be considered sexual discrimination. In the mid-1990s, American Airlines disbanded its weight policies, after numerous years and lawsuits claiming women were held to a specific weight requirement, a company spokesman confirmed.
“It is easier [to prove] if the employer is straightforward and clear about the standards it is applying,” Martin said.
Certain cities also have statutes against discrimination of personal appearance, such as Washington D.C., Madison, Wis., and Santa Cruz, Calif., Martin said.
In some cases, there’s a thin line, dependent upon the company’s known policies. Hooters, a restaurant chain known for hiring female servers, was sued by men who said they were rejected for wait staff positions because of their gender in 1997, according to the New York Times. The restaurant settled the suit for $3.75 million, and continues to focus its attention to female waitresses, but created new positions that are staffed not based on gender, such as bartenders. Hooters did not respond to a request for comment, but a job search on its website shows positions open for “Hooters Girls,” which qualifications include “ability to maintain attractive and fit image, knowledgeable of glamorous hair styling and knowledge of make-up application.”
“It is worth thinking a little bit about exactly how this is operating and the ways in which you are being told you don’t stack up,” Martin said. “There are a lot of situations in which there are potential legal problems.”
This article was originally published on Marketwatch.