Workplace Wire

Like me, you may live in fear of being discriminated against for being, in the words of Derek Zoolander, “really, really ridiculously good-looking”.  It turns out that my fears may be justified—at least in Iowa.

You may recall the case involving Melissa Nelson from media reports last December.  She was  terminated without cause by her employer, a dentist, for being an irresistible attraction and threat to his marriage.  Ms Nelson sued alleging that she was subject to unlawful gender discrimination.   Her case was dismissed (PDF) by the Supreme Court of Iowa in December, 2012.  Following much negative publicity, the court withdrew the original decision for reconsideration.  Last week, an all-male bench of the court reaffirmed (PDF) its original decision:  it is not unlawful gender or sex discrimination for an employer to terminate an employee simply because the employer views him or her as an irresistible attraction.  However, the court was careful to note that Ms Nelson was not alleging sexual harassment.

But, we are not in Iowa.  Is it discriminatory, in Ontario, to terminate an employee because he or she is good-looking?  The answer may surprise you.

Personal appearance is not a protected ground under the Human Rights Code, and provided that there is absolutely no connection or link to another protected ground under the Code (e.g., race, gender, sexual orientation, etc.), it would not be discriminatory for an employer to terminate an employee solely because they are good-looking.  Similarly, it is not discriminatory for an employer to hire an employee simply because he or she is good-looking provided there is absolutely no link to another protected ground.  For example, the preference for hiring good-looking employees applies equally to all regardless of gender, race, sexual orientation, disability, or other protected ground under the Code.

It is a thin line to walk, and frankly, not one that I recommend to employers.  It is all too easy to run afoul of human rights legislation when you begin making hiring and firing decisions on the basis of subjective considerations like personal appearance, particularly since the assessment of personal appearance could easily cross into unlawful sexual harassment.

Instead, in order to minimize the risk of violating human rights legislation, I recommend that employers use objective, standardized, and job-related criteria when recruiting, selecting, hiring, and terminating employees.  In the rarest of cases where that is not possible, I recommend consulting a “really, really ridiculously good-looking” lawyer for legal advice.  Coincidentally, I happen to know one.  You can contact him by e-mail at stodd@heenan.ca or by telephone at 416-643-6958.