Do Pretty People Get the Jobs?

There are different hidden issues that can influence the recruitment and selection process other than the qualifications and experience of the candidates.  Appearance is one of them.  There is considerable evidence that physical attractiveness impacts employment decision making, with the result that the more attractive an individual, the greater the likelihood that the person will be hired (Watkins and Johnson, 2000).  Similarly, other factors like the age of the candidate, facial expressions and attractive communication skills are effective too.

Research shows that beautiful people are hired sooner, get promotions quicker, are higher ranking in their companies, and receive extra benefits.  The benefit to the employer?  It turns out that attractive people often bring more money to their companies and therefore are more valuable employees.

Is there an link between the applicant's physical appearance, grooming, dressing style and the hiring decision by managers?  To quote my son,  "If you have two equally qualified candidates in a business environment, are you going to hire the pretty person or the not so pretty person?  You're going to hire the pretty person!  I want to shop with the pretty girl, not the pimply guy!"

But all of these practices of biasness can put an organization at risk for applying unethical actions. Making decisions based on the non-job-related factors is detrimental to the overall organizational performance.  And, employers must be cautions of the reputation of their business.

For just a moment let's reflect on American Apparel's disturbing beauty-based hiring policy.  But then again, Hollister and Abercrombie and Fitch also have the same sex-appeal based employment policies. Abercrombie and Fitch lost a class action lawsuit that claimed the organizations "look policy" was racially discriminatory.  The court found that a specific "all American" look was not necessary for the actual job in which the company was hiring, and the company settled the case for $50 million and agreed to change its "look policy" to hire candidates of varying races.  But, they did not face legal trouble for hiring attractive people.  They needed to clarify that "good looking" people come from varying races.

Given the legislation prohibiting employment discrimination based on non-job-related factors such as race, gender, ethnicity, age and disability, it is interesting that there is no legislation regarding physical attractiveness.  Because many of these protected factors tend to overlap with physical attractiveness or personal appearance, employers need to tread carefully.  An example of where personal appearance may intersect with protections under law include not hiring a person because s/he is obese (ADA) or a preference for hiring younger employees as opposed to older employees, or biasing a specific gender or race as more attractive.

"Ban the Box" Laws

Some employment applications have that pesky little box that screams "check me if you have a criminal conviction!"   Research has found that this one little question may automatically and unfairly eliminate some applicants from the hiring process.

When the box is checked, applicants are often immediately rejected for a prior offense that may have no bearing on the job or is so old that it's not relevant.  If the applicant doesn't check it and the employer runs a background check, he or she may be disqualified because they lied on the application.  The applicant is between a rock and a hard place.

While some Ban the Box laws apply only to public employers, it is quickly expanding to private businesses.  Six states (Hawaii, Illinois, Massachusetts, Minnesota, New Jersey and Rhode Island) have passed laws that require private employers to remove any conviction-related question from job applications.   While each Ban the Box law is different, they all address when the criminal history question may be asked, what types of convictions can be asked about, how far back an inquiry may extend and what, if any, exceptions apply. 

In 2012, the EEOC recommended - as a best practice for all employers - removing criminal history questions from job applications, reserving such questions until later in the hiring process (such as after an in-person interview or after a contingent offer).  The EEOC guidance requires the employer to demonstrate that the criminal records restrictions are directly related to the job and that the applicants are individually assessed for the position.

Whether such a proposal becomes a law in Texas remains to be seen.  In the interim, follow EEOC guidelines with respect to your hiring process.   As an employer, we need to remember that these convictions or arrests may not accurately represent who the applicant is today.

Benefits and Same Sex Marriage

Exactly two years after the landmark DOMA decision, the Supreme Court has ruled that the Constitution guarantees a nationwide right to same-sex marriages.   All states, including the District of Columbia, must now recognize these unions.

What does that mean for an employer?  Review your benefits plans to ensure you have accounted for this new ruling! The impact may differ from state to state with respect to benefits.  One note, regardless of where an employee lives, s/he will be entitled to take leave under FMLA to care for a legally married same - sex spouse.

Department of Labor. Overtime Protection

Today the Department of Labor announced a proposed rule that would extend overtime protections to nearly 5 million white collar workers within the first year of its implementation.  Failure to update the overtime regulations has left an exception to overtime eligibility originally meant for highly-compensated executive, administrative, and professional employees now applying to workers earning as little as $23,660 a year.  For example, a convenience store manager, fast food assistant manager, or some office workers may be expected to work 50 or 60 hours a week or more, making less than the poverty level for a family of four, and not receive a dime of overtime pay.  Today's proposed regulation is a critical first step toward ensuring that hard-working Americans are compensated fairly and have a chance to get ahead.