Catching Invisible Discrimination | DCR Workforce Blog

Catching Invisible Discrimination

The fantastic fictional world of J.K. Rowling has one particular item which many would give their eyeteeth to own, with many more wishing they had something like it in their school days! I refer, of course, to Harry Potter’s invisibility cloak. Invisibility provides protection, if not immunity, from the repercussions of one’s actions, good or bad. For law makers and regulatory authorities, it provides a challenge which starts with identifying the issue in itself.

This would explain why the EEOC has decided to initiate an investigation into the practice of a coffee chain, which makes it a point to hire young and attractive women only – to serve coffee! The EEOC considers this to be one of those cases where the women discriminated against may not be aware of it – in other words; the employer is engaging in invisible discrimination.

It is the employer’s prerogative to choose a suitable candidate and as the pool of applicants expands, it is often very difficult for anyone to identify or prove discrimination based upon factors like age, gender or even race. These days, even without a face-to-face interview, social media makes it possible for the employer to ascertain many of these attributes. It is even harder for the applicants to even realize that they have been discriminated against. While a handful of states, like Michigan, San Francisco and the District of Columbia make it unlawful to discriminate against appearance, it is not a commonly prohibited discrimination across the US.

Age: Discrimination against someone for age is a very common practice, in spite of being illegal; as many senior workers would agree. Even though the job does not require the physical fitness of a youth, many employers still hesitate to hire older workers, justifying their decisions with a desire for “team spirit”, cultural fit in a youthful work environment, lack of ability to learn new things and half a dozen other inane reasons. This deplorable practice extends across industries and transcends genders. Once anyone crosses the age of 45, their ability and merit can take a back seat to this factor in any job interview in this tough job market.

Appearance: Being well-groomed is a definite requirement for any interview, but being turned down for being ‘unattractive’ or ‘ugly’ counts for discrimination. These are cases which may not qualify under the ADA’s coverage for gross disfigurements and extreme physical attributes including morbid obesity (defined as twice the normal weight or obesity on account of a thyroid malfunction).

Hiring attractive women only as flight attendants, receptionists or for other service-related positions have long since been held as unlawful. Many advocate the need to protect the ‘less attractive’ from discrimination by making it illegal to choose only the ‘good-looking’. If beauty lies in the eye of the beholder and racial and cultural choices for good differ radically from each other, how exactly does the law go about the task of protecting against discrimination based upon looks?

Where this attempt by EEOC will lead the job market, and what new parameters would come into play is a puzzle which time only can answer.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.