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Tackling discrimination based on looks: guidance from France

Written by
Capstan Avocats, the law firm setting the benchmark for labour law in France.
Authors
Marion Le Roux
Partner - France
Capstan Avocats
France
20.07.20
3
Physical appearance issues, such as hairstyles, weight, tattoos and facial hair can be sensitive subjects in the workplace. How can employers avoid ‘lookism’ in the workplace? This article explores.

In a framework decision of 2 October 2019, the French ‘Defender of Human Rights’ (‘DDD’) condemned what it described as ‘lookism’ in employment and called on employers to review their requirements regarding clothing, hairstyles, facial hair, weight, piercings, tattoos, and more in the light of the principle of non-discrimination.

What is ‘lookism’?

The neologism ‘lookism’, first coined in the US in the 1970s, refers to the creation of stereotypes and discrimination on the basis of physical appearance. ‘Lookism’ is used to describe the assumption that physical appearance is an indicator of a person’s worth and discriminatory treatment of individuals who are considered physically unattractive, including in a professional context.

Long underestimated, in practical terms, lookism can equate to greater success for people who are considered attractive. According to the DDD, one in three unemployed people find it acceptable to refuse a job to an overweight person, one in two recruiters pass judgment on a candidate even before he or she has expressed himself or herself, and ‘good-looking’ people receive a 12% higher salary than others.

What about the principle of non-discrimination based on physical appearance?

This principle is included in the list of unlawful discrimination set out in Article L. 1132-1 of the French Labour Code.

The DDD October Framework Decision issued a reminder:

  • That there is a prohibition on taking into account physical appearance during recruitment and in the course of a career; and
  • That employees are free to choose their clothing and bodily attributes.

 

An employer may, however, place certain restrictions on employees’ freedom in relation to their personal appearance. According to the DDD:

‘the legitimate interests of employers must be balanced against the right to respect for personal freedoms, health and safety at work and the right to non-discrimination, while taking into consideration changing social trends and codes’.

Employers are requested to check that their practices and dress codes are in line with the evolution of social and cultural mores. Some rules, which were considered legitimate in the past, are now totally obsolete, sexist and discriminatory. The Framework Decision aims to provide employers with guidance in this area.

What looks-based rules should be prohibited in the workplace?

Dress code

The DDD has condemned dress codes that reinforce ‘strict and conservative’ gender stereotypes, such as rules regarding heels, skirts and cleavage, which tend towards sexism. On the other hand, where restrictions are justified, shorts and flip-flops may be banned and ties or uniforms imposed.

Hairstyles

Gender stereotypes such as a prohibition on long hair for men, or practices that discriminate against naturally textured hairstyles, or impose ‘Eurocentric’ standards can constitute physical discrimination on the basis of ethnic origin and are discriminatory.

Tattoos, piercings and beards

In view of current aesthetic trends, restrictions not required by the job itself on body adornment (tattoos and piercings) should be prohibited, as long as the adornments are discreet and not outrageous or shocking. Likewise, beards (that are neat and well-groomed) must be allowed, except where they would breach safety requirements or the principle of neutrality laid down in the company’s internal regulations.

‘Fatphobia’

It is discriminatory to refuse to hire, sanction or dismiss an employee because of his or her weight. Even in jobs with physical requirements related to weight, systematically sanctioning weight gain is forbidden, except in exceptional circumstances.

What should HR departments do?

The DDD Framework Decision suggested that employers record in writing  (in internal regulations, the employment contract, a memorandum, etc.) all restrictions on physical appearance justified by the nature of the job and the tasks to be performed, respecting the principle of proportionality.

It also encourages employers to:

  • put in place preventative tools;
  • sanction discriminatory behaviour by employees in a dissuasive and effective manner;
  • train managers;
  • involve the social partners in the effective implementation of measures to reduce this discrimination.

 

Comment

The DDD October Framework Decision undeniably has the merit of highlighting a form of discrimination that is both tacitly tolerated and difficult to prove, and of making HR directors aware of the need to adapt their practices to cultural shifts. It is, however, regrettable that no distinction was made between discriminatory practices based on physical characteristics that are not consciously chosen (such as ‘fatphobia’ or dress codes based on gender stereotypes) and situations where restrictions are placed on voluntarily chosen physical attributes (hairstyles, tattoos), in order to strike a fair balance between individual freedoms and employers’ interests.