Physical appearance and discrimination at work

In response to many complaints, the French Officer for Human Rights (so-called “Défenseur des Droits”) issued a decision on October 2nd, 2019, denouncing the importance of physical appearance of job applicants and employees in their employment relationship (decision n°2019-205). This decision is an opportunity to review applicable rules related to discrimination based on physical appearance, but also to make recommendations to employers.

Reminder of applicable rules

The decision defines physical appearance as “all the physical characteristics and visible specific attributes of a person, which relate both to its physical and bodily integrity (morphology, height, weight, facial features, phenotype, stigma…) and to elements related to the expression of its personality (clothing, accessories, hair, beard, piercings, tattoos, make-up…)”.

Physical appearance has become one of the most frequent discrimination case at work over the past twenty years.

Indeed, the decision reveals that when an employer has the choice between two candidates of equal quality and competence, its physical appearance is decisive in 53%. Moreover, 82% of the respondents believe that their look, the manner they dress and their style have a “significant influence” on their professional life. Even during the execution of their employment contract, 18% of the interviewed employees fear being discriminated against in the company because of their physical appearance.

Yet, physical appearance is protected as a declination of the human dignity and the right to privacy. On this basis, International and European Laws protect employees both at the stage of recruitment and during the performance of the employment contract.

Principle. In accordance with Article L. 1132-1 of the French Labour Code, the employer must not exclude a person from a recruitment process, impose a sanction or take a decision against an employee due to its physical appearance.

Besides, any act suffered by a person related to its physical appearance whose purpose or effect is to violate its dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment is prohibited (Article 1 of the Law n°2008-496 of May 27th, 2008).

The sanctions incurred are high. On a civil ground, the employer risks the nullity of the decision taken against the employee and damages. On a criminal ground, discrimination is punishable by 3 years of imprisonment and a fine of 45,000 euros.

Exception. These protective principles remain subject to exceptions. Generally, in accordance with Article L. 1121-1 of the Labour Code, the employer may infringe the rights and freedoms of the employee provided that such infringement is justified by the nature of the task to be performed and proportionate to the intended goal.

In terms of discrimination, differences in treatment are possible “when they meet a genuine and determining occupational requirement and provided that the objective is legitimate, and the requirement proportionate” (Article L. 1133-1 of the Labour Code). On this basis:

• The existence of a genuine and determining occupational requirement requires that the measure taken by the employer be work-related, necessary and relevant.
• The objective of the measure must be legitimate. This is the case, when it is justified by the workers’ health and safety, or by the company’s image.
• Finally, the restriction is proportionate when it is the only solution to enable the company to achieve the pursued aim.

In practice, the implementation of these conditions leads to a casuistic case law, judges verifying the regularity of each situation on a case-by-case basis.

For instance, in terms of clothing, the wearing of tracksuits by employees of a real estate agency dealing with customers could be validly prohibited in view of the damage to the employer’s reputation (Supreme Court, November 6th, 2001, n°99-43.988). Besides, an employer may validly prohibit an employee from wearing a Bermuda shorts insofar as the company’s internal regulations recommend the wearing of trousers for safety reasons (Supreme Court, May 28th, 2003, n°02-40.273 and November 12th, 2008, n°07-42.220). Nevertheless, judges have already considered that an employer could not blame an engineer for presenting herself to a client wearing jeans and boots considering her outfit was “in no way incongruous or inappropriate” but “quite the contrary and perfectly correct” (Paris Court of Appeal, October 9th, 2008, n°06/13511).

In other words, the validity of the prohibition depends on the circumstances of the case. Therefore, it is essential for each company to clearly define its policy in advance.

Recommendations to employers

In its decision, the Officer of the Human Rights makes 3 recommendations to private and public sector companies:

1. Define in a written document any constraints and restrictions related to the physical appearance justified by the nature of the duties to be performed and respecting the principle of proportionality. This document is necessary for the sake of transparency, clarity and enforceability. It may be the company’s internal rules, a memo or the employment contract of the concerned employee.
2. Ensure that any discrimination based on the worker’s physical appearance is prevented and that any action falling within this category is effectively and dissuasively punished.
3. Train employees in their rights and freedoms related to physical appearance and the principles applicable to their restrictions.

To do so, the Officer of the Human Rights recommends involving the staff representatives in the implementation of these measures.

In any case, employers are called upon to take into account evolutions of dress codes.

On this point, judges admitted that “there is nothing to suggest that the absence of shaving, practical and even a fashionable phenomenon which has been common in recent years, is likely to damage the company’s brand image” (Paris Court of Appeal, January 24th, 2013, n°11/04162). Nevertheless, restrictions are allowed when the employer demonstrates by objective elements that the employee’s functions imply a correct presentation, in particular a neat and tidy beard (Versailles Court of Appeal, August 31st, 2011, n°10/03526).

Finally, to assist companies in this process, 5 appendices are attached to the decision in order to address the most frequently identified subjects, namely obesity, clothing, hairdressing, beards, tattoos and piercings.