Victorian lawyers lobby states to prevent workers from being discriminated against based on appearance

Victorian lawyers are calling for other states to enact discrimination legislation which prevents employees from being discriminated against based on their looks.

‘Lookism’ is a phenomenon occurring every day in Australian workplaces wherein people are discriminated against based on their appearance.

The problem has sparked organisations such as Dress for Success, which provides disadvantaged women with professional attire to help them find a job and remain employed, but it’s also amounted to increasing numbers of workplace discrimination claims in Victoria.

Maurice Blackburn principal Kamal Farouque told SmartCompany Victoria is currently the only state with legislation which prevents workers being advantaged or disadvantaged based on their physical characteristics.

“Notionally it’s quite a broad concept. It refers generally to height, weight, size or other bodily characteristics. This has been recognised as a broad concept and it has been said to include something like a tattoo,” he says.

“In other states you’d have to establish the discrimination on the basis of another attribute. So it could be that their features constitute a physical disability, or alternatively the characteristic which is the basis of the discrimination, for example skin colour, could constitute race discrimination.”

Figures from the Victorian Equal Opportunity and Human Rights Commission released in August show in the past five years 96 workers in Victoria are alleged to have been discriminated against on the grounds of appearance. Reasons ranged from being “ugly”, blonde or having tattoos.

A further 107 people lodged claims based on the grounds of obesity, 10 for being underweight and 17 thought their height was a factor.

Hairstyles led to 38 claims and tattoos and piercings caused 22 claims.

Melbourne University economist Jeff Borland says under the law there is no reason why employers can’t set dress standards for the workplace.

However, he says in Victoria these policies could constitute a breach of discrimination laws in some instances.

“The law basically allows an employer to set a reasonable dress standard, but what they can’t do is only employ people with a certain weight, height or physical look. That is notionally unlawful,” he says.

Research into this area has demonstrated “unattractive” people are also often paid less.

A study by Borland and former Australian National University economist Andrew Leigh found a “plainness penalty” exists in the Australian workplace.

The study of 769 men and women found physical attractiveness equated to an extra $32,150 in annual salary. Men whose looks were “above average” typically earned an extra 22%.

Borland told SmartCompany there were two driving factors behind lookism in the workplace.

“Employers in some cases think that beauty in some ways does make people more productive and valuable in some jobs,” he says.

“For example, the idea that customers like buying in shops from people who are more attractive, making attractive employees more productive for the employer.”

Borland says in some cases it’s simple discrimination.

“This is basically employers exhibiting a preference for employees who are more physically attractive regardless of productivity. They hire those people because they value that characteristic,” he says.

As well as earning more, the study found people deemed more physically attractive were more likely to be employed in the first place, but these rates have been stable for more than two decades.

“We actually took a 1984 survey and did our own survey in 2009 through Roy Morgan and we found that the beauty premium has been pretty stable across the past 25 years,” he says.

“We were a little surprised because we felt like there is more focus on physical attractiveness in the media and television shows now than before, so thought the beauty preference would be higher. So this could be a reflection of the legislation and stronger anti-discrimination laws.”

Farouque says in order to better combat discrimination, other states need to adopt laws like Victoria’s.

“There is a deficiency in the legislation in other states in that it doesn’t protect people from this form of discrimination. Society is increasingly placing emphasis on physical attractiveness, so there needs to be proper and effective legislation.

“In Victoria, if the claims are successful they can receive a number of things including compensation financially for the loss they suffer or alternatively an apology. The employer could also be ordered to take steps to prevent contraventions occurring again in the future.”