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Hiring Based on Appearance

“Look at that face! Would anyone vote for that? Can you imagine that, the face of our next president? I mean, she’s a woman, and I’m not s’posedta say bad things, but really folks, come on. Are we serious?” According to Rolling Stone magazine, presidential candidate Donald Trump said all of that about rival Carly Fiorina.

Trump has since said he was talking about Fiorina’s persona and not her appearance, but his comments bring up an interesting question in the employment world: while voters may choose not to vote for Fiorina based solely on how her face looks, may employers choose not to hire people based solely on their appearance?

The answer is “it depends.”

California employers with five or more employees may not refuse to hire based on race, national origin, age, religion, or any other protected class that might relate to appearance. Therefore, it is illegal for employers to refuse to hire applicants because they appear to be a certain race, or from another country, or over 40 years old, or to practice a certain religion. For a complete list of the protected classes in California, go to

Other than that, in most of California it is not illegal for employers to refuse to hire someone because they don’t like how they look (San Francisco has an ordinance prohibiting weight and height discrimination and Santa Cruz has an ordinance prohibiting weight, height, and physical characteristics discrimination. Additionally, applicants who are disabled because of weight are protected from discrimination in every part of California).

Thus, employers may refuse to hire people because they are not pretty enough. They may also refuse to hire people because they are too pretty. But, they can’t require that women be more attractive than men. That was something else worth noting about Trump’s statement about Fiorina – he singled her face out among all of the male candidates, which makes it look like he is holding Fiorina to a higher appearance standard than the men. Again, that might be allowable in politics, but it’s not allowable in business.

Those of you who think it is unfair that employers may refuse to hire people based on their looks are not alone. There has been some discussion about making appearance a protected characteristic; however, it probably won’t happen because ugliness is in the eye of the beholder, so who would decide whether someone was unattractive enough to be protected?

In sum, employers may generally refuse to hire someone because of his or her face. But, does it make good business sense to do so? It does if you make money because of how your employees look. Otherwise, it probably makes more sense to hire people based upon their ability to do the job.

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Disclaimer: The information and resources provided herein are not a substitute for experienced legal counsel and does not constitute legal advice or attempt to address the numerous factual issues that inevitably arise in any employment-related dispute. Although this information attempts to cover some major recent developments, it is not all-inclusive, and any recommendations are based upon HR best practices and procedures. We recommend you consult an attorney for legal guidance.

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