I am the HR Manager at “On the Edge”, the cable TV channel which specialises in the extreme sports programmes. Our target audience is sports and fitness fanatics under 30. We spend a fortune on ensuring our programmes, premises and advertising reflect our brand and culture. When we recruit, we always choose to hire people who are the same as our target audience. Someone recently told me that it could be discrimination if I reject a “middle-aged Waynetta Slob” on this basis. Surely I can pick and choose who works here?
HR Manager, On the Edge
Dear HR Manager
In short, you can, but not without potentially expensive consequences. The problem is that such an approach may amount to unlawful discrimination, for which there is no cap on the amount of compensation which can be awarded, even to job applicants.
The biggest risk lies in relation to sex, disability and age discrimination claims. Despite some stories in the tabloids, we are not yet at the stage of protection against discrimination on the grounds of looks, ginger hair or obesity. You may laugh but in the 1970s many did not think that some of today’s discrimination laws, such as those relating to age and sexual orientation, would ever come into force. Although it is possible that arguments about direct discrimination may arise (for example, a female candidate who is rejected for a position could argue that a male candidate would not have been), the more likely type of claim is a claim of indirect discrimination. In short, the application of an ostensibly neutral criterion which has a disproportionately adverse effect on a certain group (for example, a requirement for fit, muscular candidates who are more likely to be young).
So, what can you do to protect your brand, but avoid liability? The challenge is to come up with selection criteria which, so far as possible, are gender/disability/age neutral and, if an individual can show that a criterion you adopt was actually to his or her disadvantage, to be able to show that the adoption of the criterion is “a proportionate means of achieving a legitimate aim”.
Whilst it is possible to see how you could argue that your legitimate aim is commercial success, the difficulty is likely to lie in establishing that a criterion is “proportionate”. Guidance on the subject tends to explain the concept of proportionality as something which is “appropriate and necessary”. The difficulty is likely to be establishing that the criteria are necessary, in that without imposing the requirement the business would suffer. Whilst it is quite easy to say that the needs of a business require a certain look, it is quite another thing to prove it; it is difficult to envisage you being able to produce statistics which support your approach.
Our view is that acceptable criteria would include communication skills, experience, product knowledge, language skills, friendliness, approachability and commercial awareness. More risky areas are those which are based on physical appearance or image, such as being attractive, fit or young. It is hard to see how these criteria could give rise to any sex discrimination claim as they would appear to disadvantage neither men nor women. However, it is conceivable that they could potentially cause a problem in relation to people who have certain disabilities. You would be well advised to try to stay away from adjectives which are based on the actual physical appearance of a person (tall, athletic, attractive) and instead focus on created appearance (smart, trendy, sassy). This would make it more difficult for any individual to argue they had been discriminated against on grounds of disability. It would also be prudent to stay away from adjectives such as young and energetic which could potentially discriminate against older employees.
If you are attracting candidates that do not reflect your brand, perhaps the best course is to focus even more on your branding. Arguably the stronger your brand and the better understood it is, the less likely it is that you will attract candidates who do not reflect you brand.
It is worth noting that once employment has started, it is legitimate for you to require a minimum standard for all customer/public facing employees in terms of personal presentation. This is supported by the court cases to date regarding dress codes and uniform requirements.