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France: The French Defender of Rights Tackles Appearance-Based Discrimination by employers

The French Defender of Rights is regularly seized of complaints about the requirements of employers regarding physical appearance, at the time of hiring or during their career, and which may relate to the way of dressing, hairstyles, facial hair, the requirements of size and thinness and body modification through tattoos and piercings.

Such questions have often shone an uncomfortable spotlight on the hiring and work practices of some retail businesses accused of discriminating based on appearance. It is an essential human-resources and public relations matter.

The question is so important for retailers because it is an industry in which the workers are often in direct contact with members of the public. Appearance can seem essential to the success of the business.

It is therefore a matter of great concern to know if the company’s appearance guidelines constitute a form of discrimination.

However prevalent, this form of discrimination is rarely challenged in court.  It is difficult to prove, and so appearance discrimination is, in a way, tolerated by some. It is for this reason that the Defender of Rights wished to engage employers to fight against this form of discrimination. Many of the recommendations should be of interest to the retail sector.

In his declaration, the Defender of Rights has issued several recommendations to employers. First, the Defender advocates, in the interests of transparency, clarity and opposability, to define in a written document all the constraints and possible restrictions on physical appearance and presentation that are justified by the nature of the employment or the task to be performed in accordance with the principle of proportionality.

These details could for example be included in the rules of procedure, the employment contract or a memo. In any case, the employer must be able to show that the employee or the public official refuses certain instructions that were previously presented to him before he could be punished. In addition, as part of its obligation of safety, the employer must put in place prevention tools (training of managers, awareness-building, warning systems …) to prevent the occurrence of acts of discrimination.

The document also contains five appendices aimed at providing a reading grid in the face of concrete situations that employers may face on issues related to physical appearance, and which focus on particular themes: obesity and fat-shaming, clothing, hairstyles, beards, tattoos and piercings.

With regard to fat-shaming, the Defender of Rights notes that excessive weight and obesity mainly have a negative impact on women’s employment. He considers that even in representative professions where morphology or weight are traditionally taken into account (models, dancers, sales of slimming products, animators promoting a diet method), the margin of appreciation of employers should be restricted. It is only in exceptional and duly justified circumstances that the physical and / or aesthetic requirements linked to weight could be accepted from an employer, the dictatorship of thinness being widely questioned today even in the trades where it was traditionally admitted.

As for clothing, the Defender of Rights emphasizes that dress codes must be justified by the nature of the posts concerned and that they must be legitimate and proportionate to the aim pursued. They may rely on health and safety measures or may, within certain limits, meet image or identification considerations. Keeping in accordance with the rules of hygiene and safety, neat and tidy appearance, decent dress, standardized and uniform outfit, more atypical outfits, clothing and particular economic vulnerability … the Defender’s document examines different cases and analyzes them in the light of French jurisprudence. With regard to dress codes with gender stereotypes, the Defender of Rights believes that they should be banned. This is the case for clauses requiring female staff to wear high heels, skirts or stockings.

The Defender of Rights also addresses the matter of hairstyles. He admits that restrictions based on hygiene and safety are legitimate, but he is quite critical of company guidelines that allow women to have long hair but not men. The Defender also considers that restrictions on the hairstyle of textured hair (afro, braids, etc.) or hairdressing requirements based on euro-centered standards are likely to characterize discrimination based on physical appearance related to ethnic origin. .

Finally, with regard to beards, tattoos and piercings, the Defender of Rights notes that there has been a real change in styles over the past ten years, especially among younger generations, which has led to the modification of certain professional codes.

Unless there is a clear indication related in particular to safety or the violation of the principle of neutrality (in the public sector), beards should be allowed. The same is true of tattoos and discreet, non-shocking piercings.

We can assume that this reasoning would also carry over to the retail sector.

Employers should take note.