Beauty is in the eye of the beholder. Discrimination against job applicants and employees based on their looks is rampant. Unfortunately, a lawsuit for “looks discrimination” is a tall order even for a tall person. That’s because California’s Fair Employment & Housing Act (FEHA) doesn’t prohibit employers from discriminating against individuals based on their looks, including their height and weight.1 For that reason, the cities of San Francisco and Santa Cruz are throwing their weight around with ordinances that allow individuals to sue employers for “looks discrimination” – and recover jumbo compensation. Here’s the skinny on those ordinances.
San Francisco’s Ban on Size Discrimination
San Francisco expressly prohibits discrimination based on height and weight. The San Francisco ordinance prohibits any employer with at least five employees (including the owner and any supervisors) from: (1) discriminating in the recruitment, selection, training, promotion, and termination of employees based on their height or weight, or in the recruitment, engagement, use, or termination of independent contractors based on their height or weight2; or (2) printing, publishing, advertising, or disseminating any notice or advertisement that indicates an unlawful discriminatory preference based on height or weight.3
The penalties against those violate or aid in the violation of the San Francisco ordinance are hefty. The ordinance provides that any person who violates the ordinance or who aids in the violation of the ordinance “shall be liable” for three times the amount of the plaintiff’s special and general damages.4 Thus, a plaintiff who incurs $1,000 for psychotherapy, loses $10,000 in earnings, and experiences $10,000 in pain and suffering because her employer fired her for gaining weight will be entitled to $63,000 in treble damages. In addition, the court can award the plaintiff attorney’s fees, litigation costs, and $200 to $400 in punitive damages.5
Santa Cruz’s Ban on “Physical Characteristics” Discrimination
Santa Cruz goes even further than San Francisco. Section 9.83.030(1)(a) of the Santa Cruz Municipal Code prohibits an employer from discriminating against an employee or job applicant based on height, weight, and “physical characteristics” generally.6 Thus, an employer can’t refuse to hire an applicant because he has freckles, a visible birth mark, or even bad teeth. Santa Cruz scales back its ordinance by limiting its coverage to those who employ five or more individuals (other than parents, spouses, or children) for each working day in any 20 or more calendar weeks in the current or previous year.7
The Santa Cruz ordinance is as quirky as Santa Cruz itself. Even as the Santa Cruz ordinance protects more people than the San Francisco ordinance does, the former requires a complainant to jump through a number of fiery hoops before he can file a civil action for damages. The complainant must first exhaust the employer’s grievance procedure (if any)8, and if that fails to satisfy the complainant, he has six months from the date of the discriminatory act or six months after the end of the employer’s grievance procedure (if any) to file a complaint with the city’s designee and try to resolve the complaint through mediation.9
Only if mediation fails to resolve a complaint may a complainant head to the Superior Court for violations of the Santa Cruz ordinance. The complainant better act quickly, as he must sue within one year of the alleged discriminatory act or within six months after mediation ends, whichever is later.10 The court may grant “such relief as it deems appropriate,” including but not limited to, compensatory damages, attorney’s fees, equitable relief, and an injunction ordering the employer to cease and desist from the unlawful discriminatory practice.11 The complainant may not recover punitive damages.12